[dropcap]I[/dropcap]N an attempt to deal with the crisis arising due to COVID19 pandemic in India, the central and the state governments are taking different measures. These include not just invoking powers under various statutes but also the amendment of provisions and specific regulations to deal with the pandemic.
Here is a (regularly updated) list of legislation under which the centre and state governments have invoked its power to take tackle the situation arising due to COVID19.
The Insurance Act, 1938
The powers under Section 64VB, the Insurance Act, 1938 read with rule 59 of the Insurance Rules, 1939 have been invoked to allow payment for renewal of motor vehicle third party insurance policies on or before April 21, 2020, for those holding motor vehicle third party insurance policies that are due for renewal between the period March 25, 2020 – April 14, 2020, and are unable to make payment for renewal premium due to the prevailing COVID19 situation in the country.
To facilitate this measure, the following clause was inserted vide the Insurance (Amendment) Rules, 2020, in Rule 59 of the Insurance Rules, 1939 which reads thus:
“(o) Motor vehicle third party insurance policies. – In the case of renewal of motor vehicle third party insurance policies falling during the period of lockdown due to outbreak of COVID-19 pandemic, the risk may be assumed subject to the condition that the premium shall be paid within such time as the Central Government may, by notification, specify in this behalf;
(p) Health insurance policies.- In the case of renewal of health insurance policies falling during the period of lockdown due to outbreak of COVID-19 pandemic, the risk may be assumed subject to the condition that the premium shall be paid within such time as the Central Government may, by notification, direct in this behalf.”
The Drugs and Cosmetics Act, 1940
This legislation is one of its provisions allows the Central Government to regulate or restrict, manufacture, sale or distribution of a drug that is essential to meet the requirements of an emergency arising due to epidemic.
On March 26, 2020, the Ministry of Health and Family Welfare notified that given the emergency arising due to pandemic COVID-19 and in the public interest, it is necessary and expedient to regulate the sale and distribution of drugs for their delivery to the consumers.
The notification allowed that those persons holding licence (licensee) to sell, stock or exhibit or offer for sale, or distribute drugs by retail, to deliver medicines at doorstep including the drugs specified in Schedule H, Schedule H1 & Schedule X. However, such sale of a drug specified in Schedule H has to be based on receipt of prescription physically or through e-mail.
With reference to drugs under Schedule H, the licensee shall:
- Submit an e-mail ID for registration with the licensing authority if prescriptions are to be received through email;
- Supply the drug at the doorstep of the patients located within the same revenue district where the licensee is located;
- Dispense with the prescription in case of chronic diseases, if the prescription is presented to the licensee within 30 days of its issue and in acute cases, the prescription shall be dispensed only if it is presented within 7 days of its issue;
- Send the bill or cash memo by the return email and maintain records of all such transactions.
The Epidemics Disease Act, 1897
In response to the growing threat of the pandemic COVID-19, on March 11, 2020, the Cabinet advised all States and Union Territories (UTs) to invoke Section 2 of Epidemic Diseases Act, 1897 (“the Act”). This was done in order to ensure that the advisories issued by the Ministry of Health & Family Welfare or State or UTs are enforceable.
While the intent of the Epidemic Diseases Act, 1897 is “better prevention of the spread of Dangerous Epidemic Diseases”, it does not define the term dangerous epidemic disease, giving a wide discretion to the Central Government to invoke this Act on a case to case basis.
Contested attempts to repeal and replace this pre-independence legislation comprising just four sections were made in the past including in 2009 through the National Health Bill 2009 and in 2017 through the Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill, 2017 that vaguely defined an epidemic.
Section 2 of the Act empowers the State Government to take special measures and prescribe temporary regulations in case of a threat or outbreak of a dangerous epidemic disease. Such temporary regulations are to be prescribed through a public notice.
Further, the State Government is also empowered to make regulations for persons travelling by rail or otherwise, or segregation of persons suspected to be infected with such a disease. Persons disobeying any orders or regulations made under the Act that could result in endangering human life and health can be punished with imprisonment for up to six months or imposed a fine of up to one thousand rupees or both.
The Epidemic Diseases Act also empowers the central government to take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port or detention of any person intending to sail or arriving.
The Epidemic Disease COVID-19 Regulations, 2020
Several states in India have invoked their powers under Section 2 of the Epidemic Diseases Act and issued Epidemic Diseases COVID-19 Regulations 2020. These Regulations are being revised from time to time for an appropriate response to the situation.
Some of the initial provisions in these Regulations:
- restricted the number of persons at sports gathering/conferences, screening corners at public and private hospitals and authorizing personnel to forcefully isolate symptomatic persons in case they refuse admission, sealing off areas, barring entry/exit from certain areas,
- authorizing District Disaster Management Committees to prepare planning strategies regarding containment of COVID19 and taking strict action against fake news related to COVID19, and
- no authorization to private labs to collect and test samples for COVID19, mandatory quarantine of persons with a history of travel to a country where COVID19 had been reported.
Some state regulations also required persons with travel history to countries with COVID19 cases to report to the nearest government hospital.
