INTRODUCTION

“We are in the endgame now.” the statement delineates the essence of the outbreak today. The COVID-19, which travelled not from the outer space but approx. 3000 kms from our borders have transcended havoc to the extent of a standstill. But it’s not just the virus. The Thanos of a problem that does not seem containable have proliferated out of all possible mistakes that could have been made. Starting from late alarms by WHO, casualization of early cases by china and trump trying to normalise the high number of cases by regularly raising the expected limit[1], the world has probably covered all the mistakes in the textbook.

Legal frameworks, however, in scenarios like these, could distil the situation to certain degree. Laws in India are substantial both in volume and in expression. But the recent pandemic has shown how frazzled it could get when aspects of law are unexplored. In the sprint to tackle the spread, the state has primarily invoked two acts, the Disaster Management Act, 2005 and Epidemic Diseases Act, 1897. The acts seem to be functional enough to find credence, but the juncture of both is more like a stich than a complete cloth tailored for the pandemic.

THE EPIDEMIC DISEASES (AMENDMENT) ORDINANCE, 2020-

This act was enacted during colonial India by the imperial legislative council to tackle the “bubonic plague” in Bombay. The act has been used time and again to contain various diseases in past.  Now, it’s in action for COVID-19 pandemic from dated 11 March and came in effect from 17 January retrospectively. With the increasing tension between the healthcare workers and the citizens that even led to violence and injury to many of the priors the new amendments[2] were brought on 22 April, 2020 to the existing Act-

1. Section 1(2) was liberated to the whole of India without demarking “the territories which, immediately before the 1^st November, 1956, were comprised in Part B States”.
2. The act defined terminologies like “act of violence”, “healthcare service personnel” and “property” under the added section 1A.
3. The ambit of scrutiny of transportations under section 2A was increased from ships and vessels to bus, train, aeroplane and even goods vehicle arriving or leaving the territory.
4. Section 2B was inserted stating that no person should commit any act of violence against any healthcare personnel or damage any property during epidemic.
5. An imprisonment of not less than 3 months extending to 5 years and fine ranging from 50000-200000, and in case of grievous hurt imprisonment ranging 6 months- 7year and fine of 1 lakh- 5 lakhs.[sec. 3(2)and sec 3(3)resp.]
6. The offence was further made non bailable and cognizable, to be investigated by no rank below inspector and speedy trail within 30 days was also levied.[sec.3A]
7. Furthermore, there are provisions for compensation for any harm committed and damages made to medical vehicles or clinics and the value to be paid will be twice the market price of the damaged items.

“The Epidemic Diseases Act is not in line with the contemporary scientific understanding of outbreak prevention and response, but only reflects the scientific and legal standards that prevailed at the time when it was framed[3],” an article in Indian journal for medical ethics stated. All these amendments have no doubt restricted the violence during the pandemic but none of the amendments have solved the fundamental problems of the act.

Firstly, it is one of the shortest acts with only 4 sections. Other than being archaic, draconian and pre-constitutional the act doesn’t have a good plan of action to begin with, simply because it was drafted by the Britishers sitting far away and not having to exercise the act themselves.

Secondly, the lack of structure makes it impossible to implement this act independently and the state has to look forward to the DM Act.[4] The act only provides for measures like quarantine and compulsory screening but no other methods to scientifically stop the spread like vaccination.

Thirdly, the act was enacted in the era where there was no concept of fundamental rights; the ban on movement can be challenged as violative of fundamental right to move freely[5]. Seventh schedule directing public health and sanitization is in the state list, vests no real power with the centre and it’s going to get mitigated anyway. It has been seen in various state COVID 19 regulations.

DISASTER MANAGEMENT ACT, 2005-

Exempting the obvious lacunae of being excessively generic and no scientific roadmap for the centre and the state, the plan seems inarticulate. While the epidemic act doesn’t have a proper plan, the disaster management does provide for basic plan but that’s about it. It’s devoid of any vicarious solution.

In the scenario where there is an already functioning state disaster managements Acts, the national plan doesn’t have any strict authoritative stance over them. No sector to attain funds for the relief or even fixed time frame for the engulfment of the guidelines are specified where the bomb seems to be ticking.

CONCLUSION-

The problems are not opaque to the intellectuals. Drafts like Public Health Bill, 2017 being stuck in the bureaucratic enigma are the clear better substitute. But what is more distasteful is the lack of credential solution in the law. With every ticking second more intrinsic problems such as privacy issue, mass migration, daily labour protection, employment and workplace protection, economic regression etc are piling up. But we are still struggling with the Quarantine law enforcement, food and medical equipment shortage, lack of testing camps etc. And the lack of foresight is abhorrent at this stage. Substitution of law is only the first step, in the situation of critical health emergency; the country’s law seem to be doing the bare minimum instead of preparing for resilience. With even the powerful nations at their knees, it would take nothing less than a miracle to sustain anthropism, if not proper public health actions and law enforcements at disposal.

[1] https://www.cnbc.com/2020/05/04/coronavirus-trump-administration-projects-3000-deaths-per-day-by-june.html

[2] https://images.assettype.com/barandbench/2020-04/4949800f-ae27-442b-90ff-00df0f9940d4/The_Epidemic_Diseases_Amendment_Ordinance_2020.pdf

[3]https://doi.org/10.20529/IJME.2016.043

[4] THE DISASTER MANAGEMENT ACT, 2005(http://legislative.gov.in/sites/default/files/A2005-53.pdf)

[5] Article 19 (d), The Constitution Of India 1949.