Universally, multiple methods like contact tracing, social-isolation and quarantine are being used to mitigate the Coronavirus (COVID-19) pandemic. These methods used by the State invariably impinge on the autonomy, liberty and dignity of individuals. We allow these intrusions, as legitimised by laws, for the State to be able to act in the interest of the population at large.

The present article examines the legal landscape of the response to the COVID-19 threat with a specific focus on the Epidemic Diseases Act, 1897.

Recently, there have been calls to update this colonial law as it does not provide guidelines to the states to act to prevent and mitigate epidemics. On the other hand, experts with experience of working within the government seem to believe that the law is appropriate and does not require any changes.

In this article, the role of the Act within the legal framework of COVID-19 response is studied. The extent of use of State power through regulations is examined to understand whether the COVID-19 regulations and legal framework should be updated.

The elements of the COVID-19 response

Under the Indian Constitution, public health and sanitation are the responsibilities of the state and local governments while the union government manages port quarantine, inter-state migration and quarantine. Only about eight states and union territories in India have legislation for public health.

For instance, The Tamil Nadu Public Health Act, 1939 sets up public health boards and provides for public health staff who are responsible for supply of water, drainage, sanitary conveniences etc.

The Union government is using various measures to prepare and respond to the COVID-19 pandemic. These are:

● In January, it invoked its powers under the Disaster Management Act, 2005 to enhance the preparedness and containment of COVID-19 at hospitals. Notifying the pandemic as a disaster enabled the states to use funds from the State Disaster Response Fund on COVID-19.

● In March, the Ministry of Health advised states to invoke the provisions of Section 2 of the Epidemic Diseases Act, 1897.

● As a signatory to the International Health Regulations, 2005 (IHR), India needs to establish an appropriate public health response to international spread of diseases. This is done through the Integrated Disease Surveillance Program (IDSP).

The role of the Epidemic Diseases Act, 1897

The Epidemic Diseases Act, 1897 was designed to put government machinery into action once there is a considerable threat of a dangerous epidemic disease and not as a code for establishing general public health systems.

The provisions of the law seem to be innocuous. It consists of four sections which provide wide powers to the government. The state governments are empowered to regulate dangerous epidemic disease, a term not defined in the law. The government is empowered to regulate ships or vessels leaving or arriving in India. Disobedience to the regulations is made a punishable offence while providing for immunity to public officers for performing functions under the law.

There is much to learn from the way the law was enacted and used by the government historically. SL Polu, while describing the history of infectious diseases in India, notes that in formulating the Act and medical strategy to fight epidemics, the government primarily wanted to ensure compliance with the international sanitary conventions, protect trade, and assuage any fears abroad of the potential spread of plague or cholera outside India. (SL Polu (2012))

David Arnold describes the law as "one of the most draconian pieces of sanitary legislation ever adopted in colonial India." (David Arnold (2000)) The measures which invited criticism included compulsory detention of plague suspects, destruction of houses and infected property, physical examination of persons and banning of fairs & pilgrimages.

This invited distrust of the Indian communities and resistance towards action taken by the State. As a result, Arnold notes that the colonial government modified its strategy in favor of moderate measures such as creating awareness about sanitation, advocating voluntary measures, and setting up institutions for medical research.

The power of states during a pandemic

Most Indian states including Delhi, Haryana, Karnataka, Maharashtra and Uttar Pradesh have invoked their powers under the law. This enables them to undertake Non-Pharmaceutical Interventions (NPIs) to mitigate the epidemic spread in absence of medicines to treat the disease. These NPIs so far include closing of educational institutions, malls, schools, gyms, advisories on social distancing as well as regulations regarding home isolation and quarantine.

However, some of the regulatory provisions provide extensive powers to government officers. For instance, state regulations such as the Bihar Epidemic Diseases COVID-19 Regulations 2020, Uttar Pradesh Epidemic Diseases COVID-19 Regulations 2020, Delhi Epidemic Diseases COVID-19 Regulations, 2020 authorise officers of the government to admit and isolate a person in certain situations.

