This article is written by Abhinav Rana, from University School of Law and Legal Studies, GGSIPU Dwarka. This article deals with the laws applicable in the era of COVID-19 w.r.t changing dimensions of the penal laws and also the accessibility of food to the poor in the phase of lockdown.
Table of Contents
Introduction
On 24th March 2020, Prime Minister of India Narendra Modi announced 21 days lockdown throughout the country which has been extended till 30th June in containment zone, to combat the pandemic effect of COVID-19 which is increasing rapidly throughout the world and has claimed lakhs of lives across the world so far. All the visiting malls, restaurants, places of worship, shall be resumed from 8th June onwards. To curb the effect Central Government has invoked certain laws like the Epidemic Diseases Act, 1897, the Disaster Management Act, 2005 and the Essential Commodities Act, 1955. This pandemic disease is affecting India’s economy in numerous ways. In this article, we will discuss the implementation of these Acts and also the consequences of disobeying the law. This article also covers the impact of this lockdown on poor people.
Historically, India has adopted the common law remedies for quarantine enforcement, which has proved to be effective in times of epidemics and pandemics. One of the earliest precedents is found by the en banc decision of United States Supreme Court case Gibbons v. Ogden, wherein the powers of the state to enact quarantine laws and impose health regulations are justified in cases of health emergencies, dangerous diseases, and viral infections. The Indian Penal Code (IPC), deals with offences affecting the public health safety convenience, decency, and morals, which can be split into two major parts: one dealing with the public nuisance and the other dealing with the quarantine rule. The IPC law is further supplemented by the Epidemic Diseases Act. This law of 1897 was first enacted to tackle the outbreak of the bubonic plague in Mumbai in former British India and is frequently applied to the containment of epidemics like cholera, malaria, dengue fever, and swine flu.
Applicable laws
Epidemic Disease Act, 1897
The Epidemic Diseases Act was enforced in 1897 to curb the outspread of bubonic plague in Bombay. It was implemented with the objective of better prevention of the dangerous epidemic disease.
Key Provisions
- If the state government is satisfied that the state or any part of the state is threatened with the outbreak of the disease and the current provisions are not sufficient to deal with such disease, it can make temporary regulations for the time being.
- If the Central government is satisfied at any time that the country or any part of the country is threatened with the outbreak of any disease and it thinks that the current provisions are insufficient to curb the disease it can take measures and can make the rule to inspect any vessel or ship arriving or leaving the port.
- Any person who disobeys the rules as prescribed in the Epidemic Disease Act, 1897 shall be held liable for the punishment under Section 188 of the Indian Penal Code, 1860.
Essential Commodities Act, 1955
After the spread of this disease hand sanitizers and masks are in great demand all over the world. The prices of both the goods were increased and the shortage was created in the market for both the goods. By exercising the power under Section 2A(4) of the Essential Commodities Act, 1955 the central government has included hand sanitizers and masks under the ambit of Essential goods.
Key Provisions
- According to this Act, essential commodities means any commodity which is specified under this schedule. The central government can include or exclude any good in this Act if deemed necessary to do so by notification in Official Gazette.
- No essential commodity can be exempted from the sale.
- If anyone contravenes the Section 3 of the Essential Commodities Act, 1955 he shall be liable for the punishment which may not less than 3 months and may extend to 7 years and shall also be liable for fine.
Disaster Management Act, 2005
The Disaster Management Act, 2005 was invoked in the current scenario as seeing the situation going out of control. It was implemented with the objective of making a more effective measure to combat the disaster. It provides for NDMA and Section 6 of legislation deals with the potential of the authority. The Act also sheds a duty on the states to follow the instructions of the NDMA as specified under Section 38.
Key provisions
- Under Section 51, whoever without any reasonable reason obstructs any public servant to performs his duty shall be liable up to the imprisonment which may extend up to 1 year or with fine, and if such disobedience leads to the danger of the life of someone he/she can be liable up to the punishment of 2 years.
- Under Section 52, any person who makes a false claim which he knows is false or has a reason to believe to be false shall be punished for imprisonment which may extend up to 2 years and shall also be liable for the fine.
- Under Section 54, Whoever makes any false information which knows to be false and leads to panic shall be punished for imprisonment which may extend to 1 year or with a fine.
Now let us discuss some Section of the Indian Penal Code, 1860 to which a person can be held liable if he/she violates the law:
Section 188: Whoever disobeys any direction issued by the public servant which he knows that the officer is authorized to make to abstain from doing any act or to take direction regarding any property in his possession and if such disturbance or disobedience causes or may cause annoyance or injury or risk of obstruction, annoyance or injury or risk of obstruction to any person legally employed shall be liable for punishment which may extend to 1 month or fine up to Rs. 200.
