New Delhi: People across the country have been landing in trouble over the last few months for not wearing a mask inside cars, with Rs 500 being imposed as fines on violators.
On Thursday, the Union health ministry clarified that there is no directive from the ministry on wearing a mask when a person is in a car alone. But the traffic police can still impose a fine if the car has more than one person.
Amid the Covid-19 crisis, several states have issued guidelines mandating wearing a mask in a “public place”. But is a private car a “public place”? A 2019 Supreme Court ruling holds the answer.
What is the law?
The peculiar and sudden nature of the Covid onslaught has ensured that the legalities on controlling movement and behaviour of people during the pandemic are regulated through executive orders like circulars and other guidelines.
These guidelines are issued utilising the powers under the Disaster Management Act 2005 and the Epidemic Diseases Act 1897.
For instance, the Delhi Epidemic Diseases (Management of Covid-19) Regulations 2020, have been issued under the Epidemic Diseases Act.
These regulations allow authorities to impose a fine of Rs 500 for the first time and Rs 1,000 for a repeated violation of the guidelines, which mandate “wearing of face mask/cover in all public places/workplaces”.
They also say if someone fails to pay the penalty on the spot, action against them can be taken by the authorised public officer under Section 188 of the Indian Penal Code (IPC). Section 188 makes it an offence to disobey an order duly promulgated by a public servant. It provides for imprisonment of up to six months or a fine that could extend up to Rs 1,000.
Another order issued in April by the Delhi Disaster Management Authority (DDMA) had also said “all persons moving… in public places… must wear a 3-ply mask or cloth mask compulsorily”. A pointer in this order said “any person moving around in his personal and official vehicle must be wearing these masks compulsorily”.
Police relying on guidelines, DDMA orders
Delhi Traffic Police DCP Eish Singhal relied on the Delhi Epidemic Diseases (Management of Covid-19) Regulations 2020 to say that this was the basis for the police issuing challans to people not wearing masks in their cars.
Another senior police officer, who didn’t wish to be named, said the police have been following the directives of the Delhi Disaster Management Authority, which requires everybody in a “public space” to wear a mask or a cover.
As for stopping lone drivers, he said, “In most cases, the policemen now do not stop people without a mask who are travelling alone in a car. Most times they also give a warning. But some officers do stop people and that is because the guidelines say so.”
Asked if the clarification from the health ministry will change the police’s approach, the officer said this has to come from the DDMA in writing for it to be conveyed to the policemen on ground.
Private car on a public road, a ‘public place’
The basis for equating a private car with a ‘public place’ lies in a 2019 verdict, in which the Supreme Court ruled that a private car on a public road can be deemed a ‘public place’.
The case before the Supreme Court involved an interpretation of the Bihar Excise Act 1915. Through an amendment in 2016, a provision was included in the Act penalising “consumption of liquor in public places”.
The petitioners before the court were travelling to Bihar from Jharkhand in 2016 when their car was checked by the police at the border in Bihar’s Nawada district. While no liquor was found in the car, the petitioners were found to have consumed alcohol.
They had approached the Supreme Court demanding that the charges against them under the Act be quashed. Among other things, they had submitted that their private car cannot be said to be a public place.
The Act defines a “public place” as “any place to which public have access, whether as a matter of right or not and includes all places visited by general public and also includes any open space”.
Interpreting this definition, the court held that a private vehicle would be included in the definition of a “public place”.
“When a private vehicle is passing through a public road it cannot be accepted that the public have no access. It is true that the public may not have access to private vehicle as matter of right but definitely public have opportunity to approach the private vehicle while it is on the public road,” the court observed.
Can the police click photos as ‘evidence’?
There have also been instances of the police personnel clicking photographs of those defying the rules and not wearing a mask.
When asked about this, a second senior police officer, requesting anonymity, said there was no rule or official order requiring clicking of pictures.
However, the officer added, “My understanding is some cops do it as people later claim it was mischief on part of police to challan them even though they had their masks on. It is to safeguard themselves and have proof if at all.”
Delhi-based criminal lawyer Ajay Verma said this is akin to traffic camera clicking photos of commuters for traffic violations.
“The authorities usually send traffic challans with an image these days. The same way, the moment they find you violating the law (not wearing a mask in this case), and they stop you, they click a photo,” he said.
“Once the picture is taken, it can be uploaded as a proof of challan, especially in cases where the person is not caught then and there… They are merely using it as proof. If somebody disputes it, then that’s a different case,” he added.
“It’s not a punishable offence if you click a picture of a person. It does not come under the purview of voyeurism unless maybe it includes someone being exposed, as per the definition under the criminal law. So I don’t think clicking somebody’s photo amounts to a criminal offence,” said another criminal lawyer Amish Aggarwala.
“But of course if it is published without the person’s permission, then there could be a remedy under law. They can ask for the photo to be removed and seek damages,” he added.
With inputs from Aneesha Bedi and Ananya Bhardwaj.
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