This article is written by Arush Mittal, a student currently pursuing B.A. LLB. (Hons) from Hidayatullah National Law University. This is an exhaustive article which deals with the Constitutional Validity of the lockdown order by the Central Government.
When the coronavirus cases in India had exceeded 600, a nation-wide lockdown was announced by the Prime Minister of India, Narendra Modi. This lockdown was announced on March 24, 2020, at 8 pm which would begin from March 25, 2020, till April 14, 2020. This 21-day lockdown was imposed to curtail the spread of the COVID-19 outbreak and promote the concept of self-isolation and social distancing.
The Central Government had said that the implementation of the 21-day lockdown was of prime importance as that is the nation’s only weapon against the deadly coronavirus. The application of the lockdown would at least contain the spread of this virus. Section 6(2)(i) of the Disaster Management Act, 2005 was invoked by the Ministry of Home Affairs that had restricted the movement of residents. The common people were not allowed to move outside their houses due to the implementation of this Act.
This Act also ordered a closure of factories, offices, and shops that were operational. Only shops that provided essential goods and services were allowed to function. Due to the absence of a vaccine and poor infrastructural quality, India does not have the capacity to handle this crisis. Even though this lockdown order may seem unprecedented, it is reasonable in nature and is the best way to battle the spread of the COVID-19 outbreak. This article analyzes the constitutional validity of the lockdown order that was passed by the Central Government.
Powers of the central government
- Article 256 of the Constitution of India states that the Central Government can give directions for the proper implementations of laws that are made by the parliament and the states have to follow such order. The Central Government has passed the lockdown order and under this Article, the states have to follow this order as it was made to prevent the spread of the coronavirus.
- Article 275 of the Indian Constitution stipulates that the executive powers of the States should be performed in such a manner that it does not obstruct the executive powers of the Central Government.
- Article 355 of the Constitution of India is an important piece of legislation that enforces a duty on the Union for the protection of states against any internal disturbances or external aggression. The coronavirus outbreak qualifies as an internal disturbance so this article is applicable in the lockdown order.
- In 1978, the government of Morarji Desai had substituted ‘internal disturbance’ with ‘armed rebellion’ by the 44th Constitutional Amendment. This amendment was made in Article 352 of the Indian Constitution which permits the Central Government to declare an emergency. The coronavirus pandemic would indisputably be qualified as a situation of internal disturbance but since ‘armed rebellion’ was added in place of it, Article 352 cannot be invoked by the Central Government to declare an emergency.
- Federalism is an important part of the basic structure of the Indian Constitution. It is an essential characteristic that forms a fundamental pillar of our government. There is a division of power between the Centre and the States which is enshrined in the three lists i.e. the Union List, State List and the Concurrent List that is mentioned in the Seventh Schedule of the Indian Constitution. Entry 6 of the State List talks about public health. This Entry gives States the power to give directions on the matter that concerns public health which falls within the jurisdiction of this Entry. In a similar way, Entry 81 of the Union List gives discretion to the Central Government to make laws on inter-state quarantine.
Constitutional provisions relating to lockdown
Instead of following the emergency provisions of the Constitution of India, the Central Government found a way to impose the lockdown by the application of these two constitutional frameworks.
Epidemic Diseases Act, 1897
The Epidemic Diseases Act, 1897 was a hurriedly drafted legislation that was enacted in order to curtail the spread of the bubonic plague that had spread in 1896, in Bombay. This plague had forced people to migrate out of the city. This Act just has just four provisions.
- Section 2 of this Act says that temporary regulations can be made by the State Government if the Government is satisfied that an outbreak of a disease is of an epidemic nature. Such temporary regulations have to be followed by the people of the country as they were made in order to prevent the spread of such an outbreak. It also says, there should be segregation of people in the hospital to prevent the disease from spreading from one person to another.
- Section 2A states that if the Central Government is satisfied that due to a pandemic or epidemic outbreak, an ordinary legal framework would not be able to run the legislature the Central Government may make certain rules and prescribe certain regulations to control the spread of such a disease.
- Section 3 of this Act states that the person who does not follow the provisions made under Act would be deemed to have committed an offense. This offense is punishable by Section 188 of the Indian Penal Code, 1860, which is an offense for disobeying the directions given by a public servant.
- Section 4 of this Act grants protection to the people who act under this Act. People who perform an act in good faith and are not held liable for these acts. States have invoked Section 2 of this Act so that they could ensure the minimization of the spread of the virus.
