LAW BURIED FOR LONG, NOW INVOKED: DEVOIR ORIENTED LAWS
Adv. Pooja Gupta
“We the people of India” have always talked about our rights and privileges being enshrined in the Constitution and other laws but this is the time when “we the people” be aware about our roles and be awakened about our suppressed duties as well, especially in this COVID 19 which is declared as pandemic (by the WHO) and not epidemic or outbreak, which in itself enunciate the grievousness of the same. This is the time when solidarity is the panacea which our country needs and to obey the duties sincerely given for you & by you. The worldwide lockdown for last few months by our Hon’ble Prime Minister is a step forward to control this pandemic. Also, the State Regulations had extended the lockdown while exercising its power under the various invoked laws. Presently, the Legislation which starts with the word ‘Disaster’ i.e. The Disaster Management Act, 2005 and the 123 years old Legislation i.e. the Epidemic diseases Act, 1897 (hereinafter referred to as ED Act) and has been invoked. At the time of drafting this Legislation way back in the year 1897, nobody knew that this little piece of Legislation with just two pages and four provisions would be effectuating in this 21st century. Furthermore, those violating the lockdown and other orders can face legal repercussions as provided under the Disaster Management Act, 2005,(hereinafter referred as DM Act) the ED Act, 1897; and Indian Penal Code, 1860 (official criminal code of India, referred as IPC) will succor it by providing punishment for such flouting under Section 188. Apart from complying with the orders of the lockdown, this pandemic of COVID 19 had brought us certain devoir which every citizen needs to follow under legal system and laws of our Country.
It’s not the time to search for the rights but to look out for the duties. When world is criticizing of the nationwide lockdown as against the rights under Constitution, it seems to be legitimate as it’s done to protect you. This is the time to violate the constitution in terms of our rights. Rights exist till the time we exist i.e. rights subsist till we exist. Mila Versteeg writes in The Atlantic that “Countries are taking extraordinary measures to slow the COVID-19 pandemic. Many of these measures limit individual freedom and may also violate rights guaranteed by national constitutions. Italy’s complete lockdown, enforced by criminal penalties, probably violates its constitution. Norwegian lawmakers have proposed an emergency law that temporarily gives the government unprecedented power to override the constitution and national laws to thwart the virus. Meanwhile, without consulting the Israeli Parliament, Prime Minister Benjamin Netanyahu enacted emergency regulations allowing for stunning surveillance power to combat the virus”.
True to the meaning that being in these four walls might affect freedom or infringe rights but it only subsist till we exist. If your freedom to move has been ensured then will you assure of being safe. All the regulations, the guidelines, the nationwide lockdown, and; the curtailment of rights are befitting with the “Doctrine of Necessity” which proclaims that “Necessity knows no law”. The things otherwise not lawful are made lawful by doctrine of necessity.
Moreover, our constitution provides for the emergency provisions in case of “internal disturbance” but taking that recourse is not what our Government planned. When we have different century’s laws to combat the pandemic then why to curtail the rights and impose emergency. This is for the same reason that scrutinizing the 19th century vintage law and 21st century updated law is apt here.
Moreover, the society changes with the ages. Time and again we need to enhance and update the laws according to the multifaceted contemporary styles of crime and needs of the society as a whole. Because of the same reason our Constitution has undergone various amendments precisely 104 in number till January 2020.
Our laws undoubtedly provide for the offences and their respective punishments but merely scripting it in books is not enough the main purpose for providing the penal punishment is that it serves as a deterrent. But this purpose stands defeated when there is a balancing of interests of society and accused is done. Balancing of interest states that there should be harmony between the societal interest and interest of the accused. Crime is considered to be a wrong against the society at large and it is in the societal interest that the culprit should be prosecuted and punished. But contrary there exists Constitution mandate which protect the interests of the accused by way of Article 21 but sometimes safeguarding this interest led to defeat of justice. These mandates overpower the culpability of the accused. So harmony is the essence for the justice to prevail.
