December 2, 2020

COVID ATTACK: LEGALITY OF LOCKDOWN AND CONSTITUTIONAL RIGHTS OF CITIZENS!!

In the history of India, this situation which we all are facing is something so new that we don’t have precedent to follow, and therefore here comes the biggest problem for both, the government and the citizens to combat this Coronavirus attack.

In such a confusing and difficult times, the decision made by the central government came as another surprise to the citizen i.e. LOCKDOWN. That means shutting down the whole country. Various questions were raised by people and opposition government for this decision. Stating few of them, firstly, whether the restriction imposed by the central government is legally right or correct? And secondly, Whether the guidelines issued by the home ministry regarding lockdown are in harmony with fundamental rights guaranteed under Constitution Of India?

The answer to these very questions is diplomatic. Though, considering the current situation and the condition of India and comparing it with other countries it can be concluded that the quick response to this situation and the decision of shutting down the whole country is in the right direction and also discovered to be one of the essential steps to combat the COVID-19 attack. However, the results might be not very much in favour of economic growth of the country and business sector of various scale.

Constitutional Validity of Lockdown

Whereas, it has been proved now that isolating and social distancing is one of the best ways to fight against coronavirus. And this leads to the discussion whether this lockdown restricts or violates the fundamental rights guaranteed in our constitution of India? The first foremost Article comes into the mind is Art 19(1)(b), Art19(1)(d) and Art19(1)(g); i.e. rights it assemble peaceably and without arms, right to move freely throughout the territory of India and right to practise or to carry any trade and business. This lockdown is affecting all the fundamental rights mentioned above. However, the thorough reading of Art 19 (5) and (6) makes it very clear that reasonable restrictions can be imposed in the interest of the general public to maintain the public order, public peace, sovereignty, security and integrity of India.

Now, the question arises that, is the lockdown is under the reasonable restriction? This could be substantiated by the Supreme court judgement in Narendra Kumar v Union of India[1], it was held that to determine the reasonableness of a restriction it is important to consider that the restraint caused by the law is more than necessary in the interest of the general public. Whereas in another case of Bannari Amman Sugar Ltd. v CTO[2] the supreme court held that the restriction does not become unreasonable merely because it operates in a harsh manner. However, in Bandhua Mukti Morcha v Union of India,[3] it was held that the right to live with human dignity under Art 21 was derived from DPSP and hence it clearly includes the protection of health. Supporting this in another case State of Punjab v Mohinder Singh Chawla [4] the supreme court held that “the right to health is integral to right to life and the government has the constitutional obligation to provide the health facilities.” This means that protection of health is a fundamental right and the protection of that rights is an obligation on central and state government. Considering the uncertain nature of coronavirus which is highly contagious and no vaccine availability this makes the situation more tough. And the fact is not unknown that the health infrastructure is not so well developed in India, to combat similar situations in other countries like USA China Italy and Iran. Therefore, lockdown was necessary and reasonable in the interest of the general public and also qualify the criteria of reasonable restriction under Art19(5) and (6). Hence through this it can be concluded that the guidelines issued by the Home Ministry are in consonance with the fundamental rights guaranteed in the Indian constitution.

And the legality of the lockdown can be justified by the laws used and implemented in the current situation. The central government has invoked the Disaster management Act 2005, to curb this deadly spread virus attack. As an extraordinary situation demands extraordinary efforts. When WHO classified COVID as a pandemic the central government decided to select a different route to impose lockdown and maintain social distancing. The Disaster Management Act, 2005 gave the authority to take measures to efficiently implement the rules and enforce social distancing. And this Act was legislated under the concurrent list. The Act defines disaster “A catastrophe, mishap, calamity or grave occurrence in any area, arising from. natural or manmade causes, or by accident or negligence which results in substantial loss of life, human suffering.”

The SARS CoV-2 pandemic has caused substantial loss of life, particularly in countries which have been unable to slow down its spread, for example, the US and Italy. And India is more vulnerable to this situation because, to quote the Vox, “public health care in the country is poor” and “private health care is expensive” meanwhile WHO recommended the ratio of doctors and patients is 1:1000 for India given that treatment of COVID-19 is only available to limited hospitals.[5]For a country with a large population, the medical facilities are not sufficiently available.

The central government has taken the right step by acknowledging the pandemic Coronavirus attack as a disaster. To fight against this disaster the understanding of the magnitude of the disaster is necessary. The prime minister being an ex-offico chairperson of National disaster management authority (NDMA) under section 3(2)[6] has given the power under sec6(2)(i)[7] to take measures for prevention and mitigation of the disaster. This is the smart use of powers provided by NDMA to take the preventive measures at various different authorities to curb this virus spread. Social distancing guidelines have especially been issued under sec 10(2)(1) of the Act by the National Executive Committee. The national executive committee was made to assist NDMA in its goals. It was held in the case of Swaraj Abhiyan – (I) Vs Union of India (UOI) and others[8] the Hon’ble Apex Court held that the scope of the NDMA is not only to monitor and implement disaster management plans but also to prevent and mitigate the effects of a disaster.

Along with these measures the state government adopted other laws for better implementation of lockdown. Hence sec 144 of Cr.P.C was invoked where the guidelines were issued for closure of shops, the prohibition of the gathering of people and restriction in movement. The state government has also used the Epidemic Diseases Act 1897 which has played a key role during the deadly spread disease Plague in past years. Sec 2 and Sec 2A[9] of the act provide the authority to take the 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. Whereas sec 3[10] provides the authority to penalize any act for disobeying the regulation or any order made under the Act in accordance with sec 188 of IPC which states the offence of disobeying directions of the public servant. ere were special measures taken for those who have been found intentionally violating any of the issued guidelines, the state government may prosecute those people under National security Act, 1980 as well.

Therefore, as far as the legal tenability is considered the actions taken by the centre and state is legally sound and substantiate the laws and statute properly.

Conclusion:

In the wake of the unprecedented times, and the unprecedented methods adopted by the Government, it is not wrong to state that these measures will go a long way in determining the legal future of the implementation of these laws and that it would also lead to a radical change of the laws which are being put into test.

In order to curtail and control the situation at hand, the Government has relied upon statutes such as the Disaster Management Act, 2005; the Epidemic Disease Act, 1897; the Essential Commodities Act, 1955; the Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860. It is interesting to see that in view of the existing circumstances, the lockdown order or the welfare measures taken /guidelines issued by the Government has not been questioned before any Courts and that the nation is united to fight the bigger enemy i.e., the pandemic Covid-19.


[1] Narendra Kumar v Union of India, (1997) 2 SCC 83.

[2] Bannari Amman Sugar Ltd. V CTO, AIR 1960 SC 430.

[3] Bandhu Mukti Morcha V Union Of India, AIR 1984 SC 802.

[4] State of Punjab v Mohinder Singh Chawla, (1997) 2 SCC 83.

[5] Isha Singh, The Law And The Lockdown Live Law (2020), https://www.livelaw.in/columns/the-law-and-the-lockdown-154668?infinitescroll=1 (last visited Apr 30, 2020).

[6] Sec 3(2), Disaster Management Act 2005

[7] Sec 6(2)(i), Disaster Management Act 2005

[8] Swaraj Abhiyan – (I) Vs Union of India (UOI) and others, (2016) 7 SCC 498.

[9] Sec 2, Epidemic Disease Act,1897

[10] Sec 3, Epidemic Disease Act,1897

Author Details:

Abhilasha is a student at Symbiosis Law School, Pune


The views of the author are personal only. (if any)

Source: Jus Weekly, May 20202, Issue 1

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