Quarantine: A Constitutional Measure to Combat the Pandemic

The novel coronavirus has turned our lives upside down. This pandemic has forced the rich people to stay at their respective homes, while poor migrant workers are struggling to reach out for their basic essentials. More than 52 lakh people have been infected with this virus. For some people, life is at a standstill, where there is no way in, nor a way out. Due to the contagious nature of the virus, the Government of India has imposed a nationwide lockdown on 24th March, 2020. Due to stringent measures adopted by the government officials and the cooperation of the people, we have managed to control the spread of the virus to a far extent. But experts believe that, there is still a long way to go. With the population of 1.3 billion people, there are high prospects of community spread. Origin of word “quarantine” traces back to 1894, when U.S Supreme Court bench, headed by Justice John Marshall, affirmed that the state has the power to impose lockdown during health emergencies. Since then, a quarantine has proved to be an effective measure to control the rapid spread of highly contagious diseases. In this time of hardship, 2 words continue to strike our minds all the time, i.e. lockdown and quarantine.

The Great Council in 1377, passed the first law related to medical isolation. At that time, a plague was rapidly spreading in the European Countries. The law was termed as “trentino”. Under this law, 30 days isolation was prescribed. With the passage of time, such type of law was adopted by several other countries, in order to protect the spread of the disease and to protect the people of the society.

Although the two words, lockdown and isolation, look the same, yet they are different in their interpretations. A Quarantine implies the separating and restricting the movement of the person, who may have been infected, but not yet proven to be ill. On the contrary, in isolation, one is confirmed to have been infected with the disease. Hence, it is the benefit of doubt that differentiates an isolated person from the quarantined one.

Amidst this growing pandemic, there are several sections, enshrined under several laws that have been governing us. It is necessary that we abide by those rules, in order to ensure our safety, as well as the safety of the nation. This article incorporates all the laws that have been invoked in the economy, by the central and the state government, to combat this rampant pandemic.

Epidemic Disease Act, 1897

Ironically, the shortest law is governing the greatest pandemic. 123 old legislation, which was initially enacted to curb the spread of bubonic plague in Bombay, is now being used to confine the spread of novel coronavirus. This Act, comprising only 4 sections, contains provisions with regards to the special powers of the central and the state government. All the states, with effect from March 11, 2020, were instructed to invoke section 2 of the aforementioned act. Section 2 allows the government to enact special laws to prevent the spread of the contagious disease. It is in the hands of the state government, to take necessary actions with respect to the state. It involves imposing travel bans, mass testing, regulation of courier and postal services, isolating the persons who have travelled international shores, etc. [1]

Another section added in the year 1920, i.e. Section 2A.  It enables the government to check any ship that is arriving or leaving the host country. This amendment also allows the government to detain any person, who has recently arrived in the country, crossing the international borders.[2]

Section 3 of the act stipulates provisions with respect to the breach of any order, announced by the government, amidst the pandemic. Disobeying any order of the government stipulated under this act, the person is deemed to have committed a punishable offense under section 188 of Indian Penal Code. [3] Article 19(1) (d) of the Indian Constitution states that, all the people have the right to move freely throughout the territory of India, but as mentioned under Article 19 (2), reasonable restrictions can be made on the movement of the people in exceptional circumstances[4]. Section 4 grants legal protection to all the government officials, who are working day in and day out, to execute the plans formulated by the government[5].

Despite of all these provisions, there are certain loopholes in this act. This act has failed to provide the exact definition of epidemic and the territorial boundaries. This act provides for movement via ship, and does not take into account other modes of transport. There is no regulatory framework provided for the delivery of goods, during the lockdown period. Although, this act throws a light upon certain terms like quarantine and isolation, yet it has failed to provide solutions such as vaccination, close monitoring of the areas affected etc. This act as also remained silent on the issues related to Human Rights principles. Hence, with the evolution of time, there is an urgent need to reform this old law. 

Disaster Management Act, 2005

The power of home ministry has been delegated to the health ministry by the central government under section 10 (2) (i) and 10 (2) (I) of the Disaster Management Act, 2005. [6]The main purpose behind this section was that, “the health ministry knows better regarding the solutions of the health emergencies and also they have a proper data with respect to increasing number of cases.” Section 2 of the act, defines the word “disaster” in a very wide manner. According to this act, “Disaster is any mishap, catastrophe that has arose due to manmade, or natural causes, or due to negligence, or a result of any accident, and this has resulted in substantial loss to property, human mankind, and which is outside the control of the people of the society.” Coronavirus clearly comes under the ambit of this definition.

Section 3 of the act speaks about establishment of National disaster Management Authority. Powers and functions of each authority, central and the state government are clearly laid down under this act. Section 8 of the act talks about setting up of National Executive Committee. This committee will play an important role in formulating a National Plan during the crisis.[7]

Within the ambit of this act, the health ministry has urged National Pharmaceutical Pricing Authority (NPPA), to keep a check on the availability of hand sanitizers, face masks, etc. and ensuring, that the companies are selling the essentials, at their market price.

