Power of Quarantine and Related Laws in India
Quarantine is done by the government to restrict the movement of suspected or ill people who are exposed to the spreadable disease. In this article, specific laws and regulations governing the control of communicable diseases has been discussed. Introduction World Health Organisation has declared novel coronavirus (COVID-19) “Pandemic”.[1] SARS-CoV-2, commonly known as COVID-19 is an airborne disease and… Read More »
Quarantine is done by the government to restrict the movement of suspected or ill people who are exposed to the spreadable disease. In this article, specific laws and regulations governing the control of communicable diseases has been discussed.
Introduction
World Health Organisation has declared novel coronavirus (COVID-19) “Pandemic”.[1] SARS-CoV-2, commonly known as COVID-19 is an airborne disease and has rapid contagious characteristics. The lockdown method seems to be the most adopted approach by countries across the globe in lieu of curbing the increase of COVID-19. Earlier in March, it has been announced as Notified-Disaster in India.[2] This led to the imposition of quarantine on people coming from other countries.
The outbreak of Coronavirus (COVID-19) first reported in December 2019 at Wuhan, China has now created a vulnerability in the entire World. According to reports, China is now able to “flatten the curve” after imposing a curfew-like scenario for months. On March 24th, Home Ministry of India issued a notice for a complete lockdown of the entire nation for 21 days to break the chain of transmission.[3]
The word quarantine has its roots originated from the Italian word “quaranta giorni”.[4] In Cambridge Dictionary, “Quarantine” is defined as a period for an animal or person that might have a disease is kept away from other people or animals so that disease cannot spread. Government-imposed quarantine was common in ancient time. Historical evidence suggests that the practice had been started during the period of ‘Black Death Plague’ in Spain where ships arriving from infected ports were required to quarantine for a period of 40 days before landing onshore.[5]
Quarantine is done by the government to restrict the movement of suspected or ill people who are exposed to the spreadable disease. Isolation and quarantine, as words are commonly used reciprocally but however, they differ in meaning. Isolation is the separation of contained people from a healthy one, whereas quarantine can be done to a potential suspect as well on a healthy person if one has been exposed to the disease.
Can the government impose quarantine on anybody?
Quarantine can create an inconsistency between protecting public health and respecting the fundamental rights of the individual. Usually, it is regarded as measures of last resort, but it can be imposed by the government when national security and public health is at stake.[6]
Early in March before the complete lockdown scenario, India virtually quarantined itself from rest of the world suspending all visas till 15th April except diplomatic, UN international organisations, employment and project. All incoming travellers including Indian nationals who have visited China, Italy, France, South Korea, Spain and Germany after 15th February were asked to quarantine themselves for 14 days.[7]
Quarantine is to impose even in the authoritarian regime where the government has absolute power to take every political decision. The University of Texas, in its recent report, has shown that the risk of transportation of COVID-19 was more than 50 per cent in Wuhan to 369 cities of China before the quarantine.[8] Ministry of Health and Family Welfare of India has issued proper guidelines for home quarantine which is applicable to all form of suspect and confirmed cases of COVID-19.
Quarantine power and legislation in India
The legal framework in relation to tackling the current Pandemic situation and public health disaster arising out in India interpreted from major legislations-
- The Constitution of India
- The Epidemic Act 1897
- The Disaster Management Act, 2005
- The National Health Bill, 2009
- Indian Aircraft (Public Health) Rules, 1954
- Port Health Rules, 1955
There is a constitutional division of legislative responsibilities between centre and state that are prescribed through the subject list in the Seventh Schedule.[9] As per the inference, it can be taken into account that both union and state government are constitutionally empowered to legislate in a matter of public health.