Majority of the revised recent orders suspended operation of swimming pools, gymnasium and spas, night clubs, bars, cinema halls, multiplexes, weekly bazaars (except pharmacies, medical establishments, grocery stores and supermarkets), restriction on a number of persons in social gatherings (mostly below 50), restricting seating capacity in dine-in restaurants, minimizing public dealing in government offices and appointment of officers on special duty, and restricting movement to only those persons who are engaged in essential services (viz. law and order, courts and corrective services; health services, police, armed forces, para-military services, electricity, water, municipal conservatory services, fire, civil defence and emergency services, telecom, banks, media, manufacturing units producing essential commodities and hospital products).
Certain states such as Maharashtra, Telangana and Karnataka started stamping at the back of the palm of the left hand of persons who were instructed to follow home quarantine, with indelible ink. These stamps read: “Proud to protect *state name* home quarantined till dd/mm/yyyy”.
Certain district administrations in Gujarat, Chandigarh, West Bengal, Rajasthan, Punjab, and Jharkhand are also putting up quarantine posters outside houses whose residents have been directed for mandatory home quarantine. Most of these posters read “COVID-19 – DO NOT VISIT – HOME UNDER QUARANTINE- from (dd/mm/yyyy) to (dd/mm/yyyy)- Name-Address-Number of persons”.
On the other hand, Odisha notified that it is necessary to maintain the confidentiality of information related to the affected persons, their relatives, treating doctors, assisting medical staff and residential address of persons affected and their relatives, and put an embargo on the media from publishing any such information. Persons affected by COVID19, their relatives, or treating staff are also restrained from giving interviews to the media as per this direction. Any person violating these regulations would be punished under Section 188 Indian Penal Code.
Invoking the provisions of The Epidemics Diseases Act, 1897 is only one of the many actions to tackle COVID-19 that the States are taking. The subjects of “inter-state migration; inter-state quarantine” and “drugs” fall under the Union list, and the subject of “public health and sanitation; hospitals and dispensaries” falls under the State List of the Constitution.
Thus in order to counter the pandemic of COVID-19, the Union and the State machinery would have to work in tandem to offer adequate medical services and at the same time propel appropriate disaster relief. Towards this effort, while State governments are enforcing the COVID-19 Regulations as talked about before, union ministries are invoking their power to ensure access to certain commodities that might become unavailable in these times.
Disaster Management Act, 2005
The Disaster Management Act covers situations of disaster including that of natural or man-made catastrophe, mishap, calamity or grave occurrence in any area resulting in substantial loss of life or human suffering.
The Centre has recently invoked this legislation to issue a 21-day lockdown across the country. The offices of the government of India and State and Union territory governments (except defence, central armed police force, treasury, public utilities including petroleum, CNG, LPG, disaster management, power generation, power generation and transmission units, post offices, national information centre, early warning agencies). All essential services Hospitals, health services and related manufacturing units continue to function along with ration shops, banks, media, telecommunications, delivery of essential goods through e-commerce are to remain open.
The invocation of the Disaster Management Act means that it will also be the responsibility of the State Executive Committee constituted under the Disaster Management Act to specify measures to be taken for prevention or mitigation of the disaster, lay down guidelines for disaster management plans and monitor their implementation, give directions to state department for actions for disaster response and promote education and awareness about disaster mitigation measures.
The legislation also provides for ensuring that the Ministries or Departments of the Government of India take necessary measures to promptly and effectively respond to any threatening disaster situation or disaster. The measures taken by the Ministry of Railways cancelling long-distance and intercity trains is one of the several measures taken in light of COVID19. Several state governments also suspended passenger trains. Another such measure has been the cancellation of all university exams and closure of universities.
The Aircraft Act, 1934
The Aircraft Act empowers the Central Government to take necessary measures including making temporary rules with respect to aircraft and persons travelling or things carried therein and aerodromes in case of an outbreak of any dangerous epidemic disease.
The Ministry of Civil Aviation has invoked its powers under the Aircraft Act, 1934 to suspend the operation of all scheduled domestic flights (except all-cargo flights). Operation of flights by the holders of Non-scheduled operator permit (except all-cargo flights, off-shore helicopter operations, medical evacuation flights or flights specifically approved by Directorate General of Civil Aviation).
The Essential Commodities Act, 1955
In light of reports of black-marketing of surgical and protective masks (2ply& 3ply surgical masks and N95 masks), and hand sanitizers, the Ministry of Consumer Affairs, Food and Public Distribution has declared these products to be essential commodities under the Essential Commodities Act, 1955. Identifying these products as essential commodities allow the authorities to control the prices set by the market forces and prohibit with-holding of such products from sale.
A ceiling price for hand sanitizers has been set at Rs.100 per 200mL bottle. In furtherance of orders under this legislation, the price of 3ply surgical masks is not be above Rs. 10, and that of masks (2ply) is not be above Rs. 8. Later the Ministry of Consumer Affairs, Food and Public Distribution issued the Fixation of prices of masks (2ply & 3ply), Melt Blown Nonwoven Fabric and Hand Sanitizers (Amendment) Order, 2020. The order provided that the retail prices of 3ply surgical mask containing a layer of Melt Blown non-Woven Fabric shall not be more than rupees 16 per piece.
