EPEDEMIC DISEASES ACT : COVID 19

This research piece states that the primary legislation empowered to regulate and govern
amidst a pandemic is the Epidemic Diseases Act, 1897 extending to the whole of India, the
1897 Act expressly in the lieu of “the better prevention of the spread of dangerous epidemic
diseases”.
Epidemic Disease Act, enacted in February 1897, with the primary objective of preventing
and avoiding ‘emerging epidemic diseases’1as a result of the eruption of the bubonic plague
in India (mostly the Bombay presidency), claimed to have spread through rats, killed 10
million people, gave the colonial government draconian powers to regulate the outbreak and
take requisite steps to contain the outbreak.2
The act containing just 4 sections is one of India’s shortest Acts, – enacted to avoid an
outbreak of contagious diseases and grants the government power to take appropriate steps to
prevent the spread of dangerous disease. The Act, however, did not describe what is a
‘dangerous disease’? There is no certainty whether an outbreak is “dangerous” owing to the
enormity of the issue at hand, populations that might have been affected due to the outbreak,
the severity of the crisis, or the ability to spread globally if we are to avoid misuse of the act.3
Vouches for decentralisation: delegates power to the states
Given that the Epidemic Diseases Act, 1897, is specifically applicable, it becomes significant
to consider that Section 25 of the Act empowers state governments, and not the Centre, to
enforce temporary legislation to limit the outbreak of an epidemic. Under Section 3 of the
Act, the authority of the Centre is limited to regulations regarding ports, vessels, and ships. It
can be argued therefore, that the imposition of regulation by the Centre cannot be binding on
a state government, as Section 2 of the EDA, 1897, gives state governments precedence when
specifically dealing with a pandemic.

 National Disaster Management Act : a question on the constitutional values

1
Dengue Case : Chandigarh Invoke Epidemic Disease Act, Challans Private Lab Owners’ Indian Express (4 Oct
2015) <http://indianexpress.com/article/cities/chandigarh/dengue-cases-chandigarhinvokes-epidemic-
diseases-act-challans-private-lab-owner/>
2
Vibha Varshney, ‘Unravelling the Bombay Plague’ (Down to Earth, 16 July
2015)<https://www.downtoearth.org.in/reviews/unravelling-the-bombay-plague-50165>
3
Arnold D Science, ‘Technology and Medicine in Colonial India’ (2000) UKCUP 143.
In this context, it is pertinent to note that Section 11(1) and 11(2) of the Disaster Management
Act requires that when regulating for a nation-wide disaster, a National Plan is to be
developed, specifically in consultation with the States. This is problematic on two counts.
Firstly, the Centre has completely bypassed the procedure within the Disaster Management
Act, while simultaneously relying on it as the enabling act, to create delegated legislation. On
procedural grounds therefore, the Centre’s enforcement of regulatory notifications is ultra
vires of the parent statute. Kunj Behari Lal Butail v State of H.P4 lays down that using
delegated powers to carry out the purposes of the Act does not allow the creation of rights or
obligations not contemplated within the parent act itself. The development of national
guidelines by the Centre, without a National Plan or consultation with the States, is not
envisaged by the 2005 legislation.5

The second count on which the consultation with State governments being bypassed is
problematic is that it directly weakens the federal structure. Allowing the Union, which holds
an inherent concentration of power in our constitutional framework, to ignore its obligations
to the States in exercise of a legislative mandate, is a dangerous precedent for future
executive action. The argument laid down does not pertain to the actual merits of the Centre’s
pandemic policy, and is independent of whether there would be significant agreement or
disagreement between the Centre and States. Rather, it is strictly focused on the absence of
constitutional rigour, and the potentially weakening effect this can have on our federal
structure

Analysis of the Act

The act is used to contain the spread of the novel corona virus, undoubtedly strikes a chord
between modern- day realties. The Act doesn’t even envisage the very definition of an
“Epidemic Disease”. However, it’ll be inconsiderate to say that the government did not do
anything. In 2017 a bill was introduced called the ‘Public Health (Prevention, Control, and
Management of Epidemics, Bio-terrorism and Disasters) Bill’. 6 The said bill was to repeal the
above act; however, even after three years, it is yet to see the daylight. While the factors that
needs to be addressed now are the growing rates of mode of transportation especially air
travel compared to sea travel 100 years ago, rapid migration of workers, primarily daily wage
4
(2003) 3 SCC 40
5
https://www.jurist.org/commentary/2020/11/aman-saraf-india-epidemic/
6
Public Health (Prevention, Control, and Management of Epidemics, Bio-Terrorism and Disasters) Bill 2017
earners within the states for the sake of earning a livelihood, increased urbanisation and
globalisation, significantly increased density of population within the states and metro cities,
man – made ecological shift, changing climatic conditions, a rapid evolution from agrarian to
industrial community technology and a lot more which clearly states that pieces of
legislations need to evolve as human evolve. 7

