PANDEMIC AND LAW

With the outbreak of coronavirus (officially termed as COVID-19 by WHO) the certain regulations are needed to be understand.  The international provision through which WHO has declared COVID-19 as the pandemic it is the  International Health Regulations,2005. Now if we discuss the constitution of India public health has been dealt under Article 47 which directs the state to  "to raise the level of nutrition and the standard of living and to improve public health as among its primary duties".  Also the honorable supreme court in Parmananda katara's  case ruled that "Right to health is an integral part of right to life enshrined under article 21 of Indian constitution". Thus, it is a moral and constitutional obligation of state to protect the populace of its country from the pandemic. WHO suggested various ways to contain this pandemic among them isolation is thought to be best in pursuance of which our government has taken a very courageous step to announce countrywide lockdown for 40 days in two phases.
So, Which law permits the government to impose lockdown in this country? As archaic era enactment on pandemic i.e. Indian Epidemic Disease Act,1897 is not suitable to deal with current scenario and moreover public health is a subject of state list in the seventh schedule of Indian constitution (entry-6) where only state legislatures are empowered to enact laws, moreover the police system also fall under the ambit of the same list.

The government of India left with few options to impose nationwide lockdown, Central government might have used the option of invoking emergency provision under article 352 of the constitution under the head of "EXTERNAL AGGRESSION" as there are only three grounds on which emergency can be imposed those are war, armed rebellion or external aggression, but imposition of emergency would have been detrimental to the position of states and there may be chances of panic and chaos.     

Here the central government invoked section 6 (2) (i) of Disaster Management Act,2005 to issue directions to state government to impose lockdown conditions. Here, by invoking this provision dual purposes are served - a nationwide lockdown became possible and if any state government neglect to directions of central government it will amount to presidential rule in that state by virtue of Article 356 (r/w Article 365) of the constitution.

Now I would like to apprise about the provisions which can be invoked to prevent the violations of the lockdown :

Provisions under Indian Penal Code, 1860

Section 188 - Disobedience to order promulgated by the public servant : 

Punishment : imprisonment of either description which may extend to one month/ fine upto  Rs.200/both ;

but when disobedience causes or tends to cause disobedience danger to human life, health or safety, or causes or tends to cause a riot or affray, then punishment may extend to 6 months imprisonment/ fine may extend to Rs. 500/both.

Section 269 : Negligent act likely to spread infection of disease danger­ous to life 

Punishment : Imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Sectio 270 :  Malignant act likely to spread infection of disease danger­ous to life :

Punishment : Imprisonment of either description for a term which may extend to 2 years, or with fine, or with both.

Section 271 : Disobedience to quarantine rule :

Punishment : Imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Howsoever these punishments may vary as per the state amendments.

Provision Under Code of criminal procedure,1973 :

Section 109 r/w section 117 :  Security for good behavior from suspected persons.

Section 151 under which police officer may detain any person for maximum period upto 24 hours for the prevention of cognizable offence.

Section 144 : For issuance of prohibitory orders

Provisions under Disaster Management Act,2005 : 

Chapter 10 of the act deals with penalties for the violations.

Section 51 Punishment for obstruction :

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. 

Section 52. Punishment for false claim :

Imprisonment for a term which may extend to two years, and also with fine

Section 53. Punishment for misappropriation of money or materials :

 Imprisonment for a term which may extend to two years, and also with fine

Section 54 Punishment for false warning : 

Imprisonment which may extend to one year or with fine.

But what is most interesting that, in any of the above provisions barring section 269,270 and 271 IPC,1860 and Section 151 Crpc,1973 there are of lesser chances of the proceedings as for section 188 IPC,1860 a written complaint is mandatory by the public servant or by authority to which he is subordinate under section 195 Code of criminal procedure,1973 and For the cognizance under Disaster Management Act complaint must be made by the National Authority, State Authority or Central, State or District Administration or when complaint is made by private individual then notice of 30 days is mandatory.

So what the entire administration is doing; it is just creating a deterrent effect by arresting the violators and in India everyone understand what it means to be in police custody for nearly 24 hours. As by lodging complaints administration does not want to increase its burden in this critical situation and moreover no one want to increase the pendency of cases in courts which are already overburdened with backlogs. But it does not necessarily mean that everyone will be spared, so definitely there will be complaint in serious cases of violations.       

Apart from this at this crucial time several mischievous elements are disseminating the false/fake news on "social media universities" to deal with the problem  at the onset of this outbreak government of India approached the honorable supreme court for directions on the limitations of news publications wherein honorable supreme court upheld the right to free discussion about COVID-19, even as it directed the media to refer to and publish the official version of the developments in order to avoid inaccuracies and large-scale panic
Along with the direction of the apex court a person may be booked under section 188 IPC, Section 54 Disaster management act,2005 which has been discussed above. Moreover proceeding under Section 505 (1) may be initiated which provides punishment for statement conducing to public mischief under which person may be punished for the imprisonment which may extend to 3 years or with fine or both. 

India is also facing one unique problem of attacks on front line corona virus warriors  i.e. attacks on doctors, paramedical staff and police personnel. Till now government booked the miscreant under section 3 of National Security Act, 1980 under which an individual can be detained as preventive measure for period which may extend to 12 months without a charge and also under following provisions of Indian Penal Code, 1860

Section 186 : Obstructing public servant in discharge of public functions :

Punishment : imprisonment of either description for a term which may extend to three months, or

with fine which may extend to five hundred rupees, or with both

Section 332 : Voluntarily causing hurt to deter public servant from his duty :

 Punishment : imprisonment of either description for a term which may extend to three years, or with

 fine, or with both.

Section 333 : Voluntarily causing Griveous hurt to deter public servant from his duty :

 Punishment : imprisonment of either description for a term which may extend to ten years, and shall 

also be liable to fine

But now government has promulgated ordinance to make amendment under epidemic act to deal with this menace which provides different penalties for the safety of the front-line corona virus warriors. One interesting departure has been made in this law that under criminal law in India usually it is on the prosecution to prove the case beyond the reasonable doubt that a crime has been committed but herein accused will have to prove that he has not committed the crime.

In the next article I will be discussing the possible future course of action on legal front to deal with any such pandemic/emergency that country will face. Till then, stay at home and stay safe.