LEGAL RESTRICTIONs AND IMPLICATIONs FOR CORONAVIRUS PANDEMIC

LEGAL RESTRICTIONs AND IMPLICATIONs FOR CORONAVIRUS PANDEMIC:-
BY Sandigdha Mishra, Advocate
advsandigdha@paydirtprofessionals.com

Section 144 CrPC” and section 188 of IPC was recently widely invoked across the country in order to restrict the public gathering due to CORONA VIRUS pandemic.

What is Section 144?

It gives power to a District Magistrate, a sub- divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or the general public in a particular place or area to “abstain from a certain act” or “to take certain order with respect to certain property in his possession or under his management”.

• This order can be passed against a particular individual or general public. The order can be passed even ex-parte.
• As held by the Supreme Court, mere apprehension of danger is not a sufficient ground to curb citizens’ rights by invoking Section 144 CrPC.

Implications:

1. According to the order under this section, there shall be no movement of public and all educational institutions shall also remain closed and there will be a complete bar on holding any kind of public meetings or rallies during the period of operation of this order.
2. Section 144 also empowers the authorities to block the internet access.
3. Section 144 restricts carrying any sort of weapon in that area where it has been imposed and people can be detained for violating it. The maximum punishment for such an act is three years.

Duration of Section 144 order:

No order under Section 144 shall remain in force for more than two months but the state government can extent the validity for two months and maximum up to six months. It can be withdrawn at any point of time if situation becomes normal.

As per the Section, the order can be passed only “if such Magistrate considers”, that the direction is likely to prevent:

1. obstruction, annoyance or injury to any person lawfully employed.
2. danger to human life, health or safety.
3. disturbance of the public tranquility, or a riot or affray.

The orders under this provision will lead to the infringement of fundamental rights to freedom of speech and expression, assembly and movement guaranteed under Articles 19(1)(a),(b) and (c) of the Constitution. 

Hence, the orders under Section 144 have to meet the test of “reasonable restrictions” as per Article 19.

To ascertain whether a restriction on liberties guaranteed under Article 19 is reasonable or not, the Supreme Court has developed the “test of proportionality”.

In the Constitution Bench decision in Modern Dental College case (2016), the SC held that a law imposing restrictions will be treated as proportional if :

1. It is meant to achieve a proper purpose, and
2. If the measures taken to achieve such a purpose are rationally connected to the purpose, and
3. If such measures are necessary.

Four-fold test to determine proportionality:

In Puttaswamy case (2017), the SC laid down a four-fold test to determine proportionality:

1. A measure restricting a right must have a legitimate goal (legitimate goal stage).
2. It must be a suitable means of furthering this goal (suitability or rationale connection stage).
3. There must not be any less restrictive but equally effective alternative (necessity stage).
4. The measure must not have a disproportionate impact on the right holder (balancing stage).

So, the legality of the orders passed under Section 144 CrPC will be tested on the basis of these principles of ‘reasonableness’ and ‘proportionality’.

What is Section 188 :-

Mr. Prime Minister has announced a 21 day countrywide lock down to contain the spread of COVID-19(CoronaVirus19)

Those violating the lock down orders can face legal action under the Epidemic Diseases Act, 1897, which lays down punishment as per Section 188 of the Indian Penal Code, 1860, for flouting such orders.

Section 188, which comes under the Code’s Chapter X, ‘Of Contempt of the Lawful Authority of Public Servants’.

Section 3 of the Epidemic Diseases Act, 1897, provides penalties for disobeying any regulation or order made under the Act. These are according to Section 188 of the Indian Penal Code (Disobedience to order duly promulgated by public servant).

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction,

shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;

and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.”

What happens if you violate the lock down orders? 

Under Section 188, there two offences:

1. Disobedience to an order lawfully promulgated by a public servant, If such disobedience causes obstruction, annoyance or injury to persons lawfully employed

2. Punishment: Simple Imprisonment for 1 month or fine of Rs 200 or both

If such disobedience causes danger to human life, health or safety, etc.

Punishment: Simple Imprisonment for 6 months or fine of Rs 1000 or both

According to the First Schedule of the Criminal Procedure Code (CrPC), 1973, both offences are cognizable, bailable, and can be tried by any magistrate.

It is very important to stay home and stay safe from the spread of the virus

-:Thank you:-