There is an immediate need to strength the legal structure within the country to control
diseases transmission. The act that is currently governs India’s health crisis as seen above has
major loopholes in tackling diseases, especially in a growing health context. Nevertheless,
several India states have amended the act over the years, and have also formulated their own
public health laws, although these acts vary in quality and content. There must be an
integrated, comprehensive, actionable and modern specific legal framework for managing
outbreaks that must be articulated in a right- based, people-focused and public health oriented
manner.

Misses out on important Socio Economic Aspect

However, even building capacity does not suffice if the legislation does not address the deep
seated inequalities in Indian society and the disproportionate harm that lockdowns or other
measures restricting the economy cause to certain sections of the population.8 Migrant
laborers have emerged as particularly vulnerable groups in the present pandemic, and their
forced mass migration is being seen as a human tragedy.9 There have been instances of death
by starvation. This is not even to account for the fact that their malnourishment makes them
even more likely to contract the virus, making this not only a human rights issue, but one of
public health.10 This also tells us that certain Socioeconomic Rights in here in the Right to
Health, particularly in context of an epidemic - one simply cannot be healthy on a hungry
stomach. Thus, legislation guaranteeing Right to Health would itself be meaningless without
these corresponding rights also being similarly guaranteed. Similarly, concepts like social
distancing cease to make sense in India’s slums, with cramped living conditions and utter
lack of hygiene. No legislation addressing Public Health can afford to ignore this
7
Rakesh PS, ‘The Epidemic Disease Act 1897: Public Health Relevance in the Current Scenerio’ (2016) 1
IJME<https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-
currentscenario/?galley=html
8
3Arun Kumar, ‘The Pandemic Is Changing the Face of Indian Labour’ (The Wire, 9 May
2020)<https://thewire.in/economy/covid-19-pandemic-indian-labour>
9
Soutik Biswas, ‘Coronavirus: India’s Pandemic Lockdown Turns into a Human Tragedy’ BBC (30 March 2020))
<https://www.bbc.com/news/world-asia-india-52086274>a
10
Harsh Mander, ‘A Pandemic in an Unequal India’ The Hindu (1 April
2020)<https://www.thehindu.com/opinion/op-ed/a-pandemic-in-an-unequal-india/article31221919.ece
fundamental reality. Institutions responsible for dealing with elements of the problem already
exist, but lack a unifying legislative framework: Health Boards established under the new Act
must be empowered to coordinate with the Department of Sanitation and Drinking water, as
also the Ministry of Housing and Urban Poverty Alleviation in order to jointly deal with the
situation of hygiene, with specific emphasis on areas prone to an epidemic, in order to truly
mitigate the severe threat to public health.

2) PARLIAMENTARY UPDATE:

Walkouts

Continuous protests by a united opposition seeking a discussion 9th Aug 2021

and independent judicial probe into the Pegasus issue, a repeal of
the farm laws and other issues on Monday(7th Aug) led to five
adjournments in the Lok Sabha and a walkout in the Rajya
Sabha11
Opposition parties boycotted Parliament on Tuesday(22nd 22nd September 2020
September), first walking out of Rajya Sabha in the morning and
later from Lok Sabha at around 4 p.m., protesting against the
flawed passage of the two farm bills in the Upper House on
Sunday(20th September) , that resulted in violent protests by
opposition members and suspension of eight Parliamentarians.12

