I.  Introduction

In India, the Union Government used its powers under the Constitution of India, Indian Penal Code, Criminal Procedure Code, and other statutes to enforce a nation-wide lockdown as a preventive measure in order to curb the spread of Coronavirus (SARS-CoV-2) amidst the global pandemic. In India, the rise in the number of COVID-19 cases (name of the disease caused by the SARS-CoV-2 virus) were witnessed towards the end of March 2020 when the Union Government decided to impose restrictions on the movement of people by following the procedure of lockdown in pursuit of which several orders and notifications were passed by the Government.[2]

II. Powers of the government

The powers of the government could be divided into two sections-

1. Powers under the Constitution; and
2. Powers under various statutes.

(A) Powers under the Constitution

The Constitution of India has provided powers to Union Government to issue directions to the state government which the state governments are obligated to follow. The issue of COVID-19 pandemic entails the aspects of public health and public order. The seventh schedule of the Constitution enlists Public Order (Entry 1) and Public Health (Entry 6) into the State List placing responsibility upon the state governments to regulate the spread of COVID-19 through enactment and enforcements of laws and passing of regulations. The prevention of spread of infectious disease from one state to another is an item (Entry 29) under the Concurrent List over which the Centre has overriding powers.[3]

(B) Powers under various Statutes

The lockdown was imposed on the basis of the provisions of the Disaster Management Act[4]. It established the National Disaster Management Authority (NDMA) which is headed by the Prime Minister.[5] Under section 6(2)(i) of the Act, NDMA issued directions at Union-level and at state-level to ensure social distancing norms.[6] This Act of 2005 also established the National Executive Committee which is headed by the Home Secretary.[7] Under section 10(2)(l) of the Act, the National Executive Committee issued the lockdown order with specific details.[8] Also, the provisions of Criminal Procedure Code, Epidemic Diseases Act, Essential Commodities Act, Indian Telegraph Act (Geo-Fencing), etc. were used for the enforcement of the lockdown.[9]

III. Issues surrounding the tablighi jamaat case and application of criminal laws

The case of Tablighi Jamaat was one of the many instances in India where the criminal laws were used to file charges against the accused persons for the spread of coronavirus. The Jamaat organized a religious congregation at the Nizamuddin Markaz mosque at New Delhi which consisted of thousands of attendees and also foreigners were part of it. This congregation took place despite the ban imposed by the Delhi government on public gatherings. Some of these attendees allegedly suffered from COVID-19 and they were held responsible for the spread of coronavirus across various states. Many of these attendees were quarantined in the isolation wards. Subsequently, the Delhi police filed criminal charges against them pertaining to offences mentioned in sections 188 and 269 of IPC and other special laws like Epidemic Diseases Act. Maulana Saad Kandhlavi who led the congregation at the Nizamuddin Markaz mosque faced serious criminal charges like culpable homicide not amounting to murder (punishable under section 304 IPC) and attempt to murder (punishable under section 307 IPC).[10]

In the necessity to curb the rising cases of COVID-19, the Delhi Government took the route of imposing criminal liabilities like usage of sections 188, 269, and 270 of the Indian Penal Code (IPC) in order to increase the enforceability of the restrictions to prevent the spread of coronavirus.[11] A person who violates the lockdown orders can face legal consequences under the Epidemic Diseases Act which prescribes punishments as per section 188 of IPC.[12]

Section 144 of the Criminal Procedure Code was also used in various states which provides the Magistrate (District/Sub-divisional/Executive) with “powers to issue orders in urgent cases of nuisance of apprehended danger” and impose restrictions prohibiting the assembly and movement of people.[13] A person who violates such orders is held liable for punishment under section 188 of IPC.[14] It was used to impose “night curfews” amidst the lockdown to restrict the movement of people and to curb the spread of coronavirus.

