Amendment review: Epidemic Diseases Act

Reading time: 8-10 minutes.

Doctors all around the world are fighting the COVID-19 pandemic, putting their lives at risk just like a soldier does at war for his nation, going against the wishes of their family members to ensure that every infected person recovers. In this fight against the global pandemic, doctors have gained massive respect in society for their commitment and dedication to come out of this health crisis. Medical professionals worldwide are facing the heightened risk of infection, anxiety and are being separated from their families but in India, they have to face a unique set of problems along with the existing ones such as harassment, assault, violence, and social ostracism. In this context, the Union Cabinet in its gathering on 22^nd April 2020 has given a nod for the promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897, to protect healthcare service personnel and property, including their living/working premises, from violence during epidemics. The Ordinance also provides for compensation for injury and damage to or loss of property in such cases. The President of India has approved the Epidemic Diseases (Amendment) Ordinance, 2020.

Significance of this development

In recent times of the COVID-19 health crisis, doctors and other healthcare service personnel in India are being subjected to violence and abuse as they try to contain the virus. Few examples describing the situation are,

(a) A middle-aged man in New Delhi attacked two doctors who had stepped out to buy fruits, after accusing them of spreading the virus.

(b) In Indore, Trupti Katdare along with her team of public health workers visited a slum to track down a person who had come in contact with a confirmed case of Corona virus. At least 100 people surrounded the team, throwing stones and other objects at them, making them run for their lives.

In response to such attacks against the healthcare service personnel, various states had existing special laws to offer protection to them but these state laws did not cover various offenses under its ambit. They do not cover harassment at home and workplace and are focused more on physical violence only. The penal provisions contained in these laws are not stringent enough to deter mischief mongering.

The present Ordinance makes acts of violence against healthcare personnel or damages to property during an epidemic a cognizable and non-bailable offense. Strong legislation will dissuade unruly elements while emboldening healthcare workers and ensuring their protection is given high priority

Provisions that are amended 

The Epidemic Diseases (Amendment) Ordinance, 2020 contains 7 sections while the original act contained only 5 sections.

The ordinance inserts Section 1A in the principal act where it provides a definition clause to reduce the misuse of the act:

1. Healthcare Service Personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease, including :

(i)  Public and clinical healthcare providers such as doctors and nurses, 

(ii) Any person empowered under the Act to take measures to prevent the outbreak of the disease, and

(iii) Other persons designated as such by the state government. 

• An act of violence includes any of the following acts committed against healthcare service personnel:
  • Harassment impacting living or working conditions
  •  Harm, injury, hurt, or danger to life
  •  Obstruction in the discharge of his duties
  •  Loss or damage to the property or documents of the healthcare service personnel.  

• Property is defined to include:
  • Clinical establishment
  • Quarantine facility
  • Mobile medical unit
  • Other property in which a healthcare service personnel has a direct interest, in relation to the epidemic.

Amendment of Section 2A which states that “the Central Government may take such measures, as it deems fit and prescribes regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as may be necessary”. Earlier this section included only ships and vessels as modes of transport and it is correct on part of the government to include other modes of travel since over the past century travelling has grown manifold by air, rail and land allowing the government to inspect and detain any person showing symptoms of such disease while he/she uses any of the above aforementioned modes of transport in the newly amended section 2A. Thus the powers of the central government are increased.

New Section 2B inserted states that no person shall indulge in any act of violence against healthcare service personnel or cause any damage or loss to any property during an epidemic. 

Amendment of Section 3, adding subsection (2) and (3) to the existing subsection (1) where subsection (2) of the Ordinance prescribes punishment of 3 months to 5 years imprisonment, along with a fine of Rs.50,000 to Rs.2 Lakhs, if a person commits/abets violence against a healthcare service personnel or, damage or loss to any property. Subsection (3) prescribes a punishment of 6 months to 7 years imprisonment, along with a fine of Rs.1 Lakh to Rs.5 Lakhs, if grievous hurt is caused to healthcare service personnel during such an act of violence. The purpose of this amendment is to protect healthcare service personnel by providing them a safe society to work in without any fear. 

New Section 3A complements the strict nature of the crimes committed by prohibiting the accused from pleading bail as a matter of right and allowing the police to arrest him without a warrant. Briefly, it talks about cognizance, investigation, and trial of offenses. This section categorizes the offenses committed under sub-section (2) and (3) of Section 3, as introduced by the Ordinance, to be cognizable and non-bailable. Cases registered under the Ordinance will be investigated by a police officer, not below the rank of Inspector.  The investigation must be completed within 30 days from the date of registration of the First Information Report (FIR). The inquiry or trial should be concluded within one year.  If it is not concluded within this time period, the judge must record the reasons for the delay and extend the time period.  

