INDIAN LAWS AND THE GLOBAL PANDEMIC COVID-2019 (A COMPLETE OVERVIEW)

INDIAN LAWS AND THE GLOBAL PANDEMIC COVID-2019 (A COMPLETE OVERVIEW)

INTRODUCTION

The World Health Organization (WHO) has declared the coronavirus disease 2019 (COVID-19) a pandemic. A global coordinated effort is needed to stop the further spread of the virus. A pandemic is defined as “occurring over a wide geographic area and affecting an exceptionally high proportion of the population.” The last pandemic[1] reported in the world was the H1N1 flu pandemic in 2009.

Coronaviruses are a family of viruses that cause illnesses such as respiratory diseases or gastrointestinal diseases. Respiratory diseases can range from the common cold to more severe diseases like as seen earlier in the shape of Middle East Respiratory Syndrome.

(MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV)

A novel coronavirus (nCoV) is a new strain that has not been identified in humans previously. Once scientists determine exactly what coronavirus it is, they give it a name (as in the case of COVID-19, the virus causing it is SARS-CoV-2).

HOW DID IT SPREAD IN INDIA

The country saw the initial cases of this virus infection in early January and these cases were largely related to the persons having foreign travel history or the persons in contact of such persons. Gradually, the cases began to rise and groups of foreign travelers were found infected and so were the persons attending to them. The medical fraternity across the world was not having any standard procedure or any prescribed medication for the treatment of this ailment and it was felt by the medical experts in India that the only way to prevent the outbreak was to avoid human contact and practice appropriate social distancing. The adoption of this practice saw a delayed spread of the pandemic across the country as stringent measures were adopted to break the chain of infection. Around 70 days down the line from the adoption of the recourses the country has seen the infection amongst around two lakhs persons nationwide with a mortality rate of around 2.7% and recovery rate of around 48%. The number of cases grew as the population of the country became restless during the lockdown’s ordered and economic and political compulsions compelled an early graded reopening. The relaxations to the stringent did result in a spike of numbers, but still in comparison with the global scenario the country has a low number of infected persons considering the huge population of the country and the rate of growth of infection has also been slow in comparison with the other countries and to top it all the recovery rate has come up like a silver lining in such cloudy days.      

MEASURES TAKEN BY THE GOVERNMENT TO CONTAIN THE VIRUS

India has invoked two laws, the Disaster Management Act and the Archaic Epidemic Diseases Act, to control and mitigate the coronavirus outbreak.

On the directions of Prime Minister Modi, a high-level Group of Ministers (GOM) was “constituted to review, monitor and evaluate the preparedness and measures taken regarding management” of novel coronavirus disease (COVID-19) in the country. The Ministry of Health and Family Welfare (MoHFW)[2] has been coordinating[3] the efforts of the central government “in order to mitigate the impact of the outbreak in India.” On March 11, 2020, the GOM decided that the MoHFW should advise all state and union territories to invoke section 2 of the Epidemic Disease Act, 1897, so that all advisories being issued by the MoHFW, the states and union territories, are enforceable. On the same day, the union government invoked section 69 of the Disaster Management Act, 2005, to delegate powers of the Home Secretary, who is chairman of the National Executive Committee (NEC), which is a coordinating and monitoring body for disaster management, to the secretary of the MoHFW. Unlike the Epidemic Disease Act, this law “provides for an exhaustive administrative set up for disaster preparedness.” On March 14 the union government declared COVID-19 as a notified disaster[4] and assistance is available under the State Disaster Response Fund (SDRF)[5], which was established also under the Disaster Management Act.

The Ministry of Home Affairs has passed an order invoking the Disaster Management Act, 2005[6] under which the Union home secretary, who is the chairman of the National Executive Committee, delegated power to the Union health secretary to enhance the preparedness and containment of COVID-19. Dated 11 March, the order has been implemented retrospectively and is in effect from 17 January.

The law details the constitution of administrative authorities like the National Disaster Management Authority, their powers, steps needed to be taken in a situation of disaster, penalties, and rules.