States have also set into action their local manufacturing units to avoid sole reliance on private players for continued access to essential commodities. For instance, the Kerala State Drugs & Pharmaceuticals, a state institution, manufactured over 1 lakh bottles of hand sanitizers in 10 days to counter the rising problem of hoarding and artificial price rise.
Some state municipal authorities like that in Delhi have invoked the state municipal legislation that empowers the municipal commissioners to take special measures in case of outbreak of dangerous or epidemic diseases. Such measures can include requiring private establishments to follow certain rules, eg. In case of Delhi, market and trade associations, resident welfare associations, restaurants/eateries, banquet hall owners, mall managements, hotel/motel/guest houses were to provide proper sanitation facility (washing with soap and water/alcohol-based sanitizer) at the entry point of respective establishments and to ensure no gathering at one particular site. A violation of these requirements could be punished under Section 188 of the Indian Penal Code.
State public health legislations
Kerala invoked the Madras Public Health Act, 1939 to declare COVID-19 as a “notified disease” in Malabar district and Kasargod Taluk in Kerala. The legislation allows certain actions to be taken by designate authorities with respect to diseases that have been designated by the State as “notified disease”. This legislation empowers a health officer to enter, occupy and use any building or place which could be suitable for the purposes of prevention or control of a notified disease.
Further, the legislation requires every medical practitioner to inform (in municipal areas) the executive authority/health officer/sanitary inspector and (in non-municipal areas) the Health Officer/sanitary inspector/village headman of the existence of the notified disease in any private/public dwelling other than a public hospital.
It also empowers local officers to inspect any place where the notified disease is reported or suspected to exist without notice in the case of factories, workshops, work-places, offices, business places and the like, and with a reasonable notice including dwelling places. The health officer is also empowered to destruct hut or sheds necessary to prevent the spread of any notified disease after giving reasonable notice to the owner and giving compensation to the person.
Under this statute, a Magistrate on the application of the Health Officer may order the closing of lodging house or any place where articles of food are sold, or prepared, or exposed for sale, or distributed in the interest of public health until the expiry of a period as may be specified or until it is certified by the Health Officer to be free from infection.
Further, on the application of the Health Officer, any Magistrate, not being a Magistrate of the third class, can prohibit any individual case, assemblages consisting of any number of persons exceeding fifty, in any public or private places if the Magistrate is satisfied that such assemblages would be likely to become a means of spreading the disease or of rendering it more virulent.
Kerala has also notified COVID-19 as a “notified disease” under the Travancore Cochin Public Health Act, 1955. This legislation gives similar powers to the Health Officer as those under the Madras Public Health Act, 1939.
Some States have also constituted cells in different departments to combat the pandemic. In certain states like Kerala, panchayats have also been directed to maintain sanitation, monitor and support those on mandatory home quarantine, resurrect pre-existing networks on health for management, and daily recording of events related to COVID-19.
Delhi Government amended the Delhi Prison Rules 2018 to insert provision of “Emergency Parole” allowing grant to provide up to 8 weeks parole in one spell to inmates in a situation like an epidemic, natural disaster or any other situation warranting easing of the population of inmates in prison.
Section 144, The Code of Criminal Procedure, 1973
Section 144 of the Code of Criminal Procedure empowers District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate to bar the assembly of a certain number of people in a particular area in certain circumstances including those that pose a danger to human life, health or safety.
The notice provides the time period for which such an order would be in force, and the same cannot remain in force for more than two months. However, in cases where the State Government considers it necessary so to do for preventing danger to human life, health or safety it may, direct that such an order shall remain in force for such further period not exceeding six months.
Indian Penal Code, 1860
This provision relates to disobedience to order promulgated by a public servant. Any person who disobeys such an order such that it causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed will be punished with imprisonment of up to one month or with a fine or both.
In case the disobedience cause or tends to cause danger to human life, health or safety, or causes or tends to cause riot or affray, the person shall be punished with imprisonment of up to six months or with a fine of rupees two thousand or both.
This provision relates to punishing negligent act likely to spread infection of disease dangerous to life. Any person unlawfully or negligently doing an act which is known to them as likely to spread the infection of such disease shall be punished with imprisonment of either imprisonment of up to six months or fine or both.
This provision relates to punishing malignant acts that are likely to spread infection of disease dangerous to life. Any person malignantly doing any act which is known to them as likely to spread the infection of such disease shall be punished with imprisonment of either imprisonment of up to two years or fine or both.
This provision relates to punishing disobedience to quarantine rule. Any person knowingly disobeying the rule of quarantine issued by the government shall be imprisoned for up to six months or fine or both.
Note: This piece will be updated periodically [Last updated: April 4, 2020]
Priyam is a Legal Officer with the Lawyers Collective.
Image courtesy: The Economics Times