MUMBAI: Legal experts have questioned the legality of the Mumbai police’s dictate restricting travel up to a 2km radius from home and ordering the seizure of vehicles and prosecution of violators. “It is an arbitrary and absurd dictate,” said senior advocate Niteen Pradhan, among other lawyers. The legal fraternity said the order has caused confusion. Lawyers and there should be “one authority” to issue all lockdown circulars and restrictions under the Disaster Management Act and Epidemic Diseases Act.
But Shirish Gupte, a senior counsel, disagrees. “On the face of it, it may look arbitrary, but if it is done for public good, it is acceptable,” he said. Pradhan, however, said, “If the government does want to impose restrictions and penalize violators, it will have to issue a notification under the Epidemic Diseases Act or the Disaster Management Act.”
On Monday, in the revised Mission Begin Again guidelines, the government did restrict movement of a non-essential nature only to the “neighbourhood area”.
Deputy police commissioner Pranay Ashok on Monday said, “The order was based on guidelines of the government and a pressnote sent on various groups and on Twitter can be considered authentic.”
It was not under the Bombay Police Act, he said, when asked. He added that the police are planning to include the 2km restriction in writing on Tuesday when its order on night curfew and other essential movement under Section 144 of the CrPC is extended. He said the police commissioner is one of the empowered authorities under the guidelines to manage the Covid-19 pandemic.
Jurist Amit Desai said, “Any lawful order, even in delegated form, must be in writing. And its communication may then be through various forms, including official social media handles, because it concerns dissemination to the public at large.”
The question, they say, is where the police get their power to impose penal action and take the coercive step to seize a vehicle. “The power is not emanating from any legislative action and therefore such restriction and penal consequences are in gross violation of Article 21 of the Constitution that guarantees right to life and Article 19 (1)(d) of the Constitution that guarantees fundamental right to move freely, subject to reasonable restrictions,” said Pradhan. He added, “It is elementary that no such penalty can be imposed without sanction of law.”