Covid-19 proved to be one of the most significant pandemics of the 21st Century. The virus is so contagious that it can be transmitted even through the air or a simple touch. It started in China, now spread in every nooks and corner of the world. As Coronavirus started marking its presence around the world the Indian Government also started taking stringent measures to contain the same. It was only on the 11th March that provisions of the Epidemic Diseases Act, along with the Disaster Management Act were invoked all over India for combating and preventing the virus from spreading. In the State of Delhi, the Epidemic Act was imposed on 12th March. Several quarantine and social distancing measures were imposed.
But, as it is said, every house has a black sheep, and for India, Tablighi Jamaat proved to be the one. Tablighi Jamaat conducted a massive religious congregation at the Nizamuddin Markaz from 13-15 March, witnessing thousands of men living together, regardless of the government orders. Thousands of Tablighi Jamaat, a group of Muslim preachers, from all over the world and different parts of India participated in the congregation. They are booked under different provisions of the Epidemic Diseases Act, Indian Penal Code, 1860, Criminal Procedure Code. These acts can be invoked to establish law and order during a biological disaster when the Disaster Management Act is in force.[i] The high increase in Covid-19 cases started only after this incident and now, India stands with more than a lakh positive coronavirus case. It has been two months since this incident and the Markaz Officials still at par this shows the stern inability of the authorities.
As the event was a religious gathering, therefore, sentiments have solicited debates arguing that the event is used to scapegoat a particular community and whether the ones responsible for conducting the event should be held liable for their actions. The forthcoming discussion shall provide a legit overview of the culpability of the ones in charge of the event.
Disobedience Of Public Orders
The State of Delhi, according to the notification issued on 13th March, prohibited public gatherings accommodating more than 200 people and then further reduced it 50 on the 16th. Further, the lockdown was declared on the 22nd March and then again from the 24th March, it was the duty of every hotel or similar establishment to maintain social distancing. Nevertheless, Maulana Saad, along with several others, conducted a mass gathering witnessing thousands of men from 13–15th March. Even after the Delhi Government orders, they stayed at the Markaz till the 31st March, violating Government orders and therefore come under the ambit of Section 3 of the Epidemic Disease Act, 1897. It states any person found in disagreement of orders taken by the Government shall be deemed to have committed an offence under Section 188 of IPC, invoked against a person who willfully violates an order promulgated by a public servant. For Section 188, the willingness of the accused shall be determined on (a) a person lawfully authorised should issue such an order, (b) the accused must have disobeyed it.[ii] For invoking this provision, a complaint must be registered under Section 195 of CrPC. As the complaint is already registered hence the supervisors of the gathering can be made liable under this provision.
Can The Acts Be Construed As Criminally Negligent?
National Disaster Management Authority states that when the Disaster Management Act is invoked for preventing a national disaster or an epidemic any person found in violation of orders issued by the Government for preventing such disaster can be made criminally liable and bought under the ambit of Chapter XIV of IPC consisting of offences relating to the violation of public health safety (Section 268-278).[iii]
The event conducted by Maulana Saad subsequently accounted for more than 30% of total Covid-19 cases related to Tablighi Jamaat. This brings a matter of gross negligence on account of the Markaz officials. Negligence is the failure to exercise reasonable and proper care, as expected by a prudent man in similar circumstances.[iv] If a person fails to act like he was expected to and due to his indifference, does an act which poses a threat to the health and safety of others, is said to commit a negligent act.[v] In the present issue, the Markaz officials observing the widespread nature of contagious Coronavirus could have called off the event. The happening of the event, even after Covid-19 already being declared a Pandemic and several advisories issued by the state, demonstrates the failure to exercise reasonable care and precaution. According to Section 269 IPC, when a person through his negligent act led to the spread of disease dangerous to human life, he is liable to be prosecuted. During the Plague outbreak, a man who lived with an infected patient travelled to a neighbouring town. He was held guilty under the Section as he had sufficient reason to believe that his act could spread the infection.[vi]
Hence, the officials of the Markaz involved in conducting the event can be made liable under the aforesaid provision as the event also witnessed attendees from several corona infected countries, and it was all likely that they could be corona carriers who would further spread the disease.
Culpability Based on Mens Rea
Section 270 of IPC is the aggravated form of 269, which provides punishment for a person who, due to his malignant act, spreads infection of disease dangerous to human life. According to the FIR registered against Maulana and other officials of the Markaz Section 270 is imposed against them. But in this case, malice cannot be blindly imposed on all these Markaz officials as the ultimate motive was to conduct a religious congregation for which people started gathering since early January 2020. Criminal intent has to verify from case to case basis. The Criminal Intent of the officials and other members of the Markaz is yet to be determined, as and when the case is investigated further.
