LAW IN THE TIME OF PANDEMIC: NIKITA ANAND

LAW IN THE TIME OF PANDEMIC

Author: Nikita Anand

Chanakya National Law University, Patna

ISSN: 2582-3655

ABSTRACT :

Through the course of time, the pandemic has changed the course of history and again COVID-19, the pandemic, i.e. epidemic occurring over a large area and affecting a high number of people, and this being no different is not just altering the lifestyles but almost every sector of the economy and commercial transactions.

When in the normal course of action of life, it seems difficult to expect a hassle-free and smooth life, without the intervention and help of the law. So, at the stage of this pandemic where the world has almost been stopped, to even think that it could go on without law sounds disastrous. Law has an indispensable role to play everywhere, every time. At this junction too, it is acting as a backbone with its multiple dimensions, not just helping the individuals but also protecting the interest of the society in general, giving insight to what could be done at this point where the pandemic has resulted into anxiety, fear and what not? and acting as a ray of hope in this difficult time.

It is hoped that this research will help to give an insight of the present scenario, what law is doing and information about what and how things could be done.

I.INTRODUCTION:

The World Health Organization declared COVID-19, as a “Pandemic” on March 11, 2020[1]

To understand what pandemic is, WHO has defined pandemic as “ An epidemic occurring worldwide, or over a very wide area and usually affecting a large number of people”.[2]The cause of this disease was identified as a new virus, called the severe acute respiratory syndrome coronavirus disease 2019 ( COVID-19)

As there are nearly 1.5 million confirmed cases of coronavirus in 184 countries is already reported and at least 88,000 people have died.[3] with this epidemic spreading worldwide it becomes very important to regulate the law and order to prevent any further unwanted incidents and stop the spread of COVID -19, not only this but also to secure and protect the rights of individuals.

Imagine a person, whom you are telling consistently that “It’s your right and you must have it “, but understand the pain of that person who does not even know what exactly are his rights or how to achieve the same?

So, as in order to understand the law in the times of the pandemic, it is important to understand not only what law provides, but its implications and repercussions as well.

II.NEED OF LAWS IN TIME OF PANDEMIC.

When COVID -19 is engulfing India and the world, it is the need of the hour that individuals voluntarily quarantine themselves, but where individuals are not doing it willingly, the law has to take the front lead to tackle this situation.

Even if we are [4]relying upon colonial-era law to deal with this pandemic, we have to make sure to get the best of anything that we have at the moment.

The need for law can not be confined just to ensure the safety and health of individuals, it has a broader aspect to cover.

When lives are at stake, anxiety, concern, fear to mislead everyone, rumors are something that can not be avoided, and that acting as a fatal tool influencing the morale of the individuals. As to stop the clutter, and restore the faith of the individuals in law, the law has to play a significant role.

In this digital era, where everything is digitalized and people heavily relying on them, spreading of information via unverified source is something very common these days, tackling this problem, where WhatsApp has launched “coronavirus information hub “ in partnership with WHO  is significant, making sure that people get authentic and reliable information . this will help in controlling chaos and maintaining public law and order.

Sec 66D of the Information Technology Act, states that whoever by means for any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees. [5]

And Sec 54 of the Disaster Management Act, 2005 deals with, Punishment for the false warning, i.e. Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with a fine. —Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with a fine.[6]

A recent case regarding the same was reported in Lucknow, Uttar Pradesh, where a fake Godman Ahmad Siddique called himself “ corona wale baba” claiming that one who could not wear the masks could use the talisman to keep corona away he was arrested for forgery and fraud.

