Why Relying on Criminal Law Should Not Be the Answer to a Pandemic

It seems difficult to not look toward criminal law for help in these times, but it is the last place we should be looking right now.

On March 24, 2020, in a live address to the nation, Prime Minister Narendra Modi announced a 21-day lockdown across the country to curtail the spread of COVID-19. Powers granted to the Central government by the National Disaster Management Authority (NDMA) under the Disaster Management Act, 2005 were invoked to enforce the lockdown.

District magistrates across the country had already imposed curfews exercising powers under Section 144 of the Code of Criminal Procedure (CrPC). In the aftermath of the curfews/lockdown, disturbing videos and reports of police violence, and subsequent arrests of migrant workers, daily wagers, Muslims and people belonging to other marginalised communities under various criminal laws for violating the conditions of the lockdown, have emerged.

Relying on criminal law and the police

The Central government announced a lockdown authorised by the NDMA, under the Section 6 (2)(i), which mandated a closure of government offices, commercial establishments (with certain exceptions), industrial establishments, transport services, hospitality services, places of worship, large gatherings, and so on. This also meant that those who violated the conditions of the lockdown would be at the risk of being charged under Sections 51 to 60 of the Act for refusing to comply with the lockdown, facing imprisonment for up to two years or being fined.

In addition to this, the Epidemic Diseases Act, 1897, a colonial legislation that grants to the states formally unlimited powers to prevent the outbreak or spread of an epidemic, is also being invoked by various state governments. It authorised the state government to charge those found to be violating regulations imposed by the government under Section 188 of the IPC. Prosecution under Section 188 also follows the violation of the Section 144 CrPC orders, an offence punishable by up to six months’ imprisonment and a fine, though bailable.

Also read: If Courts Only Favour the State, Justice Remains Unserved

Acting through the Ministry of Home Affairs (MHA), the state has relied on a host of criminal laws as a response to containing a disaster. This is both a disproportionate and unsuitable response to dealing with the current public health crises. Constitutional lawyers test administrative actions restricting fundamental rights against the principle of proportionality, which seeks to see if the action undertaken is required for the end sought to be achieved. In the recent past, we have seen criminal law being relied on to quell protests, respond to questions of sexual violence and now combat the pandemic.

Given our heavy reliance on criminal law, it becomes important to examine the nature and functioning of the criminal justice system. 

Targeting of marginalised communities

The criminal justice system structurally targets and oppresses people from marginalised communities. Policing in the country represents a system of casteist social control similar in magnitude to the racist social control exercised by the system in the US, as Angela Davis and others note.

In India, it functions not by incarcerating people in prisons, but its ubiquity in people’s everyday lives, and exclusion of these communities from accessing the public sphere: markets, schools, hospitals, etc. The entrenchment of the police within the caste system is amply evident from the composition of the prison population which primarily comprises of members of marginalised communities, available in reports released by National Crimes Record Bureau (NCRB).

The Death Penalty in India Report (DPIR) authored by Project 39-A at the National Law University, Delhi shows that the composition of death row prisoners primarily comprises those belonging to marginalised groups such as Dalits, Adivasis and Muslim minorities among others. Through the course of working with Denotified Tribes and Nomadic Tribes in Bhopal, we frequently see the arrest of members belonging to the Pardhi and the Gond community under various laws.

Also read: As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the Country

Given the disproportionate arrests and targeting of marginalised communities under criminal law, it becomes important to analyse the ramifications of responding to the current crisis using criminal law. Both the DMA and the EDA have penal provisions that empower the state governments to arrest and detain people. This is in addition to Sections 269 and 270 of IPC and provisions of the Delhi Police Act.

We have thus seen a number of FIRs against people for violating the lockdown. Most prominently, FIRs were registered against members of the Tablighi Jamaat for the gathering organised by them at Nizamuddin in Delhi, when similar gatherings of those of the majority communities were ignored. Since then, a communalisation of the pandemic has taken place swiftly by blaming the spread of the virus on Muslims.

Similarly, a notification issued by the Director General of Police (DGP), Haryana order turning stadiums and similar structures into open jails: targeting migrants, who might be sent there if they “refuse to obey” the directions issued by the state. It is evident that those belonging to working class backgrounds and minorities are at the receiving end of the measures used by the state to contain the epidemic.

Owing to the socio-economic disparities in Indian society, these communities are already worst hit by the any disaster. Since the lockdown, heart-wrenching images of migrants walking back to their native places and deaths caused due to starvation have emerged. The indiscriminate usage of criminal law by the state in this situation has only entrenched and deepened existing disparities.

The broad argument is that criminal law (and incarceration) is itself a bad fit for a number of problems. Feminists have along debated the efficacy of using criminal law as a tool for addressing structural problems of patriarchy while in dealing with the question of sexual violence. These questions also come to the fore while resorting to criminal law for regulating activities such as cattle transport, forest use, etc.