A person can be held liable under section 188 of IPC for disobeying the orders promulgated by a public servant. It is not necessary for the offender to have a guilty mind or intention (Mens rea), just having a mere knowledge of such promulgation or order can make a person liable for disobeying it, under this section. The disobedience to the rules and regulations issued by the government to curb the coronavirus outbreak, can potentially “cause danger to human life, health and safety”. Therefore, the person can be punished with imprisonment for a period of up to six months or a fine or both.[15]

Section 269 of IPC penalizes a person for his/her negligent act, irrespective of any guilty intention, which is likely to spread any infectious disease which is dangerous to life. A person shall be liable for imprisonment for a period of six month or of paying fine or both.[16]

Also, section 270 punishes a person for his/her malignant act, irrespective of any guilty intention, which is likely to spread any infectious disease which is dangerous to life. Under this section, a person shall be liable for imprisonment for a term extending up to two years or fine or both.[17]
These sections were earlier enforced even during the time of British rule to curb the spread of diseases like bubonic plague, smallpox, etc.[18]

The unfortunate event at the Nizamuddin Markaz was demonized by the Right-Wing Nationalist organizations and even some news channels also antagonized the entire Muslim community by terming the acts of the attendees at the congregation as “corona jihad”. This led to the introduction of a wave of anti-Muslimism rhetoric in India, these attendees were kept under strict surveillance and the entire community was targeted.[19]

A Delhi Court has subsequently acquitted the foreigners in the Jamaat case of all their charges.[20] And on the instance of grave charges (under sections 304 and 307 of IPC) filed against Maulana Saad, the Allahabad High Court was opinion that, in this case, “from a perusal of the material, charge sheeting the applicant under Section 307 IPC prima facie reflects abuse of the power of law.” [21]

Such imposition of criminal laws for restricting people was conceived by the governments to be a viable option to ensure that people strictly adhered to the rules and regulations aimed at flattening the curve of the coronavirus outbreak. It can be agreed to a certain extent that stricter punishments help in creating a deterrent effect, however this cannot be agreed in the context of COVID-19. The consequences of imposing the criminal laws of colonial era in such a complex problem has led to conundrum having a detrimental impact on fundamental rights and human rights of the citizens.

The usage of these criminal laws also led the criminal justice system into a quandary of dealing with new cases related to laws imposed during the lockdown which piled up upon the earlier backlog cases. The problem of overcrowded prisons in India also escalated the risk of spread of coronavirus inside these prisons. The government’s imposition of criminal laws to prevent COVID-19 spread has the tendency to create even more problems by further increasing the occupancy rates of the prisons and also increasing the vulnerability in these prisons.[22]

There is also an economic aspect to the problems of imposing criminal liability in such cases. India’s GDP (Gross Development Product) growth rate is declining with a fall or contraction of 23.9% in the GDP as the jobs are declining and businesses are shut due to the pandemic.[23] In this situation, imposing strict criminal liability on the citizens for not being able to adhere to the orders will lead to depletion of their limited resources in such vulnerable times through payment of fines and other expenses in the legal system.

The Epidemic Disease Act of 1897 also carries some lacunae with it such as, it has not defined the terms “dangerous”, “infectious” or “contagious diseases” leading to an ambiguity in deciding the culpability of person under the provisions of IPC. This Act focuses on powers of governments during outbreak of an epidemic but does not mention anything about the duties of the respective governments to curb such epidemic and also does not say anything about rights of the citizens which exists during the prevalence of such epidemic.[24]

IV. Conclusion

In conclusion, it can be observed that the lockdown orders and other preventive guidelines were issued by the Ministry of Home Affairs and the Ministry of Health had a meagre and advisory role in this matter which substantially pertained to the issue of Health emergency.[25] The outbreak of COVID-19 pandemic was an unprecedented event for the entire world and in such times of emergency, the Health Ministry should take the charge of handling the situation at the national level. The imposition of Criminal laws in such matters is not viable and has the tendency to rather generate more problems than find solutions to flatten the curve. The Union Government and Legislature should take a cue from other countries like United Kingdom, Canada, United States, etc. and should try to enact special legislations to deal with the pandemic when it did not subside for months together.[26] India needs a holistic and dedicated legislation with respect to prevent and curb the spread of such deadly virus or epidemic rather than a jigsaw puzzle of many diverse laws acting for the same

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[2] World Health Organization, India Situation Report-9, WORLD HEALTH ORGANIZATION (28 March 2020, 10:09 AM), https://www.who.int/docs/default-source/wrindia/situation-report/india-situation-report-9.pdf?sfvrsn=c883d0c2_2.