Pandemic? Are people allowed to step out unnecessarily? A big NO. so, in that case, have we ever thought about how the employees will get their wages or won’t it be against the interest of employers? Or how about the contracts? At this point, the worst-hit of  COVID-19 is on the corporate or commercial sector, and hindering comes or person to honor their duties and obligations under a contract.The pandemic that has halted not just the lifestyles but also the commercial transactions. As a result of this, either party fails to comply with duties within the specified time frame, to negotiate or in the worst condition are bound to terminate the contract. So, to deal with these uncertainties, the law has ensured to balance equity, like in this case “force majeure”

To define what “ force majeure “ is force majeure clauses are contractual clauses which alter parties’ obligations and/or liabilities under a contract when an extraordinary event or circumstance beyond their control prevents one or all of them from fulfilling those obligations..[7]Typically, force majeure events include an Act of God or natural disasters, war or war-like situations, labor unrest or strikes, epidemics, pandemics, etc.[8]

In this troubled time, as much as it is expected from the law that it will take care of everything, the same is also expected from an individual to take cautions, as even one inappropriate move of this may lead to unwanted results and to comply with the laws to get favorable results.

 III. EPIDEMIC DISEASE ACT,1897

We have been rescued by 123-year-old the colonial-era act. The epidemic disease of 1897(the “Act”) was put in place due to the mass spread of the bubonic plague outbreak in Mumbai. [9]The plaque said to have spread through rats, [10]killed hundreds of people per week in Mumbai.

This act, consisting of just four sections and spread over 3 pages, is perhaps one of the shortest law in India and does not vest center with much power.

Section 2 of the Act, talks about the powers of the state government to take measures and suggest regulations during the outbreak of an epidemic disease.

Any state government, when satisfied that any part of its territory is threatened with an outbreak of dangerous disease, may adopt or authorize all measures including quarantine to prevent the outbreak of the disease.[11]

Section 2A of the act talks of the power of central government . in the same sense, when the central government is satisfied that there is an imminent threat of an outbreak of epidemic disease and the provision of laws are insufficient to prevent an outbreak, may take measures and prescribe regulations allowing for the inspection of any ship or vessel leaving or arriving at any port and for detaining any person arriving or intending to sail.[12]

Section 3 of the Act, talks about any person who does not act in compliance as per the order or regulation made, and for that insubordination of guidelines and orders.

Section 4 of the act, protects public servants from legal actions while acting in good faith but in the case of Ram Lal Mistry v. R.T Greer, [13]the Calcutta High Court in the year 1904, held that failure to pay compensation as per the regulation of the act would not be protected under the umbrella of section 4.

IV.PROVISIONS UNDER IPC

Section 188: under section 188, intention to cause harm is not relevant and mere knowledge of the order given is sufficient to cause for liability of committing the offense. Although offense under section 188 is cognizable, i.e. where a police officer can arrest without the warrant; the court will not take cognizance by merely filing an FIR. A complaint must be filed by the concerned public officer under sec 195 of CRPC, 1973, which talks about Prosecution for contempt of the lawful authority of public servants, for offenses against public justice and for offenses relating to documents given in evidence.[14]

In a judgment passed by the Orissa High Court in 1963 in the case of J. Chowdhary v. State,[15] the question before the High Court was whether the refusal of the doctor to get himself vaccinated against cholera in accordance with the regulation passed by the state government would be punishable under section 3 of the act. The Orissa High Court answered the said question in affirmative and held that intention of the said doctor was irrelevant as disobedience in itself was punishable under the act.

Section 269: Negligent act likely to spread infection of disease danger­ous to life.—Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.[16]

Section 270: Malignant act likely to spread infection of disease danger­ous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years with fine, or with both.[17]

Section 271:  It deals with disobeying any quarantine rule. whoever knowingly disobeys any rule made and promulgated by the Government for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.[18]

V.OTHER LAWS:

Section 144 CRPC: section 144 of CRPC enables the executive to issue an order in urgent cases of the nuisance of the apprehended danger. This section largely enables executive and therefore the law enforcement agencies to maintain order by taking extreme prohibitive actions to control public life. Hence, invoking section 144 by itself does not mean the prohibition of the assembly 5 or more persons but it means a restriction on the personal liberties of individuals who can take the form of prohibition of assembly. Such assembly is then termed as an unlawful assembly which is punishable with imprisonment up to6 months or fine or both.[19]

For now, the imposition of section 14 an 4 of CRPC  does not imply the curfew, it is being used only for deeming assembly of 5 or more persons as an unlawful assembly.

