COVID-19 and Indian Laws
FOURTH PLACE ARTICLE: The author, Rahul Rao is a first year law student at St. Joseph's College of Law, Bengaluru, and an intellectual property lawyer in the making.
The following article contains the options that were available for the Indian government to deal with COVID-19 (with respect to statutes). This article further analyses on what options the government did choose and offers the author's reflection on what ought to have been done to ensure that the pandemic was dealt with in a better way.
INTRODUCTION
The COVID-19 outbreak has snowballed into a pandemic. With fatalities being 568,055 [1] and counting, governments of the world are in uncharted territory when it comes to handling an outbreak of this scale. The government of India like all other governments has deployed damage control measures. Are these measures adequate? Is the government’s reaction to this behemoth of a pandemic appropriate? A number of factors make these questions too difficult to answer objectively.
However a few questions arise amidst all the speculation such as, what powers does the government hold during a crisis like this? , What laws protect the rights of citizens adversely affected by the actions of the government? , lastly what provisions specify how a government is to behave during a situation like this? Let us see what bills or acts have authority over the handling of this situation and how useful each one is.
Epidemic Diseases Act, 1897
The act that currently holds authority over disease outbreaks and epidemics is the Epidemic Diseases Act 1897 which was passed in the wake of the outbreak of the bubonic plague in India. However this act gave draconian powers to the colonial government; it was merely an instrument for the British to exercise their authority over Indian citizens. Under this act the British had the power to detain suspected carriers, destroy or demolish infected property and dwellings, prohibit public gatherings and examine the passengers at will. There was no required standard for the authorities to enforce this act but mere suspicion gave them the right to act on their own discretion. This act gave no rights to remedy the violation of human rights by authorities as they received legal immunity for their actions [2]. This act fails to provide any measures or guidelines for the government to provide any sort of assistance or aid to the victims of the plague; furthermore it is a rudimentary act that fails to so much as define what can be classified as an epidemic. The act did have certain amendments added in April 2020.
The Epidemic Diseases (Amendment) Ordinance, 2020
With unsavory incidents of healthcare professionals being spat on [3], ostracized [4] and harassed by miscreants the government decided to promulgate certain provisions to the Epidemic Diseases Act, 1897. However when scrutinized this ordinance has in some ways become more authoritarian than the principle act. The first section was amended to change some archaic language that excluded “part B” this was a mere technicality that was taken care of. Section 1a [5] was added to the principle act to define “an act of violence” this definition had a wide range of acts within its ambit, including the harassment of healthcare professionals with respect to their living conditions or damage to their property. With a lot of essential services joining in the fight against COVID-19, section 1b [6] was added to expand the definition of healthcare service personnel, broadening it to fit all individuals that were empowered by the act to prevent the outbreak and spread of the disease. 1c [7] was added to clarify what can be considered the property of healthcare service personnel with respect to this statute. The next amendment holds great significance even though it might not appear so Prima Facie. The language on 2a [8] was amended from “the central government may take measures as may be necessary” to “the central government may take measures as it deems fit” this gives the government more power for arbitrary discretion. This made an act created by a colonial power even more draconian by vesting unchecked power unto the government. Section 2b was added to prohibit acts of violence and damage to property (defined in 1a &1c) against those defined as healthcare service personnel (defined in 1b). Section 3 was renumbered to 3(1) and section 3(2) [9] was added. Section 3(2) prescribed the punishment for those found to be violating section 2b. Section 3(3) [10] was added to have a harsher punishment for those violating 2b and fit the definition of grievous hurt under section 230 [11] of the Indian Penal Code. Section 3b [12] gives the victim the option to compound the offenses committed under section 2b, this section is inherently flawed as it gives the opportunity for the offending party to intimidate and coerce the victim into reducing charges against them. Section 3c [13] places the burden of proof on the accused and presumes guilt; a blatant violation of the Universal Declaration of Human Rights [14] which India had ratified in 1948. Section 3d [15] goes a step further and presumes Mens Rea as well and the burden is on the accused to prove otherwise in court. Section 3e (1) [16] was added to mandate that a person convicted for the violation 2b must additionally pay compensation to the victim for their acts of violence. Section 3e (2) [17] was added to decide that notwithstanding section 3b the compensation will be set to twice the fair market value or as assigned by court making it a deterrent measure of sorts. Section 3e (3) was added to include that the property that will be recovered as arrears under land revenue act 1890 if the offender fails to pay the mandated fine. This amendment only addressed one single issue of the massively flawed & primitive colonial era act and while doing so made it even more draconian and violative of human rights. This would have made sense if there were no alternative option for a more comprehensive act or bill to take the place of this legislation. However there is a much more comprehensive and less authoritarian bill that was drafted in way back in 2017 but was never passed.
