Introduction
COVID-19 pandemic has created havoc throughout the world. The deteriorating situation has forced all the countries to take stringent actions. India is one of those countries that have been affected by the virus severely. This is the first pan India biological disaster being handled by the government authorities. In the wake of these unprecedented times, it is essential to understand the laws that have been invoked in the last few months by various institutions. The 21 Day national lockdown that was declared in the month of March was announced as per the powers granted to the central government under provisions of the Disaster Management Act.
Additionally, the Union Government advised states to use powers under the Epidemic Diseases Act, 1897 in order to tackle the pandemic in their respective jurisdictions. However, these laws carry certain loopholes and are not best suited for handling the ongoing pandemic. In this article, we aim to explain with clarity, how the laws mentioned above have been used during COVID-19, what are their limitations and what could be the possible solutions to the existing loopholes.
What is the Disaster Management Act, 2005?
Disaster Management Act (“DMA”) is a national law empowering the central government to declare the whole country or a part of it as struck by a ‘disaster’. Under the law, the government has got powers to formulate plans for mitigation to reduce ‘risks, impacts, and effects’ of the disaster. This act covers all man-made as well as natural disasters which a community is not able to cope up with on its own. The government can also act against those not adhering to the orders and regulations.[1] The law can be used to detain a person without warrant and a jail term of one year for first offences could be pronounced under it. The definition of ‘disaster’, as provided under section 2(d) of the act refers to a “catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes”.[2] The current epidemic outbreak has persuaded the central government to include COVID-19 outbreak as a “Notified Disaster”, i.e. ‘a critical medical condition or pandemic situation’.[3]
Application of the Disaster Management Act
The Prime Minister, who is the chairperson of National Disaster Management Authority (NDMA), declared COVID-19 as a national disaster in order to implement uniform lockdown guidelines in the entire country especially on the terms of which services to be allowed and which not.[4] This was done as per sections 6 and 10 of the Act. Section 6 specifies that “the National Disaster Management Authority has the responsibility for laying down policies, plans and guidelines so as to ensure a timely and effective response to the disaster.” [5] Section 10 defines the powers and functions of the National Executive Committee.[6] Union Home Secretary exercises the ex-officio power of being the Chairman of the National Executive Committee. In the current pandemic, such powers have been delegated to the Ministry of Health and Family Welfare. Primarily, the Ministry has been entrusted with the task of monitoring and implementing the national plan and superintendence powers have been given to the officers who execute plans.
Additionally, sections 33 and 34 of the present Act give powers to the district administration to deal with disaster-related situations. In accordance with section 33, “district authorities may by order require any officer or any department at the district level or any local authority to take measures for prevention or mitigation of the disaster or to effectively respond to it. And such officer or department shall be bound to carry out such order.”[7] Powers and functions of District Authority have been enumerated under section 34 of DMA. [8]
District authorities in states like Maharashtra have invoked powers under the act.[9] This has helped in creating awareness regarding the virus at ground level itself along with the regulation of masks, kits, injections and medicines. In turn, preparedness and containment of COVID-19 have been facilitated throughout the country.
The law provides for detention of anyone who defies government orders. First offence and second offence lead to jail terms of one and two years, respectively. Nodal officials, i.e. District Magistrates, can call anyone to perform duties related to disaster relief and mitigation. Department heads could be made accountable for failures of officers who report to them. Complaints against derelictions of personnel are made to the Chairpersons of national, state or district disaster management authorities.[10]
However, it has been argued that the definition of ‘disaster’ under the Disaster Management Act does not cater to public health emergencies. Therefore, it could lead to the emergence of questions relating to the legal tenability of all the notifications that have been issued under the Act. Additionally, ‘public health’ has been provided under the state list of seventh schedule of the constitution. Hence, the notifications could lead to claims of encroachment in the domain of states by the centre.[11]
What is the Epidemic Diseases Act, 1897?
The Epidemic Diseases Act was formulated to bring government machinery into action once there is a threat of a ‘dangerous epidemic disease’. It was brought out in response to the Bubonic Plague that struck the areas of Bombay Presidency. The British Government, in order to prevent its spread to other parts of the country swiftly, came up with the Epidemic Diseases Act in 1897.[12] Under the law, the Central government and state governments have the power to take special measures and formulate regulations in order to prevent the spread of a dangerous epidemic disease.
Section 2 of the Act provides power to the state government to take temporary measures for the safeguard of public at large. This, the government may do if it feels that any part of the state or whole of the state is affected by or threatened to be affected by outbreak of any dangerous epidemic disease and, there are no provisions in the existing law that could deal with the said epidemic.[13] The state government, in exercise of such powers, can start inspecting the travelling persons and also segregate the people suspected of having the disease in hospitals or temporary accommodations. According to Section 2A, the Central government can inspect ships and vessels leaving or arriving in India and also has the power to detain the vessels if required so.[14] Penalties for disobeying the government orders under sections 2 and 2A have been prescribed under section 3 of the act.[15] Section 4 of the Act protects the government and its officers and employees from prosecution, both civil and criminal, for doing things in good faith.[16]
Application of the Epidemic Diseases Act
Most Indian states including Maharashtra, Gujarat, Punjab, Delhi and Haryana have invoked powers under the Epidemic Diseases Act. Non-Pharmaceutical Interventions have thus been made by the states to prevent the spread of epidemic when there are no medicines to treat the disease. Closing of Educational Institutions, malls, gyms etc. and advisories on social distancing have been released as part of Non-Pharmaceutical Interventions.[17] However, the states are still struggling in various respects for there are no specific provisions in the act which can guide the governments to act in a prescribed manner during the epidemic.[18] This is a 123 year old act which has not been able to implement guidelines issued by organisations like the World Health Organisation and the United Nations over the course of time.
