Legality of National Lockdown in Coronavirus Pandemic
LEGALITY OF NATIONAL LOCKDOWN IN CORONAVIRUS PANDEMIC
- Bhavya Jain, Student National Law University Odisha
India took an extreme measure declaring a complete national lockdown on 23rdMarch, 2020 for a period of 21 days till 14th of April 2020. It was done so as to safeguard our country from the spread of the novel corona virus,causing a disease called “COVID-19”, which till now has spread all over the world, contaminating lakhs of people and killing thousands of them. Coming to the legality of such lockdown first let’s talk on why we had to take such a major step.
Why Lockdown-
Lockdown is an action in which people are not allowed to leave a particular place and, in this situation, we are following it as a preventive step against the disease. We are asked to quarantine ourselves with an aim that if every person takes care of oneself, we can stop the chain, as it can spread through physical contacts.The virus that originated in China, has now taken over the world and major economies and healthcare furnished countries like Italy and USA are also suffering due to it. The first case came in India, on 30th January and within a span of two months the number has now reached to almost 4500 killing 115, and thus, it becomes necessary to take precautionary steps.
While debates arising says that this kind of situation can be classified as ‘internal disturbance’ and emergency could have also been imposed, but,the government instead of imposing emergency has gone for the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA), and chose to be armed with these two laws.The government has also invoked Section 144 of CrPC, that allows the executive magistrates to order steps to be taken during apprehended danger, it majorly restricts gathering of four or more people together and social functions are prohibited. The National Disaster Management Authority (NDMA) also issued guidelines on social distancing on March 24 considering the pandemic as a “disaster” under the Disaster Management Act.The measures included the shutting down of all non-essential government institutions, all profit-making workplaces, transport facilities like roadways, railways and airways, educational institutions, temples and pilgrims, political and social gatherings, etc. Certain exceptions for essential facilities like hospitals and medical stores, media, petrol pumps, stores of basic requirements, etc. have been provided for.
The Scope of Epidemic Diseases Act, 1897-
The Epidemic Diseases Act, 1897 is a colonial act, and was created to deal with disasters and epidemics (for e.g. diseases like corona) and to prevent them. It intends to safeguard any state or any part of the state from the threat of outbreak of any dangerous epidemic disease.
Section 2 A of the Act, authorises the centre (if satisfied that the ordinary laws in force will fail to suffice the purpose in the given situation), that they can take any measures and precautions as they consider necessary that would suffice the purpose. They can also prescribe regulations under the Act, for inspection of people sailing in the territory of the country.
Section 3,talks about penalty, to be given in case of breaking the prescribed regulations and not following the measures. It says that “any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (1860)”.
Section 4, says that protection must be given to the person acting under the Act, it says “no suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act”.
The Act clearly states that if any act is done in good faith for prevention of any such dangerous disease, it cannot be questioned in any court of law and thus authorising the concerned and legalising the necessary measures, notwithstanding anything contained in any other law.
National Disaster Management Act, 2005-
Section 2 (d) of The Disaster Management Act defines a disaster as “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”.
Section 18 and section 19 of DMA gives the authority to the State to lay down policies and measures to deal with the disaster and makes it mandatory for them to lay guidelines for disaster management respectively.
Section 24 gives State the power to (a) control or to restrict vehicular traffic from the affected areas, (b) control or restrict entry or movement of any person into, or within, a vulnerable or affected area. These powers are inpari Materia to the powers conferred to district authorities under Section 34 of the Act.
The district authorities under Section 30 (iv) have the power to ensure that the measures laid down are being followed by the local authorities and Section 30 (vii) allows them to monitor the implementation of the rules and policies at all the levels.
A person who refuses to comply with the orders of the authorities or obstructs any authority doing its duty, shall be liable for imprisonment up to 1 year or fine or both and if this behaviour leads to loss of lives of people the imprisonment may extend up to two years, says Section 51 of the Act. Also, Section 54, DMA provides provisions for imprisonment up to one year or of fine, for forging or spreading false news creating panic or disturbance.
Also, Section 72 of the Act, says that the provisions of this Act, when imposed shall override any other law enforced in the country.
CONSTITUTIONAL VALIDITY OF LOCKDOWN-
Ever since, the lockdown has been imposed, there are various questions arising over the validity of it, as it restricts various fundamental rights like Article 19 (1) (d), that is “right to move freely throughout the territory of India”, Article 19 (1) (g), that is “right to practice any profession, or to carry on any occupation, trade or business”, and Article 21, that is “right to life and personal liberty”.
Are the restrictions reasonable-
Coming to our main issue, on the legality of these restrictions, the questions arising are themselves answered in our constitution itself, Article 19 (2), (3), (4), (5) and (6) all talk about the reasonable restrictions that can be made in the interest of the general public under article 19 (1). Looking at the question of the reasonableness of restrictions and personal interest of freedom, the Hon’ble Supreme Court in the case of Sivani v State of Maharashtra, in 1995 said that for evaluating the reasonableness of any restriction, the court must take into account the purpose of restrictions imposed, how is the purpose remedied by law, the urgency and the extent to which restrictions has been imposed.It is thus clear that there is no straight jacket formula for evaluating reasonable restrictions but depends on the situations and social conditions. The conditions in the current situation seems reasonable enough and to prevent further loss of life and economy, it is reasonable to impose such restrictions on the freedom of movement and the freedom to practice free trade and profession.
Further, if we look at the right to life and personal liberty, in District Registrar and Collector v. Canara Bank in 2005, the Hon’ble Court laid down triple test to check if any law interfering with ‘personal liberty’, in which the procedure must withstand the test of fundamental rights conferred under Article 19, and said that the right to personal liberty has been given added protection under Article 19. By this, it becomes clear that the right to personal liberty is also subject to reasonable restrictions and reasonable restrictions imposed thus stands the test of constitutionality and are valid.
Adding to it, entry 29 of the Concurrent List under Schedule 7 of the constitution authorises both the Central and the State Government to legislate and make rules on matters related to prevention of spread of infectious and contagious diseases from one state to another, be it affecting humans, animals, plants.
If we see overall, it is the need of the hour to take such measures and the laws consistent with it also authorises and legalises the lockdown. The Acts and laws discussed here clearly gives the authority to the concerned to make laws in favour of public good and public health as per the demand of the situation. Thus, the lockdown visibly stands valid.
Stay safe!
REFERENCES:
1. Sanjoy Ghose, ’Is the National Lockdown in India Constitutionally Valid?’ (The Wire, 28 March, 2020) <https://thewire.in/law/is-the-national-lockdown-in-india-constitutionally-valid> accessed 3 April 2020.
2. Disaster Management Act 2005.
3. Epidemic Diseases Act 1897.
4. The Constitution of India 1950.
5. MP Jain, Indian Constitutional Law (8th edition, LexisNexis 2018).
6. Sivani v State of Maharashtra[1995] 6 SCC 289.
7. District Registrar and Collector v Canara Bank [2005] 1 SCC 496.