Revolving cycle of the three laws
The vicious circle of the three laws and their relevance in this situation need to be enunciated. The Epidemic Diseases Act, 1897, The Disaster Management Act 2005 and, The Indian Penal Code, 1860 revolve around each other and that’s why it is apt for us to get acquainted with the interconnected and convergent laws. However, the centerpiece is the Disaster Management Act which succors others and one’s lacuna will be filled by the other. These duty spoken laws will now help the country to fight against this pandemic and duties and penalties under the said acts will act as a deterrent.
The disobedience of orders passed under the ED Act, 1897 will attract punishment under IPC and those violating the rules during the lockdown will make them liable under provisions of the DM Act, 2005 besides Section 188 IPC.
The Yokohama Strategy is the First World Conference on Natural Disasters in Yokohama, Japan from May 23 to 27, 1994, for a Safer World. This is the output of the World Conference on Natural Disaster Reduction. Yokohama Strategy of the United Nations International Decade of Natural Disaster Reduction, to which India is a party, is an important one with regard to disasters.
The Epidemic Diseases Act, 1897
With just four provisions, this complete in itself Act provides ample powers to the Central and the State Government for framing any temporary regulations, when they are satisfied that ordinary provisions of law, which are in force are insufficient to contain the epidemic (presently pandemic) and more specifically which are deemed to be necessary to prevent the outbreak of the disease or spread thereof.
The aforesaid discretion under the Act was invoked by the Government NCT Delhi to frame Delhi Epidemic Diseases COVID 19 Regulations 2020 and disobedience of the said regulations will attract the penal provisions and punishment connected therewith in addition to the initiating criminal proceedings under Section 188 of IPC as provided under the Section 3 of the Act. Moreover, any action taken under the Act is protected by “good faith” clause provided in Section 4 of the said Act.
The Epidemic Diseases (Amendment) Ordinance, 2020
When on one side country is facing an unprecedented situation with no means to come out from the same, and then on the other combating with the incidents of attacks and harassment on doctors and nurses were other hurdled task standing upfront. Necessitated by the growing incident and by invoking Article 123 of the Constitution by way of Epidemic Diseases (Amendment) Ordinance, our country proved that ‘necessity is the mother of all amendments.’
• Violent attack are made cognizable and a non-bailable offence.
• It gives a list of what constitutes as violence i.e., harassment, physical injury and damage to property, as well as who is covered under the ambit of healthcare personnel. However this is not exhaustive.
• Further, commission or abetment of any acts of violence against said healthcare professionals shall be punished with imprisonment for a term of three months to five years, followed with a fine of Rs.50,000/- to Rs.2,00,000/-. Also, the grave situations concerning grievous hurt, the ordinance directs imprisonment for a term of six months, and up to seven years, and with a fine of Rs.1,00,000/- to Rs.5,00,000/.
• Time bound investigations, in addition to compensation for injury or damage to property.
The Epidemic Diseases (Amendment) Ordinance :
• Ordinance defines healthcare service personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic. They include: (i) public and clinical healthcare providers such as doctors and nurses, (ii) any person empowered under the Act to take measures to prevent the outbreak of the disease, and (iii) other persons designated as such by the state government.
• An ‘act of violence’ includes any of the following acts committed against a healthcare service personnel: (i) harassment impacting living or working conditions, (ii) harm, injury, hurt, or danger to life, (iii) obstruction in discharge of his duties, and (iv) loss or damage to the property or documents of the healthcare service personnel. Property is defined to include a: (i) clinical establishment, (ii) quarantine facility, (iii) mobile medical unit, and (iv) other property in which a healthcare service personnel has direct interest, in relation to the epidemic.
• Powers of the central government: The Act specifies that the central government may regulate: (i) the inspection of any ship or vessel leaving or arriving at any port, and (ii) the detention of any person intending to travel from the port, during an outbreak. The Ordinance expands the powers of the central government to regulate the inspection of any bus, train, goods vehicle, ship, vessel, or aircraft leaving or arriving at any land port, port or aerodrome. Further, the central government may regulate the detention of any person intending to travel by these means.
• Protection for healthcare personnel and damage to property: The Ordinance specifies that no person can: (i) commit or abet the commission of an act of violence against healthcare service personnel, or (ii) abet or cause damage or loss to any property during an epidemic. Contravention of this provision is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees.