There are certain limitations of the Epidemic Diseases Act which have been listed below:
- The act only aims to prevent the spread of disease and does not say anything regarding eradication of the disease. The terms ‘epidemic’ and ‘disease’ have not been defined under the provisions of the act.
- Measures for isolation of suspected patients and creation of isolation centres have not found any place under the act
- There are no guidelines for formation of a special committee or a disaster management team which can act in a prescribed and precautionary way during the emergency situation.
- Provisions regarding the distribution of vaccines and drugs by the government are absent from the Act.
- The state governments, due to the absence of necessary provisions, can take actions on a trial and error basis and not come up with concrete and rigorous measures to control the epidemic.[19]
Other Epidemic Laws during COVID-19
Moreover, during COVID-19, different states have invoked their powers under state-specific Public Health Acts to handle the crisis. States have also issued various regulations in pursuance of the guidelines issued by the Union Ministry of Health and Family Welfare.[20] Kerala invoked legislative powers under entry 6 of the state list, thereby issuing the Kerala Epidemic Diseases Ordinance, 2020.[21] States have considerable power in giving punishments for disobeying the order of a public servant and for malignant acts likely to spread infection of a disease dangerous to life. This is as per sections 188 and 270 of the Indian Penal Code. [22] [23]
Concluding Remarks
Through this article, we tried to cover the two primary laws majorly, that have been used by the Indian government to tackle the pandemic. But these laws are not free from limitations and are thus, not adequate to handle a pandemic as severe as COVID-19. Disaster Management Act, 2005 does not specifically provide for a definition dealing with a public health crisis. Epidemic Diseases Act, i.e. a colonial-era law, has not been updated with time. Thus, it does not hold much relevance today. Also, the National Health Bill of 2009, which touched upon the human rights dimension of public healthcare, has not been enacted yet.
At this stage, the government should aim to amend the Epidemic Diseases Act, 1897, thereby resolving all its shortcomings and making it ready for the 21st century epidemics. Further, all the legislations which are brought from time to time should be integrated into a single nationwide law (which could be ‘The Epidemic Diseases Act’ itself). The other option is to repeal this century-old act and bring into force another comprehensive law dealing with all the issues that may emerge during an epidemic. These steps will ensure that a robust legal framework regarding public healthcare is created in the country which will in turn, help us to fight future health emergencies in an effective manner.
The article is authored by Hardik Batra (NUJS Kolkata, 2024)
Footnotes/References
[1] https://www.hindustantimes.com/india-news/india-under-covid-19-lockdown-all-about-the-disaster-management-law/story-i7cjfZrUZcbOxamlEOAoPO.html
[2] Section 2(d), Disaster Management Act, 2005.
[3] https://www.business-standard.com/article/current-affairs/what-is-disaster-management-act-terms-you-should-know-in-time-of-covid-19-120032401631_1.html
[4] https://www.nationalheraldindia.com/national/india-declares-covid-19-a-national-disaster
[5] Section 6, Disaster Management Act, 2005.
[6] Section 10, Disaster Management Act, 2005.
[7] Section 33, Disaster Management Act, 2005.
[8] Section 34, Disaster Management Act, 2005.
[9] https://timesofindia.indiatimes.com/city/pune/coronavirus-in-pune-collector-invokes-disaster-management-act-after-five-cases/articleshow/74571624.cms
[10] Supra at 1.
[11] https://www.thestatesman.com/supplements/law/legally-unsustainable-1502882468.html
[12] https://indianexpress.com/article/explained/epidemic-disease-act-amended-coronavirus-pandemic-bubonic-plague-healthcare-workers-6397400/
[13] Section 2, Epidemic Diseases Act, 1897.
[14] Section 2A, Epidemic Diseases Act, 1897.
[15] Section 3, Epidemic Diseases Act, 1897.
[16] Section 4, Epidemic Diseases Act, 1897.
[17] https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act
[18] https://www.mondaq.com/india/government-measures/928706/the-epidemic-act-of-india-1897-an-analysis-vis-vis-the-covid-19 pandemic#:~:text=India%2C%20then%20under%20the%20rule,in%20the%20spread%20of%20plague.
[19] Id., 17.
[20] https://www.theweek.in/news/india/2020/04/26/covid-19-and-the-ambit-of-the-disaster-management-act.html
[21] https://prsindia.org/bills/states/the-kerala-epidemic-diseases-ordinance-2020
[22] Section 188, Indian Penal Code.
[23] Section 270, Indian Penal Code.