by Ritwik Tyagi and Romit Bhattacharjee
Amidst the ensuing global COVID-19 pandemic, social distancing norms have been stressed to such an extent that stepping out of the bounds of your house has been deemed by society to be a crime of the highest order. The lurking fear of contracting the coronavirus has toppled the dynamic of stepping out to explore the world, and who would have thought that staying-in would become a cause worthy of being celebrated as an act of heroism! In all this chaos, the pressing question that needs to be answered is whether the deliberate spreading of the coronavirus can be considered as a crime or not? This question has often been debated upon in context of the intentional spread of the Human Immunodeficiency Virus (HIV), such as in the case of David Acer.
Talking of intentional spreading of a disease, the 2001 Anthrax attack immediately springs to mind. In this incident, which was classified as a form of bioterrorism, letters containing spores of anthrax were received by media outlets and government figures. As a result, twenty-two people were found infected and five succumbed to the deadly disease. Another interesting incident of bioterrorism was of the 1984 Oregon poisonings, where followers of Rajneesh deliberately poisoned 751 people by contaminating ten restaurants with Salmonella. The question of deliberate spreading of an infection has once again become relevant in the age of COVID-19, as the governments are trying to take stern action on those found violating the lockdown.
The Law in Place
In India, section(s) 269 and 270 of the Indian Penal Code have been brought into action for tackling the nuisance of people acting carelessly, leading to the spread of a disease dangerous to life. For instance, singer Kanika Kapoor was recently booked under both these sections for showing up at several gatherings even as she tested positive for the virus. Several other persons have been booked under section 270 for failing to disclose their travel histories and then testing positive for COVID-19. Infected persons have also been booked under section 270 for hiding their contact with others who were also found COVID-positive.
The ingredients that must necessarily be established for bringing about application of section 269 are: first, the disease must be infectious; second, the acts of the accused led to the spread of such disease; third, the accused did such an act negligently; and fourth, the accused had reason to believe that the act was likely to spread the disease. While the punishment prescribed under section 269 is for a term of 6 months, that under 270 is of 2 years. The essential difference between the two provisions is that of intention and knowledge, stemming from the use of the words negligently and malignantly. The latter signifies that there is an intention or disposition on part of the accused to infect others with the disease whereas the former describes a case where the accused failed to take suitable precautions which were required to prevent the spread of the infection.
Section 271 of the IPC can also be invoked here as it provides for 6 months of imprisonment for those who violate the regulations of conduct prescribed by the government for places where an infectious disease is prevailing. Section 278 mandates a fine on any person who “…vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling…” More recently, the Uttar Pradesh government cleared the Uttar Pradesh Public Health and Epidemic Disease Control Ordinance, 2020 which seeks to criminalize the act of intentional affliction of a contagious disease. Section 24 of the Ordinance makes such acts punishable by rigorous imprisonment for 2-5 years, whereas according to Section 26, causing death by intentional affliction is punishable by rigorous imprisonment for a term ranging from seven years to life.
Consistency with the Basic Elements of Crime
The basic elements of crime are mens rea (a guilty mind) and actus reus (act or omission). Mens rea is not an essential element to determine an offence under section 269 whereas section 270 takes malice into account. However, in this pandemic, the scenario is a bit different as nobody gets tested for COVID-19 unless they develop certain symptoms. By the time a person may develop those symptoms, he/she may have unknowingly infected many other people. But if we follow the provisions of IPC, such people may also be found guilty as per section 269.
The global medical arena also suggests that a majority of the infected people are asymptomatic. Hence there is a high probability that they might not get tested in time and end up infecting others in the process, leading to a violation of the IPC even when there was no fault on their part. Clearly section 269 becomes inconsistent with the situation on ground. These provisions for the time being should be applied only if somebody tests positive and knowingly flouts the rules set by the Government for containing the pandemic and not otherwise. For instance, the police recently booked five people who disobeyed the home quarantine norms after testing positive for the virus. In another case, three COVID positive patients were booked for hiding their test results and travelling to another place, putting lives of others at risk. The conditions thus demand that a proper analysis needs to be performed in order to determine whether an act of deliberately infecting another person with the virus would satisfy the basic elements of crime.
