Lockdown in India: Whether a violation of the Constitutional Provisions?
Lockdown in India: Whether a violation of the Constitutional Provisions?
- Anjali K P, NUALS Kochi
INTRODUCTION :-
While the second wave of COVID-19 has hit our country the hardest, making it the second most affected country in the entire world, the need for a nationwide lockdown is still in question. An extraordinary situation like a Pandemic call for an extraordinary solution like Lockdown. Lockdown is to curb the wide-spreading virus considering the interest of the public at large, thereby restricting a certain few civil liberties that the citizens enjoy.
Though individual states have imposed lockdowns in their jurisdictions, the Centre has decided not to go for a national lockdown unlike the big bang order of March 2020 owing to various factors. Although the country has not decided on a national lockdown as an order, almost 98 percent of India\'s population is under some form of a lockdown.
The nationwide lockdown imposed on 24th March 2020, one of the strictest in the world had an impact not only on the economic growth of the country but on the normal lives led by mankind too. The right of the state to impose lockdown and the right of citizens to resist these restrictions upon them arise from the “holy document” in words of Justice Rohinton Nariman, i.e. the Constitution. Whether the fundamental rights guaranteed to us by the constitution will be strained during these extreme situations of lockdown and whether such restrictions on fundamental rights during a period of the pandemic are justifiable are doubts that constantly pop in our heads right now.
This article will be dealing specifically with three important Articles in the Constitution together referred to as the golden triangle, i.e. Articles 19, 14 & 21.
ARTICLE 19 :-
The right to free movement is a fundamental right enshrined to the citizens under Part III of the Constitution of India, 1950. Article 19 provides the right to citizens of India, under (1) (d): "to move freely throughout the territory of India".
However, Sec.144 of the Code of Criminal Procedure, 1973 along with the Epidemic Act restricts this freedom. In addition to this Article 19(5) also falls along the same line and restricts the freedom to move by classifying it as reasonable restriction.
The term reasonable restriction provided under Art.19 strikes a balance between the freedoms guaranteed by any of the sub-clauses of Clause (1) of Article 19 and brings forth social control permitted. The definition of the term Reasonable restriction cannot be determined subjectively, rather it should be objective. Interpretation of the term should be left open to the general public and not to the persons upon whom the restrictions are imposed.
One such instance where the court classified violation of freedom to move as reasonable restriction was when the Punjab and Haryana High Court held that a Habeas corpus petition filed for a person in Covid-19 quarantine will not be held valid as the same cannot be regarded as illegal or unlawful detention. Hon\'ble Justice Lalit Batra observed that steps taken by the govt. to curb the increase in the number of COVID cases by providing lodging and medical care at the State\'s expense is not a violation of the fundamental right and hence falls under the ambit of Article 19 (5).
However, sometimes such restrictions under Article 19(5) can go beyond its permitted space and be disproportionate. Isolated incidents across the country such as the Haryana authorities order preventing movement of doctors, nurses, court staff, and trucks to and from Delhi to Sonipat in the early stages of the first lockdown were incidents that clearly violated the freedom to move as the restriction was not reasonable, and the same was upheld by a two-judge bench of the Delhi High Court comprising of Justices Manmohan and Sanjeev Narula.
Imposing violation on citizens under Article 19(5) citing general public interest as reason is abstract in nature. It is always better to leave the discretion upon the citizens and legitimately ask them to refrain from their freedom rather than forcing it upon them by law. Article 19 is coextensive with Articles 14 and 21, and violation of one leads to the violation of the other two. Let’s see how.
ARTICLE 14 :-
In a country like ours with deep-rooted differences not just in economic terms but also in social terms, restrictions imposed by lockdown can have varied effects among its citizens. This feature of our country puts a burden on the state to ensure the standard of proportionality.
A restriction like a lockdown amongst the citizens of our country placed at different social and economic strata levels can be classified as “Unintelligent”. We use the term unintelligent to define this restriction as it can be classified as a typical case of unreasonableness.
