Any state anywhere in the world is expected to effectively use its machinery to prevent and punish the spread of disease. The law and courts may take time to decide who the criminal is, but the administrators must efficiently deal with the wrongs and crimes arising out of this international disease.
States have police power to protect the health, safety, and welfare of persons within their borders though the laws can vary. Police powers mean the state can enforce the laws of the land against foreigners, foreign investors and may even revoke the concessions after due process.
"In most states, breaking a quarantine order is a criminal misdemeanor”. Delhi, Kerala and Telangana administrators are effectively trying to trace the persons who arrived from foreign countries, attended larger congregations and mixed with the people causing the spreading of disease.
Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code. He can be liable to be punished with imprisonment from one month to six months. In a communication to the states on March 24, the Home Ministry said persons violating the containment measures will be liable to be punished under provisions of the Disaster Management Act 2005, besides Section 188 IPC. Similarly, breaching the orders passed under the Epidemic Diseases Act can also lead to punishment under Section 188 IPC.
The Chapter 14 on “Offences Affecting Public Health, Safety, Convenience, Decency and Morals” list out some more offences. The offence like a public nuisance, the source of the present environmental law. There are other offences like Adulteration of food or drink intended for sale (s272), Sale of noxious food or drink (s273), Adulteration of Drugs (s274), Sale of adulterated drugs (s275), Sale of drug as a different drug or preparation (s276), Fouling water of public spring or reservoir (s277), Making atmosphere noxious to health (s278) etc.
Section 278 says: “Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighborhood or passing along a public way shall be punished with fine which may extend to five hundred rupees”.
Any person carrying infection knowingly mixing up with people, shaking their hands, spitting openly or coughing or sneezing deliberately to release droplets to carry the disease can be booked under these laws.
Deliberate spitting on the road or public place, coughing amidst people, sneezing without covering the face with a cloth can become serious crimes if the person doing it is infected with the disease.
Ignorance of law and disease is no excuse. If they are either ignorant or negligent, though not deliberate, they will be liable. If irresponsibility aggravates, becomes ‘recklessness’ it will be criminal.
Law considers disease as a kind of ‘injury’, and whoever causes it 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 the compensation for the damage caused to him by the person who has spread the contagious disease.
The Indian Penal Code made in 1860 has a provision which covers today’s deadly virus too. That is the power of legal draft, which could take into its fold all kinds of injuries known and unknown that might generate in the coming centuries. The IPC makers might have not imagined the outbreak of pandemic Coronavirus, but they have visualized that there could be any kind of infection or contagious disease or injury that people might deliberately or negligently facilitate spreading fatally.
Section 269 of IPC says: “Whoever unlawfully or negligently does 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 six months, or with fine, or with both”.
Interestingly, this offence does not require ‘intention’ as an essential component to punish the criminals. Negligence is enough. Or knowledge is enough to bring in malice. Further, the law facilitated, without necessitating going into ‘knowledge’ the question also if the carrier has a reason to believe he is going likely to spread the disease, he will be liable. Only in the case where he does not know that he was positive to COVID-19, he cannot be made liable. Experts say that the infected would not show any symptoms from 2 days to 14 days, and among the most who had strong immunity capacity, the COVID-19 comes and goes, without anybody knowing it.
The IPC prescribed severe punishment for an aggravated form of spreading the disease. Section 271 defines an offence which is malignant act likely to spread infection of disease dangerous to life.
It says: “Whoever malignantly does 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”.
If a person, who is a carrier of COVID-19, knowingly mixes up with people will squarely attract this provision which can land him in jail for two years besides fine.
Section 505 IPC provides for imprisonment of three years or fine, or both, for those who publish or circulate anything likely to cause fear or alarm. Section 54 of the Disaster Management Act provides for imprisonment, extending to one year, of those who make or circulate a false alarm or warning regarding a disaster or its severity or magnitude.
Section 6(2)(i) of the Disaster Management Act, 2005 says the National Disaster Management Authority NDMA has issued an Order on 24th March 2020 directing states to take effective measures to prevent COVID 19. By this order the chairman of NDMA exercising powers under Section 10(2)(1) of the DM Act issued guidelines which will be in effect for 21 days from 25th March 2020.
