The Corona Pandemic Lockdown in India and its contempt under the Indian Penal Code

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Author, Date of the post, WMO Conflict Insight, Title of the post,  ISSN: 2628-6998, https://worldmediation.org/conflict-insight 

Covid-19 the pandemic has been the major concern throughout the world since the last few months. After a successful “Janata Curfew” on the 22nd of March the Prime Minister addressed the Nation and declared a 21-days lockdown from 25th of April, 2020, to curb the pandemic in the initial stages itself. This lockdown will last until the 14th of April, 2020. The decision to extend this lockdown has not been taken by the centre as of now, the State of Odisha is the first to declare and extension of lockdown period until the 30th of April. It is to be noted that this lockdown is certainly going to have an adverse effect on the economy of the Nation as well.

The Union Health minister “Harsh Vardhan” at a conference organised by the Bennett University said that “At 3.8 cases per million, India’s rate of infection is  still fairly low. He also stressed that it was important to see social distancing and lockdown as the potential Vaccines against this Pandemic which has already engulfed over 200 countries worldwide. Looking in the present, cases are doubling every 4.5 days, and a majority of the districts in the country are unaffected. The others who spoke at the international conference are the WHO’s special envoy on Covid-19 David Nabarro said that “No country wants to stay in lockdown any longer than is absolutely necessary. So, the best thing to do now is to develop community level capacity for detection and isolation of positive cases”. He also added that it was not easy to develop a vaccine against the coronavirus and tougher still to develop enough vaccines to immunise everyone on short notice.” With a lot of luck, we might have a vaccine within 18 months.

Narayana Hospitals, Chairman, Dr Devi Shetty, was more concerned about the economic impact the pandemic will have on the Nation he suggested how the country can gradually phase out of this Pandemic, he stated that the hotspots should remain sealed while the other areas gradually opened up. He also mentioned that we have reduced mortality rate by 50 percent with the early lockdown measure undertaken, which unfortunately did not happen in various other countries. He also said going forward it was time to gradually lift the lockdown and have an unconventional exit strategy. There is no reason medical reason to continue with the lockdown except in the hotspots.

Dr Randeep Guleria, director, All India Institute of Medical Sciences, New Delhi, said the next few weeks would remain testing, through the infection graph might not rise sharply due to the timely lockdown. He felt more data was needed to decide whether the lockdown should continue or not. He also went on to say that the new challenge would be to prevent spread of infection from the hotspot to other areas. “The corona virus battle can now be won not in hospitals, but in community”. Said the AIIMS director.

From the Medical point of view India has done a great job it rapid testing, identification and isolation of suspect as suggested by the “WHO” this has helped to maintain the number of cases reported in highly populated country (1.03 Billion) substantially low. We will look at how the Government of India and various other state governments stood together and expressed solidarity in this fight against the Covid-19 Pandemic. These put in several rules and restriction on the free movement of people. Several section of the IPC was also invoked to Punish people who are negligent and knowingly violate government order. This is because sanction are important for enforcement of any laws.

IMPORTANT ACTS

It can be clearly seen the central government sought out the DMA, 2005, to order a lockdown of the country. Similarly, state governments invoked some other Acts to address concerns pertaining to the spread of Covid-19. The Epidemic Diseases Act[1], empowers a state government to prescribe temporary regulations to be observed by the public or any person to prevent the outbreak and spread of a disease. Various states have invoked the EDA, 1897, to pass orders and guidelines on social distancing measures, closure of establishments and limitation on activity. While both orders deal with similar aspects, the state governments’ order finds its power enumerated under Entry 1 and Entry 6 of the state list, which deals with the public order and public health respectively.

While the central government’s power to pass the Mar. 24, 2020 order is to be derived from entry 29 of the concurrent list which states that “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants”. This empowers the central and state governments to legislate on matters pertaining to the prevention of an infectious or contagious disease spreading from one state to another. The entry does not limit the powers of the legislating authority to simply public order or health, but allows for any relevant legislation to be passed, so long that it is to prevent the disease from spreading across state jurisdictions.