Critical Analysis: COVID-19
The Government of India has enforced a few other statues apart from the IPC, such as The Disaster Management Act, 2005 and The Epidemic Diseases Act, 1897. All these statutes criminalize the negligent/malignant spreading of any disease. Pandemic-ridden India is itself ridden with impediments at various levels for the masses: economic, social as well as personal. The overcriminalization of the spread of COVID-19 poses a few more unwarranted problems. First, people might hesitate in reporting their symptoms and coming forward for testing which might lead to an even bigger health crisis. Coupled with an already prevalent social stigma, the situation can be very intimidating for the Government to handle.
Second, it will be difficult to differentiate between ‘intentional’ and ‘accidental’ spread of COVID-19. This is a public health issue and if intention is taken into account, then the sufferers will be deemed to be liable since COVID-19 is an easily transmittable disease. This will be even more traumatic for them in such a distressful situation. Also, many cases have been reported where doctors treating COVID-19 patients and police personnel trying to maintain order during the lockdown have been found infected. In such cases, even they will come within the fold of being held criminally liable. Hence, the provisions of IPC are rendered inconsistent and ambiguous in the present times.
Finally, by such overcriminalization, the mission of the World Health Organization (WHO) “to promote health, keep the world safe, show compassion for all human beings, make people feel safe, respected, empowered, fairly treated, and duly recognized…” will be defeated. India is a founding member of the organization and the policies of the Ministry of Health are formulated on the lines of WHO regulations. By overcriminalization it creates an apprehension of arbitrary state action and hatred for the sufferers in the minds of the people, rather than addressing and creating awareness about the main issue at hand, i.e., to contain the pandemic.
Therefore, in a nutshell, the authors suggest that one, untested and asymptomatic carriers of an infection must be excluded from the scope of applicability of section(s) 269 and 270; and two, that although these provisions are necessary to curb negligent spread of diseases, a test of reasonability of accusation must be evolved through which the Court can determine the intention of an infected person to spread the disease. Such a test becomes necessary to prevent the arbitrary exercise of these provisions by the executive for harassing people, such as doctors, police personnel and other frontline workers.
Moreover, it has been observed that even those who haven’t been tested for the virus are being booked under these provisions. This raises several red flags as it is one of the essential ingredients of these provisions that the accused had knowledge of the fact that his/her act is likely to spread the disease. This is clearly not the case for a person who has not been tested, and hence, charging of such persons is unlawful.
In the initial stages of the onset of the pandemic in India, the congregation of the Tablighi Jamaat in Delhi had become the source of multiple infections across the country. Due to the atmosphere of fear that enveloped the disease, the participants of the Jamaat were lambasted by the general public and even labelled as terrorists. The Jamaat was pinned with the blame of spreading the virus in the country and the government slapped them with several criminal charges. However, the matter of essence here is that the members of the Jamaat themselves were victims and survivors of the deadly disease, rather than the deliberate super-spreaders that they have been deemed to be.
Therefore, it is suggested by the authors that it is of paramount importance to adopt a humanist interpretation of the laws in these testing times. Unnecessarily burdening infected people with the charge of deliberately spreading the virus would not only be inhumane, but also choke the State machinery with additional workload. ‘Intention’ should be considered only in those cases where a person refuses to follow the rules of quarantine even after testing positive, and fails to take adequate personal protective measures such as wearing masks, washing hands etc. Further, it is clearly illogical on part of the law enforcement to charge people under section(s) 269 and 270 when they haven’t even been tested for the virus.
Views are personal.
Image credits: The Economic Times
ABOUT THE AUTHOR
Ritwik Tyagi and Romit Bhattacharjee are currently pursuing B.A. LLB. (Hons) from Maharashtra National Law University, Nagpur.