Introduction of the Epidemic Disease Act, 1897
The Epidemic Disease Act is defined as “An Act to provide for the better prevention of the spread of Dangerous Epidemic Diseases.”[1]The one page act grants power to the central government and the state government to take special measures and prescribe regulations as to ‘dangerous epidemic disease’, if they consider that the ordinary provisions of the law are not sufficient for the time being. The Act contains four sections, each section having its own significance. Section 1 gives title and talks about its validity all over the country. Section 2 empowers the government to take reasonable and affective steps to fight against any epidemic which is faced by the state or by the country. Section 3 strengthens the Act making it strict for people who disobey or violate the guidelines set by the government. The Act does so by imposing a penalty with accordance to Section 188 of the Indian Penal Code. Section 4 safeguards the implementing officers acting under the Act against the legal suits or other legal proceedings.
When the act was formed? What is the History related to it?
The Act was introduced in the colonial times when a bubonic plague had spread in the erstwhile Bombay Presidency. The Act helped to restrict the plagues to Bombay by exercising tough measures which prohibited the assembly of crowds. Earlier to 2020 COVID-19 pandemic, the Act has been invoked in cases of dengue and malaria in 2015 in Chandigarh and H1N1 influenza in Pune in 2009. It was last used to prevent the spread if cholera in a Gujarat village in 2018. Moreover, in the colonial times the act people faced issues related to gender, caste and class. No particular guidelines was set for the process of inspection. Women faced issues like getting screened by male surgeons publicly, practice of quarantine was not the same for upper caste and lower caste people. Upper caste could easily find their way out from the quarantined places. Hence, it can be said the one page Act was made very hastily without giving every detail a proper thought.
Validity of the Act in the 21st century.
When the Prime Minster of India announced a nationwide lockdown of 21 days,[2] many states invoked The Epidemic Disease Act, 1897 to fight the global pandemic. The Act came into effect in 1897 and it is quite surprising that even after 123 years, it is still being used. No major changes have been made after the formulation of the Act. There are various important provisions missing from the Act because they were not even in existence when it was drafted. For example, it only takes about screening of persons travelling from railways.[3] Airports are into even taken into account because obviously there were no aeroplanes 100 years ago. We are talking about the time when people had no access to radio-sets and private vehicles. The aforementioned facts lead us to question the credibility of the Act to fight the novel coronavirus.
Major Drawbacks of the Act
There are many aspects of the Act that are being labelled as ambiguous. The Act does not even elaborates the limited things it addresses. Epidemic Disease Act ‘is silent on the definition of dangerous epidemic disease.’ It does not talk about lethal, infectious or contagious diseases. It leaves an ambiguity that how a disease would be known as “dangerous”. The unavailability of definitions of such words can lead to corrupt of the Act. This makes the implementation of the Act to be subjective. The Act needs to be modernised as it does not address the development this world has gone through. It should talk about industrialization, urbanization, international travel and foreign relations. The Act has given more focus on inspection of the persons suspected by the inspecting officer, but it does comment on how it is going to help the infected persons of any such disease. It does not talk about the distribution of drugs and vaccines among the public. Any person could be penalised who is found disobeying any order made under the act. Such punishment needs a revision as it does not talk about the extent. The provisions of the act give more emphasis on the protecting the government by giving it unjust powers, on the other hand it does neither talk about rights of citizens in such situation nor Human Rights. The Act should be made more ethical which can support human rights as well when it is invoked.
Other health models available in India
Other than The Epidemic Disease Act, 1897, India came up with other acts/mechanisms to deal with such public health related issues. In 1955 and 1987 the central government developed a Model Public Health Act, but it could not be implemented. Bills like National Health Bill and Public Health Bill were introduced but could never be implemented. Integrated Disease Surveillance Project[4] was another fail by the law makers as it limited to small scale emergencies. Recently a Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill was introduced in 2017 which was supposed to replace the Epidemic Act, 1897 but again the government failed to implement it.
