-Kevin James and Akshat Agarwal*
The colonial-era Epidemic Diseases Act, 1897 (EDA) played a big part in the Indian response to the ongoing Covid-19 pandemic. In combination with the Disaster Management Act, 2005, the EDA provided legal backing to measures such as quarantine, lockdowns, and testing. However, beyond the EDA, an often-criticised bare-bones legislation, a few States passed their versions of epidemic disease legislation, first as ordinances and eventually as laws.[1]
Kerala issued three successive ordinances on epidemic diseases since March 2020, the last of them being replaced by a law passed by its legislature in June 2021. Karnataka issued a similar ordinance in April 2020, which was subsequently passed into law in October 2020. Just like Kerala and Karnataka, ordinances on epidemic diseases were issued by Rajasthan and Uttar Pradesh as well, and they too were subsequently passed into law. Odisha issued an ordinance amending the central EDA’s penalty provisions in their application to the State, and this too was later passed into law. At the same time, the Centre also amended some provisions of the EDA by passing an ordinance in April 2020, which was then passed into law by Parliament.
In this blog post, we first situate the EDA in the constitutional scheme, followed by an overview of the many State laws and amendments on epidemic diseases that have been passed across the country over the years. Then, we analyse the question of repugnancy that arises in the recent State ordinances, amendments, and laws, on this subject. More broadly, we illustrate that alongside the well-documented federal tensions that emerged in various aspects of the Indian response to COVID-19, the EDA also became a site of legislative federal contestation.[2]
Situating the Epidemic Diseases Act, 1897 in the Constitutional Scheme
The British Governor-General in Council enacted the EDA in response to Bombay’s bubonic plague of 1896.[3] After the enactment of the Constitution in 1950, such colonial laws were to continue to be in force as “existing laws” under Article 372 until they were amended or repealed by the competent legislature. Although the EDA was classified as an existing central law under the First Schedule to the Adaptation of Laws Order, 1950, the question of the appropriate legislature to amend it is to be determined by the Constitution’s federal scheme of legislative powers.
Under Article 246 read with the Seventh Schedule, Parliament has exclusive powers over Union List (List I) entries, State Legislatures have exclusive powers over State List (List II) entries, and both legislatures exercise powers over Concurrent List (List III) entries. Judicial decisions have developed the rule of pith and substance to determine whether a particular legislation falls within a specific entry under a particular list.[4] This, in turn, determines whether Parliament, State Legislatures, or both of them, would have competence over that law. This rule requires ascertaining the true nature and character of a legislation, irrespective of incidental encroachment on the subject matters of other lists.[5]
The EDA primarily deals with governmental responses to the spread of epidemic diseases and empowers both the Central and State Governments to act to prevent such spread. Such actions could range from quarantine to imposing restrictions on patient care in hospitals. The EDA thus attracts a number of entries in the Seventh Schedule, including Entry 28, List I (Port quarantine, including hospitals connected therewith; seamen’s and marine hospitals), Entry 81, List I (Inter-State migration; inter-State quarantine), Entry 6, List II (Public health and sanitation; hospitals and dispensaries) and Entry 29, List III (Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants). The Supreme Court has consistently emphasized that the entries should be interpreted liberally through the meaning of their plain words since they do not confer legislative power but merely demarcate the fields of legislation.[6]
From a bare reading of the entries, Entry 29, List III appears to deal with epidemic diseases most centrally. While to the best of our knowledge there are no judgments interpreting Entry 29, List III, the words “infectious or contagious diseases…affecting men” only appear in this entry, thereby indicating an unequivocal intent to cover epidemics. In contrast, Entry 6, List II has been interpreted to cover the broad issues of public health and human well-being,[7] while the plain meaning of Entries 28 and 81 of List I only indicates the intent of covering international and inter-state quarantine.
