India – Epidemic Diseases Act 1897 – Dusting An Old Cloak.

In times of  Covid-19 pandemic, which has halted not just commercial transactions but also lifestyles[1], the Indian Government took relevant  steps to avoid mass spread of the virus, read out the preamble of the Epidemic Diseases Act and got to work.

 

The colonial era act, all of 123 years old, has once again come to our rescue. The Epidemic Diseases Act of 1897 (the “Act”) was put in place due to the mass spread of the bubonic plague outbreak in Mumbai (then Bombay)[2]. The plague, said to have spread through rats,[3] killed hundreds of people per week in Mumbai.

 

Albeit the British colonial Government was said to have cleverly used the Act to imprison freedom fighters, the Indian Government is using the Act as a weapon to fight the novel virus and rightly so. While the Central Government’s powers are limited under the Act, it is the unity of various states in the country that has brought the Act in the forefront. Among other states, Karnataka[4], Maharashtra[5], Delhi[6]and Kerala[7] have issued advisories on management and brought into place ‘Covid-19 Regulations, 2020’ (“Regulations”). Vide these Regulations, states have exercised their powers under the Act to force employees of private establishments/ industries/factories/shops etc. to stay at home in the present times, to treat them as ‘on duty’; to stop all construction work immediately; to shut night clubs and weekly bazaars etc.

 

Epidemic Diseases Act, 1897 – A Brief Overview 

 

The Act which was enacted for preventing spread of epidemic diseases empowers both the Central and State Government(s) to take certain actions to prevent spread of such diseases. The Act, comprising merely four sections, is among the shortest in India.

 

a) Section 2 of the Act empowers State Governments to take special measures and prescribe regulations during the outbreak of an epidemic disease. It states that if the State Government thinks that if other Acts are insufficient for the said purpose, it may take such measures by way of a public notice to prescribe temporary regulations for the public/class of persons to observe. The Regulations mentioned above have been enacted under Sections 2,3 and 4 of the Act.

 

b) Section 2A of the Act empowers the Central Government to take measures and pass regulations for the inspection of any ship arriving or leaving India and for detention of any person intending to sail, if the Central Government is satisfied that India or any part of India is threatened with, an outbreak of any dangerous epidemic disease and the ordinary statutes in force will be insufficient to take an appropriate action.

 

c) According to Section 3 of the Act, any person who disobeys an order or regulation made by the government under the Act, shall be punished in accordance with Section 188 of the Indian Penal Code, 1860 (“IPC”). Section 188, IPC imposes punishment for disobeying an order promulgated by a public servant. Disobedience of an order passed by a public servant and “if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury”, is punishable with simple imprisonment which may extend up to a month and/or a fine of up to Rs. 200. However, if this disobedience “causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray”, it shall be punishable with imprisonment extending up to six months and/or fine up to Rs. 1,000. Pertinently, violation of the regulations passed under the Act due to the outbreak Covid-19 would attract the latter punishment as it would tend to harm human life, health and safety.

 

Additionally, it is important to note that under Section 188, IPC, an intention to cause harm is not relevant as mere knowledge of the order gives sufficient cause for liability of committing the offence. Although an offence under Section 188, IPC is cognisable and bailable, courts will not take cognisance by merely filing an FIR. A complaint must be filed by the concerned public officer under Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”). Non-compliance of the provisions of Section 195 of CrPC may lead to the proceedings being quashed as held by the Patna High Court in the case of Raj Mangal Ram v State of Bihar[8]. The said case was in relation to certain directions issued by the District Magistrate of Muzaffarpur for implementation of the ‘anti-Kalazar’ scheme.

 

In a judgment passed by the Orissa High Court in 1963 in the case of J. Choudhary v The State[9], the question before the High Court was whether the refusal of the doctor to get himself vaccinated against cholera in accordance with the regulations passed by the State Government would be punishable under Section 3 of the Act. The Orissa High Court answered the said question in the affirmative and held that the intention of the said doctor was irrelevant, his disobedience in itself was punishable under the Act.

 

d) Section 4 of the Act provides protection to public servants from legal action while acting in good faith under the provisions of the Act. While discussing the ambit of Section 4, the Calcutta High Court in 1904 in the case of Ram Lall Mistry v R.T. Greer[10] held that an omission to pay compensation as prescribed under the regulations passed under the Act would not be protected under Section 4.

 

Provisions of the IPC attracted in such scenarios

 

In addition to Section 188, certain other provisions of the IPC relating to public health and safety may also be attracted during the outbreak of an epidemic disease.

 

• Section 269 of the IPC prescribes punishment for negligent actions which may spread infection of any disease, thereby threatening human life, punishable with imprisonment which may extend to six months and/or fine.
• However, pertinently, Section 270 is a more serious offence than the one listed under Section 269. It imposes punishment for malignant actions which may spread any disease dangerous to life. The punishment under this section may extend to two years imprisonment and/or fine.
• Section 271 of the IPC prescribes punishment for disobeying quarantine rule. Such punishment may extend to six months imprisonment and/or fine.

 

Implementation of the above IPC provisions can be well seen in one such order passed by the Government of Kerala imposing lockdown in the State on March 23, 2020[11]. Additionally, the orders passed by the State Governments of Haryana[12], Maharashtra[13], Telangana[14], etc. state that disobeying such an order shall result in inter alia punishment under the Act, i.e. Section 188 of the IPC.

 

Presently, FIR has been lodged against a singer for negligence and disobedience of an order passed by a public servant under Section 188 as well as Sections 269, 270 and 271 of the IPC based on a complaint filed by the chief medical officer.[15]According to reports, 141 cases have been registered under Section 188 of the IPC in Mumbai.[16]

 

The Present Times 

 

In the present times, although the Act is used to contain the outbreak of the novel corona virus, it strikes a chord that the Act lacks reflections of modern-day realities of the spread of diseases. The Act also loses the race in covering an effective framework to respond to an outbreak of such a disease, more so that the four sections in the Act don’t envisage the very definition of an ‘epidemic disease’. However, the Indian Government did take notice of the fact and had introduced a bill in 2017 called the ‘Public Health (Prevention, Control, and Management of Epidemics, Bio-terrorism and Disasters) Bill’ (“Bill”). The said Bill was to repeal the Act; however, even after three years, it is yet to see the daylight.

 

The Bill empowers state government and other authorities to take such measures to prevent, control and manage public health emergency, inter alia quarantine persons exposed to such a disease; ban or regulate purchase/transport/distribution of any material containing toxic substance; and disseminate such information as deemed appropriate and take relevant actions including closure of markets, various institutions and social distancing. The Bill also lists down more than 30 diseases as epidemic prone diseases such as bird flu, dengue, chikungunya, malaria, kala-azar etc.

 

Today, we can reasonably presume that the Indian Government will take steps in regulating the spread of epidemics and will bring forth a comprehensive legislation which shall take into consideration the modern-day realities and control measures for the spread of such diseases.