The National Disaster Management Act, 2005: The National Disaster Management Act,2005 enacted on 26th December 2005 being the central act comprising of 79 sections and 211 chapters was enacted with the aim of management of disasters, explaining the disaster and disaster management in a new concept. It also permits the state to have its own legislation on disaster management.[20]

The Disaster Management Act, 2005 has provided the legal and institutional framework for disaster management in India at the national, state, and district levels.[21]

National Disaster Management Plan, 2019: The purpose of the National Disaster Response Plan is to enhance the country’s ability to manage disasters using a comprehensive national approach.[22]

VI.LIMITATION AND SCOPE OF MISUSE OF LAWS:

The colonial-up to the law is 123 years old and not in accordance with today’s era. There has been a lot of transition from that phase of time to this one.

The transition from agrarian to industrial society, increased urbanization, airways more preferable over waterways, the greater rate of migration abroad, and whatnot. This act has a major limitation in the time of changing priorities witnessing such transformations.

Also, this act does not provide provisions as per today’s time, likewise, this act is oriented towards travel by ship and silent on air travel, which is not surprising as air travel was something that was very uncommon at that time.

In this phase of transition of 123 years, the center state relation has also been changed. Epidemic Act, 1897 giving powers to state and leaving the state with so little power can lead to conflict in today’s era.

This act is also acting more like a guiding document and doesn’t speak about the right of citizens.

Under the section of this act, immunity has been given to public servants, acting under good faith, this has also created distrust among the people as using excessive power without transparency is something unwanted and not desirable.

Taking the example of police,who is using excessive force more than required protecting himself under the shield of his public duty is deepening distrust between the state and people.

These actions already restored movement,freespace,privacy and where man is considered as “social animal”, putting them in such isolation has also led absconding of many suspected patients from public hospitals facilities. Where people should try to understand that it is for their own safety and benefit and for society, they are considering it as a restriction imposed on then, and this not being solely their fault but also the limitations of the act which failed to provide a clear picture. Efficacy of the act, given its vague language and silent on the definition of dangerous epidemic disease

As to stop the misuse of the act and overcome its limitations, it has to be balanced by keeping the check between the use of state power and the protection of rights of individuals.

 VII. LAWS UNDER PANDEMIC AND INDIAN CONSTITUTION:

Where states are publishing quarantine list and this list not just including the name of the person but also the personal details like the residential address and phone number of an individual, people are taking it as an infringement of their right to privacy.

Though, the right to privacy as such is not a fundamental right in India. The Supreme Court has held that the right to privacy is an essential component to right to life but that it is not absolute and may be restricted to prevent crime public disorder or to protect health, morals, or the right and freedom of others.[23]

On 24th August 2017, a nine-judge bench of the apex court ruled that the right to privacy is a fundamental right guaranteed by the Indian Constitution in K.S Puttaswamy v Union of India[24]where Puttaswany, a retired judge of the KaranatakaHigh Court had challenged the government over Aadharcard. On26th September’2018  5 judge bench declared that the Aadhar act of 2016, did not violate the rights of privacy.

In the case of Puttaswamy, a three-part test was laid, to examine if interference is justified – the test of a legitimate aim is satisfied by the Epidemic Disease Act,1897 and its third aim would qualify as legitimate. In this case, it was indicated that the preservation of public health and safety are legitimate to state action.[25]

So, as this falls under reasonable interference, as a test of a legitimate aim is satisfied, it can not be said to have infringement of privacy.

VIII. CONCLUSION AND SUGGESTION :

By now, we know that law has a pivotal role to play, whether it is dealing with the slightest of issues or dealing with the pandemic, it has always rescued us.

WHO declared pandemic last in 2009 for the H1N1 Influenza outbreak. It has been 10 years since then when such a crisis was faced and perhaps the world was not ready to face this sudden outbreak of the corona. Talking particularly in the Indian scenario, we are still relying on 123 years old colonial-era law, having limitations on one side or another, and something that needs to be repealed. Under the Indian Constitution, public health and sanitation are subjects of the state list, leaving the central government with residuary powers, at least be advisory and coordinating in nature.

