.jpg)
Section: B
Category: Article
Paper Code: RA-JB-08
Page Number: 364 - 370
Date of Publication: February 10, 2021
Citation: Jayanta Boruah & Sarthak Aryan, COVID-19 Pandemic: Justice Demands for Increasing Deterrence in India, 1, AIJACLA, 364, 364-370, (2021), https://www.aequivic.in/post/aijacla-covid-19-pandemic-justice-demands-for-increasing-deterrence-in-india.
Details Of Author(s):
Jayanta Boruah, Research Scholar, North-Eastern Hill University, Former Assistant Professor of Law & Advocate
&
Sarthak Aryan, BALLB (3rd Year), National Law University and Judicial Academy
ABSTRACT Covid-19 has brought entire humanity to its knees but still, people are fighting with full dedication to restrict the spread of such a deadly virus. In India too, similar situations have appeared where the states have taken several spontaneous steps to ensure better safety of their citizens, yet a few are seen to be committing atrocities like intentionally trying to spread this virus, or obstructing the measures meant for preventing such spread thereby causing a threat to the lives of the entire citizen. Therefore, it becomes essential to have strict laws for creating deterrence in the minds of such offenders and also to provide justice to those who are sincerely performing their duties. Thus, this article will attempt to analyze the existing legal provisions to know whether there is a need of bringing a new law or not? KEYWORDS Covid-19; Deterrence, Justice, Offences, and Punishment
INTRODUCTION In the times of the COVID-19 pandemic, when India is under lockdown and all commercial activities are halted, the government is taking relevant steps to protect the citizens and to avoid the mass spread of this virus. Even the Indian citizens are rallying behind its government and supporting every decision taken by the government in the majority. But, instances of some people trying, either knowingly or unknowingly, to spread this virus or to restrict activities meant for preventing the spread of it can be noticed. To deal with such cases in India, the law provides for penalties under the Epidemics Act[1] and also under Sections 269, 270, and 271 of IPC.[2] Section 269 of IPC deals with negligent acts that are likely to spread disease dangerous for life while Section 270 IPC deals with malignant activities likely to spread such deadly disease and Section 271 IPC covers cases of disobedience of quarantine rules. Further, to deal with such miscreants during the spread of the epidemic and to protect healthcare professionals, the State as well as the Central government derives all necessary powers from The Epidemic Disease Act. But, a few questions that are being raised by the legal academia and judicial activists regarding these legal provisions, like- Whether the penalties provided against offenses for deliberately spreading such virus to harm others or to take revenge are sufficient enough to provide deterrence? Whether the new ordinance which has been brought in 2020 to amend the Epidemic Disease Act is sufficient enough to provide Justice to the healthcare workers and doctors who are attacked on duty? Whether the legislature needs to bring in a new act to deal with instances of such nature?
SPREADING OF DISEASES DANGEROUS TO LIFE WITH MENS REA Mens Rea is an essential element in Indian Jurisprudence for constituting an offense punishable under the law.[3] Mens Rea means guilty intention which if interpreted in cases of deliberately spreading of Covid-19, will mean an intention of causing loss to the nation by posing a threat to the lives of the Citizens. To deal with such instances, the law keeping authorities invoke IPC and Section 270 IPC. Now to book any individual under Section 269 IPC and Section 270 IPC, it is required that the disease concerned must be infectious. Infectious diseases are those which can spread from one person to another directly or indirectly.[4] It is a fact that respiratory diseases are spread through droplets.[5] Since COVID-19 is a respiratory disease, it is likely to be spread when someone comes in direct or indirect contact with infected surfaces or person. Now in this pandemic when people spit on others deliberately, they might cause the spread of the coronavirus which is dangerous to life, thereby risking public health and safety. Their acts of spitting on others with intention of spreading the virus make them liable under the above Sections. For a better applicability of these Sections, authorities need to demonstrate that the person committing such acts knows that their action might cause the spread of infection and yet are not taking any reasonable precautions rather are going ahead with it. For a better understanding of the situation where these Sections can be applied, few previously decided cases can be referred to. In 1886, Madras High Court in a case held an individual guilty under Section 269 IPC for traveling by train despite being suffered from Cholera. The court also held the man who bought his ticket guilty for abetment.[6] In a similar case, the accused was held guilty under Section 269 IPC for negligently traveling on a train after coming in contact with a plague patient. To understand the difference between negligently spreading the virus under Section 269 IPC and malignant spreading of the virus under Section 270 IPC we can refer to a few recent cases. A case of negligent spreading of the virus appeared when Bollywood singer Kanika Kapoor allegedly hid her travel history and went to a public gathering but was later found to be Covid-19 positive, putting others at risk through her negligence.[7] While a case of malignant spreading of this virus appeared when a man in Kashmir was arrested and was sent to quarantine after people complained that he was spitting on the gates of their homes.[8] This is not an isolated case. There are many reported cases in India where people were arrested for trying to spread the coronavirus in the community. Like two men were arrested in Mohali for allegedly spitting on notes before buying dairy products.[9] There are also several cases where people intentionally tried to spread the coronavirus amongst Corona Warriors (Front line workers fighting against Covid-19 Pandemic) by spitting on them like in Delhi where a man spat on the police officer after he was stopped from roaming around without a mask[10] and all these cases are of malignant spreading of the virus. The difference between Section 269 IPC and Section 270 IPC is that the latter punishes those who do an act with deliberate intention. Section 270 IPC is just an aggravated form of Section 269 IPC.
