From UPSC perspective, the following things are important :
Prelims level : NDMA 2005, Epidemics Act 1897
Mains level : Paper 2- Laws invoked for dealing with pandemic.
India lacks specific legislation to deal with pandemics like COVID. While NDMA 2005 and Epidemic Diseases Act 1897 has been invoked to deal with the present situation, both acts lack specific provision in dealing with the pandemics. Here we can take lessons from UK’s Coronavirus Act and Singapore’s regulations to create a well-drafted Indian COVID 19 law.
Which acts were used for enforcing lockdown?
- The home ministry issued directions to State governments and district authorities under the Disaster Management Act of 2005.
- Under the Act, the National Disaster Management Authority (NDMA) was set up under the Prime Minister, and the National Executive Committee (NEC) was chaired by the Home Secretary.
- The State governments and authorities exercised powers under the Epidemic Diseases Act of 1897 to issue further directions.
- District authorities such as the Commissioner of Police have consequently issued orders to impose Section 144 of the Criminal Procedure Code in public places.
Issues with the laws used for lockdown
- The invoking of the Disaster Management Act has allowed the Union government to communicate seamlessly with the States.
- But serious questions remain whether the Act was originally intended to or is sufficiently capable of addressing the threat of a pandemic.
- The use of the archaic Epidemic Diseases Act reveals the lack of requisite diligence and responsiveness of government authorities in providing novel and innovative policy solutions to address a 21st-century problem.
- Another serious problem is that any violation of the orders passed would be prosecutable under Section 188 of the Indian Penal Code.
- But section 188 of IPC is a very ineffective and broad provision dealing with disobedience of an order issued by a public servant.
The UK and Singapore’s laws to deal with the pandemic
- U.K’s Coronavirus Act, 2020: It deals with issues including emergency registration of healthcare professionals, temporary closure of educational institutions, audio-visual facilities for criminal proceedings, powers to restrict gatherings, and financial assistance to industry.
- Singapore’s Infectious Diseases Regulations, 2020: These regulations provides for the issuance of stay orders which can send ‘at-risk individuals’ to a government-specified accommodation facility.
- Both U.K.’s and Singapore’s laws set out unambiguous conditions and legally binding obligations.
- As such, under Singaporean law, the violators may be penalised up to $10,000 or face six months imprisonment or both.
- In contrast, Section 188 of the Indian Penal Code has a fine amount of ₹200 to ₹1,000 or imprisonment of one to six months.
- Even then, proceedings under Section 188 can only be initiated by private complaint and not through a First Information Report.
- As such, offences arising out of these guidelines and orders have a weak basis in terms of criminal jurisdiction thereby weakening the objectives of the lockdown.
Problems in the government’s approach
- The Union government showed no inclination towards drafting or enacting COVID-19-specific legislation that could address all the issues pre-emptively.
- There has been little clarity on a road map to economic recovery.
- A consolidated, pro-active policy approach is absent.
- In fact, there has been ad hoc and reactive rule-making, as seen in the way migrant workers have been treated.
- This has also exposed the lack of coordination between the Union and State governments.
Consider the question, “Unlike many countries which legislated specific acts to deal with Covid-19 pandemic, India was already equipped with acts which enabled it to deal with the pandemic. Describe the acts and their provisions used to deal with the pandemic. What were the issues with these provisions?”
In past instances, the Union government has not shied away from promulgating ordinances. These circumstances call out for legislative leadership, to assist and empower States to overcome COVID-19 and to revive their economic, education and public health sectors.
Back2Basics: National Disaster Management Act 2005
- On 23 December 2005, the Government of India enacted the Disaster Management Act.
- The act envisaged the creation of the National Disaster Management Authority (NDMA), headed by the Prime Minister.
- The act also provides for State Disaster Management Authorities (SDMAs) headed by respective Chief Ministers.
- NDMA and SDMAs spearhead and implement a holistic and integrated approach to Disaster Management in India.
- The NDMA was formally constituted on 27thSeptember 2006, in accordance with the Disaster Management Act, 2005 with Prime Minister as its Chairperson and nine other members, and one such member to be designated as Vice-Chairperson.
- According to the Disaster Management Act, 2005 a disaster is defined as-
- A catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
- The MHA has defined a disaster as an “extreme disruption of the functioning of a society that causes widespread human, material, or environmental losses that exceed the ability of the affected society to cope with its own resources.
Epidemic Diseases Act 1897
- The Epidemic Diseases Act is routinely enforced across the country for dealing with outbreaks of diseases such as swine flu, dengue, and cholera.
- The colonial government introduced the Act to tackle the epidemic of bubonic plague that had spread in the erstwhile Bombay Presidency in the 1890s.
- Using powers conferred by the Act, colonies authorities would search suspected plague cases in homes and among passengers, with forcible segregations, evacuations, and demolitions of infected places.
- Historians have criticised the Act for its potential for abuse.
- In 1897, the year the law was enforced, Lokmanya Tilak was punished with 18 months’ rigorous imprisonment after his newspapers Kesari and Mahratta admonished imperial authorities for their handling of the plague epidemic.
Provisions of the 1897 Epidemic Diseases Act
- The Act is one of the shortest Acts in India, comprising just four sections. It aims to provide for the better prevention of the spread of Dangerous Epidemic Diseases.
- The then Governor-General of colonial India had conferred special powers upon the local authorities to implement the measures necessary for the control of epidemics.
- Although, the act does define or give a description of a “dangerous epidemic disease”.
Its various sections can be summarized as under
- The first section describes all the title and extent, the second part explains all the special powers given to the state government and centre to take special measures and regulations to contain the spread of disease.
- The second section has a special subsection 2A empowers the central government to take steps to prevent the spread of an epidemic, especially allowing the government to inspect any ship arriving or leaving any post and the power to detain any person intending to sail or arriving in the country.
- The third section describes the penalties for violating the regulations in accordance with Section 188 of the IPC. Section 3 states, “Six months’ imprisonment or 1,000 rupees fine or both could be charged out to the person who disobeys this Act.”
- The fourth and the last section deals with legal protection to implementing officers acting under the Act.