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Preventive Detention: A Lawless LawMarch 24, 2020
As the cases of Coronavirus Disease – 2019 (2019-nCov) are continuously increasing in India, the Cabinet Secretary on March 11 decided to invoke the Epidemic Disease Act, 1897 and advised via the Ministry of Health Welfare to all the states and union territories to invoke the same. The state of West Bengal and Delhi became the recent state to invoke it within its territory.
The law older than Bengal Partition has been invoked a number of times to contain swine flu (2009, Pune), cholera (2018, Waghodia, Gujarat), malaria and dengue (2015, Chandigarh). The antiquity of the law has not deterred governments from invoking it from time to time and many experts tend to support the same.
The article explores the history, major provision(s) and shortcomings of the act to counter endemics.
The Epidemic Diseases Act passed in 1897 to control plague empowered the provincial government to make provisions for the inspection of corpses and the compulsory notification of all cases of deaths from plague. The Government had invoked provisions to tackle the outbreak of bubonic plague from people that travelled from Munchuria to Bombay in 1896. (Coincidentally, the most number of cases in India still lies with Maharashtra and the virus originates from the same geographical area).
Thus the act was more of executive discretionary functioning rather than ensuring already well laid guidelines. Though the time situation has changed and government focus on epidemics has ensured departmental prototypes and preparedness for such situations.
Provisions of the Act
The Act is among the shortest of legislatures consisting of only four provisions. The object of the act states for “better prevention of the spread of Dangerous Epidemic Diseases.” Section 2 empowers state governments/UTs to take following special measures and formulate regulations for containing the outbreak:
Such measures beyond ordinary law and delegate power to any person to prevent outbreak of such disease,
Inspection of travelling persons or persons suspected of being infected
While Section 2 deals with the power of the State government to take provisions, Section 2A gives power to the Central government. The provision was added by the 1920 amendment in wake of Spanish Flu endemic.
Section 3 provides for penalties equivalent to Section 188 of the Indian Penal Code for not disobeying regulation or order under the Act. S. 188 of the IPC deals with “Disobedience to order duly promulgated by a public servant” which is punishable by one month or with fine which may extend to two hundred rupees, or with both.
Section 4 deals with good faith justification under the Public Interest theory of justifiable defenses. ‘Good faith’ means ‘honesty or sincerity of intention’. In other words, it means an act which is done with due care and caution. This provision gives legal protection to persons for anything done in good faith under this Act.
Measures in lieu of the Act
Suspension of all visas
India suspended all visas, except a few categories such as diplomatic and employment, till April 15 in a bid to contain the spread of the disease. The government also “strongly advised” Indians to avoid all non-essential travel abroad. The suspension will come into effect from March 13. Visas of all foreigners already in India remain valid. The decisions were taken at a meeting of a group of ministers held here under the chairmanship of Health Minister Harsh Vardhan.
Following the meeting, the bureau of immigration in a statement said, “All existing visas issued to nationals of any country, except those issued to diplomats, officials, UN/International organisations, employment and project visas, stand suspended till April 15th, 2020. This will come into effect from 1200 GMT on March 13th, 2020 at the port of departure of any foreigner for onward journey to India.”
Visa-free travel facility granted to Overseas Citizenship of India (OCI) cardholders is also kept in abeyance till April 15.
Travel/Arrival measures tightened
Health secretary has apprised the GoM that the states/UTs are advised to do rigorous IEC (Information, Education and Communication) and make people aware about the precautions, symptoms and helpline numbers.
Though the Act provides for the power of inspection, it misses protection of accountability, openness, access and correction, choice, consent and notice. In a 2013 paper, medical scholars Binod K Patro, Jaya Prasad Tripathy, and Rashmi Kashyap questioned the efficacy of the Act, given its vague language and non-specific definitions. “Epidemic Act 1897 is silent on the definition of dangerous epidemic diseases…Apart from isolation or quarantine measures, the Act is mum on the legal framework of availability and distribution of vaccine and drugs and implementation of response measures. There is no explicit reference pertaining to the ethical aspects of human rights principles during a response to an epidemic,” they observed.
How will the 2020 epidemic be dealt with is for future to tell but certainly the government shall give introspection to what all it has in hand and what all more it needs to ensure a more effective way to deal in with such unpredictable circumstances.
Author(s): Pranav Tanwar and Saurabh Pandey are consulting editors with IJLPP.
In Content Picture Credit: Fresherslive