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Why Dependence On Criminal Law Is Not The Solution To A Pandemic
Central Government had imposed the lockdown on 24 March 2020 by invoking its powers under the DMA Act, 2005 to prevent the spread of novel coronavirus. Under Section 144 CrPC, all the district magistrates have imposed curfews. Following the curfews/lockdown, alarming videos and police brutality records, and subsequent arrests of migrant workers, regular wagers, Muslims and people belonging to other oppressed groups under various criminal laws have emerged for breaching the lockdown conditions.
The lockdown mandates closing of government offices, commercial establishments (with certain exceptions), industrial establishments, hospitality services, places of worship, transport services, large gatherings & so on. Therefore, the violators of such lockdown will be liable for offenses under Section 51 to 60 of said Act for imprisonment for up to two years.
Also, the EDA Act promulgated in British times formally gives unlimited powers to the government to charge those violators under Section 188 Crpc also for violating Section 144 CrPC.
The state has relied on a number of criminal laws working through the Ministry of Home Affairs (MHA) as a response to containing a disaster. It is both a disproportionate and inadequate approach to solving the ongoing public health crises.
Constitutional lawyers measure administrative acts limiting constitutional rights against the concept of proportionality, which attempts to determine whether the action performed is appropriate to achieve the end sought. We've seen criminal law focus to quell demonstrations in the recent past, addressing concerns about sexual harassment and now battling the pandemic.
It is necessary to look at the essence and operation of the criminal justice system, despite our heavy dependence on criminal law.
The criminal justice system exploits and oppresses members of disadvantaged backgrounds in a systemic way. Police in the region, like Angela Davis and others remember, represents a system of casteist social control close in magnitude to the racist social control exercised by the US system.
In India, it does not work by imprisoning people in jails, but by its ubiquity in the everyday lives of people, and prohibiting these groups from accessing the public sphere: markets, schools, hospitals, etc.
Police's entrenchment within the caste system is amply clear from the composition of the prison population, which consists predominantly of representatives of disadvantaged groups, available in National Crimes Record Bureau (NCRB) records.
In view of the disproportionate arrests and targeting under the criminal law of vulnerable groups, it becomes important to examine the implications of using criminal law to respond to the current crisis. The DMA and the EDA also have legal provisions allowing state governments to arrest and detain citizens. That is in addition to IPC Sections 269 and 270 and Delhi Police Act provisions.
Such societies are still hardest affected by any catastrophe due to the socio-economic inequalities within Indian society. Since the shutdown, heart-wrenching photos have emerged of refugees walking back to their native countries, and deaths caused by hunger. In this case, the state's indiscriminate use of criminal law has only enraptured and deepened social inequalities.
It is an opportunity to think about the problems of the scope of our criminal law, to restrict improper behaviour through the application of civil penalties, to establish a proper system to check the exercise of police power and to establish a better control structure and balance in the exercise. Finally, there are significant concerns regarding the potential of the Indian health system in the event that the COVID-19 pandemic is the biggest public health problem seen in recent history. Health insurance should be used, people should be allowed to stay at home and find stable and safe homes-but if you all have a hammer, it all looks like a nail.