This can be done forcefully. The officers are also given powers of surveillance of individuals and private premises. Lockdowns can be issued by the District Magistrate. Further, free speech is restrained by not allowing anyone to publish information regarding COVID-19 without prior permission of the government to prevent the spread of fake news.

While all these powers are to be performed in the noble function of protection of the public, the results of excessive action can be disastrous.

Reports suggest that the State power has been exercised for arresting persons spreading fake news on the disease, arresting persons gathering in large numbers despite directives of the government, arresting persons not following home quarantine and sharing publicly the list of suspected patients.

Using excessive power without transparency has historically shown a negative impact on the community participation. Being forced into unhygienic quarantine and issues in accessing essential services is deepening the distrust between people and the State. Two persons have already reportedly died due to suicide fearing the disease and many suspected patients have absconded public hospital facilities.

The current regulations on COVID-19 allow states to practice the coercive actions comparable to those undertaken by the colonial government. These actions have already put restriction on movement, free speech, religion, profession and privacy. The restrictions are legal in as much as they are necessary and proportionate to a legitimate aim.

Given the nature of the pandemic which requires extensive state surveillance and usage of force, these must be balanced by corresponding checks on the use of State power to protect the rights of individuals.

Regulations vis-a-vis Right to Privacy

The regulations on COVID-19 impact many aspects of fundamental rights of individuals. Herein, I examine the law with respect to the right of privacy.

The right to privacy, which includes personal autonomy, liberty and dignity, is a fundamental right. However, the right is subject to reasonable restrictions such as in furtherance of public interest. In the Puttaswamy judgment, the court laid down the following tests for limiting the discretion of the State while impinging on the fundamental right to privacy:

I. The action must be sanctioned by law

II. The proposed action must be necessary for a legitimate aim

III. The extent of such interference must be proportionate to the need for such interference

IV. There must be procedural guarantees against abuse of such interference

The test of legitimate aim is satisfied by the Epidemic Diseases Act, 1897 as its function is to prevent the spread of a dangerous epidemic disease. It is impossible to define specific proportionate regulations for a novel infectious disease in a parent law. Therefore, the law provides for delegated legislative power to the states.

However, the parent law does not provide for procedural guarantees against abuse of State power of interference with privacy of individuals. For instance, the law does not define or provide guidelines on the meaning of a dangerous epidemic disease.

Due to this, the citizens are at risk of both inaction and excessive coercion by the State. In the past, citizens have been forced to petition to courts for directing the State to take action, or to defend themselves against excessive action of the State.

The State can misuse the law for profiling, mass quarantine and targeting of individuals. Even then, there is legal immunity given to public servants who function under it. Therefore, the law focuses on public interest while dispensing with any procedural guarantees against abuse of its powers. Therefore, the Epidemic Diseases Act does not pass the tests of reasonable restrictions on the fundamental right of privacy of individuals.

The need for a legal framework for epidemic preparedness & response

The Epidemics Diseases Act does not balance the rights of individuals with the power of the State. The government can, however, still utilise learnings from its own past as well as current practices to make effective regulations. The current COVID-19 regulations need to be modified to remove immunity against illegal actions done by State representatives.

A legal framework for infectious diseases in the interest of public health security is essential to increase transparency and accountability of the State towards the public. An Indian example of a legal framework with such procedural checks and balances is the Disaster Management Act, 2005. This law sets up national, state and district level authorities. It then defines the role of union and state governments under various ministries. The law also has provisions for capacity building by setting up institutes, financing mechanism and human response workforce.

Instead of providing blanket immunity to government officials/departments, the law requires them to act lawfully. Legal immunity is only provided in specific cases like good faith action and for communication of warnings.

Further checks on the government action are put by prohibiting discrimination while providing relief, allowing for payment of compensation to affected parties for requisition of premises or resources, and publication of annual reports by the authorities set up under law.

