In light of the current pandemic caused by COVID-19, it is important to review the existing legal provisions that outline the powers and duties of the Government to mitigate and prevent further spread of infectious diseases. The Penal Code, 1860 and the Communicable Diseases (Prevention, Control and Elimination) Act, 2018 are relevant in this regard.
The Penal Code, 1860 contains provisions on the negligent and malignant spread of infectious diseases and criminalises disobedience of quarantine rule. With the unprecedented degree of transmission of the novel Coronavirus, any negligent conduct resulting in spreading is bound to have dire consequences. Sections 269 and 270 of the Code apply to negligent and malignant conduct respectively, of which the former is more relevant in the present context. Section 269 states that a person shall be imprisoned for a term up to six months or be liable to fine or both, if they commit any act which they know or have reason to believe is 'likely to spread' the infection of a disease dangerous to life. Even without conclusive evidence on the fatality rate of the COVID-19, it is abundantly clear that the virus can have deadly consequences. Arguably, the terms 'likely to spread' and 'has reason to believe' entail a wide scope of application, particularly against the backdrop of growing national and international pleas aimed at confinement of the virus.
Section 271 imposes a punishment of imprisonment up to six months and/or fine for disobeying any rule of putting vessels into quarantine or 'regulating the intercourse between places where an infectious disease prevails and other places'.
While the Penal Code imposes criminal liability on individuals, the 2018 Act holistically addresses the prevention, control and elimination of infectious diseases. It is aimed at tackling public health emergencies, mitigating danger to public health and creating awareness. Section 4 of the 2018 Act contains a list of diseases that fall within the ambit of the Act, but the list is not exhaustive. The Government may, through an official gazette, declare an emerging or reemerging disease to be an infectious disease within the meaning of the Act. In fact, the High Court Division on March 18, 2020 directed the Government to issue a gazette declaring the novel coronavirus as a contagious disease under the 2018 Act.
Under the 2018 Act, the Directorate of Health is authorised to inspect and take necessary actions with regard to any place, clinic, hospital and diagnostic lab that provides healthcare for contagious diseases. It can also direct any person in possession of information regarding the disease to provide the same to the Directorate. Furthermore, to contain the spread of the disease, the Directorate can impose quarantine or isolation measures on any person suspected to be affected at any hospital, temporary hospital, establishment or their homes. Movements within the country as well as the arrival of flights, sea-vessels, bus, train or other vehicles can also be prohibited under this Act.
If it is evident to the Director of Health or any empowered official that the disease in any particular area cannot be contained or removed, it may declare the area as infected and prohibit entry under Section 11 of the Act. And if there are reasons to believe that the disease may be transmitted from an infected individual, the Director or any empowered official may direct for that person to be isolated or transferred to a different location. As per Section 20, any individual who has expired due to a contagious disease, has to be buried or disposed off as per the directions of empowered officials.
The Act also imposes responsibility upon the concerned health practitioners and respective owners and managers of hotels, boarding(s) or residential places to notify the Civil Surgeon regarding any instances of contamination under Section 10. Under Section 18, if the concerned officials have reasons to believe that the transport is contaminated with the disease, they may direct the owner or caretaker of the transport to take necessary measures for disinfection
Sections 25 and 26 of the Act contain penal provisions. Under Section 25, obstructing any Director General, Civil Surgeon or other empowered officials from performing their lawful duties, or refusing to follow any directions of the same is punishable with up to three months of imprisonment and/or fine up to BDT 50,000. On the other hand, Section 26 penalises the furnishing of false information. Any person who provides false or incorrect information regarding any contagious disease despite possessing the correct information can be sentenced to maximum two months of imprisonment and/or a fine of BDT 25,000.
To sum it up, it is evident that prompt and effective actions are crucial to tackle the COVID-19 pandemic. The Government should heed the urgency of the matter and implement the relevant laws.