Unravelled: The Epidemic Diseases Act, 1897
The President of India recently sanctioned the promulgation of The Epidemic Diseases (Amendment) Ordinance, 2020 which seeks to amend the Epidemic Diseases Act, 1897 in order to safeguard the life and interests of healthcare workers involved in fighting the health epidemics in the country. The Union Cabinet approved the Ordinance with a view to “protect healthcare service personnel and property including their living/working premises against violence during epidemics.” Since both the Houses of the Parliament were not in session and the President rendered it crucial under the prevailing circumstances to initiate action, this Ordinance was implemented by the powers vested in the President under Article 123(1) of the Constitution of India.
A series of unfortunate events over the past two months have led up to the enactment of this particular Ordinance. Numerous incidents of violence against doctors, nurses and other frontline workers involved in the battle against the Coronavirus have swarmed the headlines every day. Further, this is just the tip of the iceberg since a vast majority of such cases never catch the public eye and are swiftly brushed aside by the local administration. The unfortunate example of Dr. Simon Hercules, a neurosurgeon from Tamil Nadu who passed away after contracting the coronavirus, demonstrates the apathy and indifference of the public towards the plight of our healthcare workers, who are working day and night without adequate supply of Personal Protective Equipment (PPEs) to shield them.
When family and friends of Dr. Simon proceeded to the burial ground for performing the last rites, they were met with stiff opposition and protest by a mob which had gathered there to stop the burial. The doctors and staff accompanying the family were attacked with sticks and stones at the burial grounds and had to flee from the scenes in a bid to save their own lives. This incident cannot simply be passed off as a one-off occurrence. Multiple similar instances have been well documented in the national media. In Maharashtra’s Thane too, the family members of a doctor who tested positive were harassed and humiliated by neighbours and the Indian Medical Association had to step in to allow the family back into their home. Also, doctors all over the country are being forced out of their rented accommodations by landlords acting out of fear. The attitude of society towards the frontline workers is two-faced. To begin with, we try to show our gratitude to healthcare workers by clapping and banging utensils almost maniacally, but the very next moment we shun out those same people whom we were thanking. It’s a great commentary on the type of society we have evolved into.
The Indian Medical Association had been demanding a Central legislation to protect healthcare workers from violence and harassment. An official statement released by them stated, “IMA has maintained utmost restraint and patience in spite of extreme provocations. Doctors have been abused, beaten, denied entry and residence. Obstruction to cremation is the last straw that IMA can bear. If dignity is denied even in death, our patient and restraint lose their value. We demand a Central law against violence on doctors, nurses, healthcare workers and hospitals by an ordinance.”
The original Epidemic Diseases Act of 1897 was a short legislation with just four provisions. At the very onset of the Coronavirus outbreak in India, many eminent thinkers and writers had questioned the feasibility of waging a war against the outbreak using a colonial era legislative instrument. It was enacted at the end of the 19th century, after the bubonic plague of 1896, to provide for the better prevention of the spread of dangerous epidemic diseases. Under Section 02 of this Act, the State Government(s) were adorned with several powers required to deal with dangerous epidemic diseases. The provision states that whenever any State is threatened with the outbreak of any epidemic disease, the State Government can prescribe temporary regulations to be observed by the public or a class of persons, as are required to prevent the outbreak and contain the further spread of such disease. The creation of containment zones or coronavirus hotspots, which are then sealed and entry/exit is completely restricted, is an example of the practical application of this provision. The State Government is also empowered to take measures like carrying out the inspection of persons travelling by railway and segregation of persons who are suspected to infected with any disease.
The biggest criticism of the original Epidemic Diseases Act, 1897 has been that it does not provide sufficient powers to the Central Government to take any actions and intervene in order to contain the spread of a disease. The Management of Biological Disaster Guideline, released by the Government of India in the year 2008 stated, “The Epidemic Disease Act was enacted in 1897 and needs to be repealed. The Act does not provide any power to the Centre to intervene in biological emergencies. It has to be substituted by an Act which takes care of the prevailing and foreseeable public health needs, including emergencies such as BT (bioterrorism) attack and use of biological weapons by an adversary, cross border issues and international spread of diseases.”
Thus, the role of the Centre in such situations is quite limited. Section 2A of the Act only bestows upon the Central Government the power to carry out inspections of any ship or vessel leaving or entering any port in the country. Beyond this, the Centre can only issue advisories and coordinate between the States. A draft bill, named the Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill, 2017, was prepared by the Ministry of Health and Family Welfare which sought to do away with and repeal the Epidemic Diseases Act, 1897. The Bill was meticulously drafted and was quite comprehensive in its approach towards dealing with health emergencies and the public health measures to be taken by various authorities. It also gave the Central Government enough powers to take requisite action in the case of a public health emergency.
The Ordinance promulgated by the President has brought in several changes to the original legislation. The most significant change is that a new provision, Section 2B, has been introduced which prohibits any person from indulging in violence against healthcare service professionals and causing any damage to property during an epidemic. Section 1A has been incorporated into the Act to carry several definitions, such as that of healthcare service professional, which broadly includes any person who, while carrying out his duties in relation to the epidemic, may come in direct contact with affected patients and is at risk of being impacted by such disease. The following people will also come under the ambit of this term:
(i) any public and clinical healthcare provider such as doctor, nurse, paramedical worker and community health worker;
(ii) any other person empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof;
(iii) any person declared as such by the State Government, by notification in the Official Gazette.
An act of violence against a healthcare service personnel includes:
- Harassment, which impacts the living or working conditions and prevents the personnel from discharging his/her duties;
- Harm, injury, hurt, intimidation or danger to the life of any healthcare service personnel;
- Obstruction or hindrance to any healthcare service personnel in the discharge of duties;
- Loss or damage to any property or documents related to a healthcare service personnel.
Section 3(2) of the Act makes any act of violence against healthcare service personnel a punishable offence, with imprisonment ranging for a term of three months to five years and with fine ranging from fifty thousand to two lakh rupees. The next sub-section, Section 3(3), mandates that if a person, committing an act of violence, causes grievous harm (under Section 320 of the Indian Penal Code) to a healthcare service personnel, he/she shall be imprisoned for a term of six months to seven years and fined an amount ranging from one to five lakh rupees.
The troubling part of this legislation lies in the provisions of Section(s) 3C and 3D, which mandate that a person being prosecuted under Section 3(3) is to be presumed by the Court to be guilty and having a culpable mental state to commit such offence, until the contrary is proved. Presumption of innocence of a person accused of a crime is a well-established norm of natural law and is an international human right under Article 11 of the Universal Declaration of Human Rights. Crossing this well-defined line raises a red flag that the legislation has been designed simply to avoid facing public flak due to doctors’ protests which have highlighted the poor preparation of the government for fighting the viral outbreak.
The question that arises now is whether a piece of legislation is enough to suppress the inhumane acts of violation and humiliation that have ensued against doctors, or is this merely eyewash by the Central Government to pacify the doctors and other healthcare workers? For me, it is the latter. It seems like the government is not attempting to get rid of the roots of this problem, rather it is immersing itself in damage control. To describe it in Gandhi’s words, the Epidemic Diseases (Amendment) Ordinance, 2020 is “a post-dated cheque on a crumbling bank.” The issue we are facing today is not one that can be resolved through strict laws and proper implementation for it is a social problem rooted deep in our mindsets.