Disaster Management Act, 2005
The Disaster Management Act, 2005 provides those powers which the Epidemic Diseases Act, 1897 does not provide. The DMA is an administrative framework that allows the Central Government to make plans to reduce the impact, effects, and risks related to the virus. It also empowers it to declare that the country is under a disaster and there should be certain plans to stop that disaster. This Act covers each and every natural as well as man-made disasters which also includes the coronavirus. This Act also gives power to the Central Government to take action against those who do not abide by the laws and orders of this Act.
Till the lockdown order, many States had enacted the Epidemic Diseases Act, 1897 to prevent the spread of the coronavirus, then the lockdown order was passed under Section 6 and Section 10 of the Act. The DMA was passed so that the National Disaster Management Authority could be set up to provide a set of the framework under the Chairmanship of Narendra Modi, the Prime Minister of India. Not more than nine members are nominated by the Prime Minister in this Committee. Section 6 of the DMA empowers the Central Government to manage a disaster situation in India effectively.
The term disaster is defined in the DMA under Section 2(d) which includes the loss of life or human suffering from natural or man-made causes. The coronavirus outbreak can clearly be called a disaster under the DMA, this gives the Central Government powers and allows it to make rules to deal with the outbreak of the novel coronavirus. It also allows the Central Government to make plans and guidelines to manage this situation by taking the necessary steps needed for a functional response to this disaster.
According to Section 38 of this Act, the States are bound to follow the directions and decisions of the National Disaster Management Authority.
According to Section 51 of this Act, if any person does not follow the orders of the government and goes on to obstruct the laws, he has to face imprisonment for a term of one year.
Section 54 of this Act states that spreading of fake messages and false alarms would lead to a penalty for a year. People who spread fake messages on WhatsApp should pay attention to this Section. According to Section 61 of this Act, there can be no discrimination on the basis of caste, sex, religion or community while providing relief to the victims of such a virus.
Section 72 of this Act states that there would be an overriding effect of the provisions of this Act on the other laws which are inconsistent. All these acts are clearly applicable in the case of India and should be followed as prescribed by the law.
Constitutional validity of the COVID-19 lockdown
A question that arises in everyone’s mind who is a victim of the lockdown is whether this lockdown order is constitutionally valid or not. To this question, the answer is a straightforward yes. The lockdown is totally valid under various laws and acts that are enacted by the Central Government. Article 21 of the Indian Constitution states that no person is deprived of his personal liberty.
In the case of the State of Punjab v. M.S. Chawla, the Supreme Court had interpreted Article 21 of the Constitution of India in a broader sense where it is said that the Centre has the constitutional obligation for providing certain health facilities to the common people. The Centre has a full obligation to follow certain measures and declare a public health emergency under this Article. Though no emergency has been declared under this article, the government has the authority to do so and we can also be deprived of personal liberty without the declaration of an emergency. This provision is applicable in the current situation where the coronavirus pandemic has been resulting in the death of people in India.
This lockdown primarily affects the fundamental rights laid down in:
- Article 19(1)(d) which protects the right of free movement within the territory of India.
- Article 19(1)(g) that secures the right to carry out any occupation, trade or business and to practice any profession in this country.
The concept of reasonable restriction is mentioned in Article 19(5) and Article 19(6) of the Indian Constitution which makes it clear that such restrictions can be imposed on the rights provided in the given Articles of the fundamental rights in the interest of the general public. The guidelines issued for the lockdown order under the Disaster Management Act, 2005 totally qualifies as a reasonable restriction under two Articles of the Constitution of India namely, Article 19(5) and Article 19(6). In the case of Madras v. V.G. Rows, the test of reasonability regarding a restriction was laid down. It stated that for deciding the reasonableness of a restriction, some factors have to be considered. Such factors include – the underlying purpose of the restriction, disproportion of the restriction, the extent and urgency of such restriction and the prevailing conditions at that time.
The Supreme Court, in the case of Narendra Kumar v. Union of India had determined the reasonableness of a restriction. The Court had said that the restriction should not be more than the necessary reasonable restriction and it should be in the interest of the people. The restriction must also consider the background of the situation that has occurred. The reasonable restriction should remain ‘reasonable’ and not cross the line.
The Supreme Court, in the case of Bannari Amman Sugars Ltd. v. CTO, had further observed that a reasonable restriction which is imposed in the State cannot be called unreasonable just because it uses harsh measures for its application.
By declaring an early lockdown, by the provisions of the Disaster Management Act, 2005, India has taken a great step to fight the coronavirus outbreak. The best weapon for India at this crisis is social distancing and self-isolation of the people. By doing so, people minimize the chances of catching the virus and passing it on to another person. Some people might not like the idea of an all India lockdown but the bitter truth is that the lockdown is the best possible way to fight this pandemic as India does not have any cure for it. In my opinion, the 21-day lockdown should be increased so India does not enter the third phase of this pandemic which other countries have faced, and have proved to be fatal.
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