However, the time period may not be extended for more than six months at a time.
When prosecuting a person for causing grievous harm to healthcare service personnel, the court will presume that person is guilty of the offense, unless the contrary is proved. 

The new Section 3B provides for compounding of offenses, with the permission of the court, committed under sub-section (2) of Section 3, as introduced by the Ordinance.

The new Section 3C creates a presumption against the person accused of committing an offense under subsection (3) of section 3, as enacted by the Ordinance unless it has been proven otherwise.

Newly inserted Section 3D presumes against the culpable mental state of the accused, unless the contrary is proved for the offenses committed under sub-section (3) of Section 3. Definition of culpable mental state in the ordinance includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. 

Newly inserted Section 3E is about compensation person convicted of offenses under the Ordinance will also be liable to pay to the healthcare service personnel if convicted for an offense under subsection (2) or (3) of section 3 of the Ordinance. Such compensation will be determined by the court. In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the court. If the convicted person fails to pay the compensation, the amount will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.

Objectives and purpose of the amendment

The main objective of this Ordinance is to give confidence to our healthcare workers who have developed a sense of fear because of repeated instances of attacks by the people of India. The government has shown its commitment to medical professionals through this amendment since through the implementation of this Ordinance, they have intended to ensure that during any situation akin to the current pandemic; there is zero-tolerance to any form of violence against healthcare service personnel and damage to property.

The general public fully cooperated with healthcare personnel and expressed their gratitude in a very organized manner several times during the past month. Nevertheless, some incidents of violence have taken place which has demoralized the medical fraternity.

Thus these stringent provisions become the need of the hour and act as effective deterrents to any such incidents of violence.

Critical analysis

Though the government has tried its level best to provide security and protection to medical professionals with the implementation of this ordinance, however, this attempt will be successful only if there is no misuse of this Ordinance Act. The police personnel should not misuse their authority and position. They should not register FIRs according to their will and the ordinance act should be implemented as it is prescribed by the government. Same rules apply to the government since it has a considerable amount of power to regulate this law. One important analysis is that this ordinance does not mention the rights of people i.e. how they are to be ethically treated if quarantined since at many places, patients are not being provided with basic facilities like food, water, etc. and are being ill-treated by the police and staff which has led to people hiding their symptoms of corona due to fear of ill-treatment away from home. These are some issues that still need to be addressed.

Conclusion

The effort to protect the healthcare community from harassment and violence is commendable. The central government has done exactly what was needed to be done to instil confidence within the healthcare community so that they are able to perform their duties to their optimum best without any fear of social savagery. The ordinance does act as a deterrent to the miscreants and they will think twice before committing any crime against the healthcare community.

The only thing to look out for is the loophole of this ordinance and that the powers at various authoritative levels are not misused. This is a very crucial time the world is going through and to control this health crisis, doctors, governments, citizens, and policemen all have to work in harmony.

Helen Keller once said, “Alone we can do so little; together we can do so much.” Thus it will be the combined efforts of everyone which will help us fight this health crisis. 

Author: Tanusha Tyagi from Vivekananda Institute of Professional Studies

Editor: Arya Mittal from Hidayatullah National Law University, Raipur.

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Stages of COVID-19 transmission

Reading time: 6-8 minutes.

Introduction: India is still in the second transmission stage (news)

Coronavirus disease 2019 (COVID-19) is a contagious disease caused by SARS-CoV-2. It originated in Wuhan, China but resulted in a global pandemic affecting 186 countries around the world and taking lives of more than sixteen thousand people. On January 30, the World Health Organization (WHO) declared the Coronavirus outbreak a ‘Global Public Health Emergency’.

However, in India, the situation has remained mild as only five hundred cases have been found including ten death cases.

Balram Bhargava, the Director-General of Indian Council of Medical Research stated that there have been certain signs of community transmission in some parts of the country but India has managed to stay at Stage 2 i.e. local transmission. He further stated that if the country manages to keep a similar number of cases, the country can avoid Stage 3 i.e. community transmission which is, as a matter of fact, difficult to control and can severely affect large areas.

What are the stages of its transmission?

Indian Council of Medical Research (ICMR) has stated that there are four stages of transmission of the Novel Coronavirus disease:

Stage 1 – Imported Cases

Imported Cases include those who have travelled to countries that are already affected by the virus and have come back to India.

Stage 2 – Local Transmission

Local Transmission includes those cases that are indirectly affected as they came in contact with those individuals who had a travel history to the virus-prone areas.

Stage 3 – Community Transmission

Community transmission is when a patient is not exposed to any infected person or one who has travelled to any of the affected countries yet he/she tests positive thereby affecting large areas as in cases of countries like Italy and Bangkok. In this stage, it gets difficult or even impossible to trace the source of virus.

