The lockdown ordered by Government in India to arrest the rapid spread of the SAR-CoV-2 (“COVID-19”) virus is unprecedented and it throws up several questions that need answers. While, in the larger interests, it would be desirable that Government orders shouldn’t ordinarily be challenged, it would be interesting to examine the provisions and effects thereof.
Provisions under the law
Section 188 of the Indian Penal Code, 1860 (“IPC”) deals with ‘disobedience’ by individuals of orders passed by a Government Servant. Under the section, it is stated that “ any individual, knowing that there is an order by the Government to abstain from a certain act or to take certain order with any property, disobeys the same, he or she shall be held liable under the provision”. There are two classifications of offences the section elaborates upon:
- Under the first classification, if the disobedience leads to obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, the punishment is a prison for a term of one month or a fine which may extend up to two hundred rupees or both
- Under the second classification, if the disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a rift or affray, the punishment is imprisonment for a term of six months or a fine which may extend up to one thousand or both
Violation of Section 188 constitutes a cognizable offence. It is irrelevant whether there was an intention to cause an obstruction or injury. It is sufficient that the act or abstention causes or tends to cause any obstruction, rift or danger to human health and safety. Under Section 188 it is necessary for there to be an order for “public purposes” by Government servants.
In C Munaippan v State of Tamil Nadu and Ors, the question of maintainability of prosecution under section 188 in the absence of a written complaint by the Government Servant came up for consideration before the Supreme Court. The Court held that such a case can be taken only based on a complaint in writing by the Government servant whose orders were disobeyed by the accused.
Ratanlal and Dhirajlal (19th ed) state that, for the act of disobedience to be punishable under section 188 of the Code, there must be evidence that the accused must know the order that was disobeyed.
Mere proof of ‘general notification’ is insufficient as evidence, and the disobedience must have a consequence of an adverse impact. It is pertinent to note that this wording precedes digital media, where dissemination is swift and widespread.
Enforcement during the lockdown
With Covid-19 being declared as a Global pandemic by WHO, the Government invoked various statutes for the control and prevention of its spread. Notably the Epidemic Diseases Act, 1897, invoked by various States and the Disaster Management Act, (“DMA”) 2005 was invoked by the Central Government on March 23, 2020. Besides, the Government also applied relevant provisions of IPC.
An annexure to the order passed by the Ministry of Home Affairs (“MHA”) on March 24, 2020, mentioned that “violation by any person, of the containment measures laid down by the Government, would result in the person in a default being held liable under sections 51 to 60 of DMA”.
Further, it was also specified that violation of the lockdown will also result in the individual being held liable under the Epidemic Diseases Act, 1897, where the penalties are imposed according to the provisions laid down under S.188 of the IPC.
After being provided in the notification, the provisions under Section 188 have been provided in various notifications or orders by various branches of the Central as well as State Government. Since the abovementioned notification various FIRs have been registered under S.188 against individuals who violated the lockdowns declared in the country, such approx. 20,000 in Uttar Pradesh, and 30,000 in Maharashtra.
Public Interest Litigation (“PIL”) against the registered FIRs under S. 188
On the 16th of April, a Public Interest Litigation was filed before the Supreme Court by Mr Vikram Singh IPS (Retd), former DGP of Uttar Pradesh and chairman of an NGO ‘Centre for Accountability and System Change’ seeking quashing of all FIRs registered across the country under S.188.
The PIL, further, sought directions under the DMA to various State Governments to refrain from registering FIRs under S.188. It is submitted by the petitioner that the guidelines provided by the Central Government recommending action under provisions of DMA and S.188 of IPC against disobedience of “government orders”, then such “orders” must be first promulgated by Government servants so that they are enforceable under the provisions.
The Petitioner refers to Section 195 of the Cr.PC, 1973, which states that no court can take cognizance of offences under certain provisions of the IPC, including S.188. The Petitioner further contends that since the law does not permit taking cognizance of the offence, the registering of FIR is against the provisions laid down in the CrPC.
Additionally, the Petitioner sought directions under DMA to the Government of various states to refrain from filing complaints or registering FIRs under S.188 amid the Lockdown. The Petitioner referring to the order passed by the Hon’ble Supreme Court on March 13, 2020, wherein it had directed the release of prisoners from jail to reduce overcrowding, contended that the Police, on the other hand, continues to burden the justice system through FIRs registered unlawfully.
In the times of a pandemic, the unnecessary increased number of individuals detained is adding to the problems faced by the Government in their attempt to arrest and curb the spread of COVID-19. It appears, that while the Petitioner does not promote or encourage any violation of the lockdown, the intention behind the petition is the curbing of registering of FIRs which are not only adverse to the provisions laid down by law, but also appear to be a hindrance to the efforts being undertaken by the Government to protect the citizens against Covid-19.
Meanwhile, it has been reported that on May 05, 2020, Hon. Supreme Court while dismissing the Petition, noted, “You (the Petitioner) want there should be no FIR and this ( S.188) should not be invoked ……. how can the lockdown can be enforced………..”.
In such times of uncertainty, a balance is being sought between holding individuals violating the safety procedures and guidelines laid down by the Government and fairly providing Justice. The enforcing of S.188 signifies that individuals can be held accountable for hindering an attempt of the Government to prevent the adverse effects of a global pandemic. The dismissal of the petition and the questions raised by the Court signified the need of stringent means and methods to inculcate discipline among the citizens and to encourage them to undertake steps to prevent the spread of COVID – 19.
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