This offence may be compounded by the victim with the permission of the Court. If an act of violence against healthcare service personnel causes grievous harm, the person committing the offence will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees. These offences are cognizable and non-bailable.
• Compensation: Persons convicted of offences under the Ordinance will also be liable to pay compensation to the healthcare service personnel whom they have hurt. Such compensation will be determined by the Court. In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the Court. If the convicted person fails to pay the compensation, the amount will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.
• Investigation: Cases registered under the Ordinance will be investigated by a police officer not below the rank of Inspector. The investigation must be completed within 30 days from the date of registration of the First Information Report.
• Trial: The inquiry or trial should be concluded within one year. If it is not concluded within this time period, the Judge must record the reasons for the delay and extend the time period. However, the time period may not be extended for more than six months at a time.
• When prosecuting a person for causing grievous harm to healthcare service personnel, the Court will presume that person is guilty of the offence, unless the contrary is proved.
Section 188 of the Indian Penal Code, 1860
The Section says “Disobedience to order duly promulgated by public servant” which further classify the offence based on gravity-
If such disobedience causes obstruction, annoyance or injury to persons lawfully employed for which punishment can extend to one year on conviction or,
If such disobedience causes danger to human life, health or safety, etc. for which punishment can extend for two years on conviction.
Also, publishing and circulating anything which is likely to cause fear or alarm among public is punishable under Section 505, IPC with imprisonment of three years or fine, or both.
The Disaster Management Act, 2005
By far the least used but more advantageous Act in prevention of disaster or I would say the sole legislation on the subject but still has the potential to make a paradigm shift in the world of disaster. This Act said to be the mother Act dealing with disasters, both natural and man-made establishes the National Disaster Management Authority (NDMA) at the Central Level and replicates the model at the State and district level.
The Supreme Court in N.D. Jayal and Anr. Vs. Union of India (UOI) and Ors observed:
“Disaster Management means all aspects of planning, coordinating and implementing all measures which are necessary or desirable to prevent, minimize, overcome or to stop the spread of a disaster upon the people or any property and includes all stages of rescue and immediate relief. It is a proven fact that lot of human suffering and misery from large number of disasters can be mitigated by taking timely actions, planning and preventive measures. It is possible only through well functioning disaster management framework.”
The widespread morbidity not only creates the snitch of fear and distress among the people but also invites other legal problems like hoarding of essential commodities, termination of employment, massive spread of false and frivolous information through online platforms, and also an apprehension of violation of the regulations and guidelines framed by the State and Central Government. Therefore, this piece of Legislation is apt here.
The prescribed offences and their respective penalties are enunciated:
Obstruction caused to any officer (including public servants) and refusing to comply with Government guidelines or directions during the disaster (pandemic) is covered under Section 51 of the said Act and is punishable with imprisonment for a term which may extend to one year, or with fine, or with both. Also, if such obstruction and non compliance of the directions resulted in the loss of lives or cause imminent danger, shall be punished with imprisonment for a term which may extend to two years.
If any person makes a false claim knowing or has a reason to believe that the claim which he is asserting to be false in order to obtain any relief assistance or other benefits from the officers of Central or State Government or any authority being it National, State or District Authority, is punishable for a term which may extend to two years, and also with fine under the provisions of Section 52.
Whoever, being entrusted with money or goods which is meant for providing relief in such situation, misappropriates or converts to his own use the said money or goods then he shall on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine under Section 53 i.e. punishment for hoarding of essential commodities.
Apart from the spread of disease, one more thing proliferates than that and i.e. false information which cause distress and anxiety among the people which is evident from the past few events that happened in our country. So, the Disaster Management Act prevents the dissemination of such false news. Hence, Making and circulating false and frivolous information as related to disaster causing panic among the people is punishable with imprisonment, extending to one year, under Section 54 of the Act.
The officers of the Government are not left untouched and covered under Section 55 which says, if any offence under the said Act has been committed by the Department of the Government or the head of the Government shall be deemed to be guilty unless the contrary is proved.
Even public servants are in purview of this Act as non compliance of their duty connected and incidental to their office and which are imposed by and under the Act would attract imprisonment extending to one year under Section 56. But anything done in ‘good faith’ clause is protected by the Act and also if prior permission is being taken by the superior officer.