On the same day, the Narendra Modi government also ordered the states to implement the Epidemic Diseases Act, 1897[7] to effectively enforce its advisory.

Most Indian states have been invoking this law to implement measures like quarantine and mandatory screening even though the Act is quite short and outdated. The century-old law allows states to take whatever measures they need to implement to prevent infections, and anyone contravening them can face prosecution, including imprisonment for up to six months.

The Act does not reflect the realities of the spread of disease in the modern world, nor does it cover the framework to effectively respond to the outbreak. This is why India needs a modern public health law. However, it is evident that the Modi government has implemented both the laws in tandem.  The government is using the Disaster Management Act and 1897 Epidemic Diseases Act in tandem to tackle the coronavirus outbreak, but India also needs a modern public health law.

REGULATION THROUGH INDIAN LAWS

During the lockdown, Section 188 of the Indian Penal Code has been widely invoked against those not following it. In a communication to the states on March 24, the Home Ministry said persons violating the containment measures will be liable to be punished under provisions of the Disaster Management Act 2005, besides Section 188 IPC. A look at these and related provisions:

For disobedience

Section 188 IPC deals with those disobeying an order passed by a public servant and provides for imprisonment ranging from one to six months. For those violating orders passed under the Epidemic Diseases Act, Section 188 IPC is the provision under which punishment is awarded.

Section 51 of the Disaster Management Act, 2005 provides for punishment for two kinds of offences: obstructing any officer or employee of the government or person authorised by any disaster management authority for discharge of a function and refusing to comply with any direction given by the authorities under the Act. Punishment can extend to one year on conviction, or two years if the refusal leads to loss of lives or any imminent danger.

For spreading fear

Section 505, IPC provides for imprisonment of three years or fine, or both, for those who publish or circulate anything which is likely to cause fear or alarm. Section 54 of the Disaster Management Act provides for imprisonment, extending to one year, of those who make or circulate a false alarm or warning regarding a disaster or its severity or magnitude.

For refusing to do duties

In case of refusal or withdrawal of any officer who has been tasked with any duty under the Act, the officer can be sentenced to imprisonment extending to one year. However, those who have written permission of the superior or any lawful ground are exempt from such punishment. A case cannot be initiated without the explicit sanction from the state or central government.

For refusing to help

Any authorized authority under the Act can requisite resources like persons and material resources, premises like land or building, or sheds and vehicles for rescue operations. Though there is a provision for compensation under the Act, any person who disobeys such an order can be sentenced to imprisonment for up to one year.

Legal shield

For any offence under the Disaster Management Act, a court will take cognizance only if the complaint is filed by the national or state or district authority, or the central or state government. However, there is another provision: if a person has given notice of 30 days or more about an alleged offence, and about his intention to file a complaint, he or she can approach the court which can then take cognizance.

The Act protects government officers and employees from any legal process for actions they took “in good faith”. Under the Epidemic Diseases Act too, no suit or other legal proceedings can lie against any person for anything done or intended to be done under good faith.

[1] See https://www.physio-pedia.com/Endemics,_Epidemics_and_Pandemics last visited on June 3, 2020.

[2] See https://main.mohfw.gov.in/ last visited on June 3, 2020.

[3] See http://ignca.gov.in/PDF_data/Internal_Events_of_IGNCA_Novel_Coronavirus.pdf last visited on June 3, 2020.

[4] See https://pragativadi.com/novel-coronavirus-outbreak-to-be-treated-as-notified-disaster-to-provide-aid-under-sdrf/ last visited on June 3, 2020.

[5] See https://www.ndmindia.nic.in/response-fund last visited on June 3, 2020.

[6] See https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf last visited on June 3, 2020.

[7] See https://arogya.maharashtra.gov.in/Site/Uploads/GR/EPIDEMIC-DISEASES-ACT%5B1%5D.pdf last visited on June 3, 2020.

-Abhishek Khare
Associate at Law Offices of Kr.Vivek Tanwar, Advocate & Associates

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