Constitution experts emphasize that it is not necessary to amend a law because it has been around from the pre-independence era
New Delhi: The deadly COVID-19, which has claimed over 5,000 lives across the world, is less than six months old, but to combat the pandemic, the Centre has invoked a 123-year-old Epidemic Diseases Act, which has been historically used to contain the spread of various diseases -- swine flu, cholera, malaria and dengue.
Constitution experts say if the government believes a colonial-era law helps in containing the outbreak, then nothing is wrong in such a decision.
Three days ago, a decision was taken at a Cabinet Secretary meeting that states and Union Territories should invoke provisions of Section 2 of the Act, which will make the Health Ministry advisories enforceable.
The Epidemic Diseases Act 1897, which continues to find relevance in the outbreak of modern-day diseases in the country, is routinely enforced to restrain the outbreaks of diseases such as swine flu, dengue, and cholera.
Currently, India is fighting the deadly virus, which has claimed two lives in the country and more than 70 COVID-19 cases have tested positive. According to reports, across the world more than 119,100 people have been infected.
Constitution experts say many colonial-era laws continue to exist in the statute, as governments over the years have thought they are good enough to enable prevention of the spread of dangerous epidemic diseases.
Former Secretary General of the Lok Sabha P.D.T. Achary said, "There are many colonial laws which continue to exist, for example the Indian Penal Code (IPC), the Census which originated in pre-independence era still continues, and the Famine Act also originated before independence. If the government thinks these laws are good enough to fit in the existing circumstances, then there is nothing wrong. It is for the government to decide on the relevance of the laws."
Subhash Kashyap, Constitution expert and former Secretary General of the Lok Sabha, says there is nothing wrong if the government is willing to implement a colonial-era law as it still exists in the statute, and maybe the governments over the time did not see the necessity to amend the Act.
"The Law Commission usually advises the government on amendment to a law and its modern-day relevance. The current government has already repealed many laws, but has also retained some colonial-era laws", said Kashyap.
Both Constitution experts emphasize that it is not necessary to amend a law because it has been around from the pre-independence era. According to reports, in 2018 the Act was invoked as cholera began to spread in a village in Gujarat. In 2015, the Act was brought into force to deal with dengue and malaria in Chandigarh; and in 2009, it was enforced in Pune to combat the outbreak of swine flu.
Section 2 of the Act empowers state governments/UTs to take special measures and formulate regulations to contain any outbreak. The Section says:
(1) 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.
(2) In particular and without prejudice to the generality of the foregoing provisions, 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 3 is on penalty: "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 (45 of 1860);
Section 4; Protection to persons acting under Act: "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 (legal protection to implement the Act).
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