According to a report, some Tablighi were found spitting on doctors and media personnel in certain quarantine facilities. With a word of caution, considering these news items to be true, it proves malice on the part of such person. For proving culpability in criminal law, the intention of the accused at the time of committing an offence needs to be shown.[vii] The intention is a conscious exercise of the mind behind an act for achieving a purpose. [viii] Further a person intends an act when he desires a consequence to follow from his action.[ix] Here the act of wilfully spitting constitutes intention on the part of such person. Moreover, knowledge is the state of mind regarding a fact which a man observes based on his own senses or has been communicated by some person whose veracity cannot be doubted.[x] Knowledge can sometimes be construed as intention. Here the person was taken to quarantine facility for isolation and testing for probable coronavirus. In this case, these men had sufficient knowledge that they could be virus carriers, and therefore the act of spitting up on doctors shows intention and ill will on their part in order to spread the virus. Hence in this particular case, the individual’s criminal intent is established and therefore can be bought under the purview of Section 270 of IPC.
Furthermore, if a person who because of coming in contact with such spitting suffers from Coronavirus and subsequently death, Section 304A of IPC can be invoked against the one spitting. Section 304A is applied when the death of a person is caused by any rash or negligent not amounting to culpable homicide. A rash act implies an act done with indifference to its consequences, here the doer is conscious about the illegal nature of the act committed and commits it knowing that it can bring some undesired outcome but without intending them to occur.[xi] The essence of 304A is that the act which resulted in the death of the person should not be done with the intention of causing death.[xii] The one spitting does not intend the death of the person he is spitting on, but it can be argued that he knew the illegal nature of such an act, and he, through his rashness or negligence, caused the death of an innocent person. In order to invoke this section, death must be a direct result of the rash or negligent act.[xiii]
Violation of Quarantine Rule
The Delhi State Government on 12th March issued guidelines for 14 days self-quarantine for any person who may have come in close contact with a corona suspect. The Nizamuddin event witnessed foreigners from several Corona affected countries and attendees from all over India. After the event, some went to different towns while the other stayed at the Markaz premises, none of them practised quarantine. Therefore, they can be made liable under Section 271 of IPC, which states, a person who knowingly disobeys any rule relating to quarantine measures promulgated by the Government regulating intercourse between places where infectious disease is spread is liable for imprisonment, which may extend to six months.
Was The Event A Criminal Conspiracy In Guise?
Section 120B of IPC deals with punishment for a person who committed a conspiracy as defined under Section 120A. To constitute a criminal conspiracy meeting of the mind of a minimum two-person to commit an illegal act or a legal act by illegal means is required.[xiv] An agreement is sin qua non for a conspiracy to take place.[xv] Conspiracy is generally hatched in secrecy, therefore, for proving an act of criminal conspiracy circumstances before and after the occurrence of the event is relevant.[xvi] The Markaz event was organized in spite of the government orders, which itself amounts to an illegal act. Therefore, this Section can be imposed against the officials of the event. However, the imposition of this Section against the Tablighi people shall remain a grey area until the authorities investigate further, and it is proved that the gathering was wilfully organized in a cloak of a religious event in order to spread the deadly virus all over the country.
Tablighi Jamaat, the Islamist Reform group, conducted the Markaz event amidst the Global Pandemic, which became the eventual cause of more than one-third active corona cases. Some intellectuals have argued that the event was related to a particular sect, and now the authorities are using it to target the community. The article aptly outlines the possibility of criminal culpability of the ones in charge of the event under several provisions of IPC. The Delhi Police Crime Branch is investigating the case, and the picture will only be clear after a responsible and impartial investigation is done. In the whole incident, there were lapses by the government agencies too, which can never be undermined, but at the same time, the entire fiasco in the name of Islam does not seem justified.
[i] National Disaster Management Guidelines—Management of Biological Disasters, 2008, National Disaster Management Authority 44 (2008).
[ii] PSA Pillai, Criminal Law 36 (12th ed. 2014).
[iii] Compendium of Laws on Disaster Management, National Disaster Management Authority 23 (2015).
[iv] Pillai, supra note 10, at 34.
[vi] Compendium of Laws on Disaster Management, National Disaster Management Authority 22 (2015).
[vii] Pillai, supra note 10, at 32.
[viii] Id. at 32.
[ix] Id. at 33.
[x] Id. at 34.
[xi] Pillai, supra note 10, at 461.
[xii] Id. at 462.
[xiii] Kurban Hussain v. State of Maharashtra, (1965) 2 S.C.R. 622 (India).
[xiv] Pillai, supra note 10, at 184.
[xvi] Pillai, supra note 10, at 186.
ABOUT THE AUTHOR
Eishan Mehta, a first-year student at West Bengal University of Juridical Sciences (NUJS) Kolkata. Having a special interest in IT Law, he recently worked on a paper relating to implementation of AI technologies in Online Dispute Resolution. He also worked on contemporary issues relating to Criminal and Constitutional Law. Being an active member of the Entrepreneurship Cell of his college he also has a corner for entrepreneurship in the legal field.