India needs an overhaul of its outdated law to fight Covid-19

It’s March 29, senior police officer Vivek Raj Singh finds a man migrating back to his village, many kilometres away. The officer grabs the man’s shoulder, sets him on the ground and writes on the labourer’s forehead, “Maine lockdown ka ullanghan kiya hai, mujhse door rehna (I have violated lockdown restrictions, keep away from me).”

The officer has not been suspended, but only asked to “show cause”. Show cause for defacing the face of a labourer, humiliate him and force him to walk in shame with no one willing to interact or even be near him for kilometres and kilometres. As if there is a possible cause for such an abuse of power, for such a horrendous and abhorrent act.

This piece takes a look at the source of authority for the 21-day lockdown announced by Prime Minister Narendra Modi. The law invoked, the Epidemic Diseases Act, 1897, has a dark and marred history. The law that cabinet secretary Rajiv Gauba recently advised states to adopt, which Parliament approved so that Union Health Ministry advisories could be enforced at the ground level, is a 123-year-old draconian, British Raj statute that came into being to fight the Bubonic Plague in Bombay.

The law and its history

The Epidemic Diseases Act, 1897, with just four sections, was drafted in a rush with little or no foresight for the wide ambit of its misuse. Myron Echenberg, an accomplished scholar who wrote extensively on infectious diseases, noted that “the potential for abuse was enormous” in the Act. Even without the necessary foresight, just an observation of the law's implementation since the 19th century makes it evident that the law has been used as a tool for abuse, oppression and tyranny. State abuse extended to public humiliation, abuse against women, public stripping and even violence against women - which led to historian David Arnold calling the Act “one of the most draconian pieces of sanitary legislation ever adopted in colonial India”.

The law was misused to imprison freedom fighters, including Bal Gangadhar Tilak. His articles in the Kesari, reporting on the government response to the Bubonic Plague, were deemed “anti-establishment" and he was imprisoned for nearly two years as his acts warranted the infamous Indian Penal Code (IPC) 124A - sedition. This was the first sedition case in India, and Bal Gangadhar Tilak was considered seditious for reporting facts and the government's failed response, leading to millions and millions of deaths. India had the highest death toll across the world, nearly 13 million deaths.

The truth is that the minutes of the British-Indian Viceroy's meeting on ‘dealing’ with the Bubonic Plague revealed that the Act was never enforced to protect Indians from the plague, but, “for the safeguarding of our commerce the government must be prepared to take steps to allay the fears of other nations”, said John Woodburn, a member of the Viceroy's Council, the one who moved the bill. This intent, to ignore Indian suffering and protect British interests, is clear in the Act's provisions and implementation: From breaking into homes, ransacking people’s belongings and dragging innocents along rough roads to hospitals kilometres away, based on little to no evidence.

On plague commissioner Walter Rand's orders, the Army was allowed to outrage the modesty of women, strip them naked and hose them with 'disinfectants'. This was in the late 19th and early 20th century.

But it happened last week as well, in Bareilly, Uttar Pradesh.

This is the state of our Union. An archaic law empowering the police to humiliate, to abuse and to use violence has been invoked.

THIS-Heartbreaking!Video from Badaun, UPPoor boys who’re on foot from Gwalior, WERE MADE TO CRAWL by UP PoliceCops been asked to help distressed migrants, not ill treat them like this.Many cops doing good work but this is unacceptable! @pranshumisraa #CoronavirusLockdown pic.twitter.com/YPllyphTO7

— Zeba Warsi (@Zebaism) March 26, 2020

The British today have a much stronger and effective policy, the Public Health Act, 1984. It describes and prescribes the roles and responsibilities of all agencies involved in public health management, disease outbursts and pandemics, while we rely on a law that doesn't even include regulation of air travel, simply because there were no airplanes in 1897. It prescribes for the rapid notification of an infectious disease and the role and responsibilities of healthcare workers in identifying contagious individuals.

In addition, there is a clearly described chain of command through which the said identification or notification is to be reported. Most importantly, it lays emphasis on a pre-planned format or template plan of action to deal with a possible outbreak.

The Epidemic Diseases Act and the Disaster Management Act, 2005, refer to offences under it to Sections 269, 270 and 271 of the IPC. These are strict sections enforcing quarantine rules for offences covering public health, safety, convenience, decency and morals. Section 188 and Section 195 of the Criminal Code of Procedure prescribe that for a court to take cognisance of an offence, an FIR is insufficient. The relevant public officer must make a complaint in writing to the magistrate or judge, as the case may be.

This is a hindrance to the officer. When he can just intimidate, threaten and beat a ‘suspect’; why take time out to write up a complaint? Going to court is too tedious; they would much rather beat and humiliate, whoever they deem a suspect. Best of all, Section 4 of the Epidemic Diseases Act absolves all responsibility for those acting under the directions of the Act. The beatings, abuse and humiliation will go unchecked since they were done in "good faith intended to be done under this Act".

The lockdown’s “good faith intention” is to protect people. But the 123-year-old outdated law, which has been invoked to confront the deadly pandemic, empowers the police to brutalise innocents.