[3] The Constitution of India 1950.

[4] The Disaster Management Act 2005, § 10(2)(l).

[5] The Disaster Management Act 2005, § 3(2)(a).

[6] The Disaster Management Act 2005.

[7] Id.

[8] Id.

[9] Indo-Asian News Service, What constitutes essential services, and how govt responds, THE ECONOMIC TIMES (23 March 2020, 11:19 AM), https://economictimes.indiatimes.com/news/politics-and-nation/what-constitutes-essential-services-and-how-govt-responds/what-can-you-do-during-a-shutdown-situation/slideshow/74772217.cms.

[10] Faizan Mustafa, The Coronavirus Spread and the Criminal Liability of the Tablighi Jamaat, THE WIRE (16 April 2020, 12:11 PM), https://thewire.in/communalism/coronavirus-criminal-liability-of-tablighi-jamaat.

[11] Id.

[12] The Epidemic Diseases Act 1897, § 3.

[13] The Code of Criminal Procedure 1973, § 144.

[14] Ram Samujh and others v. State, (1967) Cri.L.J. 1586: A.I.R. (1967) All 579.

[15] The Indian Penal Code 1860, § 188.

[16] The Indian Penal Code 1860, § 269.

[17] The Indian Penal Code 1860, § 270.

[18] Explained Desk, Sections 269 & 270 IPC, invoked against those accused of spreading disease?, THE INDIAN EXPRESS (30 March 2020, 11:01 AM), https://indianexpress.com/article/explained/explained-what-are-sections-269-270-ipc-invoked-against-those-accused-of-spreading-disease-6336810/.

[19] J Slater, N Masih & S Irfan, India confronts its first coronavirus ‘super-spreader’ — a Muslim missionary group with more than 400 members infected, THE WASHINGTON POST ( 2 April 2020, 01:02 PM), https://www.washingtonpost.com/world/asia_pacific/india-coronavirus-tablighi-jamaat-delhi/2020/04/02/abdc5af0-7386-11ea-ad9b-254ec99993bc_story.html.

[20] Staff Reporter, Tablighi Case: court acquits 36 foreigners, THE HINDU (16 December 2020, 02:01 PM), <https://www.thehindu.com/news/cities/Delhi/tablighi-case-court-acquits-36-foreigners/article33340829.ece.

[21] Mohd. Saad v. State of U.P. and another, APPLICATION U/S 482 No. – 17176 of 2020.

[22] Neha Dixit, India’s long lockdown led to breakdown of criminal justice system, ALJAZEERA (2 June 2020, 11:20 AM), https://www.aljazeera.com/features/2020/6/2/indias-long-lockdown-led-to-breakdown-of-criminal-justice-system.

[23] Abhishek Waghmare, First economic contraction in 4 decades: India GDP shrinks 23.9% in Q1FY21, BUSINESS STANDARD (1 September 2020, 05:09 PM), https://www.business-standard.com/article/economy-policy/first-economic-contraction-in-4-decades-india-gdp-shrinks-23-9-in-q1fy21-120083101301_1.html.

[24] Manish Tewari, India’s Fight against Health Emergencies: In Search of a Legal Architecture, ORF Issue Brief No. 349 OBSERVER RESEARCH FOUNDATION (2020), https://www.orfonline.org/wp-content/uploads/2020/03/ORF_Issue_Brief_349_Health-Legal_NEW-08_April.pdf.

[25] A Bokil & N Sonavane, Why Relying on Criminal Law Should Not Be the Answer to a Pandemic, THE WIRE (11 April 2020, 09:23 AM), https://thewire.in/law/criminal-law-coronavirus-pandemic.

[26] Manish Tewari, supra note 24.

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