Waiting for an Act

Source: By Bibek Debroy: The Financial Express

In the context of Wuhan virus, the ministry of health and family welfare (MoHFW) suggested that states/UTs invoke Section 2 of the Epidemic Diseases Act of 1897, and many states/UTs have done so. This piece of legislation was a reaction to the third plague epidemic (Byzantine Empire, and Black Death being the first two).

The third plague epidemic also originated in China, though in Yunnan, not Wuhan. It, too, was imported, through port cities like Mumbai (spreading to Pune), Kolkata, and Karachi. The upshot was the Plague Commission, which identified September 23, 1896, as the first official outbreak of the plague, and delivered a mammoth five-volume report. There were four specific questions the Plague Commission was expected to answer: (a) How did the plague originate in different parts of India?; (b) how was the disease communicated?; (c) what were the effects of the curative serum?; and (d) what were the effects of preventive inoculation? How many people died as a result of plague?

This isn’t a simple question to answer. It depends on the timeline and region, as well as definition of “India”. “The differences in plague mortality in different places in India were very striking.” On an all-India basis, the Plague Commission computed mortality as 0.5 per 1,000 per year. But, that is for three years—1896 to 1898. With an extended timeline (the plague lingered on), estimates of Indian mortality figures range from 2 million to 10 million.

The plague led to the Epidemic Diseases Act, enacted on February 4, 1897. Once legislation is passed, we rarely read the statement of objects and reasons, although those explain why a specific statute is necessary. In this case, the statement of objects and reasons said, “The object of the Bill is sufficiently explained by the title thereof and the spread of the bubonic plague from Bombay unfortunately renders it unnecessary to dwell on the reasons for its introduction in Council. It may however be stated that its main provisions are based upon those contained in Sections 4.34 and 47.1 of the City of Bombay Municipal Act, 1888.

This conferred special powers on local authorities, implemented with oppressive force, such as in Bombay and Pune. In March 1897, Bombay Presidency established a Plague Committee. WC Rand was the Chairman. Films like Chapekar Brothers (Hindi) and 22 June 1897 (Marathi) document what happened next—the assassination of Rand and Ayerst by the Chapekar brothers. There was also the trial and imprisonment of Tilak.

The Epidemic Diseases Act is a very brief statute. There are four sections, of which one is the title. Section 2 confers special powers on the government, over and above its normal powers. No statute is constant over time. This legislation from 1897 is no different. It was amended in 1914, 1920, and 1956.

Nevertheless, if you read it, you realise the vintage. For example, in Section 2(2)(b), the state government can take measures and prescribe regulations for “the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease”.

Similarly, under Section 2A, “When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in [the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.” Railways, and ships, and ports; what about airlines and airports? There used to be a Section 2B that allowed state governments to requisition private vehicles in times of plague, but that has been repealed.

A statute doesn’t become dysfunctional simply because it is old. But, it does become dysfunctional, requiring a relook, when it is overtaken by events. Among other things, it has been overtaken by the Constitution. The seventh schedule lists health as a state subject, and different states have provisions that aren’t necessarily uniform and harmonised. Some have amended the Epidemic Diseases Act, some have their own public health laws (Tamil Nadu was the first in 1939).

Kerala has two separate public health acts—one for Travancore-Cochin, and the second for Malabar. There were plans to unify the two, but I don’t think that has come about. Today, health issues are different, and broader, than what they were in 1897. The role of the private sector is different from what it was then. In 2017, MoHFW prepared a bill known as “The Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill”.

This is still a draft. The world has moved beyond epidemic diseases. The Epidemic Diseases Act has four sections, this draft bill has fourteen, with 14(1) being probably the most important. This says, “The Epidemic Diseases Act, 1897 is hereby repealed.” Incidentally, the 1897 legislation doesn’t define “epidemic”. Admittedly, the word is difficult to pin down. But, the bill makes an attempt, saying, “Epidemic means the occurrence in a community or region of cases of an illness, specific health related behaviour, or other health related events clearly in excess of normal expectancy”. However, it is still a bill.