Covid-19 pandemic | Hard State action must be an option on the table

Raghav Pandey and Sankalp Sharma

At first instance, it wouldn’t make much sense to relate a constitutional and legal system with the challenge of dealing with a medical crisis such as the Novel Coronavirus Covid-19. Yet they are closely related, especially when we analyse the powers available with the respective national governments to deal with the situation, and curb the spread of the virus.

Historically, State powers were executed to stop a health crisis during the British rule. The Special Plague Committee under WC Rand used extensive State power to deal with the emergency. The measures were considered oppressive by the people of Pune, and in 1897 the Chapekar Brothers, killed Rand.

Now extreme measures might appear necessary given the nature of the virus and the response of some Covid-19 patients escaping or travelling against government orders and possibly infecting hundreds or thousands of others in the due course. The first, is the case of the Karnataka man who died because of the virus, but had ignored the advice of the hospital authorities twice. The second, a woman from Karnataka, who had returned from Italy after her honeymoon, and whose husband had tested positive, escaped to Agra via a train. Again, possibly infecting thousands in the process. These are not isolated incidents. Needless to say, if such instances continue, the virus will spread uncontained and such behaviour creates a massive challenge for the government to deal with the outbreak. Therefore, this becomes very much a legal issue.

Since various governments have tackled the outbreak, it is pertinent to examine the success of different jurisdictions and their law on this front. United States President Donald Trump has declared emergency in the US. Singapore has tackled well with the outbreak as well as South Korea. Whereas, the outbreak management has been a disaster in Italy.

Emergency provisions, in any legal system, essentially dilute the rule of law requirements in governance, and load the administration with extensive powers to deal with a particular situation. Hence, such invocation does make sense in the US. Singapore is well-known for its strict enforcement of rules. South Korea has a civil law legal system and the standard of rules of evidence is low, and convictions can happen fairly quickly. Thus, there is some evidence that stricter legal systems can possibly play a role in clamping down on the spread of the virus. India doesn’t have this rigorousness in its legal system.

Many in India have called for criminalisation of such acts, so that possible patients are deterred in behaving in an irresponsible manner. The government has responded with invoking an old law, which inter alia does criminalise disobeying government dictates. This has also not deterred individuals from flouting such rules. Therefore, the need of the hour from the legal system is to sufficiently deter people from behaving in this manner.

It has been an established understanding in criminology that in order for any deterrence to happen through criminalisation, the punishment handed out has to be both quick and certain.

India has a tradition of a liberal rule of law, which along with a criminal justice system in tatters, coupled with the current situation, is a recipe for disaster. For instance, we could try 26/11 terrorist Ajmal Kasab in four years, when the trial happened at a breakneck speed. So, if a person is found violating the directives of the government, how should the government make sure they are punished certainly and quickly?

A rule of law provides multiple checks on the State action and the individual has multiple options to challenge the writ of the government, which comes at the cost of enforcement of such an order. Since this culture is imbibed as societal norms the legal system in India now faces a task to make its citizens do what the government wants them to.

Therefore, even after criminalisation of such escapes, it is highly unlikely that people will behave the way they are expected to in such an hour of crisis. This crisis can thus be made worse by India’s broken criminal justice system.

Unlike the US, India has very bad history with its dealing of Emergency, and nobody can advocate a measure like that. However, if we are to reasonably anticipate the outcome of the outbreak, the government could be required to take very hard decisions.

German Chancellor Angela Merkel has said that 70 percent of Germans can become infected with the virus -- if that were to happen in India, the only reasonable outcome will be an Emergency-like situation, possibly putting India under lockdown. The government, through its instrumentalities, will need to make sure that such measures need to be respected.

Therefore, it is of utmost importance, that people take it upon themselves and comply with the authorities. This is because if this crisis sustains, it will be resolved with a cost of very hard State action and can create constitutional troubles.

Raghav Pandey is Assistant Professor of Law, Maharashtra National Law University, Mumbai, and Sankalp Sharma, is a counsel at the high courts in Mumbai and Delhi. Views are personal.