Hence, when we compare the above two acts, the latter one, gave a broad interpretation of the term disaster, and also laid down certain measure to curb or regulate the predicament situation. This act takes into consideration, the unfair practises adopted by the sellers, at the time of the crisis and provides a proper framework for the regulation of the same.

Indian Penal Code, 1860

There are certain penal provisions which are applicable during this pandemic. To ensure the effective implementation of all the laws in the society, the authorities have full recourse under section 269, 270 and 271. 

Section 269 of the IPC states that, “any person who negligently or unlawfully, spreads the disease, to which he is infected with, must be punished with either 6 months of imprisonment or fine or both.”[8] Section 270 talks about those persons, who spread the disease voluntarily or intentionally. They are subjected to 2 to 3 years of imprisonment under this section. Sections 271 stipulates that any disobedience to laws enacted by the government during the quarantine, may bring forth criminal action. Hence, it is the duty of all the citizens, to abide by the rules formulated by the central or the state government.

Aircraft (Public Health) Rules, 1954

These rules provide authority to the health officer, to check any person coming from abroad. He has full right to subject any person to medical examination. If there is a mandate on the person which restricts him/her to leave the place, then the health officer has full authority to quarantine that person. Keeping the graveness of the situation in mind, the Government of India has imposed restrictions on all the domestic as well as the international flights. All the people, who have recently travelled via flights are under continuous surveillance. Medical examination of these persons is made mandatory, under this act.

Judicial Activism

The supreme court of India has also taken suo moto cognizance of several matters, to prevent the spread of the virus. Virus has its impact on the overcrowded prisons. The Supreme Court took into consideration, the problem of social distancing in such type of prisons. With respect to this, isolation wards are being set up in Kerala Jail, and Tihar Jail. In order to curb the spread, medical examination of new inmates and regular check-up of existing inmates is made mandatory. Even in the time of pandemic, the Supreme Court of India has never failed to serve justice to the citizens. The doors of the Apex authority are still opened.

Plights of migrant labourers have also been taken into account, by the Apex Court. The Court has ordered the respective state governments, to make suitable measure for their homecoming.

In 2009, National Health Bill was introduced, which contains legal framework with respect to health emergencies. It contains solutions and also outlines the boundaries of central as well as state government. Provisions with respect to protection of the rights of human beings at the times of pandemic are also listed under this bill, but due to certain circumstances, this bill couldn’t see the light of the day.

Conclusion

As till now we have an understanding that there are several laws that are monitoring us during this predicament, yet there is no concrete framework.  All the above listed laws have their own limitations, which makes the central as well as state government impotent. Some of the states have enacted their only rules to combat the pandemic like Himachal Pradesh. Hence, there is an urgent need to enact a uniform law, which covers all the provisions, and is constant for each state. Similarly, despite of all these laws, the needs to certain backward sections of the society are not taken into consideration. These people don’t have enough resources to buy the basic necessities of life.

So, the government must take substantial measure to fulfil their demands and needs. Also, the selfish interests of the oppositions should not supersede the interest of the welfare of the society. There are several instances when a bill was formulated, but not passed by the parliament, like the National Health Bill, 2007 and the Public Health Bill, 2017. The latter bill proposed an amendment in the Epidemics Act, 1897. The citizens of the country should also respect these laws, instead of violating them. This pandemic has forced us to unite. So, if we stand together, we will succeed together. 


[1]L.S. Sathiyamurthy, Quarantine and the law, April 3, 2020, available at https://www.thehindu.com/opinion/lead/quarantine-and-the-law/article31241185.ece , (last accessed on May 22, 2020).

[2] Aniket Sachan, Quarantine and Law, available at http://www.legalserviceindia.com/legal/article-1820-india-s-legal-response-to-covid-19.html, (last accessed on 21 May, 2020).

[3] Wendy E. Parmet, J.D., and Michael S. Sinha, Covid-19 — The Law and Limits of Quarantine, April 9, 2020, available at https://www.nejm.org/doi/full/10.1056/NEJMp2004211, (last accessed on 20 May 2020).

[4] Ibid.

[5] Supra Note 1.

[6] The Disaster Management Act, 2005.

[7] COVID-19: Analysis Of Existing Indian Legal Framework To Deal With The “Pandemic”, March 17, 20020, available at https://lawstreet.co/vantage-points/covid19-analysis-of-existing-indian-legal-framework/ (last accessed on 23 May, 2020).

[8] Supra Note 3.

Akshat Jaithlia from Rajiv Gandhi National University of Law, Punjab

Akshat has good communication and debating abilities. His critical and analytical skills to research upon legal matters, differentiates him from others.


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