Public Health Bill
The Public Health (Prevention, Control and Management of epidemics, bio-terrorism and disasters) bill, 2017 was a bill proposed to repeal [18] and replace the archaic Epidemic Diseases Act 1897. The bill was jointly drafted by The National Centre for Disease Control and the Directorate General of Health Services; it was made with the intention of empowering local and state governments to deal with an epidemic as well as acts of bio terrorism. The Public Health bill is undoubtedly more comprehensive than its outdated ineffective predecessor as it clearly defines everything mentioned right from the word epidemic to the word clinics leaving no room for exploitation through ambiguous interpretation. The bill even prepares a list of epidemic prone diseases in its first schedule and a list of potential bio terrorism agents in the second schedule. Unfortunately this bill ruffled a few feathers as it gave the state and district governments the power to order medical examination, lab examination and even the administration of vaccination to affected person or a class of persons [19], this means the government is authorized to override bodily autonomy for the afore mentioned measures. However it should be noted that this bill also contained a clause to protect people from abuse of human rights wherein a person could appeal against any unfair orders of the state under this act [20]. Public health experts thought the amount of authority given to the government was uncalled for at that point of time; but now it is necessary to identify, isolate and treat infected people to stop them from being carriers of the virus. Experts were concerned that people might fear this bill’s restrictive powers and as a result would end up hiding their symptoms. Due to these concerns the bill appeared to counterproductive and was never passed. After its rejection the bill disappeared from public memory until Mr. Veerappa Moily sent the government a letter in April asking them to promulgate an ordinance to pass the bill as it fit the need of the hour.
ADDITIONAL ACTS INVOKED TO HANDLE THE PANDEMIC
The government decided to invoke the Disaster Management act of 2005. COVID-19 technically falls under the definition of a disaster [21] and therefore its provisions can be invoked in this situation. This act is financially beneficial for the citizens since it gives the national disaster management authority the power to set up standards for the governments to provide relief [22] to citizens that have been adversely affected by the said disaster. Further there is an option provided by the act [23] to help those that might have lost their source of income because of the disaster by relieving or subsidizing their loan repayments.
To further deter miscreants from engaging in activities that are counterproductive to India’s fight against COVID-19 certain sections of the Indian Penal Code have been invoked as well. The various lockdowns were brought under curfew through section 141 [24] to make assemblies unlawful and ensure social distancing. Section 188 [25] was invoked to ensure orders passed by public servants be obeyed and those who don’t obey it and cause obstruction of justice, causing danger to human life and/or risking human health, will face imprisonment up to six months and/or fine. The Indian public is more likely to be compliant towards social distancing norms due to the fear of criminal charges if not the fear of a deadly virus, which is why these laws need to be invoked.
REFLECTIONS
The Public Health Bill allows government authorities to enter houses, examine and treat people during an emergency but does not mention patient consent; this was the cited reason for it to be shot down in 2017. The Public Health Bill may have its flaws however it is without the question the lesser of two evils, the greater evil being the Epidemic Diseases Act. The government has made a short sighted move by sidelining The Public Health Bill and instead focused on making a few amendments on an archaic colonial act. If the problem with the Public Health Bill is its authoritarian then The Epidemic Diseases (Amendment) Ordinance, 2020 should have automatically rejected since it directly violates human rights and gives the government more power than necessary. The most prudent action to take would have been to pass the Public Health Bill after tweaking a few provisions to fit the context of the pandemic i.e.: provisions to protect healthcare personnel. Instead the government chose to make a few amendments to an archaic colonial act that ended up doing more harm than good and by no means addressed the multiple shortcomings of the said act. This move has not received much attention since the public attention has been directed to issues that are more sensational in nature. However this may become a bone of contention in the future because this is arguably the root of India’s shortcomings in handling the pandemic.
[1] https://www.worldometers.info/coronavirus/.
[2] Under section 4 of the epidemic diseases act 1897
[3] https://www.bbc.com/news/world-asia-india-52151141
[5] Under section 1a of the epidemic diseases act 1897
[6] Under section 1b of the epidemic diseases act 1897
[7] Under section 1c of the epidemic diseases act 1897
[8] Under section 2a of the epidemic diseases act 1897
[9] Under section 3(2) of the epidemic diseases act 1897
[10] Under section 3(3) of the epidemic diseases act 1897
[11] Under section 230 of the Indian Penal Code 1860
[12] Under section 3b of the epidemic diseases act 1897
[13] Under section 3c of the epidemic diseases act 1897
[14] Under article 11 of the Universal Declaration of Human Rights 1948
[15] Under section 3d of the epidemic diseases act 1897
[16] Under section 3e(1) of the epidemic diseases act 1897
[17] Under section 3e(2) of the epidemic diseases act 1897
[18] Under section 14 of the Public Health (Prevention, Control and Management of epidemics, bio-terrorism and disasters) bill, 2017
[19] Under section 3f of the Public Health (Prevention, Control and Management of epidemics, bio-terrorism and disasters) bill, 2017
[20] Under section 6(1) of the Public Health (Prevention, Control and Management of epidemics, bio-terrorism and disasters) bill, 2017
[21] Under section 2d of the disaster management act of 2005
[22] Under section12 of the disaster management act of 2005
[23] Under section 13 of the disaster management act of 2005
[24] Under section 144 of the Indian Penal Code 1860
[25] Under section 188 of the Indian Penal Code 1860