Examining the provisions of the EDA carefully, it is clear that the powers that it confers are exclusively in the context of epidemic diseases, and are only triggered in such cases. Even though particular exercises of these powers may incidentally encroach upon other entries, they all primarily deal with epidemic diseases. As such, the EDA would, in pith and substance, fall under Entry 29, List III. This entry specifically deals with the prevention of epidemic diseases and therefore has the closest nexus with the subject matter of the EDA. Since this entry is in the Concurrent List, this would give both Parliament and State legislatures competence over it. Hence, the EDA can be categorised as an existing central law falling in the Concurrent List of the Seventh Schedule.
The Many Epidemic Diseases Acts
Actions by Kerala, Karnataka and others, resulted in many epidemic disease legislations becoming simultaneously applicable. However, these actions were not novel, with States such as Bihar, Punjab, and Bombay having amended the EDA in its application to their States in the past. These amended EDAs continue to be applicable in the subsequently formed States of Jharkhand, Haryana, Himachal Pradesh, and Maharashtra. As explained above, this was possible because both the Centre and the States have concurrent competence over the EDA.
Moreover, former Part B States had their own separate epidemic disease laws. Part B States were former princely states which were eventually reorganised, with that categorisation being abolished by the States Reorganisation Act, 1956. But until the promulgation of the central ordinance in April 2020 which made the EDA applicable throughout India, former Part B States were excluded from the EDA’s ambit. Thus, the EDA required supplementation by State laws for former part B territories within various States. Examples of this include the Rajasthan Epidemics Act, 1957, applicable to Rajasthan, the Cochin Epidemic Diseases Act, 1072 ME applicable to parts of Kerala, and the Hyderabad Infectious Diseases Act, 1950 applicable to parts of Karnataka.
In this context, the first Kerala ordinance and the Karnataka ordinance consolidated the law on epidemics in their States by repealing the above-mentioned State laws and by making the EDA entirely inapplicable to their States. Since the legislative competence for the EDA is derived from Entry 29, List III and as the aforesaid ordinances are similar to the EDA, these States would have derived the competence to promulgate their ordinances under the same entry as well. Interestingly, while the two Kerala ordinances issued after the central ordinance and the Kerala Epidemic Diseases Act, 2021 no longer made the central EDA inapplicable, the Karnataka Epidemic Diseases Act, 2020 which succeeded the Karnataka ordinance continued to do so.
The Question of Repugnancy
Whenever there is a Central as well as a State law on the same Concurrent List entry, the question of a possible repugnancy between the two arises. Article 254(1) of the Indian Constitution provides that when there is a repugnancy between the provisions of a State law and those of a Central law (including an existing Central law) with respect to any Concurrent List matter, the Central law will prevail. The repugnant provisions of the State law, on the other hand, will be void.
In M. Karunanidhi v. Union of India,[8] the Supreme court held that for repugnancy to be established, it must be shown that the two laws in question contain inconsistent and irreconcilable provisions, such that they cannot stand together or operate in the same field. The court elaborated that for the two laws to coexist in the same field without attracting repugnancy, they should not be in direct collision with each other. Therefore, for the various State amendments, ordinances, and laws on epidemic diseases to be valid, the test is that they should be able to coexist with the EDA, and not collide with its provisions.
Among the State amendments, ordinances, and laws currently in force on epidemic diseases, the Karnataka Epidemic Diseases Act, 2020 is unique in its express declaration in Section 17(2) that the central EDA shall have no application to the State. Karnataka is thus clear in its intention of wanting to replace the EDA as far as its territory is concerned, as opposed to wanting to pass a law that could coexist with the EDA. Irrespective of the other provisions contained in Karnataka’s law, this appears to make it directly repugnant to the EDA. After all, the EDA, after its amendment through the central ordinance as aforesaid, clearly states in Section 1(2) that “it extends to the whole of India”. In Vijay Kumar Sharma v. State of Karnataka,[9] the Supreme Court observed (specifically see observations in the dissenting opinion by Ramaswamy J.) that it is possible in some cases to establish repugnancy between two laws by their very existence in the statutes, even without a detailed comparison of their provisions. Alternatively, there may be a case of direct repugnancy between particular provisions in the two laws.
