While the COVID-19 pandemic ravages away across 190+ countries in the world, the problems that the pandemic presents for India multiply exponentially, not only because of its large population and high population density, but also because the only effective pandemic control law that India has, is an archaic, 123-year old law that traces back to the British colonial era and was originally drafted to control the fallout of the Bubonic plague epidemic that raged throughout Mumbai in the late 1890s and was later on used for the selfish political motives of the British who used it against freedom fighters and incarcerated them.
The Epidemic Diseases Act, 1897, a vestige of English law, is one of the shortest acts to exist in Indian legal system and spans merely four sections. Section 2 of the aforementioned act provides the states with special powers to issues health advisories to the public if the state authorities have sufficient reasons to believe that the state is marred with an epidemic.[i] Continuing, Section 2A bestows the state with the right to seal off the sea ports and detain any ship that is suspected to have been contaminated and this extends to any person intending to sail on the aforementioned contaminated ship or arriving thereby.[ii]
There is no denying the fact that the lack of new legislations regarding pandemic control and the usage of a century old law was just a deadly concoction, boiling in a pressure cooker, waiting to go off and the COVID-19 pandemic provided it with a fertile ground. The technological developments that have taken place in the past century basically mean that the law serves no purpose because it doesn’t take into consideration the vast usage of air travel rather than sea travel, large scale migration of people to urban areas, thanks to urbanisation, drastic changes in climatic conditions and other important factors such as public health policy formation and breach of biohazard measures.
The innate problem of the Act is that is doesn’t define “dangerous epidemic disease” in clear terms. Who gets to decide what kind of an epidemic indeed is “dangerous” and whether the term “dangerous” is set by the magnitude of havoc the pandemic can wreck or by the virulent nature of the pathogen itself? The Act portrays the inferior technological standards of those times when compared to that of today, in ways such as, the Act pays more impetus on the forced quarantine, isolation and lockdown of affected populations but goes lenient over the extent of testing, surveillance and other ethical issues that concern the public-health sector.[iii]
The problem in controlling the pandemic in India isn’t however, only limited to the Act. Health being a state list subject, the Union barely has a say in what measures individual states take up to fight the pandemic. It can only issues advisories and appeal to the states to follow a route that shall end up serving the common good of the nation. Times like this call for centralised measures for the entire country rather than decentralised, state specific ones because that causes great political chaos.
The effects of the pandemic are manifold as they trickle down onto the question of fulfilment of contractual obligations of corporates and individuals. While some companies might want to delay or avoid the performance of their contractual obligations for genuine causes like non-performance on the part of their suppliers or because of changes in the cost of exporting and importing materials from or into affected areas while most places go under lockdown, some firms might just want to misuse the situation to evade their contractual obligations. The fallout isn’t limited to the performance of contractual obligations only; it extends to the legal responsibility of corporates to ensure the safety of their workers during the pandemic, creating and sustaining a healthy work-place while navigating around the travel restrictions and imposing strict surveillance measures.[iv]
While the pandemic presents a multitude of questions ranging from the ethics of pandemic control to the actual procedure of going about with the containment of the pandemic, it can only be hoped that the Indian legal system doesn’t get overwhelmed with the problems, given the lack of a holistic and robust law to address the spread of epidemic diseases in India.
*The author is a First Year law student at National Law University, Patiala
[i] The Epidemic Disease Act of 1897, Act No 3 of 1897.
[iii] Rakesh PS, The Epidemic Diseases Act of 1897: public health relevance in the current scenario, Vol. 1, IJME (2016).
[iv] Cyril AmarchandMangaldas, Coronavirus: Key Legal Issues For India Inc. With Covid-19, Bloomberg Quint Opinion (March 17 2020, 7:57 PM), https://www.bloombergquint.com/opinion/coronavirus-key-legal-issues-for-india-inc-with-covid-19.