While some immediate fixes in regulatory practices can help the Indian response to COVID-19, structural changes are required in order to balance health security with civil liberties.

India has an excessively fragmented landscape for health policy. The Epidemic Diseases Act is one element of multiple interventions in public health in India. The limited purpose of the law is to allow states to take extraordinary measures at the time of a dangerous epidemic disease. It does not establish any coordination mechanism between states and the union government at the time of a dangerous epidemic outbreak. The role of the union government is also negligible (such as port quarantine) under this law.

However, Article 253 of the Constitution allows the union government to enact a law to give effect to the International Health Regulations - which asks for setting up mechanisms to prevent, protect against, control and provide a public health response to international spread of disease.

Any such law when designed for India, needs to pass the tests of reasonableness as set out by the Supreme Court.

Conclusion

The Indian response to COVID-19 has been fragmented. Multiple laws, rules, programmes, regulatory bodies along with national and state level advisories participate in the response. The Epidemic Diseases Act has been a subject of debate as calls for government action grows. Instead of building a public health framework, the limited purpose of the Epidemic Diseases Act is for the states to take special measures for dangerous epidemic diseases. Within this limited framework, the law gives wide powers to the government to undertake coercive actions against individuals.

Indian states have notified COVID-19 regulations under this law. There are unmitigated powers of surveillance and use of force given to state authorities under them. While such powers are envisaged to be used under the legitimate aim of protecting health of the population, neither the law nor the regulations under it describe procedural guarantees against abuse of state coercion.

Using examples of Indian states and past utilisation of the regulations, it is seen that the states can realign their COVID-19 regulations to balance the rights of the individuals with their own power. This is important as emergency public health measures require community trust and participation.

In order to mandate using such procedural best-practices in the future, a comprehensive legal framework for epidemic preparedness and response is required instead of the current fragmented response framework through programmes and missions.

This is required to increase the accountability of the government to its people. It is imperative that such a law is passed by the union government while providing states power to utilise their public health framework.

The author is a Research Fellow at the National Institute of Public Finance and Policy. The article reflects the author's personal views, and not those of the organisation.

References and further reading:

Salunkhe, Subhas et al., Approach Paper on Public Health Act, National Health Systems Resource Centre, (2012).

Peters, D. H. et al., Lumping and splitting: the health policy agenda in India. Health policy and planning, 18(3), 249-260, (2003).

World Health Organization, International public health hazards: Indian legislative provisions, World Health Organization, (2015).

Polu, S. L. Plague and Cholera-The Epidemic versus the Endemic, Infectious Disease in India, 1892-1940 (pp. 50-81). Palgrave Macmillan, London, (2012).

Arnold, D., Science, technology and medicine in colonial India (Vol. 5). Cambridge University Press, (2000).

Rakesh, P. S., The Epidemic Diseases Act of 1897: public health relevance in the current scenario. Indian journal of medical ethics, 1(3), (2016).

Supreme Court of India, Anuradha Bhasin v. Union of India and Ors., Writ Petition (Civil) No. 1031 of 2019.

World Health Organization. Ethical considerations in developing a public health response to pandemic influenza (No. WHO/CDS/EPR/GIP/2007.2). Geneva: World Health Organization, (2007).

Supreme Court of India, Justice K. S. Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012, decided on 26 September, 2018.

Sivaramakrishnan, K. The return of epidemics and the politics of global-Local health. American journal of public health, 101(6), 1032-1041, (2011).

Gujarat High Court, Devarshi Pragneshbhai Patel v. State of Gujarat, Writ Petition no. 33 of 2015, order dated 26 February, 2015.

Orissa High Court, Gandharva Jena v. State, Criminal Revision no. 233 of 1965, decided on 18 November, 1965.

Calcutta High Court, Ram Lall Mistry v. RT Greer,(1904) ILR 31 Cal 829, decided on 13 June, 1904.

Shah, A et al. Financing common goods for health: a public administration perspective from India. Health Systems & Reform, 1-6, (2019).