In the wake of the current COVID-19 pandemic, people have usually been hearing about how section 144 of the Criminal Procedure Code has been regularly imposed in different parts of the country in order to stop the spread of the pandemic. Talking about fundamental rights in the middle of a raging pandemic seems absurd, but while I write this article, the wordings of Lord Atkins come to my mind- “amidst the clash of arms, the laws are not silent”.

This public health crisis has forced the citizenry to witness some appaling and unforeseeable restrictions. People have been confined to their homes, gatherings have been forbidden and have been considered punishable. However time and again, certain incidents surfacing under the garb of sweeping powers that governments arrogate to themselves during times of crises in 144-strewn states have made us question the legal intricacies. Does restriction on movement tantamount to banning individual movement? Should poor migrants travelling on highways to their hometowns with no mode of transport be lashed out? These are just two of the several questions that stress the importance of scrutinising governmental actions; and this importance is accentuated by that fact that often, those actions tend to entrench themselves into the legal landscape even after the crisis has passed.

This colonial legislation that authorizes executive magistrates to pass a prohibitory orders to restrain people from assembling at particular places has often been cited as the government’s natural response to curb “unlawful” protests and avoid breaches of public order or triggering of violence. In the contemporary times, the section has also catered to placing lockdown restrictions on the public at large with respect to containing the pandemic. How a section that prohibits unlawful assemblies has been generalised to an extent where it goes to the extent of arbitrarily suppressing right to movement has been discussed in this article.

Section 144: An Archaic Colonial Legislation

While talks of coming up with a universal code for criminal procedure in British India were underway, liberals in India argued that codification would bring order to subcontinental chaos by replacing the arbitrary and personal will of the Oriental despot with the rational and reliable objectivity of a universal law. and prejudices. Back then, the system was more archaic and despotic to fit the needs of Britishers and further their motives to curb nationalist movements and gatherings by freedom fighters. Even after several modifications and revisions, little has changed with respect to the manner of exercising administrative powers under the section.

Mass Movement vis-a-vis Individual Movement

On 29th March 2020, the National Disaster Management Authority had passed an order (which has now been put down) discussing the mass migration of labourers. The order went on to observe that it was violation of of the lockdown measures on maintaining social distancing. However, the vague language of the NDMA guidelines issued on 15th April 2020 puts forth several open-ended questions that haven’t been resolved even after several clarifications. Guideline No. 10 prohibits “social/political/sports/entertainment/academic/cultural/religious function/gatherings” but fails to define “functions” or “gatherings.” Further, Guideline No. 15 notes that these restrictions “fundamentally relate to movement of people.” This makes it clearly evident that the Guidelines never intended to prohibit or restrict individual movement. Despite this, the DGP of Haryana released an order forbidding movement of people on roads. It also directed the picking up of people traveling “on foot” on roads or highways and “jay-walking” on the roads. In another incident, a local gram panchayat in Telangana fined an individual for coming “out of his house” three times in a day. The Delhi Police went to the extent of banning morning walks on toto. If there is a law, there should be a remedy. Then who is answerable for such actions by government servants and local self governments?

Governments and authorities continue to hold back information from the public since most of the 144 orders are not publicly available. This makes it even more difficult to glean the exact scope of the restrictions that had and are being imposed in different parts of the country. What is clear, however, is that under law, there has been no provision of a “nationwide curfew” and that the NDMA Guidelines do not make any mention of a curfew. 

Now that elections in various states are being held with political rallies having been held in full swing (in deliberate flouting of COVID-19 protocols, needless to be mentioned), it becomes all the more necessary to rectify the vagueness in NDMA’s orders and restrict the carte blanche accorded to local authorities to implement complete bans on individual movement, as they please, thus turning the “lockdown” into a “curfew”. This is a lacuna that is not difficult to remedy, and should be remedied swiftly. Various international law instruments, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), lay down the responsibility on the State parties to ensure taking up measures for promoting good health of its citizens. Since India is a signatory to the ICESCR, we need to draw a balance or a comparison between international law and constitutional compliances with State’s duty to ensure that adequate security arrangements are in place so that not only law and order can be maintained, but also outbreak of the current pandemic. 

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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