The Article 245 talks about a division of power between the centre and state which gives the parliament or Central government to make laws for the entire country or parts of the country and the states the power to make laws for the state or parts of the state.

Article 256 of the Indian Constitution provides for distribution of legislative subjects between the Centre and State and gives in three lists the Union list, State list and the Concurrent list

According to the Article 256 of the Indian Constitution Indian constitution when there is a inconsistency between the laws made by the Union and State on the subjects of Concurrent list the Interest of the Centre prevail to the effect of such repugnancy in way that the state proposed legislation does not affect the Union Legislation on the same subject. The legislation of the union Prevails.

The ‘Doctrine of Repugnancy’, which is well explained by the Supreme Court of India in the case of M. Karunanidhi v. Union of India[2], deals with an occurrence “where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy”. Therefore the overruling effect of the parliamentary law over the state law can be very well seen in the case of Concurrent list.

The term ‘disaster’ which come under section 2(d) of DMA, 2005 means, “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”

The Covid-19 outbreak is bound to be described as a disaster under the DMA, 2005, which allowed the central government wide powers to deal with the pandemic by laying down policies, plans and guidelines for disaster management to ensure a timely and effective response to the disaster. Section 38 of the DMA casts a duty on the states to follow the directions of the National Disaster Management Authority (NDMA).

Moreover, Section 72 of the DMA, 2005, states that the provisions of the Act, will have an overriding effect on all other laws, to the extent that they are inconsistent. Therefore, the order passed by the Ministry of Home Affairs, will override all state orders and municipal orders to the extent that they are inconsistent with the Home Ministry’s order.

Now an important question which comes to people’s mind in the light of a serious issue like Covid-19 is why the government can’t just declare a National emergency under Article 352 of the Constitution which would have also curtailed the right to freedom of an individual. However, this is  legally it’s not permissible as post the amendment of this Article in 1978 (44th Amendment), such an emergency can be declared only if the security of India or any part thereof is threatened by war or external aggression or armed rebellion. These are the only possible times at which the government can declare National emergency, but in this case the government was to rely on Entry 29 of the Concurrent List and invoke its powers under the Disaster Management Act (2005) to take control of the situation.

THE ROLE PLAYED BY THE IPC

Governments of different states in India have adopted their own measure to curb the pandemic in India well in compliance with the Epidemic Diseases Act, 1897, to put in various restrictions as to public movement. They have invoked the list 1 and 2 of the state to make legislations regarding public order and public health respectively.

The UT administration of Chandigarh had made it mandatory for people to wear masks in public places to check the spread of coronavirus and the safety measures are to be adhered and followed. According to the order issued, anybody found violating the instructions will be punishable under Section 188 of the IPC[3] and the police authorities are empowered to immediately arrest the violators.

Local Police can book, charge cases and register FIR on individuals, who do not comply with the law and regulatory orders related brought in to curb the COVID-19 pandemic. Some of the sections invoked in the IPC are listed below as:-

  1. Sec 188 IPC: – This is the Violation of order promulgated by Govt. It comes under cognizable and Bailable offense.
  2. Sec 269 IPC: – If a person negligently does any act known to be likely to spread infection of any disease dangerous to life. Imprisonment for 6 months or fine, or both. It is a cognizable and Bailable offense.
  3. Sec 270 IPC: – Whoever malignantly commits any act which is, and which he knows or has reason to believe to be, is 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. It comes under Cognizable and Bailable offense.
  4. Sec 271 IPC: – If a person knowingly disobeys any quarantine rule. Imprisonment for 6 months, or fine, or both. It is a Non-Cognizable offense.

It has been argued that these restrictions out in the free movement of people are violating their fundamental rights, but it is to be considered that these right to freedom of people comes along with certain restriction only.

