Topic: “Legality of Lockdown”
In this difficult time we continue to hear about the terms like lockdown, quarantine, isolation and janta curfew. Except for lockdown and curfew all the other terms have a legal connotation and are defined in various laws prevalent in India.
I must start this article by stating that all the above mentioned terms impose a restriction on free movement of the citizens of india and to assemble peacefully guaranteed under Article19(1)b and Article19(1)d of the constitution of india.
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).
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).
It is not explicitly provided anywhere that the government has the power to declare something of this nature. It looks as if the policy had first been declared, and then the later the government considered which law applied. Declaring the COVID-19 outbreak as a “notified disaster” is a first-of-its-kind measure taken to increase the scope of government powers that can be used in order to make quick administrative decisions to fight this disease. It is important for the government to back its policies and decisions with legal provisions as it validates those actions.
In furtherance to give the term lockdown a legal nature and in order to enforce the lockdown, the government officials took the help of the following acts:
Indian Penal Code, Section 188 (disobedience to the directions given by a public servant), Section
269 (negligent act likely to spread infection of disease dangerous to life) and Section 270 (malignant act likely to spread infection of disease dangerous to life) of the Indian Penal Code.
THE Epidemic Disease Act 1897, This law was one of the most hurriedly drafted legislations to stonewall the bubonic plague that devastated life in Bombay in 1896, forcing people to migrate out of the city. The statute has only four provisions. Sections 2 and 2A of the Act allows the government to take measures if it is satisfied that any state or any part thereof is visited by or threatened with an outbreak of any dangerous epidemic disease. If the government thinks that the ordinary provisions of the law are insufficient for the purpose then it may take, or require or empower any person to take some measures and by public notice prescribe such temporary regulations to be observed by the public including travel by air, railways, or otherwise including detention of any ship or vessel, as the case may be .Section 3 prescribes the penalty for disobeying any regulation or order made under the Act in accordance with Section 188 of the Indian Penal Code, which is an offence of disobeying directions of a public servant. This law has been invoked many times since it has been enacted.
Disaster Management Act,2005, The Disaster Management Act provides the administrative framework to take measures to deal with a disaster, meaning a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.The purpose of this law was to cater to a situation such as an earthquake, flood or fire rather than a disease like COVID-19. However, on March 14, the Home Ministry declared the Coronavirus outbreak as a “notified disaster”, thus, bringing into play the provisions of the Disaster Management Act.
Is a “lock-down” constitutionally valid?
I am conscious of the counter arguments. When the very right to life of the nation is imperilled, such constitutional arguments are heresy. After all, the Doctrine of Necessity proclaims loud and clear that “Necessity knows no law”. For whatever it is worth, if we are willing to accept that these unforeseen times are compelling us to act beyond the four corners of our basic law, at the very least let us not lose focus on the equally critical mandate of both the EDA as well as DMA – namely relief and rehabilitation of the disaster affected, i.e. the poor and most marginalised. I will end this article by saying, wholehearted support to the administration in this hour of national crisis is the duty of every Indian.