Section 269: Whoever does any act negligently which he knows or has a reason to believe to spread infection of disease dangerous to life shall be liable for imprisonment which may extend to 6 months or fine or both.
Section 270: Whoever does any act malignantly which he knows or has a reason to believe to spread infection of disease dangerous to life shall be liable for imprisonment which may extend to 2 years or fine or both.
Accessibility of goods to the poor during the lockdown
After 3 days of the lockdown, Union Finance Minister, Nirmala Sitharaman announced Pradhan Mantri Garib Kalyan Yojana, in which she declared Rs.1,75,000 Crore aid for poor people. This was the much-awaited relief package expected in a situation like this. This scheme is mainly targeted towards the people of a) Organised Sector Workers, b) Construction Workers, c) Unorganised Sector Workers. Availability of essential commodities to the poor is necessary at this time because people cannot come out of their homes for work and arranging food for them is difficult. Under Pradhan Mantri Garib Kalyan Yojana each farmer will be provided with Rs. 2000 in the month of April 2020. The scheme also provides for Gas cylinders to 8 crore poor families for the next three months. The government has taken care that no poor family may suffer on the account of non-availability of foodgrains. Around 80 crores individuals i.e roughly 2/3rd of India’s population is covered under this scheme. The Government of India is ensuring adequate availability of foodgrains such as protein and pulses like moong, toor, chana, urad, one kg to each family will be provided for the next three months. The Government of India will be spending Rs. 5000 Crores for this purpose. The Ministry of Home Affairs has asked the states to impose the Essential Commodities Act, 1955 and asked them to ensure the availability of all the essential goods during the period of the lockdown. Anyone who is found disobeying the provisions of Essential Commodities Act will be liable for the imprisonment of seven years or more. The intention of the government is to help the weaker sections of the society. Collateral free loans have been given to sixty-three lakh women self-help groups and the money will be given to seven crore households in the country. The Government has asked the state governments to use the welfare funds for the construction and building workers. During this time the police are helping people in many ways. In one state they are serving rations to dwellers while in another depositing cash into the bank accounts of the unemployed workers.
The people who are affected the most like Rickshaw drivers, peddlers, house helpers, daily wage labourers and other workers are actually the backbone of our economy. The state governments are working at their level best so that everyone gets food to eat. The Government has started an exercise to map migrant workers in the country. The Government is trying to create a database of such workers to know whether they have received the relief package or not. If they have not received it then to provide them with the packages.
Changing dimensions
The enjoyment of your rights ends where it affects the ability of another person to enjoy their rights. The idea is to ensure the enjoyment of rights by all, in equal measure. Today, however, we are facing an inevitable situation: By our presence alone, we can threaten the well-being of another human being. The constitution of India guarantees the right to life and liberty under Article 21. Never before these fundamental rights were in contrast to each other, but they are today. To save our lives we are ready to give up our liberty. The more of the liberty we surrender the more we are able to preserve life.
If we look carefully it can be seen that no existing law has been created to tackle this problem of pandemic. So we have to adopt outdated provisions like 123yrs old Epidemic Disease Act. It would be better to have a law that provides punishments proportionately to the behaviour it seeks to secure. Then there are the faultlines that emerge when law enforcement and public health collide. When three residents of an affluent neighbourhood in Delhi tested positive for Covid-19, the police circulated a WhatsApp message, stating that their preliminary inquiry raised doubt about a guard working with the family, who was suspected of attending a religious gathering. The message which was being circulated on social media platforms stated that the guard was now “on the run”. The police registered an FIR against the guard. A week later the guard tested negative for COVID-19. So we see the word “suspect” is used for people afflicted with symptoms of the disease.
We seem to be part of a global consensus supporting the necessity to trade off one right to preserve another. In India, it is the poor who are facing and going through the worst timings during this crisis. A trade implies receiving something in return for what you forfeit. The right to life under Article 21 of the Constitution of India has been interpreted by the Supreme Court to include the right to live with dignity. Yet, we failed to provide a life of dignity during lockdown to our most economically vulnerable people such as poor people, labourers, and migrants etc.
Bangalore police on 22nd March, formed nearly 500 teams to trace and arrest 40 thousand stamped foreign returned passengers to check their status of isolation i.e home quarantine. The provisions of IPC were used to regulate them. An FIR was lodged against singer Kanika Kapoor on 20th March for her irresponsible meeting with celebrities in functions not caring the quarantine regulations that were formed by the central government for the outbreak of coronavirus after she returned from the United Kingdom, London. Similarly, Tablighi Jamaat’s chief, Maulana Saad Kandhalvi, and other members of the group were booked for violating the government orders in place to prevent the spread of coronavirus.
If we talk about the definition of crime before this spread of disease we can see that a person was arrested and punished if he fulfils the two essential elements of the crime i.e Actus Reus and Mens Rea. Mens Rea means the guilty intention to do the act and actus reus means the actual commission of the crime. But in this event of COVID-19, we can see the slight difference in the situation. As everything is changing so is the law.