GRAVITY OF OFFENCES AND THEIR EQUIVALENT PUNISHMENTS Looking at the consequences that coronavirus can bring to a particular Nation, it can be rightly held that a person who is infected with the virus, if intentionally attempts to spread it amongst others could be more dangerous than suicide bombers since a suicide bomber can kill only a few individuals within a definite territory, while a person infected with coronavirus can not only kill a large number of people but can also seriously threaten the lives and livelihoods of the people of the entire nation, indirectly breaking the economy of the nation. But on comparing the gravity of such offenses to the punishment prescribed, then it becomes clear that there is a serious imbalance between the two. The maximum punishment is still 2 years under Section 269 IPC and Section 270 IPC even after it has been observed by the Law Commissioner that the person who causes the malignant or malicious act of disseminating the virus it could be traced, then shall be charged with homicide. However, to date, such recommendations have not been adopted. Now in cases where an individual flouts the quarantine rules, (s)he can be booked under Section 271 IPC. The maximum punishment prescribed under this section is 6 months. Also, in cases where Section 144 Cr. P. C.[11] is imposed in an area of containment zones and if a person violates it or any provisions of the Epidemic Act then (s)he could be booked under Section 188 IPC. Section 188 IPC prescribes punishments for those who violate order promulgated by the public servant. As per Section 188 IPC such disobedience that puts health, safety, and human life at risk, will be punished with an imprisonment maximum of up to 6 months or a fine up to 1,000 rupees or with both. So, it seems that in India it does not matter even if an individual violates quarantine rules or disobeys government orders and goes to places where there were previously no cases of infection but subsequently, such person spreads the infection and puts a large number of people’s lives at risk, since (s)he is likely to get a maximum punishment of only 6 months or fine or in certain cases maybe both. In this fight against the coronavirus, the doctors and frontline workers are getting most visible and vulnerable to attacks, assaults, and abuses. In a country where its Prime Minister called the healthcare workers and doctors as “incarnation of God”[12], there are several reports around the country showing that such professionals are being spat at, chased away, and even ostracised by their neighbors. In one of the incidents, a mob hurled stones on two female doctors in Indore who were wearing personal protective equipment.[13] They came under attack when they went to check one suspected person. Similarly, there are several reports of attacks on doctors and nurses that came from the southern city of Hyderabad and the western city of Surat.[14]Reports of such attacks were not only directed towards the healthcare personals themselves but also their family members. In one such incident, Delhi AIIMS doctors appealed for help when they were asked by their landlords and housing societies to evict their homes.[15] Now the government of India to protect the healthcare professionals amended the Epidemic Disease Act by bringing an Ordinance recently. This Ordinance provided for protection to the healthcare-service personals by increasing the punishments up to 5 years and with fine up to 2 lakhs rupees against any person who commits or abets to commit acts of violence against any health-care service professional. And further, if any person causes grievous hurt to such personals then that person will be punished with a fine, not below 1 lakh but up to 5 lakhs rupees, and imprisonment not below 6 months but up to 7 years.[16] This is a laudable step taken by the government of India to protect the healthcare professionals and penalize those people who commit such acts of violence. But, even the newly brought Ordinance is alleged to have failed to address the issues of imbalance between the gravity of offenses and punishment prescribed. Under Section 3B of the said Ordinance,[17] offenses amounting to violence against healthcare service workers have been made compoundable. This means that if someone deliberately attack, abuse, or assault the healthcare personals or workers, irrespective of how much harm is caused to such personals or the public at large by obstructing the work of healthcare workers who are trying to contain the spread of disease, charges can still be dropped against him/her. To deter offenders from committing such serious offenses which could affect all the people of the country and its economy, laws need to be strict or otherwise, the above provisions provided, to protect the healthcare workers and doctors or to punish those individuals who are flouting quarantine rules or breaking government orders or those who are maliciously trying to spread the disease, will have no deterrence.
CONCLUSION AND SUGGESTIONS
Covid-19 Pandemic has triggered a mass migration of laborers[18] and due to lockdown, these daily wage workers have no options left other than to go back to their native state or suffer from hunger. And all these uncertainties have caused frustration amongst such laborers forcing them in certain cases even to commit suicide. While in the same country, few individuals are deliberately trying to spread the virus to harm others and in a way putting the whole country at a risk. Such a person should not only be booked under Section 269 and Section 270 IPC but also be charged with homicide. It becomes necessary that to deter such acts strict laws are required but under current provisions, the maximum punishment is only 2 years which could be given to such individuals who are deliberately trying to spread a virus that is dangerous to life. And in cases of breaking quarantine laws under Section 271 IPC or violating government order under Section 188 IPC the maximum prescribed punishment is only 6 months. So, it defeats the very purpose of the provisions that is deterrence. The new ordinance which was brought to protect healthcare workers and doctors seems to have failed in its very purpose by making offenses under it compoundable. All this has made justice very cheap for those doctors and front-line workers who are facing abuses and attacks even after sincerely sacrificing everything for their Nation. There is an urgent need for new legal provisions for offenses of the above-mentioned gravity and to have a balance between the gravity of offenses and their punishment.