When it is problem rooted in the structure of inequality, there cannot be a response worse than in criminal law. Given the zealousness to put people in unsanitary lockups and overcrowded prisons, and now in temporary jails, this will only put the working class at a greater risk of contracting the disease.

Under the garb of public order

It seems difficult to not look toward criminal law for help in these times, but it is the last place we should be looking to right now. Criminal law and its force exercised through the baton wielding and wide discretion bearing cop have become our instinctive response as a society and embodied by the state when responding to crises.

This means all crises are invariably treated as a law and order issue. Even in the existing scenario, the Ministry of Home Affairs (MHA) is the nodal ministry responsible for overseeing the situation, not the Ministry of Health. Reports suggest that Delhi Police has filed 66,000 FIRs under the Delhi Police Act and 3350 under Section 188 for violation of lock down. In UP, the police has filed 7,177 FIRs against 22,500 persons under Section 188.

A closer analysis by us of the arrest records in MP, also shows that 39% of all arrests in Bhopal are lockdown related. The police has continued to find time for broken window policing: booking people for low-level and anti-poor offences such as possession of alcohol in a public place and public gambling. The number for these offences are already one of the highest in MP every year according to NCRB records. This has been found to be the trend across the state.

Also read: Even in a Pandemic, How Can We Ensure the Judiciary Keeps Running?

Whether Section 188 IPC, Delhi Police Act, Public Gambling Act or excise laws, these are offences punishable with imprisonment for less than seven years, for which arrest is an exception and not the rule, according to Section 41 of CrPC, yet it is arrest that has become the rule in the present time. It appears from the records, that these have also been mainly invoked against people from marginalised communities whom circumstances have compelled to step out, to meet their daily economic needs. A quick analysis of the FIRs registered by the police in Bhopal also tells us that most of them result out of the accused ‘not giving satisfactory justification for their presence’ on the streets, an arbitrary criterion.

These numbers (data on Bhopal analysed by the authors) also tell us that the entire police force has been installed in the service of its order maintenance function, almost negligible for crime detection and investigation, when compared to the period prior to this. The resources utilised for crime detection is small to begin with, indicated by our low conviction rates.

Scholars such as David Arnold (Police Power and Colonial Control: Madras 1869-1947: 1986) have written about how the colonial police evolved for solely the purpose of control, coercion and surveillance of the Indian subjects of the British Empire. The system has continued in the post-colonial state with the control and surveillance now reserved for people from the marginalised communities: Dalits, Adivasis, Nomadic communities, Pasmanda Muslims, etc., which is also reflected and amplified in the current situation.

Interestingly, as historian Tarangini Sriraman writes, the EDA was a medical surveillance tool, enacted to target the “cart-drivers, sweepers, cleaners and sanitary workers”, mainly made up of oppressed castes, to keep them from fleeing the city limits. There have now been worrisome reports of various tech-based surveillance measures taken up by the governments, historically used against the marginalised. Surveillance carried out by the police through their habitual offenders’ provisions is one of the less-discussed subjects in the criminal justice and tech surveillance debates.

Moving beyond criminal law and incarceration

Further, the question of incarceration in this situation also means risking the spread of the virus through close proximity. This does nothing to serve the purpose of containing the pandemic, but only exacerbates it further. Even if most of these are bailable offences, it puts people at an economic peril when they are already struggling financially, while also putting them at the risk of being sent to prison for not meeting bail conditions.

The usage of criminal law is also largely premised on the idea of retributive justice, which is counterproductive to the objective sought to be achieved in this situation. This public health crisis is the right time for us to expand our legal imagination beyond the realm of criminal law, and look for other ways to cope with this situation. Several jurisdictions across the world including the UK, that bequeathed us with the criminal justice system, have already adopted the rule of incarceration as a last resort. Civil orders, probation, community service are all alternatives available before a prison sentence. Though it must be said, the harsh criminal law response to the crisis in India is not an exception.

This is an opportunity to think through the questions of the reach of our criminal laws, regulate undesirable conduct through adopting civil remedies and reducing harshness of punishments, move towards decarceration, and develop a stronger system of checks and balance for the exercise of police power. Ultimately, the COVID-19 pandemic is the biggest public health crisis seen in modern history, and there are serious questions about the Indian healthcare system’s capacity to address it. Resources should be used healthcare, incentivising people to stay at home and finding them safe and secure homes – but as they say, if all you have is a hammer, everything looks like a nail.

Ameya Bokil and Nikita Sonavane are lawyers and co-founders of the Criminal Justice and Police Accountability Project (CPAProject) a research -litigation intervention in Bhopal. They work on the issue of criminalisation of certain communities by the criminal justice system, and decarceration.