In the wake of the global and highly contagious COVID-19 pandemic, sudden drastic measures had to be enforced around the world to curtail the spread of this mutant Coronavirus. The most common and prevalent of these measures center around quarantining people to their homes or at hospitals in order to isolate the cases. These restrictions, by their very nature, come into conflict with the freedoms enjoyed by citizens under ordinary circumstances – requiring a robust legal framework to put into action. Below, we will discuss the legal framework used by the Central and State Governments to put these restrictions into place.

Epidemic Diseases Act, 1897

Since restricting movement and social distancing are the key factors to slowdown the transmission of the virus, in India both the Central and many State Governments did so by invoking a 123-year-old Act known as the Epidemic Diseases Act, 1897 to combat the impending threat of COVID-19. It is a special law first enacted across the Presidency of Bombay in 1896 to control the spread of the bubonic plague back then, empowering the government to adopt special measures and enforce strict policies, so as to prevent the outbreak of any dangerous epidemic disease.

The Act, which spans only four sections,is invoked when the existing provisions like the Indian Penal Code turn out to be insufficient to contain an epidemic. Interestingly, the Epidemic Diseases Act does not define what an epidemic disease is. There is no clear definition of whether an epidemic is “dangerous” on the basis of the magnitude of the problem, the age of the population affected or its potential to spread internationally.

Section 2 of the Act gives state governments “power to take special measures and prescribe regulations as to dangerous epidemic disease”This particular section is important as it grants state governments discretionary powers to mold restrictions as and when they are needed to contain the outbreak. The Act further empowers the government to imprison any person found to be in violation of the prescribed measures. It grants special powers to both the Central as well as the State governments to declare any region as “threatened” and to take measures for containment, like screening of travelers, inspection of vessels, special wards for affected persons, etc.

Section 2A of the Act empowers the Central government to take measures and prescribe regulations for the inspection of any ship or vessel (since much of the transport back in 1896 involved vessels) leaving or arriving Indian territory and for such detention thereof wherever necessary. Similarly, the State governments have the power to “take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof…”.

The provision further provides that the State Government may take measures and prescribe regulations for the inspection of persons travelling by railway and segregate people in hospitals if they are suspected of being infected. The use of words like “such regulations as it deems fit” confer sweeping discretion on the government to inspect any person or place which it suspects to be infected.

According to Section 3 of the Epidemic Diseases Act 1897 violation of any regulations issued under the Act will be an offence under Section 188 IPC. Section 188 deals with the offence of “Disobedience to order duly promulgated by public servant”.

Section 188 imposes punishment on whoever disobeys an order duly promulgated by a public servant. It prescribes the punishment for disobedience of the lawful orders of a public servant, especially when the disobedience results in obstruction, annoyance or injury to any person lawfully employed or; danger to human life, health or safety.Furthermore, according to Section 4 of the Epidemic Diseases Act, no suit or other legal proceedings shall lie against any person for anything done in good faith under the act.

Currently most Indian states have used a combination of the Epidemic Diseases Act and Section 144 of the Criminal Procedure Code to impose restrictions. Under Section 144, an executive magistrate can issue any order restricting any individual or group of individuals from committing certain acts.

CONCLUSION

The Epidemic Diseases Act 1897, which is more than a century old, has major limitations when it comes to tackling the emergence of communicable diseases in the country. Over the years, many states have formulated their own public health laws and some have amended the provisions of their epidemic disease Acts. However, these Acts vary widely from state to state. Even though it confers enough powers for governments to impose quarantine and issue guidelines based on the situation as done in the current situation, there is a dire need for a comprehensive, actionable and relevant legal provision for the control of outbreaks in India that should be formulated in a rights-base and public health-oriented manner.