Stage 4 – Epidemic

This is the last and in fact, the most dreadful stage as the disease takes the shape of an epidemic with no clear endpoint. China is an ideal example of this situation.

Steps being taken by India to prevent its spread

In view of the rising cases of COVID-19 in different parts of the country, the government administered certain effective measures in order to control the situation which are as follows:

1.    The government banned the arrival of international passengers from countries that are members of the European Union, the European Free Trade Association, Turkey and the United Kingdom i.e. the whole of the European continent but excluded the Indian passport holders and nearly five hundred international flights from and to India were cancelled.

2.    All the international passengers who arrived in India were screened and passengers coming from highly affected countries like China, Italy, Iran, etc. were compulsorily quarantined for fourteen days.

3.    Ministry of Health ensured that N-95 masks were made available to the public at large and also directed the Ministry of Consumer Affairs to take adequate actions against sellers charging unreasonable prices for masks and sanitizers. 

4.    121 laboratories are made functional to test COVID-19. Furthermore, rapid testing laboratories were being made effective to test up to fourteen hundred samples a day.

5.    All the state governments released a notification for shutting down schools and colleges as well as all the public areas including gyms, movie theatres, and malls till at least March 31, 2020. Moreover, CBSE and ICSE also postponed board exams for grades tenth and twelfth.

6.    Board of Control for Cricket in India (BCCI) postponed the Indian Premier League 2020 and the Ram Navmi Mela which witnesses a crowd of nearly 15 lakh people has also been postponed by Ayodhya administration.

7.    In order to promote social distancing, the government issued a detailed advisory of certain measures and notified the public about the same.

8.    The government even directed the government employees to work from home and a similar approach has also been taken by the private companies to avoid the infection.

9.    Lastly, a Janta Curfew was observed by the whole country on March 22, 2020, to promote social distancing.

Provisions for COVID-19 in Indian Legislation

In order to avoid the spread of the virus, the government invoked various provisions of law.

Firstly, Section 2 of Epidemic Diseases Act 1897, a 123-year-old law (which stills holds good) was implemented which empowers the state governments to take special measures at times of epidemic after notifying the citizens.

Secondly, Section 144 of the Code of Criminal Procedure (CrPC) was implemented in various parts of the country to ensure social distancing and avoid large public gatherings.

Lastly, necessities such as masks and sanitizers were declared as essential commodities under the Essential Commodities Act 1955 till June 30, 2020, to ensure its availability and price regulation.

Critical analysis

Despite being the world’s second most populated country in the world, only a small number of cases have been detected in the country and India still remains at stage two of the global pandemic. As mentioned earlier, only five hundred active cases have been detected. There are high chances for India to reach stage three i.e. community transmission because of its high population density as well as a reluctance to testing.

However, it cannot be ignored that nearly 12000 tests have only been conducted so far. It is found that India is conducting only ninety tests a day even though it has the capacity of conducting eight thousand tests a day. The major reason for this limited testing is huge costs which the government has to incur which is nearly Rs. 5000 per patient. Moreover, a large number of tests will overburden hospitals.

Conclusion

COVID-19, being a contagious disease took a shape of an epidemic and affected almost the whole world. However, it has only had a small effect in India where the deaths still remain really low and India still witnesses only local transmission with certain signs of community transmission. Nevertheless, the proportion of tests being conducted remains low as compared to other countries which might be a reason for less number of active cases.

It is also significant that the Indian Government took various measures to encourage social distancing and curb the epidemic. It brought about various legislations for the same.

To conclude, India’s performance has been incredible provided that number of tests performed as sufficient which is probably not the case. Thus, India needs to conduct more tests to ensure that the disease is actually controlled and it remains at a safer side.

Author: Arya Mittal, from Hidayatullah National Law University, Raipur.

Editor: Tamanna Gupta from RGNUL, Patiala.

Explained: Epidemic Diseases Act, 1897

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Reading time: 6-8 minutes.

The deadly COVID-19 has claimed over 19, 647 lives across the world and its affect is increasing day by day. This has led to wide-spreading panic. The extent is so great that the World Health Organisation has declared COVID-19 outbreak as a pandemic. This has forced the Indian Government to invoke its 123 years old, British Era law to combat the outbreak of COVID-19.

The Epidemic Diseases Act, 1897 was specifically passed to contain the spread of diseases such as swine flu, cholera and dengue. On 11^th March a meeting was held under the chairpersonship of Health Minister Harshvardhan, where it was decided that all states should invoke the provisions of Section 2 of Epidemic Diseases Act, 1897.

Why was the act introduced?

The Bombay bubonic plague outbreak was one of the worst crises faced by our country during 1896-97. The outbreak of the plague resulted in a social and political crisis. It threatened the trade, damaged the productivity of goods and trade relations with other countries. To bring the situation under control, British Government hastily passed the Epidemic Diseases Act, 1897. The main objective of this act was to curb the outbreak of the bubonic plague.