The Supreme Court also passed an order on March 31, that Section 54 of the Disaster Management Act can be used to punish those who spread false information. Section 54 says that sharing any update or forward whether on WhatsApp or any other social media platform, which is "false", is a criminal offence. This provision read with S 188 of IPC becomes punishable with imprisonment. Interestingly fake news about this is generated which says that from midnight onwards (no date is mentioned) the DM The act will come into force and according to that, no citizen is allowed to post any update or forward any message relating to COVID 19, except government departments. A video accompanying this message went viral and an anti-fake news team exposed its falsity.
It “may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed to arrange for collection of damages”.
The Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary as per Section 2A of the Act. This Act in combination with IPC that came in 1860, makes the states the most powerful to secure obedience to their quarantine orders.
Section 51 of the Disaster Management Act, 2005 provides for punishment for two kinds of offences: obstructing any officer or an employee of the government or person authorized by any disaster management authority for discharge of a function; and refusing to comply with any the direction given by the authorities under the Act. Punishment can extend to one year on conviction, or two years if the refusal leads to loss of lives or any imminent danger.
Under Section 52, Disaster Management Act, whoever makes a false claim for obtaining “any relief, assistance, repair, reconstruction or other benefits” from any official authority can be sentenced to a maximum of two years, imprisonment and a fine will be imposed on the person.
Any authorised authority under the Disaster Management Act can requisite resources like persons and material resources, premises like land or building, or sheds and vehicles for rescue operations. Though there is a provision for compensation under the Act, any person who disobeys such an order can be sentenced to imprisonment up to one year.
For any offence under the Disaster Management Act, a court will take cognizance only if the complaint is filed by the national or state or district authority, or the central or state government. However, there is another provision: if a person has given notice of 30 days or more about an alleged offence, and about his intention to file a complaint, he or she can approach the court which can then take cognizance.
The Act protects government officers and employees from any legal process for actions they took “in good faith”. Under the Epidemic Diseases Act too, no suit or other legal proceedings can lie against any person for anything done or intended to be done under good faith.
Besides, the states are invoking Section 144 of the Code of Criminal Procedure that prohibits the assembly people. Additionally, Section 188 of the IPC requires obedience of orders passed by a public servant. Violating orders issued by a public servant can lead to a fine of Rs 200 and simple imprisonment of one month for violating an order of a public servant. The penalty of Rs 1,000 and imprisonment of six months can also be imposed, if the disobedience causes danger to human life, health or safety.
There are enough provisions in law to deal with attacks on doctors and public servants including the police, which need to be enforced.
Various kinds of crimes are surfacing with the coronavirus spreading- such as domestic violence, defiance of quarantine protocols, the landlords and colonies evicting the doctors, medical personnel involved in treating the virus, etc, attacking the police and doctors on duty, abusing them, and as evidenced by hundreds of videos cruel behavior of police assaulting and torturing the men coming out on roads during curfew times or otherwise. Spreading fake news is yet another serious crime being committed during these times. Besides these crimes, certain groups are deliberately spreading the virus through their criminal contamination of viruses with meetings, food supply, and other services.
Assam state ordered the police to register criminal cases against the landlords who compel doctors to vacate.
Maulana Saad Kandhalvi, the head of Tablighi Jamaat that organized a religious gathering now linked to several COVID-19 deaths and spread of virus all over India is slapped with several criminal cases. He is "untraceable" since March 28 according to Union Minister for Minority Affairs. An FIR is registered against Maulana Saad and Dr. Zeeshan, Mufti Shehzad, M Saifi, Younus, Mohd Salman and Mohd Ashraf under the Epidemic Diseases Act and Sections 269 (negligent act likely spread infection of disease dangerous to life), 270 (malignant act likely to spread infection of disease dangerous to life) and 271 (disobedience to quarantine rule) of the Indian Penal Code. Police are also looking into the veracity of an audio clip in which Saad is purportedly head saying there was no need to fear CPVOD 19 and insisting that there was no need to obey the instructions.
