Much has been deliberated about the laws governing the fight against the Coronavirus. Social media videos capturing policemen brutally beating up people for stepping out of their homes raises serious questions on what exactly are the penal provisions that empower the police to use such force. What are their rights? And what are the remedies that people can seek in cases of abuse of power by the law enforcing authorities?
This article seeks to address the aforesaid questions by shedding light on the laws that are in force at the moment.
The special and general legislations that govern the authorities are The Epidemic Diseases Act, 1897, the Disaster Management Act, 2005 and the Indian Penal Code, 1860.
Much literature has been published about how the Epidemic Diseases Act is a draconian law. But what is not in the public domain is the scope and extent of the punishment for violating the provisions of the instant Act.
Section 3 of the Act throws light on the penalty that can be attracted for potential violations. As per this provision, the punishment is attracted when a person disobeys any regulation or order made under the Act. The quantum of punishment is attributed to Section 188 of the Indian Penal Code, 1860.
Section 188 of the Indian Penal Code prescribes punishment for disobeying any order duly promulgated by a public servant. It is now therefore important to define who a public servant is.
The eighth description under Section 21 of the IPC defines "public servant" as every officer of the government whose duty it is to prevent offences, to give information of offences, to bring offenders to justice, or to protect public health or convenience. It can be noted that the IPC does not expressly recognise police officers as public servants. However, it can be reasonably be implied that police officers too fall under the definition of public servants since they perform the aforesaid functions.
Further, Section 188 of IPC prescribes two different punishments based on the gravity of the disobedience. Firstly, if the disobedience causes or tends to cause obstruction, annoyance or injury to any person lawfully employed, then the quantum of punishment shall be simple imprisonment with a term extendable up to 1 month or a fine of an amount up to 200 rupees, or both.
The latter part of Section 188 deals with the kind of disobedience that is most likely to take place during these times i.e., disobedience which causes danger to human life, health or safety or causes or tends to cause riot or affray will be punished with an imprisonment term up to 6 months or a fine up to 1,000 rupees or both.
It can be observed that the former part is attracted when offence is committed against the lawfully employed person whereas the latter is attracted when the offence is committed against the general public. The offence under Section 188 is cognisable and bailable.
Further, the general rule in Criminal Law is that both Mens Rea (guilty mind) and Actus Reus (action or commission of crime) must be present in order for the stages of crime to be fulfilled. However, Section 188 is an exception where Mens Rea is immaterial. The very action or commission is sufficient for the attraction of penal provisions.
Hence, there is nothing in the law which empowers the law enforcement authorities to use corporal force via lathi charge to enforce the law. The law only empowers the police to duly facilitate prosecution for such offences as mentioned under Section 188 of the IPC. Further, the law remains silent on whether any special mode of prosecution in special courts is to be employed for the offences committed under the law.
The Disaster Management Act contains 79 Sections and is much more comprehensive than the Epidemic Diseases Act, which has a mere 4 Sections. Chapter X, Section 51 to 60, of the Disaster to Management Act deals with the offences and penalties under the Act.
The different categories of persons whose punishments are prescribed under the Act are:
1. General Public
2. Persons wrongfully claiming any sort of help consequent to disaster from authorities.
3. Persons indulging in conversion
4. Persons making or circulating false information leading to panic
5. Government departments and their officers and
However, in this article, only category 1 and 4, along with Section 60, will be addressed, taking into consideration contemporary relevance for ascertaining the people’s rights and remedies.
This provision has twin aspects to it:
Firstly, it is attracted by the persons who leave their homes to pursue non-essential work.
In the words of Section 51, the conditions and punishment prescribed are –
Condition: Whoever, without reasonable cause (a) obstructs any officer or employer (b) refuses to comply with any direction.
Punishment: Imprisonment of a term upto 1 year or fine (not prescribed under the provision) or both.
Secondly, the latter part of Section 51, in present conditions, is attracted by persons who are tested positive for the Coronavirus but run away from quarantine.
In the words of Section 51, the conditions and punishment prescribed are –
Condition: Whoever, without reasonable cause (a) obstructs any officer or employer (b) refuses to comply with any direction causing loss of lives or imminent danger thereof.
Punishment: Imprisonment of a term upto 2 years.
The section is attracted in present conditions by persons who create or forward fake news and information through social media platforms.
In the words of Section 54, the conditions and punishment prescribed are –
Condition: Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude leading to panic.
Punishment: Imprisonment of a term upto 1 year or fine (not prescribed under the provision)
Section 60 is the most important part of the Chapter. It provides for judicial recourse for the people under the Act.
The Courts can take cognisance of offence under the Act only if complaint is made by:
(a) the National Authority, the State Authority, the Central Government, the District Authority or any other Authority or Officer authorised in this behalf by that Authority or Government as the case may be; or
(b) any person who has given notice of at least 30 days in the manner prescribed, of the alleged offence and his/her intention to make a complaint to the National Authority, the State Authority, the Central Government, the District Authority or any other Authority or Officer authorised as aforesaid.
However, upon reading Section 60 of the Act, it is implied that it is an exception to the rule when courts take cognisance when either of the abovementioned conditions are met.
These laws are supplemented by the guidelines attached to the Union Ministry of Home Affairs order No. 40-2/2020-D, which clearly provide that the violators of the law can be prosecuted only under the aforesaid Act and make no reference to empowering police to use brute force to enforce the law.
The relevant sections are Section 269 covering negligent act likely to spread infection of disease dangerous to life, Section 270 covering malignant act likely to spread infection of disease dangerous to life, Section 271 covering disobedience of quarantine.
The penalties for the above offences are simple or rigorous imprisonment extendable up to 6 months or fine or both; simple or rigorous imprisonment extendable up to 2 years or fine or both; and simple or rigorous imprisonment extendable up to 6 months or fine or both, respectively.
While the offences under Section 269 and 270 are cognisable and bailable, offence under Section 271 is non-cognisable and bailable. However, relating these general provisions to the core theme of the article, it provides a resounding affirmation that the law does not in any manner authorise the police to use corporal force.
It is clear that none of the aforesaid laws authorise police to use brute force against citizens. These instances are blatant violations of the doctrine of rule of law, in the absence of any other orders made under these Acts authorising the police to use such force.
The author is a Legislative Research and Outreach Aide to Apsara Reddy, National General Secretary, All India Mahila Congress. The views expressed are personal and not those of the organisation.
The author is thankful to Ms Zeenia S, Assistant Professor at KLE Society's Law College, Bengaluru for her insightful inputs.