This article is written by Fatema Lightwala and Nipa Dharod, pursuing B.L.S L.L.B from SVKM’s Pravin Gandhi College of Law. This article speaks about the various legislations encompassing the COVID-19 Lockdown in India and the constitutionality of the various provisions adopted by the Government to curb the spread of the virus. It further analyses the status quo regarding the plight of migrant labourers and the atrocities committed by the law enforcement personnel. 

Introduction

The World Health Organization (WHO), on 11th March, 2020 declared the COVID-19 outbreak as a pandemic. COVID-19 (Coronavirus), a disease caused by SARS-CoV-2 which precipitously transformed from an epidemic to a pandemic originated at the infamous Huanan Seafood market at Wuhan when a person got infected by a virus from an animal on 17th November, 2019. Initially, limited to China, today coronavirus has spread across the globe, from Vatican City to Russia, with the death toll constantly at a rise, sending millions of people into lockdown as health services struggle to subsist. The pandemic which is now a global health hazard has kept many questioning, whether in the imminent future will there be any country which will be corona-free? 

India with its gargantuan population, deplorable standards of hygiene and sanitation, unhealthy living conditions, poor and deficient health system is highly susceptible to the virus. To follow the norm of social distancing in inadequately ventilated and closely situated houses is a far-fetched dream. These areas are the major hotspots for epidemics like coronavirus which are extremely contagious. 

With the number of detected cases escalating, many individual states announced the closure of schools, colleges, cinemas, gyms, and other public places. In several states including Maharashtra, Rajasthan, Tamil Nadu, etc., Section 144 of CrPC was imposed.  This section promotes the principle of social distancing and thus acts as a chief preventive measure against the virus. Section 144 of CrPC empowers any Executive Magistrate to prohibit the assembly of four or more people in an area in apprehension of danger to human life, health or safety. This further forbids public meetings, movements and rallies and orders temporary cessation of educational institutions. An individual violating these provisions can be punished with imprisonment or fine or both. Moreover, obstructing law enforcement authorities from dispersing an unlawful assembly is also punishable. 

With the proliferation of COVID-19 cases throughout India, the Union Government declared a nationwide lockdown. The Ministry of Home Affairs issued an order under Section 6(2)(i) of Disaster Management Act, 2005 for implementation of various measures such as restricting residents’ movements outside their homes, closure of non-essential services, private and state offices, educational and religious institutions and suspension of transport services. Nevertheless, essential commodities and service establishments like groceries, dairies, ATMs, pharmacies and medical services were allowed to function. Additionally, several provisions of the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA) were invoked to tackle the spread of the virus.

Related Legislations

Epidemic Diseases Act, 1897 (EDA)

The Epidemic Diseases Act was enacted in 1897 during the British Raj to tackle the outbreak of epidemics and to provide for the better prevention of the spread of dangerous epidemic diseases. In India, the act has been invoked several times to curb the spread of diseases such as cholera, dengue, malaria, swine flu, etc. 

Subsequent to the WHO declaring COVID-19 a pandemic, the Central Government decided that all states/ UT’s should be advised by Ministry of Health and Family Welfare (MoHFW) to invoke the provisions of Section 2 of EDA, to ensure that any advisories issued by the MoHFW and the state governments are enforceable. Accordingly, various states have promulgated special regulations and provisions such as providing temporary accommodation or segregation of people in hospitals, compulsory screening, quarantine measures, restricting entry and exit in areas, etc. to curb epidemics within their state jurisdiction. Further, the Epidemic Diseases Amendment Ordinance dated 22nd April, 2020 permits the Central Government to lay down rules as to the inspection and detention of any bus, train, goods vehicle, ship, vessel or aircraft arriving or leaving the territory of India or the detention of any person intending to travel therein or arriving thereby.

The Epidemic Diseases Act vests in the state governments the power to make any provisions for the prevention of the disease, nonetheless the Act itself stands silent on various aspects such as expenses incurred by the State and the Centre, any framework for responding to epidemics, lockdown provisions, guidelines to be followed by hospitals and healthcare personnel, travel restrictions, etc. Moreover, the Central Government is given only advisory jurisdiction, thus incapacitating it from implementing policy decisions. The Act endows excessive responsibilities on the State. However, such perilous emergency decisions cannot be left to be dealt with through temporary regulations by state officials on the spot. This is unconstitutional as it is based on the doctrine of ‘excessive delegation’. This can be highly detrimental in grave emergencies and disasters, especially when the state fails to effectively regulate a crisis.

Disaster Management Act, 2005 (DMA) 

The Central Government has declared COVID-19 crisis as a ‘notified disaster’, a ‘critical medical condition and pandemic situation’, thus bringing it within the ambit of the Act and allowing it wide powers to deal with the pandemic by laying down guidelines, plans, policies to provide for an efficient and effective response to the crisis. The DMA provides for the establishment of the National, State and District Disaster Management Authorities for effectively managing a disaster. The National Disaster Management Authority (NDMA), which is chaired by the Prime Minister is empowered to lay down directions and guidelines for reducing the risk and effects of disasters through mitigation strategies, capacity building, etc.

Section 51 of DMA provides for punishment for obstructing any authority under DMA or non-compliance of any direction given by the authorities. Section 52 of the Act makes provisions against ill-fated people that maliciously seek to get benefits from the government based on false claims. In emergency situations like these, where fake news spreads faster than the virus, legislation to curb such immoral practices are the need of the hour. Section 54 of DMA provides for imprisonment up to one year for those who make or circulate a false alarm or warning regarding a disaster or its severity or magnitude. This section puts a bar on citizens with malafide intentions from creating unnecessary havoc and chaos in the nation by spreading rumours and fake news and also ensures that the press furnishes nothing but the status quo.

