Updated: Jun 5, 2020

New Delhi: The response of our public institutions to the Covid-19 pandemic is crying for a public debate rooted in criminal law and influenced by our constitutional values. Our governments are falling over each other telling us that we are suddenly surrounded by a surfeit of ‘corona criminals’. New laws are being enacted and new criminals generated. Before things proceed further, we must pause and ask ourselves some important questions: Who is a criminal? What is a crime?

Additionally, how harshly should a criminal be punished? How easy should we make it for the police to prove a crime? I set out here what the contours of such debate could be. I suggest that in the wake of the vicious disagreements we seem to be having on the meaning and importance of liberty in these difficult times, we could allow other values such as compassion and fraternity to inform this debate.

Kerala was the first mover. It introduced an ordinance, accessible here, allowing the state government to take a whole host of measures, and to specify regulations to contain the spread of epidemic diseases.

The ordinance also made it a criminal offence to contravene such regulations or government orders or to obstruct officers in the performance of their duties under these regulations. Abetting such criminal acts will also be a crime. Convicts can be punished with imprisonment of up to two years and a fine up to ten thousand rupees. The offences are cognizable and bailable, which means that the police can arrest the accused without a warrant, but the accused is entitled to bail as a matter of right.

Karnataka moved next, with its own ordinance accessible here, providing for crimes similar to Kerala’s ordinance with some distinguishing features of its own. Convicts in Karnataka can be punished with imprisonment of up to three years and a fine up to fifty thousand rupees. The punishment for abettors is the same as in Kerala.

A new offence is created, making it a crime for persons to cause damage, or incite or abet such damage, to public or private property in an area where epidemic related restrictions are in force. This new offence can be punished with imprisonment up to six months and a fine of up to fifty thousand rupees. The government can initiate proceedings to recover penalties of twice the value of the property damaged.

Like in Kerala, the offences under the Karnataka ordinance are also cognizable and bailable. Both these ordinances, on the face of it seem unexceptional, but have one giant hidden problem, as I will explain below.

Then came the central government with its ordinance, accessible here, that applies across the country. This criminalizes acts of violence against healthcare service personnel and acts causing damage or loss to any property during a pandemic. Such acts are punishable with imprisonment up to five years and fine of up to two lakh rupees. If the act of violence results in grievous hurt of a healthcare professional, the punishment can go up to seven years and a fine of up to five lakh rupees. So far, nothing greatly wrong with the ordinance (although the punishments seem a little harsh), but from here, it is a sharp slide downwards.

The central government ordinance has something called a “reversal of burden” clause which, in the present context, essentially allows a court trying a person accused of attacking a healthcare professional, to presume that such accused had a criminal intention to do so. Lawyers call such criminal intention a “culpable mental state”. Such provision, in itself, is rare.

However, this ordinance’s clause goes even further. It states that if an accused wants to prove that he in fact did not have any such criminal intention, he will need to establish such fact beyond reasonable doubt and not merely that he probably had no such intention. This raises huge concerns for reasons I will explain in just a bit.

The latest in the crime creating ordinance series has come from Uttar Pradesh (UP). At the time of writing this piece, a copy of the state’s new ordinance is still unavailable in the public domain. But news reports suggest that UP’s ordinance legislates significantly new categories of crimes with very stringent penalties.

The ordinance makes it an offence for a person to “intentionally” infect another person with a contagious disease. This offence is reportedly punishable with rigorous imprisonment for two to five years. If death is caused by such “intentional” affliction of a contagious disease, the convict is punishable with imprisonment for a minimum of seven years which may extend up to a life term.

The Uttar Pradesh ordinance, unlike the Kerala and Karnataka ones, makes offences under it cognizable and non-bailable. This means that not only can the police arrest an accused without a warrant, but also that the accused is not entitled to bail as a matter of right.

These ordinances have some features common to almost all criminal laws. Firstly, they legislate new crimes and therefore create new kinds of criminals. Secondly, they stipulate how the police may arrest an accused and how an accused may get bail. Thirdly, the central government’s ordinance legislates special provisions relating to the evidentiary burden the police bears in proving that a crime has been committed. Fourthly, the ordinances prescribe punishments for the crimes. These are all well-known facets of criminal legislation. The third facet concerning the reversed burden of proof, however, is extremely rare.

Traditionally, public debates on our criminal law have heavily been driven by the human rights paradigm and have focused on issues of criminal procedure. We are also familiar with debates around the harshness of punishments. For instance, we all usually agree that murder and terrorism should be crimes, and that murderers and terrorists should be criminal. But we have vicious disagreements on what rights terror accused should have, and how they should be treated when being taken into custody, when interrogated and when put to trial.

This is familiar, well-explored terrain in India, and has received attention from our courts under what is called “due process” jurisprudence. We also know intimately the debate on whether the law should provide for the death penalty. The death penalty debate is concerned with harshness. It is one specific instance of a larger debate dealing with proportionality of sentences imposed by the criminal law. Death penalty has stolen the show. We need to seriously debate our lesser punishments as well.