Right to health and public healthcare has been given in “Fundamental rights” (part III) and Directive Principle of State Policy (Part IV) of the Constitution. Article 47 which comes under DPSP has imposed a duty on the State to raise the level of nutrition and the standard of living and to improve public health for ensuring the goal behind the right to healthcare.[10]
The Hon’ble Supreme Court of India in the case of State of Punjab and Others v. Monider Singh[11] has observed that ‘Right to health is integral to the right to life under Article 21 of the Constitution’. However, quarantining as a measure can affect the fundamental Freedom granted under Article 19 of Constitution but this can be defended through a famous legal maxim- ‘Sic Utere Tuo Ut Alienum Non Laedas’[12] which means restrictions vis-à-vis enjoyment of the fundamental freedom to the extent it affects another’s enjoyment of life, property and well-being.[13]
Also, this right has to be enjoyed with some reasonable restrictions which can be imposed for the safety of public health. ‘Right to Privacy’ has been often used to contradict the imposition of quarantine however the right of privacy is an acquired right as mentioned through the elaboration of Article 21 in various decisions of our Apex court.[14] So, through the power of quarantine, the centre and state government can affect the political and civil rights of the person in India.
The Epidemic Act, 1897
The Epidemic Act,1897 was framed by the British government after the bubonic plague outbroke at Bombay Presidency and soon after raged in the whole colony. In the primary phase, it claimed around twelve million death.[15]
Section 2 of the Act is significant as it permits state and central government to take special measures and give regulations for the general public that helps in containing the spread of disease. It has a wide scope of the legislation. Section 3 of the Act prescribes the penalty for disobeying of any regulation along with section 188 of Indian Penal Code,1860.[16] However, it also gives exemption to people who are doing an act in pursuance of good faith.
The Epidemic Act, being almost 120-year-old legislation is archaic and has limited tentacles, so it can be considered as non-functional in itself.[17] This Act does not prescribe how quarantine measures should be taken during the epidemic situation. There is no transparent reference mentioned about ethics and human rights during the pandemic situation in the country.[18]Also, the ambiguity arises on the total dependency of section 188 of IPC which deals with punishment on violation against regulations of the government, can provide complete justice to victims of the epidemic in the country.[19] This Act being, pre-constitutional in nature provides eminent power to centre and states without any parliament overview.
With the directions of the Hon’ble Prime Minister, a high-level Group of Ministers (GOM) has been constituted to review, monitor and evaluate the preparedness and measures taken for control of COVID-19. Many states including the government of Bihar introduced Bihar Epidemic Regulation 2020 for the smooth function. It empowers the government to forcible “quarantine” any suspected person, to conduct mass screenings of suspects, sealing of any geographical area and take punitive action against those hiding symptoms of the virus or spreading misinformation.[20]
Disaster Management Act, 2005
Unlike the Epidemic Act, this legislation is exhaustive and has a broader scope. The definition of Disaster as defined under section 2(a), can be simply interpreted to include COVID-19 under it. Central Government has announced COVID-19 as a notified disaster.[21]
Section 10 of this Act deals with the monitoring and implementation of the National Plan and the plans prepared by the Ministries or Departments of the Central Government and gives overreaching superintendence power to the officer in charge.[22] However, this Act does not speak about quarantine measures in particular.