As the case count in the country saw a great increase after the Tablighi Jammat congregation at Nizamuddin Markaz came into light for the community spreading of the Covid-19. An FIR has been lodged against 150 people who belong to Tablighi Jamaat for fleeing quarantine and violating official preventive orders in Mumbai’s Azad Maidan Police station. The FIR has been lodged under Sections 271 and 188 of the Indian Penal Code. As stated by police officer, “FIR is registered against 150 people of Tablighi jamaat at Azad maidan police station for violating quarantine orders, IPC Section 271, and violating government official’s preventive order, section 188. Besides, FIR is also registered under IPC Section 269.” However, as per reports only 10 of the jamaatis have been traced and rest are absconding.

Putting light on some of the incidents that have been taking place around in India, some are mentioned below:-

  • An 18-year-old Kolkata patient of COVID-19, the son of a top bureaucrat in West Bengal, has reportedly flouted or disagreed of showing norms on returning from the UK. He was advised by airport authorities to get admitted to Beliaghata ID Hospital on March 15, 2020. He reportedly defied the authorities and went on with his social life and met many people. Finally, on March 17, the state health department forced him to get admitted, following which he tested positive.
  • A British traveller, part of a travel group, was among 20 passengers who were offloaded from a Dubai bound Emirates flight at Kochi airport. He was under quarantine at a Kerala resort but left it and reached Kochi. Authorities stopped the plane and deplaned him. Meanwhile, the resort was closed even as the staff there expressed displeasure that they were not advised properly. Authorities were thinking of taking legal action against the Briton for violating the Public Health Act, the travel agent who coordinated the tour programme and the manager of the resort.
  • A woman and her husband, a Google employee, returned to Bengaluru after a honeymoon in Italy. While the husband, who tested positive, was placed under quarantine, she took a flight to Delhi and then a train to Agra and hid in her parental home. It was only after the police was called in that she was taken to an isolation ward. As she and her father had misled authorities, they have been booked by the police under the Epidemic Diseases Act, 1897.
  • A couple from the US who had symptoms linked to the coronavirus were traced to Kochi international airport and put under isolation after they fled Alappuzha Medical College.

CONCLUSION

The Covid-19 Pandemic is teaching people around the world solidarity. Unifying people beyond borders. The efforts taken by the Medical professionals, Policemen and government officials are undoubtedly praise worthy. India unlike other Nations have successfully been able to control the community spreading during the third week of the Pandemic spread. The main credit of this success goes to the law and order put in place by through the Epidemic Diseases Act, 1897. It has to be noted that the people have also been absolutely cooperate during this period of tough time.

India have gone on to lift the ban on the export of hydroxychloroquine to help US and other countries in the combat with the virus, India being the highest manufacturer( 70 percent) was requested by the US President Donald Trump to partially lift the ban to which we agreed. Various states have shown different approaches in dealing with the pandemic, the state of Kerala had adopted rapid testing measures and effected in the cure of a large number of people. The Indian Council of medical research (ICMR) has given its nod to the government of Kerala for the clinical trial of plasma therapy for Covid-19 treatment which involves taking the antibodies from the people who have been completely cured of the pandemic and infuse in people with less immunity or weaker immune system. India is by far going in the right directions by implementing the rules and regulation under the Disaster Management Act and Epidemic Diseases Act, by invoking various sections of the IPC to enforce sanctions, rues and regulation. India has to seriously consider the release of lockdown because it will have adverse effects on the economy of the Nation, a step by step release process should be adapted. The survival of the lives vs livelihood is the dilemma now. After the discussion with the chief Ministers of various states the Union government has declared to extend the lockdown until may 3rd ,2020. It is a question of livelihood of people it has to be seen what the call of the government is after this period of extension.

[1] Epidemic Diseases Act , No. 3 of 1897

[2] M. Karunanidhi v. Union of India, AIR 898, (1979)

[3] Indian Penal Code, Act No. 45 of 1860

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