Imposition of Section 144: Is it a way to restrict Corona Virus cases?
In recent times, when India was already struggling with various legal, political, and social issues, coronavirus disease (COVID-19) entered as a pandemic. Not only India but, the whole world is struggling with this pandemic. It was first identified in the city of Wuhan, China, in December 2019.[i] There has been a gradual increase in the number of cases regarding coronavirus. To break this chain government came up with a solution to the complete lockdown of the country, as the primary concern of the government is the health of its citizens.
There has been an imposition of Section 144 of the Code of Criminal Procedure (herein referred to as Cr.P.C) in various parts of the country to curb the effects of the pandemic. Section 144 of Cr.P.C. deals with the power given by the State government to a District Magistrate, a sub-divisional magistrate or to any executive magistrate, to direct, based on reasonable grounds, an individual or group of persons belonging to a particular place, to abstain from certain act or property to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life or safety, or a disturbance of the public tranquillity, or a riot, or an affray.[ii] It is invoked in the urgency of the situation. The order under this section must indicate with a reasonable conclusion the materials on which they conclude that there was some emergency justifying their actions, so that the higher courts may check and break them and put them back on rails when they go off. [iii]
CONSTITUTIONAL VALIDITY OF SECTION 144 OF Cr. P.C.
Section 144 can be applied when the specified class of magistrate considers it necessary to prevent the apprehended danger. Such magistrate while issuing the order has to mention the reasons for such order and that the speedy remedy is desirable.[iv]
In various cases, the constitutional validity of section 144 of Cr.P.C. has been challenged but has been dismissed by the Supreme Court. In the case of Ummulkulus v. Executive Magistrate, Union Territory, the court held that the magistrate has wide powers in this section. The order passed under Section 144 is legal when the Magistrate has a reasonable belief that there is an apprehension to human life.[v]
A general order may be necessary when the number of persons is so large that the distinction between them and the general public cannot be made without the risks mentioned in the section.[vi] In the case of Anuradha Bhasin v. Union of India [vii], the objective parameters upon which the satisfaction of the Magistrate, issuing an order under section 144, should be based are laid down as:
1. Least restrictive standard
3. Urgent situation.
A seven-judge bench in the case of Madhu Limaye v. S.D.M.[viii] highlighted that the power under Section 144 must be exercised to prevent harmful occurrences and the emergency must result in grave consequences. Nuisances that are dangerous to human life, health, or safety should be abated and prevented.
In an extraordinary situation, the total suspension of the rights of the citizens is the last resort as held in the case of Gulam Abbas v. State of Uttar Pradesh. [ix]
SECTION 144 AND FREEDOM OF MOVEMENT UNDER ARTICLE 19(1)(d)
The provisions of the code properly understood are not in the excess of the limits laid down in the Constitution for restricting the freedom guaranteed in it and that is precisely why the court held that section 144 of the Cr.P.C. is valid and Constitutional.[x]
Fundamental rights under Article 19 have been provided to citizens as negative rights which means that no one could infringe these rights unless provided under the constitution. To prevent these rights from being used in the wrong way, constitution framers have provided some reasonable restrictions in Article 19(2) to 19(6). The phrase “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. [xi]
Section 144(9) of CrPC., “immediate prevention or speedy remedy”, implies the necessity of the immediate action, it is a precondition for the magistrate to act under this section. The magistrate should resort to this section if there is no time or opportunity for any other course. The order must set out the material facts of the case. [xii]Also, in the case of Justice K.S. Puttaswamy v. Union of India[xiii], the Supreme Court held that a law imposed will be considered as proportional if:
1. If the measure restricting a right must have a legitimate goal.
2. It must be a suitable means of furthering this goal.
3. There must not be any less restrictive but equally effective alternative.
4. The measure must not have a disproportionate impact on the right holder.
So, the legality of the orders passed under this section will be tested on these principles of reasonableness and proportionality. In the present situation, the restriction on the movement of the individual is reasonable. As per the World Health Organisation, COVID-19 spreads through direct and indirect contact of the individuals. Also, the symptoms of this disease are shown after 14 days of being infected. One can get infected by being in close contact with COVID-19 patient, indirectly, the droplets survive on the surfaces and clothes for many days, therefore touching such infected surface can transmit the disease.[xiv]
In daily routines, it is difficult for an individual to resist himself from going outside the home and not meet other persons unless he is threatened by the law. This pandemic has forced the government to impose such law to restrict their freedom of movement given under article 19(1)(d) of our constitution, to prevent non-infected people contacting with infected persons, which is a valid and proportionate reason to impose Section 144.
