LEGALITY OF LOCKDOWN

Picture Courtesy: http://muslimmirror.com/eng/finding-the-legality-behind-a-lockdown-under-indian-legal-framework/

This article was written by Rishabh Shukla, a student of Amity Law School, Gwalior

Original emergency provisions

Before it was amended in 1978, Article 352 of the Indian constitution permitted the declaration of an emergency on three grounds – war, external aggression and internal disturbance. For mysterious reasons, the emergency imposed by Indira Gandhi during the Bangladesh War in 1971 had not been rescinded even as on that summer day in June 1975 when the Supreme Court vacation single judge V.R. Krishna Iyer, heard Nani Palkhivala for a whole day in a packed courtroom. It was a challenge by Indira Gandhi to the Allahabad high court verdict setting aside her election and unseating her as prime minister. Justice Iyer did not grant a blanket stay that day. He merely allowed Mrs Gandhi to participate in the house but not vote. The emergency that followed at midnight was invoked on the grounds of “internal disturbance” – one of the three permissible grounds.

The constitution is silent on whether, while an emergency declaration is already in force (with the exception of a separate kind of emergency, namely Financial Emergency under Article 360), another can or is at all required to be promulgated.

December 2019 witnessed the deadliest virus ever when China reported some cases of unusual pneumonia to the World Health Organization (WHO). It spread rampantly across Europe and Asia in the months of January and February, putting the whole world under lockdown. WHO declared a public health emergency of international concern and named the virus COVID-19.

On Tuesday, 24 March 2020, Prime Minister Narendra Modi declared on national television that India would be under lockdown for twenty-one days in order to prevent the spread of the global pandemic COVID-19 (Coronavirus). The decision of the Prime Minister was made two days after he had advised the citizens of India to follow the Janta Curfew, which was a voluntary curfew. The Janta Curfew acted to prepare Indian citizens for the current lockdown.

‘Curfew’ again is not a legal term. Generally, exercise of a power available to the District Magistrate, SDM, or any other executive magistrate under Section 144 of the Code of Criminal Procedure is, in common parlance, referred to as a ‘curfew’.

The authorities in these circumstances, for preventing danger to human life, health or safety, disturbance of public tranquillity, or a riot or an affray, may issue such orders. If anyone defies such orders issued under Section 144 CrPC, the enforcement agencies have a right to detain/arrest the violators.

Then the terms ‘quarantine’ and ‘isolation’, which have been defined under the Indian Aircraft (Public Health) Rules, 1954. Similar restrictions are found under the Indian Port Health Rules 1955, framed under the Indian Port Act, for passenger ships, cargo ships, and cruise ships.

“Quarantine” means the restriction of activities and/or separation of suspect persons from others who are not ill or of suspect baggage, cargo, containers, aircraft or conveyances, facilities, goods and postal parcels in such a manner as to prevent the possible spread of infection or contamination.

“Isolation” means separation of ill or contaminated persons or affected baggage, containers, aircraft or conveyance, facilities, goods or postal parcels from others in such a manner as to prevent the spread of infection or contamination. Though not defined, similar provisions are found in the Epidemic Diseases Act, 1897.

The Ministry of Home Affairs published the official notification under Section 6 of Disaster Management Act. Section 2 and 2A gave power to the State and Central governments to take necessary steps in the situation of an epidemic to control its outbreak. Section 2(d) of DMA is not meant to deal with epidemics or diseases of any kind but causes such as, but not limited to, tsunamis and earthquakes. However, the MHA declared the spread of COVID-19 as a “notified disaster”, thus bringing into play Section 2(d). Then, published guidelines using Section 10(2)(l). It stabilised  that all types of transport services will not be operational during this period. Commercial and private establishments shall remain closed, except for ration shops, banks, ATMs, media services, and telecommunication companies. The guidelines also said under paragraph 17 that any person who violates these containment measures will be liable under Sections 51 to 60 (Offenses and Penalties) of the DMA, and under Section 188 of the IPC which creates the punishment for disobedience to order duly promulgated by a public servant.

It is surprising to see that the terms ‘lockdown’ and ‘curfew’ have not been defined under Indian law but are still being used to curtail the fundamental right of movement enshrined under Article 19(1) of the Indian Constitution. This cannot be termed invalid as this right is subject to reasonable restrictions under Article 19(2). The closest understanding of ‘lockdown’ can be construed from the Epidemic Diseases Act (EDA). Section 2 and 2A of the EDA give power to the State and Central governments to take necessary steps in the situation of an epidemic to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country.

In furtherance of the declaration of a nationwide lockdown, the Ministry of Home Affairs published guidelines using Section 10(2)(l) of the Disaster Management Act on the measures State and Central Governments must take during this twenty-one day period. The guidelines established that all types of transport services (air, train, and road travel) will not be operational during this period. Commercial and private establishments shall remain closed, except for ration shops, banks, ATMs, media services, and telecommunication companies. The guidelines also said under paragraph 17 that any person who violates these containment measures will be liable under Sections 51 to 60 (Offenses and Penalties) of the Disaster Management Act, and under Section 188 of the Indian Penal Code which creates the punishment for disobedience to order duly promulgated by a public servant.

In the case of Paschim Banga Khet Mazdoor Samity V State of West Bengal, the Supreme Court held that the government is obligated to provide adequate health facilities to the citizens of India. But the current status of medical facilities (including, but not limited to, testing kits, hospitals, and the number of people trained to combat something of this nature) suggests that India needs something more than a Disaster Management Act or an Epidemic Diseases Act that only grants powers to the government to take steps they deem necessary. India requires a methodological and comprehensive framework to combat a pandemic of this nature.