11
Parliament Updates, The Wire
https://www.google.com/url?sa=t&source=web&rct=j&url=https://m.thewire.in/article/government/
parliament-update-5-adjournments-in-ls-walkout-in-rs-over-pegasus-farmers-protests/
amp&ved=2ahUKEwjllrDAmqnyAhX3xzgGHez4DT8QFnoECAQQAQ&usg=AOvVaw1ShrKJ3dI3Df_aMaqoypFL&a
mpcf=1
12
Parliamnet Proceedings , the Hindu
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.thehindu.com/news/national/
parliament-proceedings-opposition-parties-walk-out-of-both-houses-of-parliament/article32666307.ece/
amp/
&ved=2ahUKEwjH9NyUm6nyAhX54zgGHV4sCg4QFnoECAoQAQ&usg=AOvVaw1gGM6INmEr3j54CjgztanD&am
pcf=1
According to PRS Legislative Research, the Parliament had just 33 sittings in 2020, including
23 in the budget session and 10 in the monsoon session. While the budget session in March
was cut by nearly 10 days, an already truncated monsoon session in September was reduced
by eight days.13

By convention, Parliament meets for three sessions in a year. The longest, the Budget
Session, starts towards the end of January, and concludes by the end of April or first week of
May. The session has a recess so that Parliamentary Committees can discuss the budgetary
proposals.

The second session is the three-week Monsoon Session, which usually begins in July and
finishes in August. The parliamentary year ends with a three week-long Winter Session,
which is held from November to December.

Over the years, governments have shuffled around the dates of sessions to accommodate
political and legislative exigencies. In 2017, the Winter Session was delayed on account of
the Gujarat Assembly elections. In 2011, political parties agreed to cut short the Budget
Session so they could campaign for Vidhan Sabha elections in five states.

Sessions have also been cut short or delayed to allow the government to issue Ordinances.
For example, in 2016, the Budget Session was broken up into two separate sessions to enable
the issuance of an Ordinance.

Sessions have been stretched — in 2008, the two-day Monsoon Session (in which a no-
confidence motion was moved against the UPA-I government over the India-US nuclear deal)
was extended until December. The ostensible reason was to prevent the moving of another
no-confidence motion. It meant that there were only two sessions that year

In 2020, Parliament has met for 33 days. The last time it met for fewer than 50 days was in
2008, when it met for 46 days.14

Suspension of Zero Hour and Question hour in view of the PandemicParliamentary

records show that during the Chinese aggression in 1962, the Winter Session was
advanced. The sitting of the House started at 12 pm and there was no Question Hour held.
Before the session, changes were made limiting the number of questions. Thereafter,

13
https://prsindia.org/sessiontrack/budget-session-2021/vital-stats
14
https://indianexpress.com/article/explained/parliament-winter-session-lok-sabha-rajya-sabha-7107893/
following an agreement between the ruling and the Opposition parties, it was decided to
suspend Question Hour.15

Parliaments around the world

Parliaments in democracies around the world are meeting and questioning their governments
on their responses to the COVID-19 pandemic. The Canadian Parliament had its first
lockdown meeting towards the end of April, with roughly 280 of the 338 Members of
Parliament attending through video conference and questioning the government for three
hours. The British Parliament has adopted a hybrid model of in-person and video attendance.
Several other countries have held sessions either with physical distancing (fewer MPs attend
with agreement across parties) or video conferencing or a combination of the two. These
include France, Italy, Argentina, Brazil, Australia and New Zealand. Many others are
convening their committees through video-conferencing. The Inter Parliamentary Union has
documented the processes used by various national parliaments to meet during the pandemic.
India’s Parliament, which prides itself as the apex representative body of the world’s largest
democracy, is a notable absentee from this list.16

Budget Session 2021

The Budget session of Parliament was held from January 29, 2021 to March 25, 2021.   The
session was divided into two halves with a recess from February 16 to March 7.  The budget
was presented on February 1.  Post the COVID-19 lockdown, Parliament had been
functioning in two parts with one House sitting in the morning and the other sitting in the
afternoon.  In the second half of the budget session, both houses resumed their normal
functioning hours.  Parliament adjourned sine die on March 25, 2021 having sat for a total of
24 days curtailing the session by eight days.17

76% of the budget passes without discussion

During the session, budgets (demands) of the ministries of: (i) railways, (ii) education, (iii)
health and family welfare, (iv) road transport and highways, and (v) housing and urban affairs
15
https://prsindia.org/articles-by-prs-team/an-expert-explains-what-are-question-hour-and-zero-hour-and-
why-they-matter
16
https://prsindia.org/articles-by-prs-team/india%E2%80%99s-parliament-is-missing-in-action
17
https://prsindia.org/sessiontrack/budget-session-2021/vital-stats
were listed for discussion.  Of these, railways, education, and health demands were discussed.
These constitute 24% of the total voted expenditure.  The remaining demands were passed
without discussion.  In the past 18 years, on average, 83% of the demands are passed without
discussion in Lok Sabha.

