Dinesh Singh Chauhan, Advocate
On March 24, 2020, Prime Minister of India Narendra Modi announced a nation-wide lockdown, from March 25, 2020 to April 14, 2020 in the backdrop of the Covid-19 outbreak to enable the concept of “social distancing” to contain the spread of the virus. Additionally, the Central Government also found that consistency in the application and implementation of various measures across the country has become necessary to ensure maintenance of essential services and supplies. The Ministry of Home Affairs invoked Section 6 (2)(i) of the Disaster Management Act, 2005, and issued an Order on March 24, 2020, directing the Ministries or Departments of Government of India, State and Union Territory Governments and authorities to implement the measures laid down in the Central Order. The measures restrict residents’ movement outside of their homes and orders a closure of all Offices, Factories and Shops, except those considered as essential goods and services.
The ongoing nationwide lockdown in the wake of the global pandemic caused by the novel COVID-19 has suddenly brought forth an interesting colonial legislation into the limelight i e the Epidemic Diseases Act of 1897, a two paged law that has remained largely unchanged for its 123 years of existence. That is, we are controlling a 2020 COVID-19 pandemic using a law that was developed when people hadn’t yet begun using radio-sets and vitamin supplements didn’t exist. In such a scenario it might be helpful to know a bit more about the origins and history of this legislation.
The Epidemic Diseases Act, 1897 gives power to the Government (both State & Centre) that if at any time the Central or State Government is satisfied that India or the State, or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the Central or State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may 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, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
The 1896 bubonic plague epidemic of Bombay (now Mumbai), which began in September that year and gradually spread to most parts of the sub-continent, is a well-known major event from colonial India. As has been the case with epidemics, panic and scapegoating formed a major part of the societal response, and extreme measures dominated the administrative response. On January 19, 1897, about four months after the plague was identified in Bombay, Queen Victoria delivered a speech to both houses of the British Parliament, and in which she said she had “directed [her] Government to take the most stringent measures at their disposal for the eradication of the pestilence.”
A week after Victoria’s address, the Epidemic Diseases Bill was introduced in the Council of the Governor-General of India in Calcutta (now Kolkata) for the “better prevention of the spread of dangerous epidemic diseases.” The Member who introduced it, John Woodburn, recognised that the powers mentioned in the Bill were extraordinary but necessary, especially that the people must “trust the discretion of the executive in grave and critical circumstances.”
Another Member said that if the strict measures taken in the interests of public welfare caused any hardship, they should be “borne cheerfully” by people. There was some critique of the Bill’s hurried passage since little time had been earmarked for feedback from the general public. The Government maintained that the Bill’s vague wording was meant to benefit Local Government Bodies that could potentially apply the Act in a way that suited their particular conditions.
Thus the Epidemic Diseases Act, 1897 had an authoritarian streak to it right from the beginning – first in terms of the ideas that powered it – “public must trust the discretion of the Government” – and second, in terms of the wide-ranging and almost unlimited powers it conferred on local authorities. According to conventional medical knowledge of the time, the plague’s spread could be prevented through measures like isolation of affected persons, cleansing houses, destroying or disinfecting clothes, and rigorously screening for signs of the plague (like swellings on some parts of the body). It was for the legally smooth implementation of such considerably drastic measures that this Act, and the immense power for Government personnel, were considered necessary.
With debate over it lasting only a day, the Epidemic Diseases Act was passed on February 4, 1897. In a chronology that we are all too familiar with in contemporary India, there was at first a near-unanimous approval of the British Government for what can be described as “finally doing something” for the problem at hand, only to later turn into disillusionment and rage when it dawned upon people that the cure was worse than the sickness. The Marathi nationalist leader Lokmanya Tilak was one such individual: he welcomed the Act at first but later became one of its fiercest critics.
Section 2A, 3 & 4 of the Epidemic Diseases Act, 1897 reads as under;
“2A – Powers of Central Government –
When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.
- Penalty –
Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 ).
- Protection to persons acting under Act. No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.”
In particular, Section 2A of the Act empowers the Central Government to “take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.”
Similarly, the State Government has 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…,” under Section 2 of the Act.
The provision also provides that “the State Government may take measures and prescribe regulations for the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the Inspecting Officer of being infected with any such disease.”
The use of words like “such regulations as it deems fit” confer extremely wide discretion on the Government to inspect any person/place who/which it “suspects” to be affected.
(To be continued)