Analysis of the Epidemic Disease (Amendment) Ordinance, 2020
Recently the Union Cabinet approved an Ordinance proposing new amendments to the Epidemic Disease Act, 1987. The Epidemic Disease (Amendment) Ordinance, 2020[5] approved by the Union Cabinet amends the Epidemic Disease act. It strengthen the laws to provide protection to the healthcare service personnel. The Ordinance begins with defining the ‘healthcare service personnel’ and further defines ‘act of violence’ against them. The act of violence against the health service personnel has now become a cognizable and a non-bailable offence which means anyone who is found committing violence can be arrested without a warrant. The Ordinance does not only provide protection to the healthcare personnel but it also protects the property belonging to them. This is to protect the ambulance vans, medical clinics and quarantine facility from any kind of damage. A fine of Rs.50,000/- to Rs.2,00,000/- and imprisonment between three months to five years have been set that makes the act more stringent. Further, if anyone is found causing grievous harm, he/she can face imprisonment between six months to seven years and a fine between Rs.1,00,000/- to Rs.5,00,000/-.The Ordinance also talks about compensation paid by the person who causes the hurt and further provisions in the situation when the person fails to pay the compensation.
The Epidemic Disease Act, 1897 was continuously being criticised and questioned. People were expecting a new legal framework which could deal with ‘Dangerous Epidemic diseases’ effectively. The ordinance is exclusively for the healthcare personnel. The ordinance has been made keeping the recent activities (violence against the healthcare personnel) in mind. This is going to help the doctors, nurses and others who are providing their valuable services in the tough times. It has also talked about the inspection of people travelling by modes of transport i.e. aircrafts, which were introduced after the commission of the Act. This is going to help them to work more efficiently. But the question is does ordinance really provide what was actually needed. The ordinance looks like a further extension of Section 3 and Section 4 of the Epidemic Disease Act, 1897. It has focused on penalising people rather than making the basic structure of the Act stronger. The government has not worked on the ambiguity that Act has. From defining basics terms in the act to modernising it by making it compatible with the present world scenario. Issues like providing food and shelter to homeless, inspection of women in a safe environment, international travel and trades were missed. The government should have focussed on other sectors as well instead of focussing on only one sector (healthcare services).
The Public Health emergency,[6] COVID-19 has given the Union Government a solid opportunity to amend the country’s legislation. In order to avoid and monitor the entry of any infectious disease in India, it is important to improve the legal frameworks. The Epidemic Disease Act has considerable loopholes in fighting such pandemics, particularly in changing times and transforming public health. Along with the new legal framework, it also necessary for us to have strong economy, disciplined corporate sectors and healthcare facilities, in order to implement such changes more effectively. Therefore, it is well beyond the doubt that this more than hundred years old Act requires much more than the Epidemic Disease (Amendment) Ordinance, to meet the changing priorities of public health.
SECTION 10(2)(1) OF THE NATIONAL DISASTER MANAGEMENT ACT IS MANDATORY OR ADVISORY?
Introduction
On March 24, 2020, the Prime Minister of our country announced a nationwide lockdown of 21 days to fight novel coronavirus. The lockdown was imposed under Disaster Management Act (DMA), 2005. The ministry of Home Affairs invoked Section 6(2)(i)[7] of the DMA, 2005 and released an order directing the ministries or departments of government of India, state and union territory governments and authorities to implement the measures laid down in central order.[8]This was done after the National Executive Committee provided detailed guidelines under section 10(2)(1) of the Disaster Management Act 2005. The authority has directed the National Executive committee to issue further modifications in the guidelines as necessary.
Conflict arising due toSection 10(1) and Section 10(2) of the DMA, 2005
This conflict arises when we look at Section 10 of the DMA. Section 10(2)(1) of the 2015 DMA empowers the National Executive Committee to provide guidelines to the ministries or department of the government of India on the preparation of disaster management plans. Section 10(1) says, “The National Executive Committee (NEC)shall assist the National Authorityand ensure the compliance of directions issued by the Central Government.” Whereas, Section 10(2) says, “The NEC may provide necessary technical assistance to the State Government and the State Authorities with the guidelines laid down by the National Authority.”In English language the usage of “shall” creates an obligation. It makes the action mandatory. The usage of “may” provides an option. It creates uncertainty on completion of the action. When the usage of the both (“may” and “shall”) has been done in the same section only, it gives rise to an ambiguity about the interpretation of law. The question to be asked is whether the order passed by the Ministry of Home Affairs is binding on the concerned parties or it is just an advisory.
