IN the wake of the swine flu pandemic, Delhi and a few States, namely Maharashtra and Goa have invoked the Epidemic Diseases Act, 1897. The States have used the provisions of the EDA not only to force swine-flu affected persons to be segregated and get treated at recognised hospitals but to direct every non-governmental hospital with a bed strength of 200 or more to set up a 10-bed isolation treatment facility as per World Health Organisation (WHO) guidelines and inform the general public about it.
None of the measures taken under the Act, however, corresponds to the extremely unpopular measures undertaken by the British Raj when the law was enacted.
The Act, which came into force on February 4, 1897, has historical significance and has been the object of recent efforts for reform. Paradoxically, when it was enacted, the law appeared to be in conflict with the primary objective of health reform during the period of the Raj, that is, to secure the well-being of the Britons overseas.
In his book Plague Ports: The global urban impact of bubonic plague , 1894-1901 (2007), Myron J. Echenberg expresses his surprise that the British responded to the plague outbreak in Bombay (now Mumbai) in 1896 by introducing the EDA. The historian David Arnold is quoted by Echenberg as having called the Act one of the most draconian pieces of sanitary legislation ever adopted in colonial India.
Echenberg explains his surprise in terms of his assumption that a health policy for plague, given the tendencies during the Raj earlier, would have included measures designed to protect the British while leaving those natives who wished to live in ignorance and filth to continue to do so. He adds that it was only three years later that this became the position to which the Raj reverted, but only after the disastrous failure of its 1896 measures.
The British downplayed the 1896 plague as bubonic fever. But its trading partners were not convinced. Within a few days of the outbreak, precautionary measures were imposed on all ships coming from India. Yet, just as they had managed to do during the century-long cholera pandemics, the British kept their own ports open from 1896 to the very end of the plague pandemic in the 1920s. Echenberg mentions that the Raj began imposing a domestic quarantine on all ships from Madras (Chennai), Karachi, Calcutta (Kolkata) and Rangoon (Yangon, the Myanmarese capital) that passed through Bombay and enacted the EDA in 1897.
The pandemic began in British-ruled Hong Kong and spread rapidly to other British colonial ports and to port cities where the British dominated trade: Bombay, Alexandria, Sydney, Cape Town and Buenos Aires. International trade with these cities spread the disease farther.
Echenberg says that the EDA invested extremely wide powers in a series of plague committees. Plague officers, many of them military and not medical, descended on the Indian population with a zeal never seen before. On the assumption that plague was a filth disease originating from soil, they dug up earthen floors, sealed walls, and tore down buildings throughout the infected districts.
The Raj undertook more invasive measures against individuals. Search parties, armed with information from spies or informants, cordoned off districts while looking for plague patients in order to remove them to specially established and segregated plague hospitals. The potential for abuse, Echenberg says in his book, was enormous. The language press accused the Raj of using rough methods, including the public stripping of and violence against women.
The EDA enabled the Raj to confine the plague to Bombay, by taking a series of measures designed to prevent crowds from forming. Only the most essential travel was permitted. Railway stations became scenes of rudimentary plague inspection: trains were stopped at random and plague suspects were forced out. Not only were public meetings and Hindu festivals banned in the Bombay Presidency, but the pilgrimage to Mecca was suspended for a year in 1897.
During the early years of the epidemic in Bombay and Pune, each corpse was subject to inspection and often autopsy.
The public anger against these measures was such that bombs were hurled at the Plague Commissioner in Poona (now Pune), Walter Charles Rand, and an Army officer on duty, Lieutenant Ayerst, on June 22, 1897, by nationalists, supported by Bal Gangadhar Tilak, who was later sentenced to 18 months rigorous imprisonment for sedition.
As Echenberg says, these extensive control measures which the EDA enabled failed to control the plague epidemic because most of them were based on erroneous assumptions about the disease and its transmission. But these tough measures helped convince Britains then trade partners. The International Sanitary Conference held in Venice in 1897 to address the threat of plague pronounced itself satisfied with the British measures and relaxed its anti-Indian controls.
The objective of the Act was to facilitate prevention of the spread of dangerous diseases. It empowers the Central and State governments to take special measures and prescribe temporary regulations that are to be observed by the public to prevent the outbreak or spread of such diseases. It also enables State governments to determine whether any expenses incurred (including compensation if any) shall be defrayed.
Section 2(2) of the Act empowers State governments to 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.
Under Section 3, 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 (IPC).
In May 1999, the Commission on Review of Administrative Laws, under the chairmanship of P.C. Jain, recommended repeal of 166 Central Acts, including the EDA. The Commission asked the Law Ministry to examine the provisions of the Act and decide on its utility. A committee under the chairmanship of the Director of the National Institute of Communicable Diseases, New Delhi, recommended to the Law Ministry that a comprehensive piece of legislation was necessary for effective handling of public health emergency situations in future.
It was felt that the EDA was very old and considerable changes had taken place in the field of public health since its enactment as well as in Centre-State relations. It was also felt that epidemiological concepts used in the prevention and control of epidemic diseases had changed. Newer diseases and infections such as HIV/AIDS and SARS (Severe Acute Respiratory Syndrome) had emerged as major public health problems. In addition, the threat of bio-terrorism and the impact of disasters (natural as well as man-made) on human health were also considered major challenges.
With quick movement of populations within a country and between countries, the control of any kind of epidemic disease is difficult unless effective measures are adopted. Proponents of a new law to replace the EDA underlined the need for developing a proper administrative strategy to tackle health emergencies of serious magnitudes. A draft Bill entitled Public Health Emergencies Bill, 2005 was placed before the Union Cabinet in September 2005 on the basis of this understanding, but the Cabinet note was withdrawn as it was considered necessary to seek the views of State governments and the Ministry of Law on the draft Bill.
The Bill was modified after incorporating the views of the State governments, and was entitled Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, 2008. The salient features of this Bill are:
1. The local authorities will have the power to direct or prohibit certain activities and issue temporary regulations by public notice to prevent outbreaks of any epidemic-prone disease and to curb acts of bio-terrorism that may have disastrous consequences on human health. The draft Bill defines bio-terrorism as intentional use of biological agents to cause disease or death of human beings or any animal or plant through dissemination of microorganisms or toxins by any medium or any means.
2. The Central government will be empowered to give directions to State governments or local authorities regarding the implementation of the Act.
3. Penal provisions for violation of the provisions of the Act, rules, notice or order made therefor include imprisonment for a term that shall not be less than two months and extend up to six months or fine not less than Rs.50,000 and may extend to Rs.2 lakh or with both. These provisions appear to be very harsh, as compared with Section 188 of the IPC [Disobedience to order duly promulgated by public servant], which the EDA relies on for its enforcement.
Under Section 188 of the IPC, if disobedience to a legal order causes danger to human life, health or safety, the accused shall be punished with imprisonment for a term that may extend to six months or with a fine up to Rs.1,000, or with both.
According to sources in the Health Ministry, the Union government is awaiting the response of all the State governments to the draft Bill before introducing it in Parliament. Kerala, for instance, has suggested that the power of the Central government to ask for reports from local authorities should be through the State government.
The First Schedule to the draft Bill identifies as many as 35 epidemic-prone diseases (swine flu is not one among them as the Bill was drafted in 2008). The Second Schedule to the Bill names potential bio-terrorism agents.
The Bill effectively shifts public health from the States List to the Concurrent List. Therefore, it will require a constitutional amendment to be ratified by the States.
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