Police authorities across India are adopting various aggressive tactics to enforce the 21-day lockdown that was announced by Prime Minister Narendra Modi on March 24. A barrage of criticism arose after videos emerged wherein police force is seen using measures ranging from public humiliation to physical assault to deter violation of the lockdown laws.
An overlooked–but equally problematic–issue is of the increasing number of arrests made in furtherance of the newly enforced lockdown laws. Since the announcement on March 25, various FIRs have been registered and several individuals have been incarcerated for violating the lockdown for stepping outside for non-essential work, for non-compliance with quarantine directions, and the spread of false information relating to the pandemic. Indian authorities also attracted criticisms following the arrest of 17 foreign nationals in Jharkhand, including 11 maulvis from China, Kazakhstan, and Kyrgyzstan who were refusing to cooperate with the authorities. The Delhi Police reported over 5000 detentions for violations. While the importance of strict enforcement of the lockdown rules is irrefutable, is arresting violators the right approach?
The guidelines imposed by the Ministry of Home Affairs activate the powers under Section 51 of the Disaster Management Act, 2005 that imposes a punishment of imprisonment for one year in case of refusal to comply with the directions of the authorities. This punishment is extended to two years if such a refusal leads to loss of life or imminent danger. Further, the guidelines specify that the aforementioned punishment in the Disaster Management Act is in addition to legal action under Section 188 of the Indian Penal Code, 1860, which imposes a maximum punishment of six months for anyone who disobeys an order duly promulgated by a public servant.
In pursuance of the powers granted through the above-mentioned laws, various arrests are being made to deter violation of the lockdown laws. These arrests are counter-productive to the aim the lockdown seeks to achieve. The poor health and hygiene conditions combined with the high occupancy rate in Indian prisons provide an ideal breeding ground for a COVID-19 outbreak. The recommended occupancy during the outbreak is 60% in order to allow inmates to follow the recommended social-distancing protocol. The National Criminal Research Bureau’s Report in 2018 shows that merely 12 states and six union territories had an occupancy rate of less than 100%. Only Tamil Nadu (60%), Andaman & Nicobar Islands (59.5%), Dadra & Nagar Haveli (55.7%), Tripura (47.9%), Nagaland (30.5%) and Lakshadweep (1.6%) have occupancy rates lower than 60%. Overall, Indian prisons and jails are extremely over-crowded, with a nationwide occupancy rate of 114%. Moreover, while prisoners themselves are confined to the prison’s premises, the ingress and egress by officers, prison staff, visitors and lawyers are extremely high. Bringing in fresh inmates will increase the burden on India’s already fragile prison system.
Countries across the globe have recognised the importance of decongesting prisons. Michelle Bachelet, the United Nations High Commissioner for Human Rights, recognising the increasing number of cases in prisons and jails, highlighted the need to take urgent action to release prisoners as physical distancing and self-isolation is practically impossible for inmates. Following this, various countries, including the United States of America, Germany, Sudan, and Iran, released inmates to avoid an outbreak inside prison premises. Britain, Poland, and Italy have supported this policy by closely monitoring released persons to prevent a surge in criminal activity.
Even in India, overcrowded prisons are acknowledged as a threat to COVID-19 containment efforts. Recognising this, the Indian Supreme Court directed state governments to set up committees to expedite bail hearings. Following the directions of the Supreme Court, the Kerala High Court ruled that the police authorities must avoid arrests unless the offence committed is extraordinarily heinous or severe. The Kerala High Court also urged lower courts to grant bail to individuals who have medical illnesses or are aged more than 60 years.
In compliance with the Supreme Court ruling, various prisons across India ordered the release of prisoners. For instance, the Tihar Jail, Asia’s largest prison complex, released 400 prisoners–356 on a 45-day interim bail and 63 on an eight-week emergency parole. In Maharashtra, the Akola District Jail released 60 prisoners and rescinded all visitation rights. Various state governments, including Uttar Pradesh, Maharashtra, Haryana, Rajasthan and Jharkhand, have begun processing the release of prisoners across jails in their respective states.
However, all the efforts made to release prisoners and decongest prisons will be in vain unless Indian authorities find an alternative to arresting purported violators of lockdown laws. While both the Disaster Management Act and the Indian Penal Code allow for the imposition of a fine, the police authorities, in most cases, have chosen to arrest violators. The enforcement of the lockdown laws must be achieved by imposing fines, rather than incarcerating and thereby overburdening already overcrowded prisons.
India may seek to gain inspiration from the United Kingdom, which took a penalty-based approach to implement lockdown rules. According to the new law, a penalty of £60 will be imposed on a first-time violator. The penalty will double on each further violation. Individuals unable to pay the fine will appear before the magistrate who will impose unlimited fines. If the individual still refuses to comply, the authorities can arrest such violators.
In Singapore, too, authorities are using hefty penalties to deter violations of social-distancing rules. Any violation of the temporary regulations attracts a penalty of 10,000 Singaporean Dollars. Further, to enforce home quarantines, Singaporean authorities regularly send SMSes to quarantined individuals who then have to confirm their location via message. The violation of these requirements, too, results in the imposition of financial penalties.
While some infringements of the lockdown rules undeniably call for stricter punishments, India’s police authorities are currently not using arrests as a last resort. By shifting to a penalty-based model, the burden on the nation’s prisons and healthcare system can be eased. At present, India is releasing prisoners and simultaneously enforcing lockdown rules in such a manner that those same prisons are filled back up. This could have the exact catastrophic consequence that the authorities are aiming to avoid.
Image Source: New York Post
Should Indian Authorities be Arresting Violators of the 21-Day Lockdown?
The rising arrests in violation of the 21-day lock could lead to outbreaks in prisons.
April 9, 2020
