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COVID-19 and Section 144

If you follow Indian news, your feed is sure to have been inundated with announcements that one state or another had imposed “Section 144” within its limits. This post seeks to demystify the meaning and import of this section, particularly in the context of its current use.

The COVID-19 pandemic poses a key public health challenge to countries – how does one prevent community transmission? In epidemiology, “community transmission” means that the source of infection can no longer be traced i.e., an infected person can no longer be shown to have a link to the carrier of the disease – the virus is everywhere. The World Health Organisation defines it by saying: “Community transmission is evidenced by the inability to relate confirmed cases through chains of transmission for a large number of cases, or by increasing positive tests through sentinel samples (routine systematic testing of respiratory samples from established laboratories).”[i]

One of the key strategies that has been used to combat the risk of community transmission is Social Distancing – a technique that the Indian governments (Central and State) have been encouraging vociferously. The persistent bugbear, however, has been the sheer reluctance of people to stay at home. In a populous country like India, with her overcrowded public transport, spotty sense of hygiene, penchant for large public gatherings, and a large and vulnerable at-risk population of older people, this is a recipe for disaster. To begin with various state governments announced shutdowns of public gathering places including malls, gyms, shopping centres (other than essential commodities), and wedding halls. However, as the incidence of new cases increases in geometric progression and as global infection rates and fatalities show no signs of abating, several state governments have started imposing Section 144 orders in their states.

Section 144 of India’s Criminal Procedure Code, 1973 is titled “Power to issue order in urgent cases of nuisance or apprehended danger”. It empowers a District Magistrate to pass an order, in writing, to order a person/persons or the public at large to do or refrain from doing anything that could be a “danger to human life, health or safely, or a disturbance of the public tranquility”. An order under this section can remain valid only for 2 months, although the relevant State Government has the power to extend it for a further 6 months. A contravention of this order is punishable under Section 188 of the Indian Penal Code, 1860 (Disobedience to order duly promulgated by public servant) with imprisonment for up to 6 months or a fine up to INR 1,000 or both.

To offer a mere taste of the scale of its use, as of 21 March 2020:

· The union territory of Puducherry has imposed Section 144 across all its districts (i.e. Puducherry, Mahe, Karaikal and Yanam) restricting public gatherings to no more than 4 people. This will not apply to essentials such as groceries and medicines, although vegetable markets will have more restricted hours. The government has appealed to its people to refrain from overcrowding.

· Section 144 has been imposed in South Goa[ii] and North Goa[iii] to restrict large public gatherings. Section 144 was imposed in a staggered manner, covering an increasing number of establishments.[iv] Inter-state supply of non-essentials has also been suspended.

· Noida, an early adopter of Section 144, has extended the order until April 5, banning public gatherings of more than 4 people.

· Erstwhile Jammu and Kashmir (now union territories of Jammu & Kashmir, and Ladakh), no stranger to Section 144 orders, now faces this prohibition to promote public health, instead of as a means to address law and order challenges. Multiple districts in Jammu[v] have imposed restrictions. Anantnag prohibits gatherings of more than 5 people, as do the districts of Budgam, Shopian, Kishtwar and Ramban[vi].

· Section 144 has been imposed in Rajasthan to prevent a gathering of 4 or more people.

· In Mumbai, Section 144 has been against tour operators. Other Maharashtrian regions of Nashik and Nagpur have broader Section 144 orders. Nevertheless, extensive lock-downs have been ordered in Mumbai over the coming weeks.

· Four districts in Himachal Pradesh (Una, Chamba, Hamirpur and Solan) are under Section 144.

· The southern state of Kerala, and one of the epicenters of COVID-19 in India, has imposed stringent prohibitions against public gatherings under the Epidemic Disease Control Act, 1897 and has authorized district magistrates to issue Section 144.

· The Kodagu district of Karnataka also faces a Section 144 which shall remain in place till 31 March 2020.

UPDATE: On 22 March 2020, Section 144 was imposed in two more key locations:

· The National Capital Territory of Delhi – this will be in force till midnight on 31 March 2020. No public gathering of more than 5 people will be permitted. Only half of Delhi’s buses will run during this time. No one is allowed to leave their houses unless for a purpose related to essential services.

· All cities in Maharashtra – only 5% of government employees will come in to work. No public gathering of more than 5 people will be permitted. All forms of public transport will be unavailable. There will be no inter-state buses and international flights will not be permitted to land.

It is easy to see why Section 144 is such a powerful and desirable tool in the fight against SARS-CoV-2 (COVID-19) – State governments can, for their most affected districts, order a limitation of public gathering, delineate working hours for public transport and essential services and, act quickly to mitigate risks in high-risk districts. Above all, this kind of order has a crucial advantage over other lock-down orders (such as those passed under Epidemic Diseases Control Act, 1897), which is that governments can enforce Section 144 orders, through well-established modes of criminal prosecution, against those who disobey them. This can be a huge deterrent for those who would otherwise have been asymptomatic/mildly infected vectors of a deadly disease.

Caution must, however, be exercised to ensure minimal disruption of essentials (such as vegetables, groceries and pharmacies) to prevent panic buying and hoarding. Constant communication of reliable information from authentic government sources, regarding what is and is not prohibited, can serve the dual purpose of educating the public while also fighting the scourge of fake news that inundates social media.

In short, Section 144 orders are unambiguous communications by a state of the seriousness of the public health situation in a district. While these can, and do, pose large economic and social burdens on many, the public health benefits they can usher will outweigh their difficulties. Section 144, to be truly effective, must be coupled with intensive screening and testing, regular follow-up of suspicious cases, stringent enforcement of quarantine for those infected or suspected of infection, constant awareness of hygiene best practices, co-opting of India’s vast private sector healthcare infrastructure to ease the burden on state resources, travel restrictions and coordinated international efforts to find effective means of risk management (including vaccines). These must also be coupled with economic stimulus packages or social security payments to those whose livelihoods and employment will be derailed by such restrictions.

Section 144 is no magic wand, but as part of the arsenal in a holistic approach to fighting COVID-19, it is a robust weapon.

[i] Available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200320-sitrep-60-covid-19.pdf?sfvrsn=d2bb4f1f_2 As an example, if people infected in India have no history of international travel and no contact, direct or indirect, can be established between them and any person with such travel history/a confirmed patient, then the community transmission stage will have begun.

[ii] https://www.goa.gov.in/wp-content/uploads/2020/03/Order-Section-144-Collectorate-South.pdf

[iii] https://www.goa.gov.in/wp-content/uploads/2020/03/order-977-collectorate-north.pdf

[iv] https://www.goa.gov.in/covid-19/

[v] https://jk.gov.in/jammukashmir/sites/default/files/Order%20for%20Imposition%20of%20section%20144.pdf

[vi] https://jk.gov.in/jammukashmir/sites/default/files/Order%20for%20Imposition%20of%20section%20144.pdf