The massive economic impact and change in even the social lifestyle of a lot of people ever since the pandemic explain it all.
ARTICLE 21 :-
The next most regarded right enshrined under the Constitution which is in strain during this era of the pandemic is the Right to life and personal liberty enshrined under Article 21 of the Constitution. According to Article 21 – "No person shall be deprived of his life or personal liberty except according to procedure established by law." Personal liberty grants one the right not to be subjected to any form of imprisonment or coercion without the justification of law.
Article 21 not only includes the Right to life and personal liberty but also includes the Right to Health, Education, food as well as Privacy. This article of the constitution ensures that none of the above-mentioned rights of an individual can be compromised except in situations where the person has committed a crime.
However, in this present scenario of COVID-19, working units across the country have been shut down owing to various factors which have led to either termination of employees or reduced wages. The Supreme Court in the case of Peoples Union for Democratic Rights v. Union of India has held that non-payment of minimum wages to employees is a violation of the Right to life under Article 21.
Considering the working class of the society, the Ministry of Home Affairs issued direction to state governments and authorities that payment of minimum wages to all employees must be guaranteed by the employers and this under no circumstances must be deduced. But owing to various factors mainly reduced profits, employers themselves are not in a position to grant the same and the order of the centre is being breached by institutions mainly in the informal sector.
The 16 migrant workers who died on the 8th of May last year were a few among the other 362 who people have lost their lives during the first lockdown due to reasons other than COVID.
The right to health of citizens is also majorly at stake right now considering the growing number of cases and depletion of resources. The country was facing a major deficit in its oxygen supply, ventilators, and even Personal Protective Equipment Kits with the increased number of patients. While some states managed to survive, others are still short of resources. The Supreme Court has interfered in the matter and asked the Centre to address the oxygen crunch.
CONCLUSION :-
Lockdown is constitutionally valid and the Government along with Judiciary is maintaining a great balance in protecting the constitution without compromising on the rights availed to citizens. With numerous advancements made in Fundamental rights by the intervention of the Judiciary, its scope and ambit have widened remarkably. Even though the state is vested with the duty to protect the rights of citizens, it always has the power to curtail them reasonably, taking public interest into account.
In this era of the pandemic, flexibility to the rights available for us is of great importance to access justice to all and to elucidate the hidden scopes behind these rights. As a result of the pandemic, the government is compelled to read in-between the lines of the Constitution and this has indeed been an eye-opener.
REFERENCES :-
1. Justice K S Puttaswamy Retd and anr. V. Union of India and ors., LNIND 2018 SC 535
2. DICEY (BRITISH JURIST AND CONSTITUTIONAL THEORIST).
3. Mohd. Hanif Quareshi V. State Of Bihar, 1959 SCR 629, [LNIND 1958 SC 58]
4. Peoples Union for Democratic Rights V. Union of India, AIR 1982 SC 1473
5. Kabir Agarwal, ‘Not Just the Aurangabad Accident, 383 People Have Died Due to the Punitive Lockdown’ (The Wire, 10 May 2020) < https://thewire.in/rights/migrant-workers-non-coronavirus-lockdown-deaths> accessed 1 June 2021
6. ‘Lockdown and the Right to freedom’ (The Economic Times, 13 May 2020) <https://economictimes.indiatimes.com/news/politics-and-nation/lockdown-and-the-right-to-freedom/is-detention-lawful/slideshow > accessed 2 June 2021
7. Niharika Vij, ‘Covid-19: Impact on Right to Life and Personal Liberty’ (Lexis Nexis, 4 May 2020)
< https://lexisnexisindia.wordpress.com/2020/05/07/covid-19-impact-on-right-to-life-and-personal-liberty/> accessed 2 June 2021
8. Union of India v. Mool Chand Khairati Ram Trust, [2018] 7 MLJ 37
9. H M Seervai, Constitutional Law of India: Universal Book Traders (4th edn. 2002) pg.1134