Moreover, contravention of any orders would attract penalty or imprisonment or both under Section 57 of the Act.
Moreover, where an offence under the same Act has been committed by a company or body corporate then it shall deemed to be guilty (unless the contrary is proved) and shall be liable to be proceeded against and punished accordingly under Section 58. Absence of knowledge of the offence and due diligence to prevent the commission of the offence is protected by the proviso clause.
Above all, for any offence under the DM Act, 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 the Court can take cognizance, if a person has given notice of not less than 30 days of an alleged offence, and about his intention to file a complaint. Why there is a wall created between the citizens and courts of justice. Is it necessary or merely an obstacle in the process of justice?
All the regulations are providing ex gratia assistance, and no authority is legally liable for the non compliance of the same. I agree to the fact that the Government, the public servants and the companies are not left untouched in the Disaster Management Act, but it failed to specify the quantum of punishment if the offence is proven against them which leaves a question mark on equality quotient.
It failed to address and redress the problems that might be faced by the people not that capable to fight this pandemic alone unlike us. It seems like the doctrine of “Parens patriae: parent of the nation” which gives state a sovereign power to act like a parent and sue on behalf of citizens to protect them from harm has just vanished in the present times. Instead of being protective, to the contrary the Government itself made people homeless by just giving four hours to arrange for their proper livelihood before announcing the nationwide lockdown. It is incorrect to say that I am against the lockdown but it is correct that no proper arrangements have been made to tackle it. Neither they are providing relief to its citizens nor are they protecting them from this disaster.
The act further says that the National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster like food, shelter, medical cover etc, but the question is it is only for those affected by the disaster directly and not to those who might get affected or affecting in a way we cannot imagine of. For instance the labor class which is being ruthlessly terminated from their work due to these pandemic regulations and to strive for food is migrating to their native place so that hunger doesn’t take their lives, but it makes me num that they can’t even reach where they wanted due to worldwide lockdown. It is wrong to suggest that I am against these regulations but it is anyway correct to say that the Act is silent on the subject that is any authority made a way out so that these class of people either survive or sent to the place they wanted to; is what is being sanctioned for the needy in terms of food grains, medical facilities are actually being delivered to them.
The regulatory framework for pandemics and epidemics has been found to be inadequate to deal with an unprecedented situation that has been today. It certainly does not take care of the right to life and livelihood of those who are necessarily required to stay home in order to prevent the spread of the infection or of those who are migrating just because sitting warming on one chair would make them starve from food.
All the regulations, the guidelines, the nationwide lockdown, and; the curtailment of rights are befitting with the “Doctrine of Necessity” which proclaims that “Necessity knows no law”. The things otherwise not lawful are made lawful by doctrine of necessity. But this doctrine doesn’t answer that why PM cares fund is not covered under the purview of Right to Information Act, is the Natural Disaster response and mitigation.
Fund sanctioned or not, is the reimbursement compensation has been generated or not, which makes the scenario and credibility of the Government plans doubtful. Solidarity and patience is the panacea and I without any reservation am with the nation and its duty of very Indian do so but critics are equally important and should always be welcomed as there is always a scope of enhancement.
Moreover, as aforesaid time and again we need to enhance and update the laws according to the multifaceted contemporary styles of crime and needs of the society as a whole. Because of the same reason our Constitution has undergone various amendments precisely 104 in number till January 2020. According to the “Doctrine of Flux and the Unity of Opposites”: everything is constantly changing and so as the definition and patterns of crime. There can never be an exhaustive law that can be applied in straightjacket formula or be put in a container and whenever need arises we open it and apply them.
Laws need constant perseverance and consistent foresight. So the panacea lies in the amendments. For example if we had not updated our laws according to the present needs, then cyber crime would never be considered an offence. There are such many examples of laws being constantly monitored, amended and if necessary then repealed. I would reiterate that ‘necessity is the mother of all amendments.’
At last I would pen down by saying that any law on any subject is effective till the time its citizens are abiding it. It is correct on one side that a country can fight the pandemic when its people are willing to work with the authorities but on the other side even if one person dies, it should not merely just be a number for the country; but it should be as if the nation had died every time a country lost a life.