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Author: Debasis Guin, Advocate High Court Calcutta, partner geepeelegalassociates.
Before discussions regarding the Role of law to prevent outbreak of “COVID 19” pandemic in India and also globally I being a Citizen of India convey my heartiest gratitude ,loyalty, thanks to all the Doctors, Nurses, Health workers, Police, Administrations and the persons who are directly involved to fight against COVID 19 to save all of us. Simultaneously I strongly oppose the act of vandalism, law breaking by some unruly persons, who attacked the Doctors, Nurses, Health workers, Police and other personnel who are COVID 19 warriors.
COVID 19 now become pandemic, first reported by China to the World Health Organization in short WHO on 31st December, 2019 regarding lung inflammation caused by bacteria or viral infection of unknown viruses, which was detected in Wuhan, China and on the basis of such report WHO after analyzing the data and upon consultation with partners declared a public health emergency of international concern on 30th January,2020.
The International Committee on Taxonomy of Viruses in short “ICTV” named the said virus , based on their genetic structure to facilitate the development of diagnostic tests, vaccines and medicines and announced “severe acute respiratory syndrome Coronavirus 2 (SARS-CoV-2) on 11th February 2020 and such name was chosen, according to ICTV, the virus is genetically related to the coronavirus responsible for the SARS outbreak of 2003, but two viruses are different.
On 11th February 2020 the WHO announced “COVID 19” (previously known as “2019 novel coronavirus” as the name of new disease.
This virus rapidly spread globally and in a short time almost all the countries in the world including India and like other countries the India also are very much affected from this virus which is spreading day by day.
On 11th March,2020 the Cabinet Secretary of India enforced Section 2 of the Epidemic Disease Act,1887 as amended up to date in all states and Union Territories in India to prevent COVID 19.
Section 2 of the Epidemic Disease Act 1887 as amended provides that (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 required or empower any person to take, such measures and, by public notice, prescribe such temporary regulation 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. Sub section (2) of section 2 further provides that (2) In any particular and without prejudice to the generality of the foregoing provisions, the State Government may take measures and prescribe regulations for (b) the inspection of persons travelling by railways 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 provides further that 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 in the territories to which this Act extends and for such detention thereof or of any person intending to sail therein or arriving thereby as may be necessary.
By virtue of such provision, power has been conferred upon the Central Government to take measures and prescribe regulation for the inspection of any ship and detention of a person intending to sail and arrive at any port and the Government taking aid of such old act take measures to prevent such a pandemic COVID 19.
Ultimately on 12th March, 2020 the WHO declared “COVID 19” a pandemic and an worldwide health crisis and the various countries according to their respective laws of the land adopted various measures to prevent outbreak of such virus like as ‘quarantine’, ‘travel bans’, ‘lock down’,’complete lockdown’, searching the hot spot zone etc and adopted several advisory measures ,framed guidelines to prevent such COVID 19 pandemic.
That each and every state Government also made provision for quarantine, isolation adopting the provision of law ,which is proved to be effective in time of epidemic and pandemic. In public health practice “quarantine” means separation of person or community who have been exposed to an infectious disease and “isolation” means separation of persons who are known to be infected.
That besides the Epidemic Disease Act, 1887 the Indian Penal Code in short IPC deals with offences affecting the public health safety convenience decency and morals which can be split into two parts one deals with the public nuisance and the other deals with the quarantine Rule. In the IPC there is a provision of containment of public nuisance which is to be interpreted a ‘quarantine’ provision .The relevant provision of the IPC are Section 188,269,270,271 of the IPC and also section 133 of the Cr.Pc which assumes the significant role to prevent the outbreak of COVID 19.The provision of section 188,269,270 and 271 IPC are quoted below
“Section 188 of the IPC 188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public serv¬ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris¬onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation. —It is not necessary that the offender should intend to produce harm or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.”
“269. Negligent act likely to spread infection of disease danger¬ous to life.—Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
Section 270 in The Indian Penal Code
“270. Malignant act likely to spread infection of disease danger¬ous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 271 of the IPC”
Section 271 of The Indian Penal Code
“271. Disobedience to quarantine rule.—Whoever knowingly disobeys any rule made and promulgated 1[by the 2[***] Government 3[***] for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
Section 133 in The Code of Criminal Procedure, 1973
“133. Conditional order for removal of nuisance.
(1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation- A” public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.”
