A Project on

“Epidemic Diseases Act, 1897 & Public Health (Prevention,

Control and Management of Epidemics, Bio-terrorism and
Disasters) Bill, 2017”

Health Laws

Dr. Subhradipta Sarkar, FACULTY

SUBMITTED BY: Humanyu Kabeer & Rahul Sisodia
Roll Number: 17BLWS121 & 17BLWS147
B.A. L.LB. (Self-Finance)
SEMESTER VIII
BATCH 2017-22

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INTRODUCTION

Authorities all around the globe closed their eyes to the early warning signs of a health
emergency of this unprecedented magnitude. By virtue of such ignorance, India’s response to
the pandemic has been nothing more than a knee-jerk reaction.
Considering the absence of a rationally structured legislation, the central government in
advised states to invoke the Epidemic Diseases Act of 1897 to handle the pandemic in March
2020. Although, there is a lack of legislation to tackle any such disasters into account, yet
central government took some steps to mitigate the pandemic, which were merely
administrative orders.
As far as the right to health is concerned, it is neither covered under the umbrella of human
rights nor in the fundamental rights enshrined in the constitution of India. This might be one
of the factors for the weak public health in India. Constitution of India doesn’t guarantee a
fundamental right to health, though, yet there are multiple references in the constitution to
public health and on the role of the state in the provision of healthcare to citizens. But there is
no potential development in that direction.
Dousing fires as they continue to light up is not a long-term solution. A welfare state must be
equipped to protect the well-being of its citizens. This where the incumbent regime lacks the
appropriate legislation to affect the same.
The Epidemic Diseases Act, 1897 is absurd and ineffective. The legislation is a testament of
lawmakers shirking their responsibility to make appropriate laws on the subject. The archaic
law also fails to counter the problems of the contemporary world.
As COVID-19 in India have proved all the expected rates of decline wrong, the Government
continues to rely on the 123-year-old Epidemic Diseases Act, 1897 (“The Act”) to try and
bring some semblance of control to the situation. The Supreme Court, in a decision dated
17th November 2020, refused to adjudicate on the constitutional validity of the Act and
remanded the matter to a High Court. The present scenario has refuelled questions on the
legitimacy and effectiveness of this British-era legislation, which may be deemed as archaic
in the present scenario. In the author’s opinion, there is a drastic need to overhaul this
legislation according to the needs and technological capabilities of a modern India. An
amendment is essential, if not a complete striking down of this Act.

SCOPE OF THE ACT

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The Act, divided into four sections, was envisaged to govern the country during large-scale
breakouts like the pandemic we face today. Yet, according to the author, it possesses some
fundamental flaws.

Firstly, the most glaring omission in the Act is that the term “epidemic” has not been defined
in the entire Act. This leads to an inherent lack of clarity and objectivity, enabling misuse by
the Government in the situation that it deems fit. The Act empowers the Government with
certain special powers, but due to a lack of a definition, imposes no obligation on them to
impose it within a reasonable time.
Secondly, the punishment for disobeying the provisions of this Act resides in Section 188 of
the Indian Penal Code. This Section is a broad provision that deals with disobedience of any
order issued by a public servant in general. There is a lack of efficient enforcement provisions
that are focused on and suit the need of the Act – instead, it relies on general disobedience
statutes. Further, the Section mandates either six-month imprisonment or a thousand rupees
fine. This minimum sentencing may hardly prove as an effective deterrence during a
pandemic and is hardly a befitting punishment for disobedience that may take lives. It is
important to note that Section 270 deals with any malignant action that may spread diseases,
inviting two years of imprisonment. Sections 269 and 271 deal with negligent actions that
may spread diseases and disobedience of any quarantine rule respectively, both mandating
six-month imprisonments. Despite the existence of these provisions, there is no mention of
them in the Act. Due to this, recent orders issued by the Maharashtra, Haryana, and
Telangana State governments regarding the COVID-19 pandemic also refer to only Section
188. Moreover, the Patna High Court in Raj Mangal Ram v State of Bihar made the usage of
Section 188 stricter – a mere FIR is not enough, but it must be supplemented with a
complaint filed under Section 195 of the Criminal Procedure Code as well. This decision has
made the procedural aspect of punishment under the Act more long-drawn, making the case
clear for alternative remedies as well.

Thirdly, the Act states that the Government may invoke its provisions whenever it is satisfied
that ordinarily laws will not suffice. The word ‘satisfied’ here has an inherent ambiguity – the
subjectivity of this term makes it amenable to misuse and wrongful invocation. The Act must
deal with the manifest arbitrariness test as held by the Supreme Court in Shayara Bano v

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Union of India & Ors. The vague and ambiguous scope of the Act makes it vulnerable to be
struck down as arbitrary and disproportionate under Article 14 of the Indian Constitution.