GROUNDS FOR IMPOSITION OF SECTION 144
The number of patients infected from the Serious Acute Respiratory Syndrome COVID-19 reached approx. 5.85 lakhs on 1st July 2020. The cases have seen rapid growth across the country and have led to 17,400 deaths.[xv] With the Central Government taking a step like nationwide lockdown, as a preventive measure against the spread of COVID-19. These steps were mainly taken to avoid any form of a congregation of people and also limiting their contacts.
Section 144 of Cr.P.C. works as the tool to prevent events that cause large crowds, which is an important step in combating this Virus, especially in a country like India which is painfully crowded and hygiene practices are not followed effectively by one and all. Although in India the number of reported cases is still low compared to other nations across the globe, one cannot ignore the harm already caused by the coronavirus due to its quick growth rate and the potential to further aggravate the situation. Many countries across the world are following similar precautions to slow the spread of this virus.
In India, if we contemplate over the spread of novel corona, we find several cases, where a single infected person, who attended or went out to a crowded event, led to major outbreaks and thereby fastening the spread, for example, in the state of Punjab, authorities had to quarantine around 40,000 people, who attended a festival in Anandpur Sahib, after a priest was found to be infected by the Virus.[xvi] A study on this matter by the Indian Council of Medical Research (ICMR), shows that negligence by even one patient, in following the lockdown can infect 406 people in just thirty days.[xvii] There have also been instances of people not following the lockdown order in some parts causing concerns over the health of residents in those parts.
All these illustrations point out the importance of Section 144 of Cr.P.C. in a situation like this. Apart from this, the Epidemics Disease Act empowers State Governments to take special measures and prescribe regulations during the outbreak of an epidemic disease. It states that if the State Government thinks that the actions taken are insufficient for the said purpose or there is an apprehended danger to human life and health.
In a serious issue like COVID-19, one cannot be as usual as regular days, but one has to be more cautious than ever, and to help the individual, the government has always been there. The imposition of section 144 is one of its ways of putting restrictions on a reasonable cause. Moreover, the increasing cases of Coronavirus in major parts of India are affecting the public health has made it mandatory for the Magistrates to use such powers to secure the health of the citizens and therefore it is justified for the imposition of Section 144 of Cr.P.C.
[i] Lauren M. Sauer, M.S. ‘What is Coronavirus’ https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus, accessed 5th may, 2020
[ii] The Code of Criminal Procedure 1973, s.144
[iii] Gopalji Prasad v. State of Sikkim  SCC Online Sikk  [iv] Chinmayee Prasad, ‘Analysing Section 144, CrPC: Is it inadequate to confront urgent cases of nuisance or apprehended danger < http://www.legalservicesindia.com/articles/crpc.htm > accessed 6 May, 2020 [v] Ummulkulus v. Executive Magistrate  SCC Online (Ker) 
[vi] R.V. KELKAR, Preventive and precautionary measures in KN Chandrasekharan Pillai (6th ed.), Criminal Procedure (EBC 2016) 813 [vii] Anuradha Bhasin v. Union of India  SCC Online 25. [viii] Madhu Limaye v. S.D.M. Monghyr  SCC 3 (SC), .
[xi] Chintaman Rao v. State of Madhya Pradesh  AIR (SC), . [xii] Ratanlal & Dhirajlal, Urgent cases of nuisance or apprehended danger in Justice Chandramauli Kumar Prasad and Namit Saxena (21st ed), The code of Criminal Procedure (LexisNexis 2018) [xiii] Justice K.S. Puttaswamy v. Union of India  SCC 10 (SC), 
[xiv] Coronavirus disease (COVID-19) advice for the public, World Health Organisation. https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public accessed 6th May 2020
[xv] Coronavirus Updates July 1, India Today(1st July 2020). https://www.indiatoday.in/india/story/coronavirus-news-live-updates-unlock-2-guidelines-pm-modi-speech-covid-cases-in-india-1695709-2020-07-01
[xvi] Moska Najib, ‘At least 40,000 quarantined in India after single priest spread coronavirus’ (Naked Law, 29 March 2020) <www.https://www.nbcnews.com/news/world/least-40-000-quarantined-india-after-single-priest-spread-coronavirus-n1171261> accessed 5 May 2020
[xvii] Coronavirus India lockdown day 14 updates, The Hindu (7 April 2020)
ABOUT THE AUTHOR
This blog has been authored by Harsh Amrit & Nitya Malviya who are 2nd Year B.A., LL.B. (Hons.) students at National Law University and Judicial Academy Assam, Guwahati & Dharmashastra National Law University, Jabalpur respectively.
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