Ayush Mehta and Navya Bhandari
This is the 2nd post of our COVID-19 Series.
On the 11th day of March, 2020, WHO declared the SARS-CoV-2, now known as COVID-19, a ‘pandemic’. Though India is supposedly still in the second stage of the epidemic, its high population density makes it more susceptible to the novel Coronavirus than any other country. In the undercurrent of fear all over the world, the government of India unhesitatingly took a host of measures like shutting down schools, colleges, cinemas and other public spaces in the first week itself. And now, the Prime Minister has ordered a 21 – day complete lockdown to break the chain of transmission. Telecom providers have been instructed to play a Coronavirus information recording before every call compulsorily. Travel and entry restrictions have also been placed to ensure safety. Quarantine facilities have been set up. Additionally, the govt. has sanctioned Rs. 15,000 crores for strengthening the medical infrastructure and treatment of the Corona infected patients. An economic relief package has also been announced.
This article seeks to examine the legal framework underlying the government response.
On March 12, 2020, the Centre decided to invoke the Epidemic Diseases Act, 1897 [EDA] to combat the increasing spread of COVID-19 and ensure that government advisories related to the epidemic are enforced. This 123 – year old law was passed in the British Raj to control the epidemic of bubonic plague that broke out in the Bombay presidency. The act is a short piece of legislation, it contains four substantive sections.:
Section 2: Powers of the State Government
Section 2 of the Epidemic Diseases Act, 1898 can be invoked by the State Governments when threatened or faced with the outbreak of any dangerous epidemic disease and when they believe that ordinary provisions of law are inadequate to deal with the said disease.
The provision confers a wide range of powers on the state Government to implement special measures to prevent the spread of the epidemic. These powers include regulations for inspection of persons travelling by different modes of transportation. Further, the authorities are empowered to segregate those suspected of being infected and quarantine them in isolated accommodations and hospitals for the greater good of the society.
In Shiv Charan Das v. State, it was noted that Sec. 2 of the Act authorizes the government not only to formulate regulations but also empower other agencies such as the Health Ministry and municipal officers to take the measures necessary to prevent the spread of the epidemic. Recently, in exercise of this power, the Home Ministry had authorised the Ministry of Health and Sanitation to deal with the matter and issue necessary regulations. This power is provided to ensure that no procedural difficulties arise and implementation of such regulations can be done from the ground level itself.
The courts through their interpretation of Sec. 2 of the Act have allowed delegation of powers to the deputy commissioners in districts through either State Health Acts or Municipal Corporation Acts. The Commissioner or the Collector can take special measures and issue directives to be followed by the public or any specific class among the public. Further, they have the power to quarantine persons and relocate them to separate facilities in order to prevent the spread of the disease further. Moreover, any building or property which might retain infections, can be disinfected to prevent or check the spread of the epidemic on their orders.
Section 2A: Powers of the Central Government
Sec. 2A of the empowers the Central Government with similar powers of inspection of ships, vessels, aircrafts, etc. leaving or arriving at any port and inspection of any person sailing or arriving thereby.
Section 3: Penal Provisions
Sec. 3 classifies disobedience to any regulation or order made by the authorities under Sec. 2 as a punishable offence under Sec. 188 of the Indian Penal Code. Sec. 3 is read in conjunction with Sec. 188 which states that whoever knowingly disobeys or abstains from doing a certain act which has been lawfully promulgated and such act tends to cause danger to human life, health or safety, shall be punished with imprisonment for a term which may extend till 6 months or a fine up to two thousand rupees, or both.
Sec. 4 provides protection to persons from legal proceedings for acts done in good faith intended to be done under the Act.
Limitations of the Act
While the Centre’s decision to invoke EDA is laudable, there are major limitations present in the Act especially in an age where public health has gained a newfound significance.
The Act fails to define what an epidemic means and when and how a disease can be declared as an epidemic. It does not give the criterions to determine whether an epidemic is ‘dangerous’ or not, taking in consideration its effect. Moreover, the Act does not delegate specific roles to organizations and provides no plan of action for the local or state authorities to follow. The issue which arises out of this lack of delegation is that individual states have come up with their own laws, differing in strategy to combat a public health crisis and thus, there is no uniformity in the actions taken to curb the epidemic.
Over time, there has been a change in the manner in which diseases spread as evidenced by COVID-19. The Act does not incorporate techniques for detection and prevention. Rather, the Act only focuses on isolation and quarantine.
Further, the Epidemic Disease Act does not describe the duties of the government, it only imposes duties on the public to follow the orders of the State administrative officials and confer no consequent rights on the public. The Act is therefore incomplete in itself as there is a mismatch between rights and duties.
A disaster is defined as a catastrophe, calamity or a grave occurrence, which results in a substantial loss of life or human suffering and is of such nature or magnitude as to be beyond the coping capacity of the community. COVID-19 has been declared a notified disaster on March 14, 2020. Consequently, Sec. 10 of the Disaster Management Act, 2005 [DMA] has been invoked.
Sec. 10 deals with the implementation of the National Plan and confers this power on the executing officer of the National Executive Committee, i.e. Union Home Secretary. On March 12, 2020, the Central Government had notified that the powers held by the Home Ministry have been delegated to the Ministry of Health and Family Welfare.
Sec. 52 and 54 of the Act have also been invoked, which penalise anyone who makes a false claim to obtain govt. relief or other benefits and anyone who circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic among masses.
