By Mung Neihsial
The coronavirus (COVID-19) outbreak is disrupting almost every part of life. Review of health systems preparedness in the wake of COVID-19 pandemic will not be complete without reviewing the legal framework available. A relevant and effective legal framework plays an important role in an emergency by giving tooth to government’s responses to public health emergencies and, delineates the duties and rights of citizens. It was on March 11, 2020, the antique law i.e. the Epidemic Diseases Act 1897 was resuscitated to tackle a modern virus when it was decided in a Cabinet Secretary meeting that states and Union Territories should invoke provisions of Section 2 of Epidemic Diseases Act, 1897, so that Health Ministry advisories are enforceable.
The 123 year old law which was introduced to tackle the Bubonic Plague has been widely criticised as a draconian colonial legislation. Historian David Arnold called the Act “one of the most draconian pieces of sanitary legislation ever adopted in colonial India”. (Arnold, 2000, p. 143) Does the resurrection of the antique law in these trying times hamper our basic human rights? Why was it widely criticised as a draconian colonial legislation? These are some of the questions which a legal student would be interested to address.
The Act invoked by the government to fight the pandemic has a chequered history not without tragedies. The trajectory of our (the public) representation or let’s say the abuse of power by the government has ironically shown a similar pattern with history and its tragedies. On June 22, 1897 bombs were hurled on the carriage of the Plague Commissioner and Lieutenant Ayerst, an Army officer also on plague duty. They were returning at dead of night from the Diamond Jubilee Celebrations in Government House to mark the accession of Queen Elizabeth to the British throne. The Army officer died on the spot while the young ICS, grievously injured, succumbed to his injuries on July 3, 1897 (Biswas, 2009). On March 28, 2020 a policeman was killed and two others were injured in two separate incidents in Assam following clashes with mobs over violation of the coronavirus lockdown. According to the police, Baktar Uddin Barbhuiya, 50, was going home from Binnakendi tea estate when he was surrounded by some locals and thrashed (NDTV: 28/3/20).In 1897, the year the Epidemic Act was enforced, freedom fighter Bal Gangadhar Tilak was punished with 18 months’ rigorous imprisonment after his newspapers Kesari and Mahratta questioned imperial authorities for their handling of the plague epidemic. Likewise in Manipur, at least five are detained for questioning government handling of COVID-19 crisis.(Scroll: 11/4/20)
Section 3 of the Act provides punishment for a disobedience or obstruction to an order or regulation made under the Act. On March 30, 2020 hundreds of migrant workers, including women and children were forced to take bath in sodium hypochlorite solution (TOI: 30/3/20).In the 1890s, there were allegations of the colonial action of humiliating Hindu women by stripping them naked in full public view by Tommies on the plea of lack of light inside houses (Biswas, 2009). Had they in both the present and past case objected to such action the result could possibly see them being booked for obstruction under the Epidemic Diseases Act, 1897. We are not implying that the Act authorized such inhumane actions; the Act simply lacks accountability as Myron Echenberg stated in his book, “the potential for abuse was enormous.”(Echenberg, 2007, p. 58)Section 4 of the Act explicitly provides immunity or protection to persons acting under the Act. No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.
The Act is silent on liability. By liability I mean to include the responsibility of the government against its action and governance through informed public discussion. Much of the unfortunate incidents such as the refusal for cremations/burial of the COVID-19 victim in Meghalaya, the attack on the health workers by pelting stones and bricks in Indore, the attack on the Police enforcing the lockdown in Assam, the harassments and manhandling of power department staff by Police in Assam, quarantine facility without proper equipment, patients absconding from quarantine facilities, all could have been avoided if there is a liability against the government and the liability to sensitize the general public and the state machinery with the facts, circumstances, their responsibilities and duties.
Though the object of the Act is to prevent the spread of “dangerous epidemic diseases”, it fails to define what dangerous epidemic disease is and the criteria that make an epidemic dangerous. Aside from the detention or quarantine measures, the Act is silent on the framework of accessibility, availability and distribution of vaccine, medication drugs and execution of such response measures. It is merely a regulatory measure, which lacks focus on public health. There is no express reference relating to the ethical aspects on human rights principles during a response to an epidemic/pandemic.(Binod, et. al, 2013)
If the antique law -Epidemic Act, 1897 still finds its relevance today, it is not because the Act is effective, it is purely due to the emerging and re-emerging of dangerous infectious communicable diseases and the lack of a better legal framework. Does the lack of a better legal framework once again make the antique law a beauty in the eyes of the beholder?
(The writer is Research Scholar, Department of Law, NEHU [email protected])