On March 11, 2020, the cabinet secretary of India advised all state governments to utilize provisions under the Epidemic Diseases Act of 1897  for disease management to deal with the situation created by the coronavirus pandemic. States such as Karnataka, Haryana, Maharashtra, Telangana, Delhi, and Goa followed this advice and invoked certain sections of the act to facilitate government efforts to contain the spread of the virus. Following the invocation of this act, numerous cases of police brutality and restraints on press freedom were reported across India. Activists, journalists as well as public health experts and medical scholars have termed this colonial-era legislation as draconian and obsolete since it enables state excesses and does not outline a clear framework to tackle an epidemic outbreak. This essay explores the shortcomings of the existing act.

History of the Act

This 123-year old act was enacted on February 4, 1897, by the Bombay presidency to deal with the bubonic plague outbreak in Bombay city. Though the plague epidemic was a pressing concern in Bombay by the early months of 1896, the colonial government did not take special measures to prevent it until 1897. Only after international actors started placing trade embargoes on India, the government came up with legislation to fight the epidemic. Sir John Woodburn, the member of the Viceroy’s legislative council who introduced this bill, stated that its primary objective was to prevent the bubonic plague from spreading to other parts of India and to ensure that foreign countries would not ban British Indian ships from travelling to their ports.

Obsolescence

The Epidemic Diseases Actact is 123 years old and has never been amended to keep up with the rapidly changing world. Since the enactment of the act, the causes of the emergence and spread of epidemic diseases have changed a lot due to changes in climate, ecology, and built environment. Increasing rural-urban migration causing overcrowding of cities, and faster movement of humans and goods due to the development of transport infrastructure and technology provides for a faster and more distant spread of an epidemic disease. The renowned environmentalist Sunita Narain remarked in an article, “We are growing our food in ways that favour disease growth — industrial farms, which are vertically integrated, are fast becoming the source of contagion… This breaking of the boundaries between animal and human habitats will lead to more such outbreaks. And this, in a world that is even more interconnected and globalised, will make the infection wildly contagious.”

The act is so obsolete that it talks about regulation on ships but does not even mention air transport since it was uncommon during those days. It lays too much emphasis on isolation and segregation but is silent on other scientific measures such as vaccination, surveillance, and public health policy. This is mainly because vaccination and modern allopathic medicine were not very common and well-researched by the 1890s. This renders the act ineffective in the current scenario.

Regulatory Nature of the Act

The Act is merely coercive and regulatory. While it empowers governments to take special measures to combat an epidemic, it does not describe its duties. It does not have provisions for the publicization of medical facilities, vaccination and other public health measures. It does not provide policy prescriptions for governments to implement. This makes it easier for governments to get away with inaction and unscientific policies. It lets them take measures in the interest of specific groups or vote banks. The regulatory tone of the act provides for a top-down approach towards dealing with an epidemic. It is not people-centric. The law fails to define “dangerous”, “infectious”, or “contagious diseases”, let alone an “epidemic”. There is no elaboration in the Act on the extant rules and procedures for arriving at a benchmark to determine that a particular disease needs to be declared as an epidemic. The act does not provide mechanisms for the accountability and transparency of government processes. 

State Excesses

         The act does not define specific conditions for the invocation of its provisions and leaves it to the discretion of the state government. While it prescribes the punishment for disobeying a public order made under this act, it does not define what constitutes disobedience. The immunity provided to government officials acting in good faith under this act might be easily misused by the said government officials. The vague nature of the act leaves plenty of room for the usage of its provisions to justify state excesses. The cases of police brutality reported during the lockdown are a testament to that. Checks on state excesses are even more necessary in a tumultuous situation such as an epidemic. Since people are in a state of panic, extra-legal, discriminatory, and authoritarian policies and acts of states go unnoticed or are deemed necessary for controlling the epidemic.