But this a limitation in itself is not something to be criticized as it gives a foundation stone or let’s say the direction to tackle this situation. When there are no better solutions or alternative available other than to quarantine oneself, it is expected from the individuals to comply with the same but where people are not doing it voluntarily, keeping in mind the safety of everyone, public servants would be bound to take steps which could be undesirable to someone but we need to understand that, it is not an individual fight and we have to fight it together. However, the steps taken by public officers should be reasonable, in accordance with equity and justice.

Data Protection Bill, introduced in Parliament last year states that “personal data”- such as phone number, house address shall not be used for any purpose without the concerned individual concern. [26]Even  if publishing of the list falls under reasonable interference and passes the test of a legitimate aim, and it is very well comprehended that the government needs to take some such steps in order to ensure safety, even then there have to be some alternatives available for the same. Likewise, what the government can do, instead of making the list public and easily accessible to everyone, it could put the mark or some stickers outside the house of the patients or suspected person or telling the exact number of patients in a specified locality other than clearly disclosing his identity. The purpose of the publishing list is just to make awareness about the corona and to ensure the safety of its citizen, the same purpose could also be achieved through another alternative and that too without infringing the privacy and maintaining the dignity of individuals Revelation of personal information might do no harm to the government but it causes mental agony to that person as he will feel isolated from society, and this could lead to some more disastrous outcomes. So, it has to be ensured that privacy should not be quarantined in the time of quarantine.

Leaving everything on the shoulders of law, and considering it as the responsibility of the government to tackle this pandemic situation, will not help. We would have to protect ourselves, following the guidelines and keeping us quarantined . not only this, but we have to also think about others, not circulating fake news, and maintaining social distancing.

So, by taking consideration and balancing of everything, we could fight this battle against COVID-19 together.


[1]http://canadasafetycouncil.org/, last seen on 11th April’2020.

[2]http://www.who.int, last seen on 11th April’2020.

[3]Virtual and Data Journal team, BBC News; coronavirus pandemic: Tracking the global outbreak;09th April’2020.

[4] http://mayoclinic.org, last seen on 11th April’2020.

[5]http://indiankanoon.org>doc, last seen on 11th April ‘2020.

[6]https://indiankanoon.org/doc/640589/, last seen on 11th April ‘2020.

[7]https://www.pinsentmasons.com/out-law/guides/covid-19-force-majeure-clause, last seen on 12th April’2020.

[8]https://m.economictimes.com/wealth/insure/life-insurance/force-majeure-clause-wont-apply-to-coronavirus-death-claims-in-life-insurance-policies/articleshow/75004294.cms, last seen on 12th April’2020.

[9]AnkooshMehta,KritiSrivastava&AnushkaShah;Epidemic Disease Act 1897- Dusting an old cloak on March 31st ‘2020.

[10]https://www.downtoearth.org.in/reviews/unravelling-the-bombay-plague-50165, last seen on 12th April’2020.

[11] Indian Constitution, section 2.

[12] Id, section 2A.

[13](1904) ILR 31 Cal 829.

[14]Supra note 5.

[15]AIR 1963 Ori’216.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19]htttp://www.legalservicesindia.com/articles/crpc, last seen 13th April,2020.

[20] https://www.ndmindia.nic.in ›, last seen 13th April,2020.

[21] https://unacademy.com/lesson/national-disaster-management-act/9BEDGM07, last  seen 13th April,2020.

[22] National Disaster Response Plan 2019 (NDRP-2019) |

[23]X v Hospital ‘z’ 1998 S.C.C 290,Para 28.

[24]Writ petition (civil) NO.494 of 2012.

[25]https://caravanmagazine.in/commentary/covid-19-pandemic-quarantine-lists-right-to-privacy, last seen 14th April’ 2020.

[26]m.economictimes.com, last seen 14th April ‘2020.

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