The National Health Bill, 2009
The National Health Bill, 2009 efforts to guarantee a legal context for providing essential public health services and empowers co-operation of Centre and the states for satisfactory response to public health emergencies.[23] It mentions the obligations of government towards the public, however, it lacks the ethical framework for the protection of human rights during epidemics. An example can be taken from The Public Health Emergency Response Act of Mexico which clearly describes the individual civil rights of a person who is quarantined in amid of health emergency.[24]
Other Laws Related To Quarantine In India
Quarantine of visitors in India is governed by the Air Craft Act and Indian Aircraft rules which gives powers to health officers appointed by the government to check the people entering the country from abroad. The officer can inspect the aircraft, its passenger and crew and subject them to medical examinations.[25] He must follow the specific precautions with regard to the period of quarantine when there is a spread of Communicable diseases.[26] During the outbreak of Ebola in August 2014, Airport authorities of India followed the protocol and examined six nationals returning from Liberia but later on, they tested negative.[27]
Union law also deals with Port quarantine. Similar restrictions on quarantine are provided in Indian Port Health Rules,1955, following Indian Port Act.[28]
Quarantine Laws In Other Countries And Comparison With Laws In India
In United States of America, as per the Centre for disease control and prevention (CDC), the power of Quarantine derived from “police powers” granted broadly to state, counties and cities to protect public health.[29] The power given to states to impose quarantine for control of COVID-19 is bigger in magnitude than any federal order. The laws vary from state to state or even locality. Riverside County mandated the quarantine when one of American flown home from Wuhan, China tried to leave a California Military Base.[30] In 1824, U.S Supreme court, through a landmark case recognized quarantine power is unlimited state-based power.[31]
While looking into British laws related to quarantine, the parliament of England added the “Health Protection Regulation (coronavirus),2020 under section 45R of the Public Health (Control of Disease) Act,1984 which gives power to Police, public health and immigration officers to detain people suspected of COVID-19 and keep them quarantined, also exact £1000 fines can be imposed to those who do not follow the orders.[32] The aim of these provisions is to ensure that proportionate measures can be enforced when necessary.[33]
Canada has a Federal Quarantine Act to curb the spread of COVID-19. It recently invoked the conventional Act and imposed mandatory self-isolation to travellers who have entered the country. The returning travellers are not allowed to take transportation like subways and trains.[34]
Conclusion
The quarantine legislation is improperly framed. It has been derived from a combination of laws such as The Epidemic Act,1897, which is considered to be draconian law from British rule, as well as Air and Port Acts. In 2005, when SARS epidemic outbroke, it arose concerns with regard to the severity of quarantine enforcement measures. Various reports came about disgracing of suspects and fellow citizens who were placed in quarantine and many patients in hospitals faced discrimination and confidentiality issue.[35]
Law is silent on the issue of mandatory home-based quarantine during such epidemic outbreaks. The associated laws are notoriously hard to reach to a conclusion. When the imposition of quarantine is not done properly results in the contagion of several healthy people, then the magnitude of liability will be bigger on which government, state or centre. There is no clear transparency on how many degrees of quarantine measures can the government put in effect in epidemic crisis.
There must be guidelines for the protection of Individual’s civil rights during the quarantine. The correlated laws are bit controversial as quarantine as a concept has opted from old practices. In India, there is no proper Medical tribunal to take up issues arising out of health calamity. In this brink of Catastrophe, more creative tools of law are required with respect to mandatory quarantine and travel bans. National Health bill can be framed which promotes the beneficiary legislation on the controversial issue of public liberty and imposing quarantine measures.
Apart from legislative interpretation, quarantine often affects the psychological pattern of human. The negative effects from its implementation must be analysed as it can cause disbalance of human rights while securing public safety. The reports came about suicide to anger management as well as anxiety arising out from loss of freedom during quarantining people, have created havoc.[36] A study came out of mental health getting effected after younger people come from quarantine.
Evidence synthesis can be taken as the basis of legislation making while framing laws. The Government can emphasis on the humanitarian choice of quarantine over individual rather than authoritarian imposition. This hour of public health crisis demands support rather than restrictions.
By – Arya Anand
The author is a law student at Vivekananda Institute of Professional Studies, Guru Gobind Singh Indraprastha University, New Delhi.
[1]W World health organisation, Director General’s Speech on March 21, 2020
[2] World Health Organisation, “Situation Report 7 on Novel Coronavirus Disease (COVID-19)”. March 14, 2020.