The law must take into account the consequences willful spreading of this virus can bring and thereby shall equate such offenses with that of other offenses like- Offences against the State, Offences of Attempt to Murder, Offences of Grievous Hurt, Offences of Polluting the Environment and Creating Public Nuisances of serious nature, and shall make such offenses punishable by life imprisonment irrespective of the fact whether such acts caused any loss of life or carry forwarded the infection in the respective communities. Even recently the Chief Minister of Sikkim announced that those who will illegally cross its border will be charged with offenses under Section 307 IPC.[19]However, exceptions are to be made considering those who are breaking the Rules out of necessities, since necessity cannot be bound by law and India has a significant number of poor populations.
[1]The Epidemics Diseases Act 1897, (No. 3 of 1897, Acts of Parliament, India). [2]Indian Penal Code 1860, (No. XLV of 1860, Acts of Parliament, India). [3] Prof. S.N. Mishra, Indian Penal Code 1860 (19th, ed., Central Law Agency, 2014). [4] World Health Organization, Infectious diseases, Geneva: World Health Organization, (Oct. 2020, 18, 10:35 PM), https://www.who.int/topics/infectious_diseases/en/. [5] World Health Organization, Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations, Geneva: World Health Organization, (Oct. 2020, 18, 10:35 PM), https://www.who.int/news-room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommenQueen-Empress. [6] Queen Empress v. Krishnappa And Murugappa, (1883) ILR 7 Mad 276. [7] PTI, Coronaviruserve police serves notice on Bollywood singer Kanika Kapoor, The Hindu, (Oct. 2020, 20, 12:25 PM), https://www.thehindu.com/news/national/coronavirus-up-police-serves-notice-on-bollywood-singer-kanika-kapoor/article31444885.ece. [8] Press Trust of India, Man from Kashmir arrested after complaint of spitting on gates in Jammu, Business Standard, (Oct. 202, 20, 01:15 PM), https://www.business-standard.com/article/pti-stories/man-from-kashmir-arrested-after-complaint-of-spitting-on-gates-in-jammu-120040700016_1.html. [9] Manjeet Sehgal, Coronavirus: Two held for spitting on currency notes outside dairy shop in Mohali, India Today, (Oct. 2020, 20, 03:15 PM), https://www.indiatoday.in/india/story/coronavirus-two-held-for-spitting-on-currency-notes-outside-dairy-shop-in-mohali-1666329-2020-04-13. [10] Sakshi Chand, Man arrested for spitting on cop in Delhi during lockdown, Times of India, (Oct. 2020, 22, 08:30 PM), https://timesofindia.indiatimes.com/city/delhi/man-arrested-for-spitting-on-cop-in-delhi/articleshow/75122018.cms. [11] Code of Criminal Procedure 1974, (No. 2 of 1974, Acts of Parliament India). [12] Deepshikha Ghosh, Those In White Coats God's Incarnation: PM Modi Condemns Harassment Of Doctors, NDTV, (Oct. 2020, 22, 08:50 PM), https://www.ndtv.com/india-news/pm-narendra-modi-on-coronavirus-amid-lockdown-mahabharata-was-won-in-18-days-war-against-coronavirus-2200607. [13] Healthcare workers who visited to screen COVID-19 infection attacked by locals in Indore, The Statesman (Oct. 2020 ,22, 12:07 PM), https://www.thestatesman.com/coronavirus/healthcare-workers-who-visited-to-screen-covid-19-infection-attacked-by-locals-in-indore-1502872775.html. [14]Stigmatised: India's coronavirus 'heroes' come under attack, ALJAZEERA, (Oct. 2020, 23, 10:00 AM), https://www.aljazeera.com/news/2020/03/india-coronavirus-heroes-attack-200327070916157.html. [15] Swati Gupta, Doctors evicted from their homes in India as fear spreads amid coronavirus lockdown, CNN, (Oct. 2020, 24, 11:15 PM), https://edition.cnn.com/2020/03/25/asia/india-coronavirus-doctors-discrimination-intl-hnk/index.html. [16] The Epidemic Diseases (Amendment) Ordinance 2020, (No. 5 of 2020, President of India India). [17] Ibid. [18] Soutik Biswas, Coronavirus: India's pandemic lockdown turns into a human tragedy, BBC (30 Mar 2020), (Oct.2020, 27, 09:00 PM), https://www.bbc.com/news/world-asia-india-52086274. [19] Bikash Singh, Government to slap case of attempt to murder under section 307 IPC against those who enter to Sikkim illegally: CM. P.S. Golay, ET Bureau, (Oct. 2020, 24, 09:45 PM), https://m.economictimes.com/news/politics-and-nation/articleshow/75607790.cms.