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The COVID-19 pandemic is an unprecedented global crisis. India has also been severely hit by this and the government has had to take some extraordinary measures, including closing commercial establishments, public markets and educational institutions and restricting movement of public by imposing a lockdown. The government is using the powers granted under the Criminal Procedure Code, 1973 (“CrPC”), Epidemic Diseases Act, 1897 (“ED Act”) and Disaster Management Act, 2005 (“DM Act”) to create a mechanism to mitigate and control this epidemic.
The concept of a lockdown (and even curfew) is not expressly defined or provided for in any Indian statute. The provisions dealing with the offences against public tranquility are in Chapter VII of the CrPC. Section 144 of the CrPC empowers the concerned executive magistrate with powers to direct citizens to abstain from certain acts or undertake certain acts to prevent danger to human life, health or safety or disturbance to the public tranquility. This section is invoked when immediate prevention or speedy remedy is desirable.
Lockdown
Once the notification for a lockdown is issued, it sets into action a protocol which typically requires that people do not move around in the city/state. Depending upon the situation, the lockdown can be a complete shutdown of any movement or (as in the present case) allows for access to essential supplies, grocery stores, pharmacies and banks. For all practical purposes, when there is a complete shut-down of any movement and essential services, then there is deemed to be ‘curfew’.
Section 144 of CrPc
The scope of Section 144 is quite wide and the Magistrate can restrict assembly of 4 or more persons, instruct persons to stay indoors, restrict movement of persons and traffic, order partial or complete closure of markets, schools, colleges and offices. Typically, this order is in force for 60 days and can be extended for a further period of upto 6 months if State Government considers it necessary for preventing danger to human life, health or safety.
The constitutional validity of Section 144 was upheld in 1971 by a 7 judge bench of the Supreme Court in the case of Madhu Limaye and Ors. Vs. SDM Monghyr. Chief Justice Hidayatullah held that the gist of the action under Section 144 was upon the urgency of the situation and it could be effectively used to prevent harmful occurrences. He further held that “It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application”.
Epidemic Diseases Act, 1897
The ED Act, which aims to provide for the better prevention of spread of ‘dangerous epidemic diseases’ does not define the same. Section 2 of the ED Act provides that if the State is satisfied of a tangible threat of an outbreak of any dangerous epidemic and believe that the ordinary provisions of law are insufficient to remedy it, then in such a situation, appropriate measures can be taken and the same have to be notified. The ED Act can be used by the state authorities to conduct searches of suspected cases in homes and also enables them to create policies to force segregations, evacuations, and demolitions of infected places. It is pertinent to note that the ED Act is silent on the legal framework of availability and distribution of vaccine and drugs and implementation of response measures.
In the last decade, the ED Act has been invoked in cases of dengue and malaria in 2015 in Chandigarh, H1N1 influenza in 2009 in Pune, and to prevent the spread of cholera in a Gujarat village in 2018.
Disaster Management Act, 2005
The DM Act has created the National Disaster Management Authority (NDMA), headed by the Prime Minister, and State Disaster Management Authorities (SDMAs) headed by respective Chief Ministers, to spearhead and implement a holistic and integrated approach to disaster management in India. The directions issued by the Government on March 24, 2020 imposing a 21 days’ pan India lockdown have been issued by the NDMA under the provisions of the DM Act.
Any violation of an order issued under Section 144 of the CrPC or directions issued under the ED Act and the DM Act is deemed to be offence punishable under Section 188 of Indian Penal Code, 1860. To attract these provisions, it is sufficient if there is disobedience to order duly promulgated by public servant and the violator is aware that non-compliance of the Section 144 orders is likely to produce harm. The penalty is imprisonment between 1-6 months or fines in the range of Rs. 200-1000 depending upon the danger caused by the non- compliance. Further, the DM Act also provides for imprisonment upto a maximum of 2 years for non-compliance of the directions issued under the statute.
Vikrant Singh Negi (Partner) and Ekta Tyagi (Principal Associate) are senior members of the White-Collar Crime & Fraud Investigations practice of DSK Legal.