The vague provisions of this act provide opportunities for the state to impose restraints on press freedom. The earliest example of this dates to 1897 when the act played a role in the conviction of Bal Gangadhar Tilak. Tilak was punished by the Bombay high court for sedition under section 124A of the IPC; the first-ever such conviction in India. Tilak’s articles in Kesari were construed as seditious by the government since they had the potential to provoke people to thwart the government’s efforts to curb the plague outbreak. Justice Arthur Strachey, who was presiding over the jury that convicted Tilak, remarked that such material expressing dissatisfaction towards the government can be published at a time of peace, not at a time of unrest.

Consider the recent case of the notice served by the UP Police to Siddharth Varadarajan, founder of The Wire. Another such case was pertaining to the reportage by Jansandesh Times on the pathetic condition of the Musahar community of Varanasi due to the lockdown, instated to combat coronavirus. The Varanasi district administration filed a case against the reporter and the media outlet for “spreading panic” during a pandemic outbreak. Prime Minister Narendra Modi has also advised media outlets to refrain from publishing ‘negative’ stories, which might have triggered self-censorship. Doctors have been threatened, fired, and even arrested and humiliated in some cases for publicizing concerns about lack of protective gear and equipment. Though it is important to take actions to prevent the spread of fake news, not having a clear provision to deal with it leaves space for the state to gag freedom of expression. An Elgar Parishad organizer was booked for his Facebook post that allegedly raised communal tensions during the pandemic. Such instances make us think that provisions of this act coupled with Article 19(2) are being weaponized against the freedom of expression.

Safeguards for civil liberties and human rights are necessary during an epidemic more than ever. The conditions created by an epidemic enable the state to get away with discriminatory and draconian practices since they hold biopower. Biopower can be defined as the power to create and access knowledge and expertise of life and health. Since a major portion of biopower is held by the state, it has the power to foster life or to disallow it to the point of death. In his lectures on Social Medicine at the State University of Rio de Janeiro, Foucault proposed that health policies have been used by states to colonize not just the body but also society and land. In situations of a medical emergency, medical authorities hold the highest amount of power. They are so powerful that they can dictate even the social and economic policies of the state. Provisions of this act provide for biopolitical hegemony. In a nutshell, the Epidemic Diseases Act lets the organs of the state, holding biopower, to control every sphere of the society.

Panoptical Potential

       In his widely appreciated work ‘Discipline and Punish,’ Michel Foucault, a well-known French philosopher and poststructuralist, builds on the English utilitarian philosopher Jeremy Bentham’s idea of a ‘panopticon.’ A panopticon is a setup of asymmetrical surveillance where the surveillant knows every movement of the persons being surveilled. Traditionally used to describe prisons and factory complexes, a panoptical structure can now be virtual with the advent of modern communications technology. The conditions created by an epidemic outbreak are perfect for the establishment of a panopticon by the state. Provisions of the Epidemic Diseases Act can be very well used as a surveillance tool. For example, the Aarogya Sethu app launched recently by the Indian government to track coronavirus cases has been heavily criticised by cybersecurity experts and human rights advocates as a massive violation of privacy since it collects personal details of people. The panic caused by an epidemic acts as a passport for the state to carry out mass surveillance and violation of privacy, the way it did during the Bombay plague epidemic of 1897.  The coronavirus pandemic has underscored the need for a comprehensive legislation to deal with outbreaks of epidemic diseases in India. In a vast and diverse country like India, a coercive centralised approach to deal with a problem often fails since it cannot penetrate the society. The nationwide lockdown has resulted in humanitarian and socioeconomic crises across the country, exposing its failures. A remedy to that would be to build a policy from the grassroots and bring it up to the top. Such an approach provides space for better inclusion of marginalized communities and avoids infringement of civil liberties, making people the prerogative of governance. 

Chaitanya is an undergraduate student of Political Science and Environmental Studies at Ashoka University, interested in issues of ecological justice and welfare politics.