Authorities have invoked various provisions available under the law for restricting movement and protecting citizens amid the ongoing coronavirus lockdown.
Battling the COVID-19 virus, India is now into an extended nationwide lockdown with the government’s attempt channeled to limit the spread of the virus through ‘social distancing’ and restriction on the unnecessary movement of the people. To that end, various provisions available under the law for restricting movement and protecting citizens have been invoked.
Section 144, Criminal Procedure Code, 1973
Section 144 confers powers upon District Magistrates/Sub-divisional Magistrates or other Executive Magistrate empowered by the State Governments to pass orders in urgent cases of nuisance or apprehended danger, directing any person to abstain from a certain act with a view to maintain public tranquillity. Action under Section 144 is anticipatory in nature and restrictions are imposed generally in cases of emergency.
The power conferred under Section 144 is extraordinary as it enables suspension of lawful rights including freedom of movement. Orders/restrictions under Section 144 must be such which are likely to prevent a danger to human life, health or safety. Ordinarily, these orders remain in force for two months; however, state governments can extend their validity up to six months and can also withdraw them if the situation becomes normal.
The Magistrate can restrict the application of such orders and provide for exceptions/circumstances under which persons in apparent violation of the order shall not be prosecuted. These include cases involving medical emergencies, the supply of essential commodities, humanitarian grounds etc.
To counter the current pandemic, orders under Section 144 have been issued, prohibiting the gathering of four people or more in public spaces. Schools, colleges, non-essential private offices etc. have been directed to remain closed for preventing the spread of COVID-19.
Section 144 generally prohibits public gatherings. A order of curfew directs the public to stay indoors for a specific time. Curfew orders are enhancement of an order passed under Section 144 requiring everyone to stay at home for a fixed duration. Outdoor activities/visits are restricted/prohibited during a curfew.
The Epidemic Diseases Act, 1987
This Act was enacted for preventing the spread of epidemic diseases and empowering state government(s) to issue temporary measures/regulations/notifications when ordinary provisions of the law are insufficient for the purpose. Violations of the regulations/notifications amount to an offence under Section 188 of the Indian Penal Code, 1860 (“IPC”).
Currently, states have exercised their powers to compel employees to stay and work from home. Restaurants, clubs, malls, cinemas have been temporarily shut. Directions have been issued to hospitals for monitoring COVID-19 patients and for persons with a travel history to self-isolate.
Violations of orders
Violation of the above orders can amount to an offence under the following provisions of IPC:
Onus is upon the State to prove that (i) there was a prohibitory order made by a public servant such as the concerned Magistrate; (ii) order was within the knowledge of the accused. In the current situation, it could be through various new articles and notices; (iii) order was violated/disobeyed by the accused; and (iv) violation/disobedience has resulted in obstruction of justice, causing danger to human life and/or risking human health.
Offences under Section 141-149 and Section 188, IPC, are bailable and cognizable. Therefore, though the accused can be arrested without a warrant, he is entitled to be released on bail. A person can also avoid arrest upfront if he can show that his violation of an Order under Section 144 is due to an emergency or that he is expressly exempted.
The Disaster Management Act, 2005
This Act provides for the establishment of an Authority at the Centre and for each State to effectively manage disasters. For the first time, this law has been invoked all over India for COVID-19.
Under the Act, all states are to take appropriate measures to ensure social distancing for a period of 21 days to prevent the spread of COVID19. States have issued guidelines for the closure of establishments and institutions, places of worship etc. while allowing essential services.
Sections 51-60 deal with offences against officers and the public, including punishments for false claims. Violations can result in imprisonment of up to two-years or a fine or both.
To conclude, there are reports that the people are continuing to violate the orders imposing restrictions and hence being arrested by the police in order to maintain peace and safety.
During the period March 22, 2020 — April 8, 2020 there have been 27,432 cases of violations of prohibitory orders in Maharashtra alone. Although offences of violating these orders are bailable, considering the alarming nature of the pandemic confronting the country, such instances are inexcusable.
In the event of continued disregard of orders passed, there is every likelihood that States will be compelled to impose curfew orders. Irrespective of the inconvenience caused due to the restrictions in place, current circumstances warrant complete cooperation and compliance of the restrictions imposed by the Government.
-Mohit Bakshi and Hormuz Mehta are Partners with J. Sagar Associates. The views expressed by authors are personal