A plain textual reading of Section 1(2) of the EDA and of Section 7(2) of the Karnataka EDA shows clear conflict between the two laws. While the former seeks to apply to all Indian territories including the State of Karnataka, the latter expressly repudiates any such application. The mere existence of these two laws therefore indicates a situation of repugnancy since they indicate contradictory legislative intents in terms of geographic applicability.
The Karnataka EDA may be distinguished from the Odisha law (and other State amendments to the EDA), as the latter merely sought to amend the penal provisions of the EDA, and not replace it entirely. Ascertaining whether the Odisha amendments to particular EDA provisions are repugnant would require a different type of analysis, involving a detailed comparison between the relevant provisions. A court might harmoniously interpret the amendments as not being repugnant for the purposes of Article 254(1). Similarly, in the case of the Kerala, Uttar Pradesh and Rajasthan laws, a more nuanced analysis is required, and there is at least some scope, prima facie, that they may coexist with the EDA.
However, when a State law expressly provides that an existing Central law in the same concurrent field will not be applicable to it, whereas the Central law itself provides that it will, then a direct and irreconcilable conflict arises. There is not only a direct repugnancy between Section 17(2) of the Karnataka law and Section 1(2) of the EDA, but the very existence of these two laws demonstrates an inconsistency amounting to repugnancy, even without a detailed comparison of all their provisions.
It should be noted that the general rule of repugnancy is subject to an exception, contained in Article 254(2). If the repugnant State law is reserved for and receives Presidential assent, then it can still prevail over the corresponding Central law. Thus, for the Karnataka law to not be void under Article 254(1), the only option appears to be Presidential assent under Article 254(2). There is no indication that this assent was sought or given, in this case.
Looking ahead
While the Karnataka law is especially concerning given its direct conflict with the EDA, the broader legal landscape on epidemic diseases is altogether confusing and complicated. Beyond the many substantive criticisms of the EDA, the fact that it continued to be inapplicable to Part B territories for over 60 years after that categorisation was abolished points to significant oversights in our law-making processes.
The many ordinances, amendments, and laws made in the course of the present COVID-19 pandemic, and the potential repugnance and voidness of some of these laws, illustrates the federal tensions that can ensue from an unclear and generally inadequate public health emergency (PHE) framework. When drafting a new, comprehensive, and modern legal framework for PHEs, questions regarding the appropriate division of powers between different levels of government in our federal system require serious consideration.[10]
* Kevin James is a Research Associate, Centre for Social and Economic Progress and Akshat Agarwal is an LL.M. candidate at Yale Law School.
[1] P. Goyal, ‘The Epidemic Diseases Act, 1897 Needs An Urgent Overhaul’, EPW, Vol 55, No 45 (2020).
[2] P. Agrawal, ‘COVID-19 and Dwindling Indian Federalism’, EPW, Vol 55, Nos 26-27 (2020); N Sahoo & A.K. Ghosh, ‘The COVID-19 challenge to Indian Federalism’, ORF Occasional Paper, No 322 (2020) accessed 11 November 2021.
[3] K. Kumbhar, ‘Epidemic Diseases Act, India’s 123-Year-Old Law to Help Fight the Pandemic’, The Wire Science (22 March 2020) accessed 11 November 2021.
[4] MP Jain, Indian Constitutional Law (LexisNexis, 2013).
[5] MP Jain, Indian Constitutional Law (LexisNexis, 2013).
[6] Jilubhai Nanbhai Khachar v State of Gujarat AIR 1995 SC 142.
[7] Sai Traders and Others v State of Goa 2006 (4) Bom CR 1.
[8] M. Karunanidhi v Union of India (1979) 3 SCC 431.
[9] Vijay Kumar Sharma v State of Karnataka (1990) 2 SCC 562.
[10] Dhvani Mehta et al, ‘What should a Public Health Emergency Law for India Look Like? A White Paper’, Vidhi Centre for Legal Policy (2021) accessed 11 November 2021.
