The Epidemic Diseases Act is unmistakably reminiscent of the differing standards the colonialist applied while legislating for the native as opposed to his own.

With the outbreak and consequent spread of the Coronavirus, many states in the Union have had to take recourse to a law of pre-Constitution vintage, the Epidemic Diseases Act of 1897, on account of the successive failures of Parliament to enact public health laws in 2009 and again in 2017.

Much has been written about this law: about its antiquity, that it is 123 years old, that it is only two-pages long, and that it has only five sections. But we have laws of more distant antiquity such as the Indian Penal Code of 1860, the Indian Evidence Act and the Indian Contract Act, the last two dating back to 1872, which despite their well-documented criticism, have continued to serve us well.

But it is the skeletal nature of the 1897 law that provides the more attractive alternative for suspicion. Viewed as such, you may find the petite enactment to be a repository of an astounding amount of trust the lawmaker placed in the executive to deal with all issues associated with the spread of deadly epidemic.

In constitutional terms, we often associate such action, or rather, dereliction, with a vice called ‘excessive delegation’. Simply put, Parliament cannot abdicate its responsibility to make laws on fundamental issues, such as harmonizing rights during times when extreme measures may be taken on account of exigency.

Enter the year 1897. Earlier in the year, the bubonic plague has been identified in what was then Bombay. Sir John Woodburn, an Indian civil servant of British origin, will introduce the Epidemic Diseases Bill in the Council of the Governor-General of India at what was then Calcutta. The stated purpose of the Bill being better prevention of the spread of “Dangerous Epidemic Diseases” an expression which is left undefined.

By virtue of section 2, the Governor-General is empowered to take “such measures” and to prescribe by public notice “such temporary regulations” as may be deemed expedient.

Legislative history provides some assistance in understanding the intent behind the skeletal text of the law, which Woodburn bluntly summed up as the need “to take steps to allay the fears of other nations” in an attempt to safeguard commercial interests.

The relevant abstracts capture the fact that certain foreign countries and trading partners were alarmed at the possibility of the contagion spreading to their parts from India. There is receipt of telegraphic news that Russia had declared the whole continent of India to be infected. So it is proposed that the government take the power to order the medical inspection and detention, of any “suspected ship whose departure from India with sickness on board might give grounds for severe measures to be taken against Indian shipping abroad.”

And so, this sole overarching concern is expressly addressed in the enactment.

There is no mention of the needs, health and well-being of the native masses. These were ancillary and incidental concerns, if at all. From the common man perspective, this should be offensive enough to our sensibilities. But it is also how the 1897 law is different from the other laws we spoke of above, which continue to remain on the statute book.

There was just one more thing left to do, the colonial lawmaker is conscious, that the somewhat wholesale abdication of the legislative function in favour of the executive may open a dreadful Pandora’s box in the form of claims and grievances against acts which may be committed in the name of the tidy little legislation. So, by virtue of the ultimate section, this being Section 4 in the proposed Bill, provision is made for immunization of executive action from judicial review.

This was just dandy! Back then, the Council of the Governor General did not consist of elected representatives, certainly not by the native at any rate. Realistically speaking, there was no distinction between the law-making body and the executive back then either. Some may even make the argument that it is unfair to expect the law-making body to foresee and provide for all possible exigencies in times such as these.

And, thus started in 1897 acts of excess, where the authorities were empowered to detain individuals showcasing mild coughs and colds. There are reports of examination of individuals by disrobing them in public view. Women were apparently, not usual exceptions to such excesses. The authorities were also empowered to demolish property suspected of being infected.

The emotive native aside, as a student of constitutional law who had paid scant attention to the enactment (at least up until now,), two aspects stand out:

(i) the unabashed attempt to immunize any and all executive action and place it beyond judicial reach; and

(ii) the equally brazen, wholesale outsourcing of the legislative function to the executive.

Both aspects make the law not only offensive, but also constitutionally suspect in our times.

But the current constitutional scheme of things and the doctrine of separation of powers as we know it post-Constitution was not something which the Council was burdened with in 1897.

Yet, for the colonial lawmaker, both of these would have been attractive propositions. Firstly, because there is something else which we had in 1897, i.e. the modern court system – as the Indian High Courts Act had already been enacted in 1861. And to address the second aspect i.e. of excessive delegation, the Council of the Governor General would have perceived this to be permissible in the then prevailing scheme of things.

For instance, we know that while considering an issue pertaining to delegation of responsibility, the Privy Council in 1878, had in fact remarked, that it “was no uncommon thing” and, often proved “highly convenient” for the Legislature. At any rate, we know that the grounds for testing plenary legislation were far more limited in the pre-Constitution era.

Now, some comparative law. The British were no strangers to deadly contagion viz., we know of the Black Death of 1348 and the Great Plague, which lasted from 1665 to 1666. So lets see what the sovereign legislature in England had devised when catering to its own across the waters and in the old world.

There you find a robust mechanism in the form of the Public Health Act of 1875, containing 343 sections in all. Do notice the more distant antiquity. With provisions dealing with infectious diseases and hospitals, with prevention of epidemics and a whole part devoted to legal proceedings. All that was expected of the citizenry was that an action be initiated only after lapse of a months’ notice being served on the local authorities. The provision read as under:

The immunization of administrative action, which was sought, was also more timid and limited to mere ouster of personal liability of officials. Sample this:

Thus, the Epidemic Diseases Act is unmistakably reminiscent of the differing standards the colonialist applied while legislating for the humble native as opposed to his own.

But happily, the colonialists have departed from our lands, we have our own elected lawmakers, the Constitution has considerably widened the scope of judicial review, and we continue to hope that the demarcation between the three pillars of the State has not been distorted.

So it is somewhat ironic, that our elected representatives have continued to repose complete trust in the executive to frame “such temporary regulations” that we need in again today and that we still find ourselves muttering quiet ecclesiastical appeals to the heavens pleading that our courts interfere, if necessary and when it matters most.

But for the time being, since we are left with little alternative but to compare our colonial era legislation to a British statute and cry foul, might I suggest, on account of the object in Section 4 to preclude review of executive fiat, that the petite legislation be (if it must, in our times) – shorter by another provision!

The author is an Advocate-on-Record at the Supreme Court of India and is currently a Partner in the dispute resolution practice at L&L Partners, Law Offices, New Delhi. Views are strictly personal.