According to law, the disease is ‘injury’, and whoever causes it intentionally is liable both in criminal law and civil law. One who breaks the norm of social distancing in these days of the pandemic of COVID-19 is injuring the community. The crime is called public wrong, where the individual and the society are considered as victims. The state on behalf of the society takes up the cause and prosecutes the culprit. Apart from this, the individual victim can simultaneously launch civil litigation claiming compensation for the damage caused to him by the person who has spread the contagious disease.
On 20th March FIR was registered against the Bollywood singer Kanika Kapoor under Section 188, 269, and 270 of the Indian Penal Code, 1860. She travelled from the UK to Mumbai on 10th March and was screened at the international airport. There was no advisory that told her that she needs to quarantine herself. As she was absolutely fine she was not having any reason to quarantine herself. On 14th and 15th of March, she attended a lunch and dinner at her friend’s house. The party was not hosted by her. On 18th March she had some symptoms so she requested for a test. She was tested positive on Corona on 20th March since then she was under observation and quarantined.
On 6th April DGP of Himachal Pradesh, SR Mardi announced that whoever is infected with COVID-19 spits on the other person so that the other can be infected by the disease shall be booked under Section 307 of the Indian Penal Code, 1860. Section 307 talks about Attempt to Murder, It states that “Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if the hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned”. He also added by saying that anyone who dies because of the infection caused by spitting, shall be booked for murder and will be facing Murder trail.
The Ministry of Health and Family Welfare has also issued compliance restrictions that must be followed:
- Passengers travelling from/having visited Italy or the Republic of Korea and desirous of entering India will need a certificate of having tested negative for COVID-19 from the designated laboratories authorized by the health authorities of these countries. This is in enforcement since 12 am (midnight 0000hrs) of March 10th, 2020 and is a temporary measure till cases of COVID-19 subside.
- All incoming travellers, including Indian nationals, arriving from or having visited China, Italy, Iran, Republic of Korea, France, Spain and Germany after 15th February 2020 shall be quarantined for a minimum period of 14 days. This will come into effect from 1200 GMT on March 13th, 2020 at the port of departure.
- Incoming travellers, including Indian nationals, are advised to avoid non-essential travel and are informed that they can be quarantined for a minimum of 14 days on their arrival in India.
- Indian nationals are further strongly advised to refrain from travelling to China, Italy, Iran, Republic of Korea, Japan, France, Spain and Germany.
Conclusion
The rate at which the coronavirus is proliferating across the globe is a matter of serious concern, but at the same time, the measures taken by the Indian Government to contain its outbreak is commendable. The invocation of Acts- The Epidemic Diseases Act, 1897, the Essential Commodities Act, 1955, Indian Penal Code, 1860 and the Disaster Management Act, 2005 has been significantly aiding the authorities at all levels responsible to restrain the outbreak of the coronavirus. Anyone disobeying the law and rules and regulations will be punished according to the provisions of Disaster Management Act, 2005 and Indian Penal Code, 1860. If we do not follow these guidelines, we will not only threaten our lives, but the lives of others will also be put at risk. As in today’s time’s laws are being moulded and then used we can’t be sure of anything. For this, the recent announcement by DGP of Himachal Pradesh is the best example that whoever is infected with COVID-19 spits on the other person so that the other can be infected by the disease shall be booked under Section 307 of the Indian Penal Code, 1860 and also that anyone who dies because of the infection caused by spitting shall be booked for murder and can facing Murder trail. The best strategy in this time period one can adopt according to me is to be prepared for multiple peaks. Even with the immediate quarantine orders, declaration of national disaster, and nation-wide lock-down, there is still an urgent need for an effective legal mechanism and contingency plan to meet the challenges posed by COVID-19.
References
- https://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
- https://www.thehindu.com/opinion/lead/india-needs-to-enact-a-covid-19-law/article31529036.ece
- https://nationalpost.com/news/crime-in-a-time-of-covid-19-how-the-pandemic-is-changing-criminality-in-our-neighbourhoods
- https://nationalpost.com/news/crime-in-a-time-of-covid-19-how-the-pandemic-is-changing-criminality-in-our-neighbourhoods
- https://www.ifpri.org/blog/how-indias-food-based-safety-net-responding-covid-19-lockdown
- https://www.financialexpress.com/india-news/disaster-management-act-centre-invokes-law-to-put-onus-of-enforcing-lockdown-on-district-officials-why-it-matters/1913346/
- https://www.barandbench.com/news/litigation/employers-not-willing-to-pay-wages-lockdown-cannot-cite-financial-incapacity-mha-tells-sc
- https://indianexpress.com/article/explained/explained-in-lockdown-the-laws-that-come-into-play-6346379/
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