A clean environment is an indispensable fundamental right which is vested with all the people Article 21 of the Constitution of India. Supreme Court elucidated that any disturbance of basic environmental elements namely air, water and soil would amount to punishment. To prevent disturbance reasonable restrictions may be put on the violators. During the times of public health emergencies, the state can enforce quarantine measures and restrict freedom of movement and even right to privacy in the public interest.
Legal measures play a very important role in curtailing infectious diseases. Not only in shaping the role of State’s action but it also revamps the relationship of the State and its subjects. Also in controlling the influx of communicable and non-communicable diseases, social measures employed by law are as beneficial as medical support, such as improving access to contraceptives and vaccinations.
With proper legal arrangements, infectious diseases can be contained at a very early stage by creating awareness of screening, counselling and education of the public. This limits the contact of suspects of infectious disease with the general public and also takes swift exigency measures if disease upsurges.
BRIEF ON LEGISLATIONS
Mitigating the spread of infectious disease is the fundamental function of the public health law. In the matters of public health, the Union, as well as the State Governments, are constitutionally entitled to legislate. The central legislation which deals in health-related matters is the Epidemic Diseases Act, 1897-(“EDA”). This legislation empowers the Central Government and the State Governments to take the warranted steps for controlling the spread of the epidemic. Both the Governments if they believe that there is a probable outbreak has the power to take all the necessary measures like detaining an individual, quarantining the affected ones, controlling the movement of visitors at seaport, airport and state borders etc.
To a great extent, both the Indian Penal Code, 1860 (“IPC”) and Criminal Procedure Code, 1973 (“CrPC”) play a pivotal role in the proper implementation of EDA. Both the IPC and CrPC fulfil the aspect of sanction if any provision of or any order or regulation emanating from EDA is violated. Various provisions of IPC and CrPC are in line with achieving the fundamental function of the public health law. For instance, Section 144 of CrPC talks about prohibiting public gatherings for enforcing lockdown and Section 269 of IPC deals in the negligent act of spreading infectious disease dangerous to life, Section 270 of IPC deals in a malignant act of spreading infectious disease dangerous to life, and Section 271 deals in disobedience of the quarantine rule. Further, the EDA makes a direct mention of Section 188 of the IPC which talks about the disobedience of order duly promulgated by public servant. This portrays the dependence of EDA to secure the obedience of its orders and regulations made during the time of emergency on the Indian Penal Code.
There have been several instances till now during this pandemic, where people have been booked under Section 269 and Section 270 for flouting the quarantine and lockdown rules. History of such instances can be dated back to the year 1886, in which the Madras High Court held a person guilty for travelling by train despite suffering from cholera under Section 269. A similar case came up, Nadir Mal in the year 1902, wherein the accused was held guilty under Section 269 who negligently travelled by train after living in a plague-stricken house and coming in contact with a plague patient.
Looking at these judgments on the lines of spreading of infectious disease it can be said that it is the answer to, many critical issues that may arise. It will be safe to say that any negligent or malignant act by any individual or the government, which has the potential of causing mass epidemic or pandemic, can be rectified with the usage of Section 269 and 270 of IPC.
Despite the prevalence of various laws and regulations in our country, there has been a constant violation of quarantine laws. The reason behind such attitude is twofold either the general public is not aware of the sanctions existing in our country or there has been a failure on the part of the State and the Centre to uphold our quarantine laws. If creating awareness regarding self-quarantining is not sufficient, several policymakers believe forced quarantine must be enforced. Legislators will have to take the call regarding the rules of engagement and whether ad hoc rules have to be adopted.
A lot of instances are coming up of people roaming on the streets having complete disregard to the mass outbreak of COVID-19, which in turn has flouted Section 271 of IPC. In such a scenario, the Indian Penal Code will be at the driving seat rather than the EDA to tackle this gross miscarriage of law by the people. But it is saddening to say that there have been very few cases in which the police has actively taken charge and invoked Section 271 of IPC and Section 144 of CrPC.
NEED OF OVERHAUL
To combat COVID-19 the Centre has invoked Epidemic Diseases Act, 123-year-old colonial legislation once misused to imprison freedom fighters and later used to curb the spread of fatal diseases like Plague, Ebola, and Severe Acute Respiratory Syndrome (SARS). This Act needs to be replaced by a stringent dynamic Act as this legislation various shortcomings. For eg., Health being a state subject, the best Union Government can do is advise and coordinate. Also under Section 2 of the EDA, the centre is empowered to “inspect any ship or vessel leaving or arriving at any port” excluding modes of transport by air.
Due to the lack of a comprehensive legal framework, the government is forced to uplift archaic law to tackle such infectious disease of pandemic nature, which does not even provide the definition of the word “pandemic”. Also, there is no explicit reference about the ethical aspects of human rights principles during a response to a mass outbreak of an infectious disease.
This Act lacks a provision which empowers the Centre to step in and deal with biological emergencies. “The need of the hour is to have a law which takes care of prevailing and anticipated public health needs, including scenarios such as bioterrorism or attack with bio-weapon and international spread of infectious diseases”
India, despite having a plethora of futile laws, primarily uses IPC Sections 269 and 270 to control the negligent and malignant transmission of diseases. Despite endeavouring several initiatives to enact an effective law, India still awaits a dynamic law.
The legislators can take a leaf out of the National Disaster Management Act, 2005 as it clearly defines all necessary terminology and explicit description of all the implementing measures to be exercised in the event of an emergency.
QUARANTINE AND HUMAN RIGHTS
As stated earlier the Quarantine procedure has to be invoked only when it is an absolute necessity and the outbreak is inevitable because there’s a high risk of people losing their employment if due care is not taken. It is important to note that Quarantining procedure is just a precautionary measure. It does not mean that all inmates are positive of infectious disease. Reports say that in 80-90% cases, it is a high possibility that they are negative. This makes it an utmost duty upon the government to make sure no violation of human rights transpires.
In less-developed countries which suffers due to the lack of public infrastructure, it is apparent that they will be unable to safeguard the human rights of its citizens.
Sadly, in a country like India, lack of resources and a huge population makes the Government unconsciously violate crucial international principles such as the test of proportionality. Stigmatization and basic human rights guaranteed under Article 12 and Article 17 of ICCPR abuse that an individual face is the hardest hit by the epidemic. The government should follow a balanced approach to slow the spread of the epidemic with the obligation to protect the individual’s dignity and liberty.
In the perplexing dichotomy between human rights and public health, it is very important to secure an impartial solution. To tackle the influx of infectious diseases through quarantining of masses the Government should use a comprehensive legal framework. Bringing in a policy containing all the safeguards with regards to epidemic, pandemic, communicable and non-communicable infectious diseases is required. Emphasis should be given to the implementation of International Regulations, which shall empower to deal with regular and emergency circumstances which will aid global public health.
International Health Regulation has laid a promising starting point, although supplementary amendments are needed to create a perfect legal framework which will motivate diverse shareholders having different interests to cooperate and coordinate health preparedness programs.
The article has been written by Ranjeet Soni and Rohit Shrivastava
This article was first published in the Blog namely The Criminal Law Blog