Law as weapon

Of course, combating COVID-19 does require extensive surveillance, including identification of the carriers of the virus and their contacts.

A dharna in Agra over the movement of buses to ferry migrant labour led to the arrest of the Uttar Pradesh Congress chief Ajay Kumar Lallu and two of his party colleagues — all three subsequently got bail. Amongst the laws weaponised by the UP police to detain the Opposition leaders is a late-19th century statute, The Epidemic Diseases Act. Drafted by the colonial state in 1897 “to take special measures and prescribe regulations” for “the better prevention of the dangerous epidemic diseases”, the law has been summoned in the past to deal with outbreaks of cholera, swine flu and dengue. But its heavy-handed and arbitrary use, or misuse, during the fight against the COVID-19 pandemic is new. Patients, journalists and Opposition leaders have been at the receiving end of this blunt instrument that does not actually define an epidemic, leave alone a pandemic.

Of course, combating COVID-19 does require extensive surveillance, including identification of the carriers of the virus and their contacts. But in most parts of the world, including India, a growing body of literature has underlined that such extraordinary measures are best undertaken by taking citizens into confidence, using persuasion and involving the community. At several places, however, the state authorities are giving the go-by to these imperatives and asserting state power in heavy-handed ways, by taking cover under Clause 4 of the Epidemics Act — actions taken under the law are provided immunity from “legal proceedings” for they are deemed to have been “undertaken in good faith”. In early April, when knowledge of the virus was still uncertain among large sections of the people, an FIR was slapped against the family of a Bengaluru technician, who had contracted COVID-19, for “hiding information”, and they were charge-sheeted under the Epidemics Act. Also last month, the Mumbai Police invoked the law to arrest a journalist, alleging that his social media posts led to unrest among migrant workers in suburban Bandra.

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A toxic mix of the Disaster Management Act, 2005, Section 144 of the CrPC and the Epidemics Act may well be on its way to becoming the new sedition law, which has been invoked with disturbing frequency in the recent past to criminalise criticism and dissent. Last week, the Gujarat government combined the sedition law with the Disaster Management Act to charge a journalist for reporting that Chief Minister Vijay Rupani may be removed by the BJP High Command for his handling of the pandemic. Also last week, this paper reported that at least four FIRs have been filed against journalists in Himachal Pradesh for highlighting the condition of stranded labourers in the pandemic. The FIRs allege that these reports are “fake” and “sensational” news; the cases are being investigated. But governments must realise that the discourse on citizens’ rights and public health has moved on from the times when the colonial government charged Bal Gangadhar Tilak for sedition for criticising its handling of the 1897 bubonic plague. Else, the Supreme Court must intervene to allow people to voice their opinions freely during a crisis, and especially in a crisis, without the threat of their being criminalised.