That the Prime Minister of India on 22nd March 2020 declared a nationwide Fourteen hours Janata Curfew. Thereafter the Government of India declared a nationwide lock down on and from 25th March 2020 till 15th of April ,2020 for 21 days in order to contain the spread of Corona virus in India which was subsequently extended till 3rd May, 2020 with more restrictions on public movement however with effect from 20th April 2020 some relaxation has been given in some sector upon maintaining the norms and all procedure and advisory and all applicable law rules and Regulations in order to contain the spread of such viruses in India.
That in the present situation in India so far COVID 19 is concerned the provision of Section 6(2) and 10(2) of the Disaster Management Act,2005 for the quarantine law enforcement and protection of health is also squarely applicable.
Section 6(2) and 10(2) of the Disaster Management Act are quoted below:
“6. Powers and functions of National Authority:
(1) xxxx xxxxx xxxx
(2) Without prejudice to generality of the provisions contained in sub section (1) the National Authority may
(a) lay down policies on disaster management.
(b) Approve the national plan.
(c) Approve plans prepared by the Ministries or Departments of the Government of India in accordance with the National plan.
(d) Lay down guidelines to be followed by the different Ministries or Department of the Government so India in accordance with the National Plan.
(e ) lay down guidelines to be followed y the l different Ministries or Department of the Government of India of the purpose of integrating the measures for prevention of disaster of the mitigation of its effects in their development plans and projects ;
(f) co ordinate the enforcement andimp0lementation of l the policy and plan for disaster management
(g) Recommend provisions of funds for the purpose of mitigation.
(h) Provide such support to other countries affected by major disasters as may be determined by the central Government.
(i) take such other measures for the prevention of disaster or the mitigation, or preparedness and capacity building for dealing with threat relating disaster situation or disaster as it may consider necessary.
(j) Lay down broad policies and guidelines for the functioning of the National Institutes of Disaster management.
Section 10 (2) of the Disaster Management Act, 2005
(2) Without prejudice to the generality of the provision contained in sub section (1) The national Executive Committee may:
(a) Act as the coordinating the monitoring body for disaster management.
(b) Prepare the national plan to be approved by the National Authority.
(c) Coordinate and monitor the implementation of the National Polcie4y
(d) lay down guidelines for preparing disaster management plans by different Ministries or Department of the Government of India and the State Authorities.
(e) Provide necessary technical assistance to the State Government and the State Authorities for preparing their disaster management plans in accordance with the guidelines laid down by the National Authority.
(f) Monitor the implementation of the National) Plan and the plans p0repared by the Ministries or Departments of the Government of India.
(g) Monitor the implementation for the guidelines laid down by the national authority for integrating of measures for prevention of disasters and mitigation by the Ministries or Departments in their development plans and projects.
(h) Monitor coordinate and give directions regarding the mitigation and preparedness measures to be taken by different Ministries or disaster and give direction, where necessary for enhancing such preparedness.
(i) Evaluate the preparedness at all governmental levels for the purpose of responding to any threatening disaster situation or disaster and give direction, where necessary for enhancing such preparedness.
(j) Plan and coordinate specialized training program for disaster management for different levels of officers, employees and voluntary rescue workers.
(k) Coordinate response in the event of any threatening disaster situation or disaster.
(l) lay down guidelines for or give directions to the concerned Ministries or departments of the Government of India the State Government and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster.
(m) Require any department or agency of the Government to make available to l the material resources as are available with it for the purpose s pf emergency response rescue and relief.
(n) Advise assist and coordinate the activities of the Ministries or Department of the Government of India State Authorities, statutory bodies, other governmental or non- governmental organization and others engaged in disaster management;
(o) Provide necessary technical assistance or give advice to the State Authorities and District Authorities for carrying out their functions under this Act.
(p) Promote general education and awareness in relation to disaster management and
(q) Perform such other functions as the national Authority may required it to perform,”
In this pandemic situation in India it is very much unfortunate that some people are continuously attacking either the Doctors or Nurses or police and/or administrative authority and the health workers who are the COVID 19 warriors, in various ways and as such the Government of India to tackle this type of harassment of COVID 19 warriors however to amend the Epidemic Disease Act 1887 made a press release on 22nd April 2020 which is as follows:
Press Information Bureau
Government of India
Ministry of Health and Family Welfare
22-April-2020 22:14 IST
Promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19
During the current COVID-19 pandemic, there have been instances of the most critical service providers i.e. members of healthcare services being targeted and attacked by miscreants, thereby obstructing them from doing their duties. Members of the Medical community, even as they continue to perform relentlessly round the clock and save human lives, have unfortunately become the most vulnerable victims as they have been perceived by some as carriers of the virus. This has led to cases of their stigmatization and ostracization and sometimes worse, acts of unwarranted violence and harassment. Such a situation tends to hamper the medical community from performing their duties to their optimum best and maintaining their morale, which is a critical need in this hour of national health crisis. While healthcare service personnel are duty bound to serve without discrimination, the cooperation and support from society is a fundamental need for them to perform their duties with confidence.