Interpretation of Statutes
To understand this ambiguity, first it is important to understand the word “interpretation” and interpretation of Statutes. Interpretation helps to gain the actual meaning of the provisions of the statutes. To get the literal meaning of law, interpretation of statutes is necessary. The process helps to get the exact intention of the law makers. Interpretation of statutes is necessary to prevent the law from getting misused. This can be done if any word or expression creates uncertainty. Interpretation could be of two types. Literal interpretation[9] which gives judges no liberty to add or modify the letters of law. Logical interpretation[10]allows the court to modify the letters of law in order to satisfy the intent behind the law.Sometimes in Indian Law, the word “may” signifies compulsory conduct and “shall” indicates something to be entirely optional. The use of word “may” in a legislative provision by itself does not mean that in fact, the provision is directory. In certain cases the legislature uses the word as a matter of courtesy and yet a mandatory force of meaning. Meanwhile, the word “shall” is also not always decisive. No universal principle of law could be laid down to term a provision or a statute as mandatory or advisory. The court is duty bound to attempt to get to the legislature’s true purpose by examining the statute.
Case Laws addressing the issue
The courts on several occasions have talked about the interpretation of the expressions “shall” and “may”. Meaning of the expressions depend upon the facts of a given case. It is not always necessary that “shall” means compulsion.[11]Intention of the legislature while making the law is also a key factor.[12] It is not to be taken that once the word “may” is used, it per se would be directory. No particular expression can render a provision to be advisory or mandatory. In Siddheshwar Sahakari Sakhar Karkhana Ltd. v. CIT Kolhapur[13], the Court allowed to read the expression “may” as “shall”. There has also been instances when the Court treated “shall” as directory. In Vali pero v. Fernando Lopez[14], after looking at the facts and relevance of the Rule 4 of the Calcutta High Court rules 1914, the Court termed the rule to be as just a directory.
Conclusion
The aforementioned case laws make it clear that there is no hard and fast rule to determine the literal meaning of both the expressions. There has been instances when the Court has decided to avoid the literal or grammatical interpretation because such interpretations can sometimes lead to injustice and inequality.[15]MS Reddy, former National Disaster Management Authority vice-chairman said that the law provides the state with all the powers to deal with any disaster, including the biological one. The National Authority can take actions against the government officials or the concerned authorities if they are found defying their orders. Hence, the authoritative powers cannot be further questioned on the basis of these expressions. The order under Section 10(2)(1) of the Disaster Management Act, 2005 is binding upon all the concerned authorities and it cannot rescinded until it is amended or set aside by the High Court of any State or the Supreme Court of India.
The article is written by
Sajal Awasthi
Symbiosis Law School Noida
[1] The Epidemic Disease Act, 1897, available at: https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf (Visited on May 15, 2020)
[2] Notification of imposing Lockdown, available at: https://prsindia.org/files/covid19/notifications/143.IND_Citizens_Order_Lockdown_Mar_24.pdf (Visited on May 15, 2020)
[3] Section 2 (2)(b), The Epidemic Disease Act, 1897 (Act 3 of 1897)
[4] Integrated Disease Surveillance Project (IDSP) available at: https://ncdc.gov.in/WriteReadData/linkimages/222.pdf (Visited on May 15, 2020)
[5] The Epidemic Disease (Amendment) Ordinance, 2020 available at: https://www.prsindia.org/billtrack/epidemic-diseases-amendment-ordinance-2020 (Visited on May 15, 2020)
[6] Declaration of COVID-19 to be a Public Health Emergency by World Health Organisation available at: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen (Visited on May 15, 2020)
[7] Powers and functions of National Authority to take such measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary.
[8]Notification from the Government of India available at: https://prsindia.org/files/covid19/notifications/143.IND_Citizens_Order_Lockdown_Mar_24.pdf (Visited on May 15, 2020)
[9] Bryan A. Garner, Black’s Law Dictionary 895 (Thomson Reuters, 11th edition)
[10] Bryan A. Garner, Black’s Law Dictionary 895 (Thomson Reuters, 11th edition)
[11]Dinesh Chandra Pandey v. High Court of Madhya Pradesh, (2010) 11 SCC 500
[12]Sarla Goel v. Kishan Chand
[13](2004) 12 SCC 1
[14] AIR 1989 SC 2206
[15]State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276