[3]Government of India, “Guidelines on the measures taken by Government for containment of COVID-19 Epidemic in the country”, (Ministry of Home Affairs,24 March 2020)
[4] Gianfranco Gensini, Antonio. Conti, et.al (eds), The concept of quarantine in history: From plague to SARS 49. 257-61 (The Journal of infection, 2004)
[5] Stephen Moss, “From the Black Death to Coronavirus: a brief History of quarantines”, “The Guardian”, Feb 26, 2020. Available here
[6] World Health Organisation, “WHO Guidance on human rights and involuntary detention for xdr-tb control”, Jan 24, 2007, available here
[7] Loveena Tandon,” Coronavirus: India suspends all its tourists’ visas till April 15”, “India Today”, March 11 2020.
[8] Zhanwei Du, Ling Wang, e.t.al (eds.), Risk for Transportation of 2019 Novel Coronavirus (COVID-19) from Wuhan to Cities in China, Feb. 17, 2020, available here
[9] Constitution of India, 1950, Schedule 7, List I, Entry 28 & 35.
[10] Constitution of India, Article 47.
[11] 1997 SC 1225.
[12] Elmer E. Smead, “Sic Utere Tuo Ut Alienum Non Laedas: A Basis of State Police Power”,21 Cornell Law Review (1936).
[13] Constitution of India, Article 19 (1) (d).
[14] Constitution of India, Article 21.
[15] Tarangini Sriraman, “Plague Passport to detention-Epidemic Act was a Medical Surveillance tool in British India”, The Print, 22 March 2020, available here (last visited on 25 March 2020)
[16] The Epidemic Act,1897, ss. 2,3.
[17] B.K Patro, J.P Tripathy, et.al. (eds) “Epidemic diseases act 1897, India: Whether sufficient to address the current challenges?”18 Journal of Mahatma Gandhi Institute of Medical Science, 109-111, (2013).
[18] Id.
[19] Indian Penal Code,1860, s.188.
[20] Anirban Guha Roy, “Bihar declares COVID-19 pandemic-invokes British era law”, “Hindustan Times”, March 17, 2020, available here, last visited on 25/03/2020
[21] “India declares COVID-19 a notified disaster”, “The Economic Times”, March 14, 2020.
[22] Disaster Management Act,2005, s.10.
[23]The National Health Bill,2009.Working Draft Version, Jan (2009), available here.
[24]New Mexico Public Health Law Handbook, “Civil Proceeding Involving State Public Health Powers”. Protection of Person isolated or Quarantined Section 12-10A.-8.B., NMSA 1978), available here
[25] Aircraft Act, No. 22 of 1934; Indian Aircraft (Public Health) Rules, 1954, R.9-29
[26] Id. R.30-32
[27] Sneha Shankar, “Six Indians Isolated at Delhi Airport Test Negative, More People Expected to Arrive and Be Tested”, “International Business Times”, (Aug. 26, 2014)
[28] Indian Port Health Rules,1955
[29] Center for disease control and Prevention, “Legal Authorities for Isolation and Quarantine”, last visited on 26 March 2020, available here
[30] Collen Shalby, “Coronavirus case is confirmed in Santa Clara County; American Quarantined at California Base”, “Los Angeles Times’ 8, 2020, available here (last visited on March 26, 2020)
[31] Gibbons vs Ogden,22 U.S. 1(1824)
[32] The Health Protection (Coronavirus) Regulations,2020
[33]Kate Protor, Peter Walker, Rajeev Syal, “Police and health officials to get power to detain under UK coronavirus Bill”, “The Guardian”, March 19, 2020.
[34] Sandra Macgregor, “Everything you need to know about Canada’s New Mandatory Coronavirus Travel Quarantine”, “Forbes”. March 25, 2020, available Here (last visited on March 26, 2020)
[35] Sanjay Nagral, “SARS: infectious disease, public health and medical ethics” 11 India Journal of Medical Ethics No. 3 (2003)
[36] D. Barbisch, K.L Koenig, et.al. (eds), “Is There a Case of Quarantine? Perspective from SARS to Ebola. Disaster Med. Public Health Prep,547-553, (2015).
