"Lockdown Violators" Should be Booked Under IPC and Disaster Management Act

BACKGROUND

The Novel Corona Virus that started in Wuhan, China in December 2019, has infected more people than any other man-made calamity. Globally on 30 Jan the World Health Organization of the United Nations declared the epidemic a public health emergency of international concern. This defines the outbreak as an extraordinary event that is determined to constitute a public health risk to other states through the international spread of disease and to potentially require a 7 coordinated international response. As this epidemic is spreading  worldwide and there is only one way available to tackle called Social Distancing by which persons are requested to sit at home so that the spread of this epidemic could be stopped at global level. Today, India is at the stage where our actions will decide that to what extent, we can bring down the impact of this disaster.

With more than 34,000 cases, the Indian Government had taken the strict measure to Lockdown the whole country for 21 days and then 18 more days to deal with the epidemic, COVID-19, and has set-up quarantine facilities. Both the Centre and State governments are empowered to regulate health-related matters, and they are trying to do their best to contain the disease.

QUESTION IN LAW?

The Central Government gave instructions to the States and UTs to look under relevant provisions of the Indian Penal Code and the Disaster Management Act, 2005 to punish people who violate the lockdown or make false claims.

Lockdown to minimize the spread of the Coronavirus outbreak (COVID-19), imposed on 24th March 2020 for a period of 21 days involves quite many legal issues. Various guidelines/orders/circulars have been issued from time to time by the Ministry of Home Affairs and other concerned departments announcing clarifications and exemptions.

The most important of these is an exemption for “essential services” so that the supply of basic services and essential items may continue uninterrupted. Supply and sale of food, groceries, fruits and vegetables, dairy and milk booths, meat and fish, animal fodder are thus allowed, as such there are no restrictions on the movement of “essential goods”. Chemists and medical equipment shops, among others, are also allowed to remain functional. Even e-commerce services for the delivery of these essential goods are also permitted. However, restrictions have been imposed on the unnecessary movement of people.

The Epidemic Diseases Act, which empowers it to take necessary measures to deal with dangerous epidemic diseases at ports of entry and exit. The Act also allows the states to take extraordinary steps or promulgate regulations to deal with epidemics within their state jurisdictions. If the State government is satisfied that any part of its territory is threatened with an outbreak of dangerous disease, it is provided with the power to adopt or authorize all measures, including quarantine, to prevent the outbreak of the condition under the above Act. Disobeying any regulation made under such power attracts the offense under Section 188 of the Indian Penal Code. In this provision, the intention of the person is of no material use, and only the fact that he knew of the order and disobeyed it, which produced harm is sufficient to charge him. Such a person can be provided only with the Summary trial, on the discretion of trial magistrate, and the only defense remains with him is of good faith. Thus, the Government has been provided with the power to put the suspected cases in quarantine, and on violation of such order, the punishment can be provided under the Indian Penal Code. The Epidemic Diseases Act, 1897 lays down punishment as per Section 188 of the Indian Penal Code, 1860, for violating such orders. As per Section 3 of the Act, any person who violates the regulations will attract penalties or orders made under the Act that is simple imprisonment for 6 months or fine of Rs 1000 or both.

Under Section 270 of the Indian Penal Code, whoever malignantly commits any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Though, quarantine affects the fundamental right “to move freely throughout the territory of India,” It is protected under the exception of reasonable restrictions that the state may impose in the interest of public health.“Any person violating these containment measures will be liable to be proceeded against as per the provisions of Section 51 to 60 of the Disaster Management Act, 2005, besides legal action under Section 188 of the Indian Penal Code.”Under Section 51 of DMA(Disaster Management Act) if any person refuses to comply with any direction given by or on behalf of the Government under Disaster Management Act, he/she shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. Sections 52 to 54 provide for Punishment for false claims, for misappropriation of money or materials, etc., for false warning as to disaster or its severity or magnitude, leading to panic. Sections 55 and 56 are related to Offences by Departments of the Government and Failure of officer in duty or his connivance at the contravention of the provisions of this Act. The maximum punishment under the Disaster Management Act is imprisonment for a period of 2 years with fine. Onus is on the offender to prove absence of knowledge of the order which has been disobeyed, which is almost impossible in current circumstances as the news of the order has been widely disseminated. A vast majority is obeying and complying with the lockdown orders, but many are venturing out for various reasons ranging from availing exempted services to buying necessities. Some are disobeying these orders for migrating due to the wrong perception or for not being able to afford basic living necessities. A recalcitrant minority is also violating orders for fun. Law enforcing agencies need to handle all these cases differently. It is generally noticed that that police resort to use of force and even violence for enforcement. Such violence by the police officer is not authorized under Section 188. However, a police officer may detain the offender for violating the lockdown orders. Such a person ought to be released on bail on his plea to this effect because the offence is bailable. The criminal court may take cognizance of an offence under these provisions only on a complaint in writing by the authorized public servant. There are accusations of blatant violation of human rights by the police while enforcing lockdown orders.

So far, the case of Kanika  Kapoor has become famous, where she allegedly misguided the health officer while testing and committed the Act mentioned in the above provision for which a complaint has been filed against her. For the process of testing, central Government appoints a health officer who may inspect the aircraft, its passengers, and its crew, and subject them to medical examinations after their arrival. The officer may prohibit the embarkation of any person showing symptoms of any quarantinable disease and any person to whom the disease might have been transmitted. .In the common perception, it is not justified to use disproportionate force. It has been observed that many times, persons who venture out to get essential goods are also treated as violators, and police are resorting to violence. This is not only reprehensibly excessive but also unjustified under the law, irrespective of the intention of the police force. However, you’ll be amazed to know that other countries are no less strict when it comes to dealing with such situations. In Italy, anyone who refuses to self-isolate risks being charged with causing injury and being jailed for six months to three years apart from being slapped with a fine. And if a “careless” coronavirus sufferer goes on to pass the bug to an elderly person or someone made vulnerable by a pre-existing health condition, they can be charged with “intentional murder” and can spend up to 21 years in jail.

At times it is justified on the ground that such violation of the lockdown orders may result in making other potential victims aware of the virus. However, it has no express legal justification thus violates human rights.

In Bandhua Mukti Morcha v. Union of India and Ors, (1997) 10 SCC 549 Supreme Court reiterated that the Right to life includes the right to personal dignity as well.  Article 21 of the Constitution of India assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.

Violence by police authorities is thus violative of right to life, it being without any statutory basis. It is generally so that the persons subjected to violence are from the weaker sections of society. This amounts to an abuse of power and distances the general public from the police authorities. The Government must ensure that police authority are sensitized about the limits laid down by the law on the exercise of power by them.

Need of the hour is to formulate guidelines for the enforcement of lockdown by the police authorities. A relationship based on the faith of the public on the police authorities is the need of the hour. For strict compliance of lockdown by the public to ensure successful eradication of COVID-19 the role of police must remain balanced and in full compliance of the law. Surprisingly, the Chinese hand out the harshest punishments and one may face the death penalty for the same.

This is the time when we have to strengthen our self to face the consequences. The government is taking all steps to ensure a continuous supply of essential goods. All efforts are made to ensure that the daily life of the people is not hindered.

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by--
                 Anadi Chitranshi, 1st-year law student at GGSIPU, currently pursuing B.B.A LL.B. and Khushi Agarwal, 1st-year law student at Symbiosis Law School, Noida.