by Deeksha Sahni 6 June 2020
While the countries around the globe are laboring at enacting legislation in response to the public health emergency situation created by COVID-19, the Indian Government once again sought an umbrella under the erstwhile enactments of Disaster Management Act, 2005 and Epidemic Diseases Act, 1897 to respond to the pandemic. Instead of enacting a single and comprehensive legislation, the government placed their reliance upon innumerable guidelines, orders and notices issued under these acts to get a hand on the situation. All these guidelines and orders issued from time to time have left citizens in a state of confusion unmindful about their rights and duties in this time of pandemic. The author in this article argues that the current framework of laws and especially the Epidemic Diseases Act is ineffective to deal with COVID-19 or for that matter any pandemic in the future and a new legislation is the need of the hour.
Large Autonomy give to the state governments
When the news of the outbreak of virus was released, several state governments by using their powers conferred by section 2 of the Epidemic Diseases Act started taking measures and prescribing regulations to prevent the outbreak and the spread of the disease. In the absence of any provision in the Act, the Central Government with intent to derive powers to act during the pandemic times of COVID-19 and also to bring uniformity in the measures adopted by the state governments sought shelter under the Disaster Management Act. By reading COVID-19 as a “disaster” under section 2(d), the Act which was enacted with a completely different objective came to our rescue. The reliance so placed on the Disaster Management Act however exposed serious limitations of the Epidemic Diseases Act. The Epidemic Diseases Act gives complete autonomy to the states to take measures on their own without having received any directions from the Central Government. There is no provision in the act which empowers the central government to direct the state governments to adopt measures to prevent the outbreak of the disease or to monitor the actions taken by the states. Similarly the scope of measures to be undertaken vide section 2 has not been defined. The state government’s self assessment of the extremity of a situation acts as a guide to their response to any pandemic due to which timely action may not be taken by all states.
Unclear ‘Dangerous Epidemic Diseases’
Absurd or ironic as it may sound, the government gave force to the provisions of the Epidemic Diseases Act by reading COVID-19 as a dangerous epidemic disease under the act when the act does not even lay down the meaning of the term dangerous epidemic disease. Unlike all the other acts, this act does not have any “Definitions” provision and thus the meaning of “epidemic diseases” does not find any mention. Similarly, the term “dangerous” has not been defined under the act and it is unclear on what basis an epidemic disease shall be classified as being dangerous; whether the basis shall be the magnitude of the problem, the severity of the problem, the age of population affected or its potential to spread internationally. Equally important is the concern who decides that the epidemic diseases has reached the level of being ‘dangerous’. Surprisingly, no attempt was made by the Parliament to address these concerns even in the ordinance.
Lockdown without a law
The nationwide lockdown was the policy adopted by the Central Government to win this war against the virus. However, our Prime Minister intended to impose this lockdown for the next 21 days by announcing it only four hours before its implementation especially when no legislation had ever contained the meaning of the term ‘lockdown’ and the guidelines issued by the Ministry of Home Affairs had also failed to define the same. During this period of lockdown, all the educational institutions were shut, the services of all domestic as well as international airlines, railways and public transport were suspended and most public and private institutions except some essential services ceased to work. All this however was done without any legislation in place that explicitly contained the powers of the government to impose lockdown, the circumstances that make it necessary to impose lockdown, the minimum number of days’ notice to be given by the state or the central government before implementing the lockdown, the minimum and maximum number of days for which it can be imposed and the institutions-public and private that shall cease to work. Soon after the lockdown was imposed several circulars, orders and addendums were issued by the government to clarify the order imposing lockdown; to make provisions for several classes of people which had been missed earlier (for instance, to provide for the food and shelter for the migrant workers and also to bring back the Indians stranded abroad); and to amend the earlier order of lockdown. Thus, this hasty decision of imposing the national lockdown which of course curtailed several fundamental and constitutional rights of the people would not have created a complete ruckus if there had been a proper legislation in place to this effect.
Insufficient provisions for Fake News
Even before the virus had entered into our borders and the first case was reported in the country, the stories surrounding the origin of the COVID-19, conspiracy theories, its subsequent threats and risks, necessary precautions to be taken and fake claims about finding the possible cure of the disease had already flooded our social media platforms. Thus, ever since the outbreak of the COVID-19, India has been fighting from two viruses- the COVID-19 and the virus of fake news. Presently, though there is no specific legislation to deal with the fake news nor is there any provision under the Epidemic Diseases Act, any kind of misinformation attracts section 505(1) of the Indian Penal Code, 1860, section 54 of the Disaster Management Act during the times of a disaster and also some provisions of the IT Act, 2000. While the Central and the state governments have invoked the Disaster Management Act to check the menace, a few other state governments have also issued orders u/s 144 of the Criminal Procedure Code, 1973 to tackle the problem. An advisory was also issued by the Ministry of Electronic & Information Technology to all social media platforms to curb false news/ misinformation on coronavirus; to conduct due diligence and take immediate action so as to disable or remove such content hosted on their platforms and; to initiate awareness campaigns for users to not upload or circulate any such false news or misinformation. However, none of these legislations is comprehensive to attend to the menace of fake news during pandemic times. While the provisions of IPC, CrPC and Disaster Management Act imposes only criminal liability on an individual for any circulation of fake news; IT Act u/s 79 imposes the liability on intermediaries only if they are involved in any criminal act or they fail to take down any information which is being used to commit any unlawful act even after obtaining the actual knowledge. The liability of an intermediary would not arise if their function is limited to providing access to a communication system; they do not initiate the transmission or select its receiver or modify any information and; they observe due diligence. The laws on fake news during these pandemic times besides imposing heavy fines and sentences shall also require intermediaries to take a more proactive role in curbing any false information. The standards of due diligence observed by the intermediaries and the maximum period for removing any false content hosted by them needs a revision to cater to the demands of a pandemic.
Misuse of immuned powers of state and central government
Section 4 of the Epidemic Diseases Act immunes those who are acting in good faith under the act against any suit or legal proceeding. The unfettered powers so given without any consequences however became a shield for policy brutality during these pandemic times. Citizens were reportedly assaulted and subjected to harsh treatment when they ventured out to deliver essentials or buy essentials such as milk or even opened their grocery stores. The immunity so given has also motivated the government and even the employers to obtain, process, maintain and use sensitive personal data; track locations; employ thermal screening and contact tracing measures with minimum guidelines under the garb of national security and without any data protection framework in place. Although every action so taken by the government has to stand the test of right of privacy which is a fundamental right, the demand of a pandemic is a robust law that provides for the collection, processing, usage and retention of a sensitive personal data efficiently balancing the right to privacy of an individual with national interests.
Any fight against a pandemic involves teamwork of both the government and its citizens. Public trust is a major ingredient that helps boosting this teamwork which can only be achieved when there is utmost clarity about the rights and liabilities along with the transparency and accountability of the actions taken by the government. Therefore, it is essential that India drawing examples from the countries like UK, USA, Switzerland and enact a new epidemic legislation that takes into account the experiences from the current crisis.