In India’s most populous state, Uttar Pradesh, the government passed the Uttar Pradesh Public Health and Epidemic Disease Control Ordinance to help the government in tackling the rapid growth of COVID-19. It prescribes a maximum punishment of a life term if “death be caused by intentional [COVID-19] affliction.” In this post, I provide three reasons as to why the current situation did not demand the government rush to pass such an ordinance.
Firstly, the Indian Penal Code already prescribes punishment for spreading infection:
- Section 269 prescribes six-month imprisonment and/or fine for those who spread dangerous infection because of negligence and
- Section 270 grants a two-year term for those who malignantly spreading infection.
An over-criminalization of a public health crisis might lead to people hesitating to come forward to get tested or report symptoms resulting in an even wider spread of infection.
Secondly, it will be challenging to establish “intention” under the ordinance, making the application of the law vague and ambiguous. Even more so because the law is also unclear of the situation of asymptomatic individuals. It has been highly reported that many infected cases are asymptomatic, which implies that these people may spread the infection without being aware.
Moreover, it becomes even more complicated as a public health issue because it is not simply evidence of intentional (rather than accidental) activity that causes criminal liability, but also the state of mind of someone at the time of the crime, and whether prosecution is in the public interest. The chances of spreading infection being high in COVID-19 cases does not allow for a strong distinction between intentional and unintentional, unlike other cases.
Thirdly, India is a founding member of the World Health Organization (WHO) whose vision and mission is “to promote health, keep the world safe, and serve the vulnerable…selflessly defend everyone’s right to health…show compassion for all human beings…make people feel safe, respected, empowered, fairly treated, and duly recognized”. It is this vision that guides all policy formulation in the Ministry of Health. It makes it an obligation for the state to make people safe whereas the ordinance will create an environment that will give rise to arbitrary state action.
India has been criticized for communalizing efforts to contain the spread of diseases in the past. The Muslims in India were denied treatment, relief, food and suffered social boycott in towns and villages when they were seen as the root cause for spreading COVID-19 when the Tablighi Muslims suffered the infection due to failure of enforcement of orders by the police authorities. The condition worsened to such a degree that it called for a reprimand from the leaders of Saudi Arabia and the United Arab Emirates, compelling the Prime Minister to pledge not to discriminate on grounds of faith or religion. In a situation like this, a law that gives tyrannical powers to the hands of the state raises concerns regarding discriminatory action making the situation worse.
While the ordinance still awaits the governor’s approval, the issue remains that COVID-19 demands an environment of trust and empathy. It is a public health crisis that cannot be dealt with by looking at it from the point of view of law and order. The Indian Government is well equipped with laws under the Indian Penal Code, and another hastily created law will worsen the situation. The need is to protect ourselves with a sense of human solidarity and compassion towards one another.
Swapnil Singh is an undergraduate student at Dr. Ram Manohar Lohiya National Law University, Lucknow, India and is interested in assessing social issues and the interdisciplinary relationship between law and society.
Suggested citation: Swapnil Singh, Life Imprisonment for “Intentional” Infectors in India: A Criminal Law Approach for a Public Health Crisis, JURIST – Student Commentary, June 24, 2020, https://www.jurist.org/commentary/2020/06/swapnil-singh-intentional-infection-criminal-liability/.
This article was prepared for publication by Gabrielle Wast, JURIST’s Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