Its scope and objectives

The main objective of this act is to tackle spread of deadly communicable diseases. It empowers the Central Government to take special measures and impose regulations to curb the spread of epidemic.

The act has been implemented few times in our country. In 2015, the act was implemented to deal with the spread of malaria and dengue. In 2009, to combat the spread of swine flu spread in Pune. Section 2 powers were used by the government, and swine flu was declared an emergency disease.

Salient Features of the Act

Power to the Central and State Government – The Epidemic Diseases Act, 1897 provides government a wide ambit of power and discretion. Under Section 2 of the act the State Government can impose temporary restriction in order to avoid the spread of the disease. This section will be invoked when ordinary provisions of the law are insufficient to curb the spread of the disease. By a public notice, the government can notify that the restrictions should be observed by the public. Furthermore, the State Government can also inspect persons travelling to the state if they are suffering from the disease and provide them with temporary accommodation.

Section 2(a) empowers the Central Government to take preventive measures such as inspection of any ship or vessel leaving or arriving at any port, to stop the outbreak of the disease.

Punishability – Under the Section 3 of the act, when a person disobeys the regulations imposed by the government under this act, he is punishable under section 188 of Indian Penal Code. Section 188 of Indian Penal Code states that an order promulgated by a public servant lawfully empowered to do so, and disobedience to such orders causes obstruction, annoyance or injury to any person will be punished with imprisonment which may extend six months and fine of one thousand rupees.

No Legal Proceeding – Section 4 of this act clearly states that no suit or legal proceeding shall lie against any person under this act.

Progress made under the Act

The National Health Bill, 2009 was an attempt to ensure a robust legal framework on public health and a requisite system to deal with public health emergencies with the cooperation of Central and State Government. Chapter II of National Health Bill draft, 2009 lays down the obligations of the government shall take necessary legal steps which includes enactment of law to prevent the outbreak of communicable diseases and in case public health emergencies. The enactment should be in accordance and compliance with the rights enumerated under the Epidemic Diseases Act. It also aims to establish a National Public Health Board which focuses on adopting a national health programme for every five years. Gujarat and Karnataka have made efforts in drafting the National Health Bill. Madras Health Act, 1939 and Travancore Cochin Public Health Act are some examples of efforts made by states to achieve public health.

For tackling the recent Covid-19 pandemic, the Central and State governments are taking preventative measures to stop the rapid spread of the virus. On 11^th March, 2020, the Cabinet Secretary of India allowed all States and Territories to implement the Epidemic Diseases Act. Since then, States have taken steps such as ordering closing of restaurants, clubs and bars, and even imposing S. 144 in some States, such as Maharashtra and Rajasthan. 

Critical analysis

Scope for Misuse – Epidemic Diseases Act, 1897 is a British era law which can be used for abuse of powers. It would not be harsh to say that it is a century old pointless law which needs a major overhaul.

Ambiguity – There is not a single word in the act which will invoke the functioning if this act. No specific grounds are mentioned that how this act will come in force. It is also needs a regulation in the territorial boundaries which the act covers. One of the most alarming questions raised by this act is that there no precise mention regarding to the human and legal rights during the epidemic. This gives unlimited powers in the hands of the government to shut down public gatherings. It does not describe any duties of the government during the period of epidemic.

Skewed Distribution of Power – Epidemic Diseases Act only specifies the powers of the government and keeps blind eyes on the rights of the citizens. Indeed this act is so brazen, that it does not even address the concern of individual autonomy, liberty and privacy. An act should work for the good of the citizens, considering their needs and their social circumstances. This act poses a great threat to citizens during the epidemic, as it creates a state on a lockdown which will lead to panic and resentment amongst the people. Basically, this act undermines the faith of people in legislation. The 113-year-old law has not been amended even after a century. The act is spineless which is purely regulatory in nature and lacks the notion of public health.

Conclusion

There is an acute need to strengthen the legal framework to prevent and control the spread of communicable and other diseases in India. The Epidemic Diseases Act is flawed and it needs a major overhaul or a significant amendment as it presently cannot cope with the changing identity of the public health. It merely addresses the concerns of public health, which exploits the State-assured citizen rights.

There is need of a clear and accurate piece of legislation which deals with the outbreak of communicable disease. A legal framework for providing essential health services and tackling health emergencies should be introduced. We also need a comprehensive, integrated and accurate legal provision for the control of public health emergencies in India which is parallel to rights, people-focused and concerned with public health. 

Author: Ashish Kumar from Hidayatullah National Law University, Raipur .

Editor: Anna Jose Kallivayalil from NLU, Delhi.