These questions of criminal procedure and harshness are relevant for the corona criminal question too, especially for the second, third and fourth facets I list above. We must ask why UP’s ordinance makes all the offences “non-bailable”. To make an offence non-bailable is to expose an accused to a substantial risk of being kept under custody during the prolonged course of his trial for an offence. If the accused is eventually found innocent, he has already lost several years of his freedom during trial. We must also ask, for each of the offences, whether these punishments seem excessively harsh. The UP Ordinance, for instance, prescribes a life term for one of the offences.

Similarly, we must ask what factors justify the “reversal of burden” clause in the central government’s ordinance. To the uninitiated, our laws ordinarily presume that persons accused of a crime are innocent until proven guilty. This principle is to our criminal law what curd rice is to a Tamilian. It is simply indispensable unless it is impossible to get either curd or rice. A reversed burden of proof ought to be provided only when an element of an offence is impossible to be proved by the prosecution.

Most criminal offences require the prosecution to prove two components, a physical act, and a state of mind. To illustrate, in a case of murder, the prosecution must successfully demonstrate not only that the accused stabbed a victim to death, but also that he did this with the criminal intention to kill the victim. The prosecution must ordinarily prove both these elements beyond reasonable doubt, and this is a deliberately difficult thing to do. Criminal law has always made it difficult to prove that any one of us are criminals, because in that difficulty lies the assurance of our liberty.

The central government’s ordinance exempts the prosecution from proving that a person accused of attacking a healthcare professional did so with criminal intention. Instead it requires the accused to prove that he did not have a criminal intention. Proving a negative is difficult. Even worse, the ordinance requires him to prove this negative beyond reasonable doubt. That is next to impossible. The most artful dodgers of lawyers will throw in the towel here. This makes it too easy for the police to hold someone a criminal. That is a bad thing. For all of us.

Now, the most important of the questions to ask. What is a crime? Who are criminals? To do wrong is necessary to commit a crime. But it is not sufficient. That wrong must be especially wrong in some way that shocks our conscience as a society.

Subjecting a person to the criminal law does three things immediately. First, it imposes an immediate and often irreparable dignity harm. One potentially becomes a criminal.

Experience tells us that this dignity harm is borne not just by the person accused, but also by his family, and sometimes his entire community. It is an inglorious parade of many innocents. Second, it subjects the accused to a cruel criminal process that is slow, long and painful. Thirdly, it can immediately deprive a person of liberty, and often does. Even if an accused is out on bail, he is never sure when he might be arrested again, and on what pretext. This is why societies have been cautious in legislating crimes.

These corona ordinances hide a sharp sting. Never has our country witnessed fetters on our freedom of movement as it does today. The scale and severity of these fetters is startling and unprecedented. Indeed, it would be accurate to aver that our freedom of movement has been nullified for the present. We no longer move at will. We move at sufferance. We move with permission, or not at all. We move in fear.

This form of shackling already leaves us all diminished. It imposes on the poor, the homeless, the infirm and the aged, special indignities that are already devastating. To criminalize breaches of a government lockdown that is so stringent, imposes still further indignities. It subjects our most marginalized to a cruel criminal process. It incarcerates them and shifts the site of lockdown from slums and streets and wheelchairs to overcrowded prisons. To criminalize breaches of the lockdown is to criminalize movement itself. Movement, however, is what we humans do. Every day, all day. To criminalize movement then, is to criminalize being human. Surely, that cannot be the right thing to do. Do we want this on our conscience?

The UP Ordinance raises an additional concern. It is vague. What does it mean by “intentionally” infecting someone with a disease? Our doctors are still bewildered about how the Covid-19 virus is spreading as fast as it is. The nature of the disease transmission makes it impossible to clearly ascertain the exact source of infection. How is an accused to prove that he did not “intend” to transmit the disease, when he likely did not even know that he had it in the first place?

The trouble with vague laws is that they often allow too much discretion to those implementing them, and that excessive discretion is ripe for abuse. In the climate of hate speech and dog-whistle politics that we see today, there is an enhanced risk that vague laws would be used to selectively target certain stigmatized communities. These are all troubling concerns.

To me, there is something intuitively appealing about asking “Who is a criminal?” in these times. It forces us to look around in search of an answer, and when we do this, what we see are other human beings, who are unwell.

Experience has shown us that it is the weakest and the most marginalised of these people who are the most likely to suffer the criminal process. In our fear, we must not forget our compassion. The most important constitutional value we the privileged few, can aspire to today, is fraternity. Fraternity is a great guiding post to identify who we care about and how we can care for them. It should also be our lodestar to seriously debate the limits of our criminal law in the times. Especially when we are unable to agree on the meaning and importance of liberty.

(Goutham Shivshankar is an Advocate-on-Record practising at the Supreme Court and other courts in New Delhi.)