Fourthly, the Act completely fails to address issues vital to a 21st Century world. The Act
refers to only land and sea routes. Since it was implemented at a time when air travel was
barely active, the Act completely omits reference to disease management during aerial
transport. This is one of the most essential problems that need attention in present times. It
also ignores the implementation of large vaccine drives. The concept of vaccination, while
quite nascent in 1897, has assumed a platform of global importance that definitely requires a
mention in the Act.

Lastly, The Public Health (Prevention, Control and Management of Epidemics, Bio-
Terrorism and Disasters) Bill of 2017 (“The Bill”) gives a definition of an epidemic and
provides various other health measures. This Bill was a much more comprehensive and
modern bill that contained effective means to tackle a 21 st Century Pandemic. Yet, it was
never implemented and brought into law by the Parliament. It is essential that the provisions
of this Bill be incorporated into the Epidemic Diseases Act, 1897 by virtue of an amendment.
It is interesting to note is that the Bill had already envisaged SARS as an epidemic-prone
disease, demonstrating the forethought and relevancy of this Bill. The Bill increased the
punishment for disobedience to 2 years and also increased the fine to Rs. 10,000/- for the first
offense and 25,000/- for subsequent offenses. These provisions would greatly benefit the
Epidemic Diseases Act, 1897.

Public Health (Prevention, Control and Management of Epidemics, Bio-

Terrorism and Disasters) Bill, 2017

In relatively recent times, efforts were made to fill in the lacunae created by advancement in
health science. In 2017, the Public Health (Prevention, Control and Management of
Epidemics, Bio-Terrorism and Disasters) Bill was drafted. The National Centre for Disease
Control (NCDC) and the Directorate General of Health Services (DGHS) jointly prepared
this Bill, citing the need to empower government bodies during health emergencies.

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The Bill aimed to thoroughly address health emergencies that India might face in the future
and to repeal the Epidemic Diseases Act. Initial concerns over the sudden focus on
bioterrorism and lack of governmental enthusiasm on the subject made sure that the Bill was
never tabled in Parliament. In retrospect, some of the provisions are especially noteworthy.

SCOPE OF THE BILL

The Public Health Bill, 2017 sought to define fascinating and atypical terms such as "Bio-
terrorism", "Public Health Emergency", "Social distancing" and "Quarantine” {. The
definition clause of the Bill alone is enough to exemplify the exigency of modern laws on the
issue.

Section 2(d) provides the definition of the term "clinical establishment" and gives a
comprehensive and extensive meaning to it. Every medical facility, irrespective of its
composition, ownership, size, and speciality, was brought under the scope of clinical
establishment for the purposes of the Bill. The wide ambit of ‘clinical establishment’ even
includes the compact clinics of individual doctors and all kinds of research and diagnostic
labs. The solitary exception in this regard is clinical establishments owned, managed and
controlled by the Armed Forces. The utility of this definition is put forth in Section 3 of the
draft legislation.

Section 3 confers a barrage of powers to the state governments, union territories, district and
local administrations. These instrumentalities may mandate health measures including
quarantine, isolation and social distancing to any person(s) or any class of persons. They are
empowered to prohibit certain activities, ban or regulate drugs and other hazardous
substances, conduct medical tests, and undertake diverse decontamination measures.

Through Section 3, these authorities had the competency to issue directives to all clinical
establishments. Such powers could be exercised when any state government or administration
of union territory or any district or local authorities are of the opinion that there is an existing
or impending public health emergency.

HEALTH EMERGENCY

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Analogous to other emergency provisions, the letter of the law in the Bill allowed the Central
government to disregard the unique federal structure of India if it appears that it would be
expedient and in public interest to do so, and confer unto itself the powers prescribed in
Section 3 of the Bill.

Section 13 provides for the Centre to formulate the initial rules for execution of the Bill. The
state governments had to follow the specified rules, but could amend them for better
implementation according to the situations arising in the state. Though the power to amend
has been granted, it can amend only three types of rules, which do not offer much flexibility
to the administration.

Dr. Ambedkar’s reckoning that the federal structure may change depending on the
requirements and circumstances may be employed to buttress Section 4 of the Bill. A
temporary abolishment of the federal scheme may be excused, nay, encouraged, in order to
align national action against pandemics, especially when ephemeral changes to health
policies do not adversely affect the socio-legal outline of states.

PENAL PROVISIONS

The provisions of the Public Health Bill, 2017 would have proven fruitful in present times.
Section 7 of the draft Bill put any person authorised by this act or the rules made under it
within the definition of a Public servant as expounded under Section 21 of the Indian Penal
Code [IPC]. Application of this provision would have acted as a deterrent to those
mischievous elements of society who have resorted to violence against healthcare workers.

It would bring Section 185, 186 and 187 IPC into consideration and would not require hurried
ordinances, which even though aim to compensate by imposing stricter punishments, are
reactive, and therefore, serve no purpose.

