Fines coupled with clarifications regarding the extent of the restrictions and positive propaganda like the ‘Corona Warrior’ videos shared by the Prime Minister are most effective and humane ways of ensuring that people understand the need for social distancing
In the aftermath of the commencement of the lockdown, various incidents surfaced where the police lathicharged ambulance drivers, stranded migrant workers and other people for venturing out of their homes to buy essential items like milk and groceries. These incidents have been recorded and circulated on social media by onlookers. However, this has resulted in not just physical but also mental trauma for the victims. So, are such police excesses justified, even if they have been committed in the face of the threat of COVID-19?
In order to understand the legality of the incidents of police action, we must first distinguish between a “lockdown” and “curfew.” A curfew is a short-term measure, where essential services are also disrupted, to keep people off the streets in times of riots or terror activities.
On the other hand, a lockdown is a relatively long-term measure, requiring the closure of public and private establishments, schools and religious places in order to restrict the large-scale movement of people. As essential services continue to operate, a lockdown is less restrictive than a curfew. The Ministry of Home Affairs (MHA) guidelines, issued under Section 10(2)(l) of the Disaster Management Act (DMA), 2005, despite having the effect of a lockdown, do not use the term curfew or lockdown. Moreover, the guidelines do not specifically state that people cannot venture out of their houses. Even in States which have invoked Section 144 of the Code of Criminal Procedure (CrPC), no order has been issued which explicitly makes it criminal to step out of the house. This is less so if one is rendering an essential service or has ventured out to buy essential items.
However, given the Coronavirus outbreak, it is our duty as responsible citizens to ensure that we don’t leave our homes. But in the event that we do have to, there is no justification for the police subjecting people to the appalling treatment that we have witnessed over the last few days. We live in a country plagued by illiteracy and poverty. There has been widespread confusion regarding what can and cannot be done during the lockdown. The plight of the migrant workers, who were compelled by their poverty to walk thousands of kilometres back home as they could not afford to live in the city without work, is a glaring instance of why we must exercise compassion and not violence in this hour of crisis. The majority of the police force must be commended for their remarkable efforts in maintaining order in a situation of extreme panic and for putting their personal safety at risk during a pandemic. However, some errant policemen have chosen to violate the law and strict action must be taken against them. Voluntarily causing hurt to a person is a non-cognisable offence under Section 323 of the Indian Penal Code (IPC) and provides for imprisonment of up to one year. Victims of police violence should not succumb to such blatant misuse of authority. Instead they must record such incidents, subject themselves to immediate medical examination, if possible, and file a complaint before the nearest Magistrate under Section 190(1) of the CrPC. If this is difficult to pursue during the lockdown, it must be followed up once the restrictions are eased.
The MHA guidelines clearly state that a person found violating stipulations can be charged under Section 188 of the IPC and Sections 51 to 60 of the DMA, 2005. Section 188 of the IPC provides for a fine and an imprisonment term for one month for the violation of an order of a public servant. Further, the DMA also prescribes penalties which can attract fines as well as imprisonment up to two years for violating orders issued under it.
However, these penal provisions must be invoked cautiously, with due application of mind. Consideration must be given to the fact that it is difficult for people to approach the courts, which are functioning on an extremely limited basis. The State must also take care to ensure that the punishment is proportionate to the offence in question, as held by the Supreme Court in the Vikram Singh vs Union of India case, especially when the Government has not expressly clarified whether a single person walking on the street amounts to an offence.
Yascha Mounk, a professor at John Hopkins University, in his book The People vs. Democracy, argues that a liberal democracy strikes a balance between two fundamental principles, the “will of the majority” and the “rule of law”, which gives primacy to individual rights.
India’s constitutional framework may allow for individual rights to be curtailed but they cannot be completely sacrificed at the altar of the “will of the majority.” In the face of a public health challenge, it is all the more necessary to be vigilant about human rights, as history teaches us that the gravest human rights violations have taken place during wars, emergencies and disruptive situations. The “majority” should be careful before applauding or normalising police excesses in the name of public interest when alternate and proportionate penalties exist.
The ideal approach in this case would be for the police to fine people who are found violating a Section 144 order or the MHA guidelines on the lockdown. This can be done by the President or the Governor by promulgating an Ordinance under Articles 123 and 213 of the Constitution respectively, empowering local authorities to impose fines to violators. Such fines must be based on a differential system, accounting for the socio-economic background of the violators.
Fines are being used effectively as a deterrent in the UK, the UAE and Canada. In the UK, police officers have the power to issue on-the-spot fines of £60 for people found violating the lockdown rules. Such fines, coupled with clarifications regarding the extent of the restrictions and positive propaganda like the “Corona Warrior” videos shared by the Prime Minister, are most effective and humane ways of ensuring that people understand the need for social distancing.
(The writer is a lawyer in the Bombay High Court)