Several States have enacted special laws to offer protection to doctors and other medical personnel in the past. However, Covid-19 outbreak has posed a unique situation where harassment of the healthcare workforce and others working to contain the spread of the disease has been taking place at all fronts, in various places including even cremation grounds. The existing state laws do not have such a wide sweep and ambit. They generally do not cover harassment at home and workplace and are focused more on physical violence only. The penal provisions contained in these laws are not stringent enough to deter mischief mongering.
In this context, the Union Cabinet in its meeting held on 22nd April 2020 has approved promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 to protect healthcare service personnel and property including their living/working premises against violence during epidemics. The President has given his assent for promulgation of the Ordinance. The Ordinance provides for making such acts of violence cognizable and non-bailable offences and for compensation for injury to healthcare service personnel or for causing damage or loss to the property in which healthcare service personnel may have a direct interest in relation to the epidemic.
The current Ordinance is intended to ensure that during any situation akin to the current pandemic, there is zero tolerance to any form of violence against healthcare service personnel and damage to property. The general public fully cooperates with healthcare personnel and have expressed their gratitude in a very organized manner several times during the past month. Nevertheless, some incidents of violence have taken place which has demoralized the medical fraternity. It is felt that separate and most stringent provisions for emergent times are needed to act as effective deterrents to any such incidents of violence.
Violence as defined in the Ordinance will include harassment and physical injury and damage to property. Healthcare service personnel include public and clinical healthcare service providers such as doctors, nurses, paramedical workers and community health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and any persons declared as such by the State Government, by notification in the Official Gazette.
The penal provisions can be invoked in instances of damage to property including a clinical establishment, any facility identified for quarantine and isolation of patients, mobile medical units and any other property in which the healthcare service personnel have direct interest in relation to the epidemic.
The amendment makes acts of violence cognizable and non-bailable offences. Commission or abetment of such acts of violence shall be punished with imprisonment for a term of three months to five years, and with fine of Rs.50,000/- to Rs.2,00,000/-. In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/-. In addition, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.
Offences shall be investigated by an officer of the rank of Inspector within a period of 30 days, and trial has to be completed in one year, unless extended by the court for reasons to be recorded in writing.
Looking at the interventions required during the current Covid-19 outbreak, the Central Government has been given a concurrent role with the State Governments to take any measures that may be needed to prevent the outbreak of an epidemic or the spread thereof. In addition, the scope of inspection of vessels arriving or leaving the country has been enlarged to include road, rail, sea and air vessels.
The health workforce are our frontline soldiers in battling the spread of Covid-19. They put their own lives at risk in order to ensure safety of others. They deserve our highest respect and encouragement at this moment rather than being harassed or being subjected to violence. It is hoped that this Ordinance will have the impact of infusing confidence in the community of healthcare service personnel so that they can continue to contribute to serving mankind through their noble professions in the extremely difficult circumstances being witnessed during the current Covid-19 outbreak.”
That the Central Government also brought an Ordinance on 22nd April,2020 by which made provision that any person or persons who attack a health worker who is treating COVID 19 cases can be jailed for a maximum period of seven years and also fine and this offence is also cognizable and non-bailable .By such ordinance a provision was made to the effect that such offence shall be investigated by an officer of the rank of Inspector and such investigation must be completed within 30 (Thirty) days and trial has to be completed within one year unless extended by a court to the reasons to be recorded . By such ordinance, the provision made for punishment: In case of commission or abatement of such acts of violence shall be punished with imprisonment for a term of three months to five years and with fine of Rs. 50,000.00 (Rupees Fifty thousand only) to Rs. 2,00,000.00 (Rupees Two lakh only) and in case of causing grievous hurt imprisonment shall be for a term for six months to seven years and with fine of Rs. 1,00,000.00 (Rupees one lakh only) to Rs. 7,00,000.00 (Rupees Seven Lakh) only. In addition, the offenders shall also be liable to pay compensation to the victim and twice the fare market value of damaged property.
On conclusion I hope and trust that if all of us maintain the law of the land and all advisories, Rules and regulations issued by the WHO, Central Government as well as the State and to follow the same in its entirety to prevent the outbreak of COVID 19 and all of us stay at home for our own safety and to prevent outbreak of the said COVID 19, of course we shall overcome the pandemic situation due to COVID 19 very soon.
Note: The dates and data has been collected from the internet and from various articles without verifying the source.