The penalty stipulated in the Public Health Bill, 2017 accounts for varied situations that may
arise. It penalises the defaulter up to Rs. 10,000 for the first contravention and up to Rs.
25,000 for repeat negligent contraventions. For wilful contravention, the fine levied can be up

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to Rs. 1 lakh and can also attract imprisonment of up to 2 years. The quantum of fine
mentioned in the Bill is reflective of the present economic situation and the deterrence
brought upon by imprisonment is of a sensible degree.

Since any authorised person under the Act is to be treated as a public servant, any endeavour
to inhibit their actions can be punished with the just imposition of Section 188 of the Indian
Penal Code as well. On the contrary,

Section 188 IPC is the sole punitive action available against defiance of rules made under the
Epidemic Diseases Act, wherein the punishment determined is imprisonment for a maximum
term of one month or fine of two hundred rupees or both. Moreover, if a person’s action
causes danger to human life, health or safety, or causes or tends to cause a riot or affray, he
can be imprisoned up to six months or can be fined up to Rs.1000 or both.

Section 188 IPC also stipulates that the offender must have the knowledge that he is directed
to follow certain measures as may be promulgated by a public servant who is lawfully
empowered to do so. This constraint vis-a-vis knowledge of the offender is not a prerequisite
under the Public Health Bill, 2017. The absence of such a condition would have certainly
paved the way for better management of the lockdown.

SCHEDULES IN THE BILL

The fourteen sections of the Bill are supplemented by two schedules. The first schedule
enlists epidemic-prone diseases. The second schedule enlists potential bio-terrorism agents.
The first schedule includes SARS, of which the novel Coronavirus (also known as SARS-
COV-2) is a mutation.

Hence, had this Bill taken the shape of law, it would have been applicable without requiring
any amendments to this schedule. The aforementioned observations and the enormity of the
current chaotic situation assert the need of reintroduction of the Public Health Bill, 2017 or
the introduction of a similar legislation.

CRITICISM TO THE BILL

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The Union Ministry of Health & Family Welfare has drafted a Public Health (Prevention,
Control and Management of epidemics, bioterrorism and disasters) Bill, 2017. The National
Centre for Disease Control (NCDC) and the Directorate General of Health Services (DGHS)
jointly prepared the Bill keeping in mind the need to empower local government bodies
during emergency situations. It incorporates provisions to give more teeth to the government
machinery so that they are able to tackle any emergency swiftly. With the implementation of
this new act, the ‘century-old blunt act’, The Epidemic Diseases Act, 1897 will be repealed.

During the meeting, the experts concluded that the bill, in its current form, is riddled with
issues. It is very restrictive and lacks clarity. For example, it is quite unclear about the
prevention, control and management aspects. The title of the bill is quite misleading as this
does not address public health comprehensively. The bill’s main focus is on epidemics,
bioterrorism and disasters—all of which are very different from each other and need different
preventive measures. Also, there seems to be a covert focus on bioterrorism over others.

Though the bill gives emphasis on curbing bioterrorism, but the larger picture is merely
visionary. On ground, there is a scarcity and crisis of public health institutes, universities and
hospitals which are efficient enough and well-equipped to tackle the concerns of
bioterrorism.

Besides other facts, massive research and development and training of public health cadres
like field epidemiologists, disease control specialists and public health administrators is
needed before formulating such a bill.

CONCLUSION

In conclusion, the Epidemic Diseases Act, 1897 has lost its effectiveness and relevancy in the
modern world. Without the necessary changes, it remains an archaic and colonial piece of
legislation that is open to misuse and constant criticism. At a time when the global standards
for disease control have set an incredibly high threshold, the Indian government needs to
realize the inadequacy of the current legislation.

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The COVID-19 pandemic serves as a standout opportunity to update health laws throughout
the country. Law needs to be an integral part of our public health system and any dearth of
legal preparedness in the spheres of planning, communication, coordination, surveillance, and
protection of human rights during a public health emergency needs to be addressed
immediately.

The COVID-19 has been an eye-opener for all of us as we have learnt in the last six months
that how essential the need of the right to health is. This is the right time to include ‘Right to
Health’ in the list of fundamental rights. Strong health laws will certainly help build societal
resilience to future pandemics and public health emergencies, which need to be implemented
with due diligence and transparency. This is of national interest.

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 BIBLIOGRAPHY
STATUTES REFERRED

The Constitution of India

Indian Penal Code, 1860
Epidemic Diseases Act, 1897
Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and
Disasters) Bill, 2017

WEBSITES REFERRED

1. https://www.barandbench.com/apprentice-lawyer/hindsight-2020-retrospective-
analysis-of-the-publichealthpreventioncontrol-andmanagementof-epidemicsbio-
terrorismanddisastersbill, visited on 15-05-2021.
2. https://prsindia.org/billtrack/the-epidemic-diseases-amendment-ordinance-2020,
visied on 12-05-2021.
3. https://www.jurist.org/commentary/2020/11/aman-saraf-india-epidemic/, visited
on 15-05-2021.

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