The ministry of Health and Family Welfare in the face of the pandemic outbreak of COVID – 19, invoked Sec. 10(2)(i) of DMA wherein the National Pharmaceutical Pricing Authority [NPPA] has been mandated to revise and regulate the availability and pricing of necessary items such as protective masks, hand sanitizers, etc., to cope up with the situation arising out of COVID-19. These steps have been taken to ensure availability of these essential commodities during times of epidemic.
Penal Face of the Disaster Management Act:
Sec. 51 provides punishments for persons obstructing officers from discharging their functions or refusing to comply with directions given by the Centre or the State. In light of these provisions, the Telangana Police had arrested three persons for spreading fake information about COVID-19 on social media and booked them under NDMA Act.
Simultaneous Invocation of the Disaster Management Act and the Epidemic Diseases Act: A Necessity?
Though the EDA confers wide and overreaching powers to both the Centre and the States, it lacks in speedy implementation of preventive measures. DMA has been simultaneously invoked to provide an administrative setup to prepare for COVID-19, which has been declared as a notified disaster. This enables the centre and states to provide assistance and use the funds arising out of the State Disaster Response Funds [SDRF]which would be used to accommodate supply of food, water and other essential commodities like hand sanitizers and masks. Furthermore, SDRF will be used to equip states with additional testing labs and centres and procure necessary equipment for government hospitals, quarantine centres. Provisions for ex gratia payment to the families affected by COVID-19 had earlier been notified in a government notification. However, this was later rescinded.
The objective of the Essential Commodities Act, 1955 [ECA] is to control the production, supply and distribution of certain commodities which are considered as essential. In view of the Coronavirus outbreak, there arises a concern about potential shortage of masks and hand sanitizers or their availability at exorbitant prices due to hoarding and black marketing. The Government had notified an order under the Act to declare these items as Essential Commodities up to June 30, 2020.
The State can issue an advisory under the Legal Metrology Act, 2009 which would standardize the prices of the goods at their MRP, thereby protecting the consumers from irrational and jacked up prices of such essential commodities in times of epidemic. A violation of the Essential Commodities Act can be punishable with imprisonment up to seven years, or a fine, or both under Sec. 7 of the Act.
As per Section 269 of the Indian Penal Code [IPC] whoever unlawfully or negligently does any act which he knows is likely to spread any disease dangerous to life shall be punished with imprisonment extended to six months or a fine or both. Whereas Sec. 270 states that whoever maliciously does any act which is, he knows, likely to spread the infection of any dangerous disease to life shall be imprisoned for maximum two years or a fine or both.
Covid-19 is infectious and can be spread through direct or indirect contact. In the midst of this scare of coronavirus, there emerges a duty on the part of any infected person to society at large to prevent the spread Failure to act on this duty either negligently or malignantly would attract penal the above-mentioned provisions of the IPC.
The above mentioned can be evidenced from an instance in Karnataka, wherein a person was tested positive and his wife was in quarantine but managed to evade the authorities and put the life of public in risk. A FIR had been lodged against both under Section 269 and Section 270 of the Indian Penal Code, 1860.
THE 21-DAY LOCK-DOWN
Among measures taken by the government to restrict the spread of the deadly virus, the 21 – day national lock-down enjoys primacy over the others. This announcement by the Prime Minister extended the lockdowns already imposed by various states to a pan India level. The lockdown which was invoked under Sec.10(2)(i) of the Disaster Management Act, 2005 has itself invoked various other provisions of the same Act. The subsequent penal action for violation of provisions will be taken under the Indian Penal Code, 1860.
The guidelines on the measures to be taken are detailed by the govt. in an order released by the Home Ministry. These guidelines are in sync with the Sec. 51 to 60 of the Disaster Management Act, and violation invites punishments mentioned in these sections, besides legal action under Sec. 188 of the IPC. These include punishments for obstruction of work of a govt. officer by not complying to his orders, punishment for false claim, and punishment for misappropriation of money or materials. It also makes it clear that where offences are done by Departments of the Government, the head of such departments will be deemed guilty. Also, when it is a corporate entity, the person in charge at the time of commission of offence will be guilty. Moreover, it gives the course of action to be taken when an officer in duty or his connivance at the contravention of the provisions of this Act refuses to do it or withdraws himself from the service.
Right to health is not expressly recognized by the Indian Constitution but has been read into Art. 21 of the Const. by the Honourable Supreme Court in the ambit of Right to Life through its wide interpretation. In Paschim Bangal Khet Mazdoor Samity V State of West Bengal, it was held that it is the obligation of the government to provide adequate medical facilities for its people.
The question here is whether the government is capable enough to provide such health care facilities? Is the government equipped? If the situation worsens, will there be adequate infrastructure to accommodate all patients? And if adequate infrastructure is not there, will the government take the responsibility for the loss of lives? Will the government be liable?
The ever-increasing scale of threat of Coronavirus indicates that there is a need for an updated, comprehensive and integrated framework which can effectively deal with epidemics. There is a need to focus on working towards the proposed National Health Bill which would incorporate all existing pieces of legislation in force and will have a specific ‘plan’ for dealing with both contagious and non-contagious diseases. Putting the onus of healthcare entirely on the government in times of epidemics may not be always fruitfulPublic Private Partnership in the health sector is followed in various countries and has been successful.
The authors are students at the National Law University, Jodhpur.