Bangalore police on March 22, formed 500 teams to trace and arrest 40 thousand stamped foreign returned passengers to check their status of home quarantine. The above provisions of IPC were used to regulate them. An FIR was lodged against singer Kanika Kapoor for her irresponsible mixing up with celebrities in functions not caring the quarantine regulations about the outbreak of coronavirus after she returned from London. She attended a function with former Rajasthan CM and BJP MP Vasundhara Raje Scindia, and went to the Holi party in Lucknow, probably spreading the COVID 19. She was tested positive.
Its reported that Kerala Government has ordered the police to be tough and arrest the carriers of infected COVID 19 to be kept under isolation and home quarantine, if found roaming in public places. Rajith Kumar, a contestant in a popular TV reality show ‘Big Boss’ in Malayalam was expelled for attacking a female co-contestant. On his call, he was given rousing welcome by fans on his arrival at Chennai airport ignoring the COVID quarantine norms. District Magistrate ordered the arrest of Rajith and his fans on charges under Sections 143, 147, 149, 188, 283. Even spitting in public space could, in the context, be considered as malignant criminality. Collector used the social media platform of Facebook to say that this incident was injurious to public health. The actor was absconding and 13 of his fans were arrested.
Saudi Arabia imposes a fine up to 5 lakh riyals (equal to $133,000) for non-disclosure of health information while traveling at entry points. Italy imposes EUR 206 besides 3 months jail if they jump quarantine zone.
Though law and order is state subject, public health is in the concurrent list at entry 26 in the Indian constitution, which means the Centre also has the power to regulate the locals on quarantine violations. At entry 29 of the Concurrent List, the Centre must prevent the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.
When the plague epidemic spread in Bombay in 1896, the British Rulers passed Epidemic Disease Act 1897. Cabinet Secretary advised the states to invoke Section 2 of the Act. Accordingly, this law is being used since March 2020. When Cholera began in Gujarat in 2018, the ED Act was invoked. To tackle malaria and dengue in Chandigarh the Government wanted more powers as given by this Act, in 2015. In 2009 Pune used this law to combat swine flu. Under this law, the government could impose additional regulatory measures by giving public notification.
If this is a case of bioterrorism, can state assume more powers? At present no law provided any such power. The colonial legislation of 1897 may not come to the rescue of people from bioterrorism or biological weapons like spreading any virus to cause genocide. There are international law issues too. Whether COVID-19 an accidental virus or generated deliberately? Who is liable for international wrong? If it is a bio-terrorist attack or a war waged by one country against the other? They need much deeper thinking.
The situation is almost like a Financial Emergency due to a public health emergency. If the present prevailing public health emergency circumstances lead the Centre to declare Financial Emergency or Health Emergency, the Government gets the power to impose reasonable restrictions on the fundamental rights such as the right to ‘move freely throughout the the territory of India’. All other rights are also not absolute, which can be specially restricted on the grounds of prevention of crime, for protection of public order, health, morals or the rights of others.
Every citizen must develop the scientific temper, humanism and the spirit of inquiry and reform [Article 51 (A)(h)], and to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures [Article 51(a)(g) of Constitution of India].
The Press Council of India has asked print media to stop and prevent the publicity and advertisement of claims related to Ayurvedic, Yoga and Naturopathy, Unani, Siddha, and Homeopathy (AYUSH) to prevent dissemination of misleading information about AYUSH drugs and services given the emerging threat due to COVID 19 spread. It also warned them to face legal action for violation including jail term under Disaster Management Act, 2005. However, nothing should stop evidence-based research among AYUSH to prevent or treat the virus.
It is reported that Kentucky, a state in the US the crimes of coronavirus are effectively being tackled. When patients are seen by a healthcare provider, a "Self-isolation/Self-quarantine and Controlled Movement Agreed Order" is being signed. The 10-part agreement states, "I acknowledge that if I cannot or will not comply with all of the control measures listed . . . shall obtain a court order from Jefferson County Circuit Court to enforce the terms of the agreed order." The machinery in Kentucky has developed methods of enforcing this order strictly. They check patients walking down the street, shopping or not answering the phone when a home check-in was made and taken to court. The GPS monitoring system -- normally given to people on parole, probation or who have posted bail for a pending criminal matter -- is meant to ensure that the patient remains in their home until the order expires. Failure to comply with the order may result in criminal charges.
In these days of universal crisis in public-health it is the duty of every person to discharge moral and legal obligations towards mankind.