Monsoon Session started on 19th July and ended on 11 th of August after the Rajiya
Sabha adjourned sine die after opposition protest over Pegasus and Farm Laws

LIVE STREAMING OF SUPREME COURT CASES

CASE LAW : Swapnil Tripathi vs Supreme Court of India((2018) 10 SCC 639)

Judges: J. Dipak Mishra ,C.J , AM Khanvilkar and DR. D.Y Chandrachud

The judgement allowed live streaming of cases siting examples of various countries like
USA, Canada and New Zealand

Some important Paragraphs:

126. International courts have also embraced the idea of broadcasting their court proceedings.
The International Criminal Court (ICC) permits televising of its cases, although with a thirty
minute delay, 140 ICC has a YouTube channel where it broadcasts case proceedings, press
conferences, and informative videos in different languages.

127. On examining the practices followed by the jurisdictions discussed above, it appears that
broadcasting of courtroom proceedings emerged in several countries through judicial
decisions.

128. Live streaming of court proceedings is manifestly in public interest. It is important to re-
emphasise the significance of live streaming as an extension of the principle of open justice
and open courts.
129. The need for live streaming of proceedings applies with equal and, in some spects,
greater force to proceedings of cases in the district judiciary and the High Courts. The pattern
of litigation in our country resembles a pyramid. The courts within the district judiciary
represent the large base of the pyramid where citizens have the greatest interface. It is to the
courts comprised in the district judiciary that citizens turn as a point of first access for
remedying

This was futher upheld while hearing a Writ petition in the case of Chief Election

Commissioner of India vs. M.R. Vijayabhaskar and Ors.( 2021 SCC OnLine SC 364)

and finaly the guidelines were enacted

Judges:  D.Y. Chandrachud and M.R. Shah, JJ

Comments by Justice DY Chandrachud on enactment of the rules on live streaming of

SC cases18:

 “Even after the pandemic ends, Live streaming would demystify court proceedings for
court proceedings and will convey the message that courts are for the people. People
get to know that Judges are actually at work.”
 “We are targetted for the Holidays we take but Judges are working every single part
of the day, it is easy to target judges for the holidays that we have, but people don't
understand the immensity of the work that the judges do even when they have time
off.”
 “Whether on not people are interested in a particular case, live streaming adds to
transparency. People get to know that Judges are actually at work. Misconceptions are
there regarding Judges' functioning, we are targetted for the Holidays we take.”
 “Live Streaming is a necessity now. Even after the pandemic ends, Live streaming
would demystify court proceedings for court proceedings and will convey the
message that courts are for the people.”
 “Justice Chandrachud also lauded the efforts of Gujarat High Court's Chief Justice
Vikram for taking the initiative to Live Stream HC's proceedings.”
18
Live Streaming A Necessity, Adds To Transparency & Allays Misconceptions About Judges' Functioning:
Justice DY Chandrachud https://enalsar.informaticsglobal.com:2278/news-updates/live-streaming-necessity-
transparency-allays-misconceptions-judges-functioning-justice-dy-chandrachud-177675
  Justice Chandrachud also said that since he is an optimistic person and that he
believes that the member of Bar are extraordinarily responsible and they will use this
opportunity to responsibly conduct the live proceedings.
Lastly, he appreciated the initiative started by the Gujarat High Court and hoped that
it shall be replicated by the rest of the country.

Comments by CJI NV Ramana19

 “Lack of direct access could give space for misconception and so Live streaming is
the best remedy for it. Judges should never shy away from public duty.”
 “At times, the live streaming mode can become a double-edged sword, however, a
judge can't be swayed by popular opinion as Judge might be in the public gaze, he
might become a topic of discussion. Judges cannot lose objectivity. The lawyer too
should not go for publicity”

Justice Shah

Further, speaking on the occasion, Justice Shah said that Live streaming was a dream
but it will come true today. He added that CJI is very much interested in timely justice
and transparency in the courts' proceedings and that it is in his heart

19
Keen To Start Live Streaming At Supreme Court": CJI NV Ramana At Launch Of Live Streaming At Gujarat HC
https://enalsar.informaticsglobal.com:2278/top-stories/keen-start-live-streaming-supreme-court-cji-nv-
ramana-launch-gujarat-hc-live-streaming-court-proceedings-177674#.YRPTT9Rz5Ao.whatsapp