The police: abuse, misuse, humiliation and violence

Indian states have begun invoking the draconian Act; Maharashtra outlawed media reports, posts on the internet and even WhatsApp messages about Covid-19 unless “prior clearance” is obtained from a "collector". Without this vague and ambiguous “prior clearance” you could face six months’ jail time and a fine that’s over 30 times the daily poverty line.

Today, the police have been given free rein to harass, humiliate, abuse and assault. Multiple videos from Punjab and other states show police officers violently assaulting men on scooters and bikes.

If Punjab police keep beating everyone who leaves their house, the corona virus doesn’t stand a chance lmaooo pic.twitter.com/kI8unN3wgc

— Manraj Randhawa (@manrajrandhawaa) March 28, 2020

Videos from Assam show police officers humiliating innocent citizens by forcing them to squat and hop on the highway for the world to see. In some videos, people are being made to roll about on the road as punishment for violating the lockdown. Videos emerging from Uttar Pradesh, where police humiliated innocents, forcing them to get on their hands and knees on the dirty, possibly infected roads, and hop, is pure barbarity.

Again in Andhra Pradesh, a male police officer was seen beating an unresisting woman. As she walked away from him, she was struck again on her back with a lathi. As she kept walking (as per their orders), she was subjected to more violent strikes.

In Maharashtra, officers destroyed the shops of vegetable and fruit vendors, ruining their livelihoods. The same can be seen all across Delhi. Videos surfaced of vigilantes destroying shops, vendor’s carts and entirely trashing them.

In Punjab, a man was seen broken, fallen, in pain and tears, and yet the officer continued to strike him with his lathi multiple times on the head, neck and back. The man kept crying in pain and fear, pleading for mercy.

One of the most disturbing of all is the one from Andhra Pradesh. A male police officer beating a man even as he tries to shield and protect his child against the lathi strikes.

As they walk away, the officer strikes again and again - beating a child, no older than 10.

In West Bengal, the police stopped a few men on the road and began to violently attack them saying, “Maarna shuru karo, marna shuru karo – maaro maaro (Start the beating, start the beating - hit them, hit them).”

These are just a few of the hundreds of incidents of police abuse and misuse across the country. While the spread of the virus is not under our control, the highhandedness of the police should be.

The solution is to make their source of authority more responsible and accountable.

The chemical: Sodium Hypochlorite

A disinfectant, used for sanitisation at a concentration of 0.05 per cent, was used on the migrant labourers at a concentration of 1 per cent - 20 times the acceptable limit.

If unintentionally swallowed, even a small amount at 1 per cent concentration, Sodium Hypochlorite causes stomach aches and pains, a burning sensation over the skin, coughing, painful diarrhoea, a sore throat, nausea and vomiting.

Who r u trying to kill, Corona or humans? Migrant labourers and their families were forced to take bath in chemical solution upon their entry in Bareilly. @Uppolice@bareillytraffic @Benarasiyaa @shaileshNBT pic.twitter.com/JVGSvGqONm

— Kanwardeep singh (@KanwardeepsTOI) March 30, 2020

I myself was sprayed with the solution, while going to the grocery store, by a man in a mask carrying a hose and a canister. I was sprayed all over with no warning and no advice to cover my face, eyes, mouth. It covered my face, my clothes and my bags. Then the man just walked away, as if he had done this for years and I was just another bug, an insect he had to clean.

While I have no serious symptoms - I do have a rash and stomach pain, I am sure the migrants are suffering worse side-effects. Police officers are to be trusted, but today the trust that they will act in accordance with the law has been replaced with the fear that they are outside the bounds of law.

Failings of the law and scope for improvement

In all this violence and misuse of power, the police derive their authority from an Act which fails to even define a “dangerous epidemic disease”. The law has major limitations when it comes to tackling the emergence and re-emergence of communicable diseases in the country, especially in the changing public health context.

Nearly five years ago, Rakesh PS, visiting professor at Harvard University and a consultant with the World Health Organisation, said, “There is a need for an integrated, comprehensive, actionable and relevant legal provision[s] for the control of outbreaks in India that should be articulated in a rights-based, people-focused and public health-oriented manner."

The Act, understandably, has no clauses on air travel and the increasing speed with which an individual can cross continents - infecting hundreds. The Act focuses on sea travel which is nearly obsolete and outdated.

The Act emphasises and enforces quarantine and isolation, however, as several public health experts have noted these are insufficient and will fail to control the outbreaks. What’s needed is increased funding for vaccination, ‘disease surveillance’, formation of Public Health Boards, community-based monitoring and grievance redressal mechanisms, which would ensure transparency.

Several public health experts have called for revisiting the Draft National Health Bill, 2009, which has a rights-based approach, clearly detailing the public health responsibilities of all stakeholders, including the state, the police, medical professionals and individual citizens.

With 70 per cent of India’s healthcare system in the private sector, a public-private partnership is the need of the hour to confront this physically, emotionally, financially and socially debilitating pandemic.

Also read: The great hoax of India