Epidemic Diseases Act 1897: The powers under Section 188 of IPC

Epidemic Diseases Act 1897 is an Act to provide for the better prevention of the spread of Dangerous Epidemic Diseases.

Epidemic Diseases Act, 1897 is an act which is at the centre stage of the lives of most Indians today – on the backdrop of COVID19 pandemic.

The Colonial legislation framed during the plague of Bombay of 1897, Epidemic Diseases Act 1897 was rarely used before it found huge significance because of the Coronavirus spread in 2020.

Why is the Epidemic Diseases Act 1897 in news now?

• Following the 2019–20 coronavirus pandemic the Center announced that all states and Union territories in India should invoke provisions of Section 2 of the Epidemic Diseases Act, 1897
• Lockdown orders across the country were issued to curb the spread of the coronavirus.
• Those violating the lockdown orders can face legal action under the Epidemic Diseases Act, 1897.
• The act lays down punishment as per Section 188 of the Indian Penal Code, 1860.

Epidemic Diseases Act 1897: Previous Implementations

The Act was first enacted to tackle the bubonic plague in the then Bombay State.

However, the act was not actively invoked further, except locally. The Act was previously enforced in some states for dealing with outbreaks of diseases such as swine flu, dengue, and cholera. Examples of the previous implementations include:

• In 2009 it was invoked in Pune to combat swine flu.
• In 2015 it was used to deal with dengue and malaria in Chandigarh.
• In 2018 it was enforced to contain the spread of cholera in Gujarat.
• Since the last week of March 2020, the act is being enforced across India to limit the spread of COVID-19.

The Act gives flexibility to States in making Regulations under the Act to devise their own strategies and responses in a given situation that would be peculiar to their conditions.

Epidemic Diseases Act, 1897: Various Sections

This act has only 4 sections in total and is probably one of the shortest acts in India.

Some powers have been given to the State Governments under Section 2 of this Act while some powers have been given to the Central Government under Section 2 (A) to control an epidemic.

Section 3 deals with Penalty while Section 4 deals with the protection to persons acting under Act.

Section 2: Power (of state governments) to take special measures and prescribe regulations as to dangerous epidemic disease

Section 2-1 states that when at any time the [State Government] is satisfied that [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the [State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

Section 2-2(b) of the same Act, mentions that the State Government] may 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.

Section 2A: Powers of Central Government

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 and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

Section 3: The penalty under Epidemic Diseases Act, 1897

Under Section 3 of the Act, any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code.

Section 4: Legal protection to implementing officers

No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.

The Epidemic Diseases (Amendment) Ordinance 2020

The act was amended via the ordinance and provisions to punish those attacking doctors or health workers were added.

The ordinance allows for up to seven years of jail for attacking doctors or health workers (including ASHA workers). The offence will be cognizable and non-bailable.

Section 188 of Indian Penal Code, 1860

• Section 188 dealing with “Disobedience to order duly promulgated by public servant” comes under the Code’s Chapter X, “Contempts of the Lawful Authority of Public Servants”.
• There must be an order promulgated by a public servant.
• The public servant must be lawfully empowered to promulgate such order.
• The order could be directing someone to abstain from a certain act or to take certain order with certain property in his possession or under his management.
• The accused must have knowingly disobeyed such order.
• Such disobedience must have caused or tend to have caused:
  • Case 1 – Obstruction, injury, annoyance or risk to any person lawfully employed; or
  • Case 2 – Danger to human life, health or safety, riot, or affray.
• Accordingly, punishment specified as follows
  • Case 1 – Simple imprisonment up to one month or with a fine of two hundred rupees, or with both;
  • Case 2 – Imprisonment up to six months, or with a fine of one thousand rupees, or with both.
• According to the First Schedule of the Criminal Procedure Code (CrPC), 1973, both offences are cognizable, bailable, and triable by any Magistrate.

Circumstances under which Sec 188 IPC is invoked normally

• To be punishable under Section 188, the order has to be for public purposes by public functionaries.
• For example,
  • An order directing that a religious procession shall not pass down a certain street.
  • An order commanding an assembly of five or more persons to disperse.
• The offender need not act with an intent to produce harm. It is sufficient that he knows of the order and that his disobedience produces, or is likely to produce, harm.

Conclusion

The colonial law, Epidemic Diseases Act, 1897 only provides a basic guideline for the state to act during epidemics. It is time the act needs to be strengthened.

The powers under Section 188 of IPC given to public servants are justified on account of the need to ensure public order in times of crisis.

However, checks and balances have to be built into the system so that such power is not unaccounted for and basic human rights and dignity of individuals are safeguarded.