Laws pertaining to essential commodities and essential services 

The major setback of lockdown has been the loss of production owing to various factors such as reduction in labour supply, restrictions on transport, etc. which has led to scarcity of essential commodities. A severe consequence to this can be a spike in unlawful activities such as black marketing, hoarding, profiteering and speculation eventually leading to inflation. Some states also witnessed an abrupt rise in prices and scarcity of masks, hand sanitisers and alcohol used in sanitizers. To resolve this, the Centre directed the State governments to invoke the provisions of the Essential Commodities Act, 1955 which empowers it to regulate or prohibit production, supply, distribution, etc. of essential commodities by taking various measures such as fixing prices and stock limits, boosting production, scrutinizing accounts of dealers, etc. Individuals violating these provisions shall be punished with imprisonment of seven years or fine or both. The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 is also a competent legislation under which the State governments can detain offenders.

Further, to ensure uninterrupted availability of essential services such as electric and water supply, transportation (for essential purposes only), police, defence, medical services, etc., the Essential Services Maintenance Act, 1968 has also been invoked. The primary objective of the Act is to provide for the maintenance of certain essential services integral to human functioning.

Penal Provisions 

There have been numerous occasions of people flouting quarantine measures, evading health screening at airports, concealing their travel history, organizing public events and disobeying government orders. Owing to such careless acts and irresponsible behaviour, people have not only risked lives of their near and dear ones but also jeopardized the safety of the nation at large. It is crucial to educate the citizens about the various laws and provisions under which they can be penalized for such acts. Violations of the prevailing lockdown provisions are punishable in accordance with the following sections of the Indian Penal Code, 1860.

• Section 188 – Disobedience to an order duly promulgated by a public servant. 
• Section 269 – Negligent act likely to spread infection of disease dangerous to life. 
• Section 270 – Malignant act likely to spread infection of disease dangerous to life.
• Section 271 – Disobedience to Quarantine rule.

An individual committing an offence under these sections shall be penalized with imprisonment or fine or both. Section 271 is a non-cognizable and bailable offence while the remaining three sections are cognizable and bailable in nature. 

Human Rights

“The pandemic is a human crisis that is fast becoming a human rights crisis.”

    -UN Secretary General Antonio Guterres

The mandate of human rights is ensuring a dignified life, liberty and equality to all citizens. Anything that contravenes these assurances sabotages the very principles on which our Constitution stands and is indeed a huge failure on the part of Democracy. The Golden Triangle i.e. Article 14, 19 and 21 bear a witness to these principles enshrined in the Constitution. Even in disasters and emergency situations like these, the Government cannot encroach upon the fundamental rights of citizens and is duty bound to uphold these rights.

Plight of migrant workers 

Subsequent to the Government announcing the lockdown with a meagre four hours’ notice, millions of migrant workers across the country were left starving without a roof on their head. Several Indians stranded abroad before the lockdown were rescued by specialized flights scheduled by the nation. In contrast, the government failed to provide transportation facilities to the migrant workers which was highly criticized and condemned. Later, they provided these facilities but at huge costs and complex procedures, thus leaving the migrant workers with no option but walking thousands of kilometres to their homes.

Instances such as police brutality on workers, spraying disinfectants on them, failure on part of the government to provide accommodation and basic necessities amid the excruciating and distressing journeys are a mockery to human rights. Moreover, various states have stigmatized them as ‘virus carriers’ and also been reluctant to admit their native migrants back. Various state governments have provided relief packages and schemes to the workers, however they cannot avail the same because they don’t have domicile documents. It is high time that we adopt measures like ‘One Nation, One Ration-card’. There is a pressing need to create a ubiquitous social security scheme through accurate databases regarding the migrants and develop effective coordination between states.

The uncelebrated Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 aims to ensure safe migration, prevention of exploitation and protection of the rights of migrant workers. However, the obsolete legislation only remained on paper and failed to protect this marginalized group. Further, the Occupational Safety, Health and Working Conditions Code, 2019 (Bill No. 186 of 2019) was introduced in the Lower House to strengthen migrant labour rights, however it has not yet been enacted. The Government’s response has failed to confront their appalling humanitarian condition and further aggravated their vulnerability.

Police brutality

Another rampant civil rights violation which has emerged during this crisis is police brutality. Section 4 of EDA states that, ‘No suit or legal proceeding lies against any person or authority for anything done or in good faith intended to be done under this Act’, thus giving unrestricted, and absolute powers to the police authorities. The government guidelines allow certain relaxations to lockdown measures whereby citizens can move about to fulfil their essential needs. Nevertheless, the media is flooded with several disturbing videos whereby people were assaulted, beaten to death, shopkeepers were harassed and forced to pay bribes, violators were demeaned and compelled to do push-ups, sit-ups, crouches, workers were stuffed in suffocating truck containers, etc. Such arbitrary use of force has frightened not only the common man venturing out to fulfil his essential needs but also the workers delivering such essential goods and services. None of the provisions of The Police Act, 1861 empower a police officer to brutalize citizens and use arbitrary measures against them.

The authorities can charge the violators under the relevant statutes and duly prosecute them instead of subjecting them to humiliating treatment. They should not resort to excessive use of force or function in contravention to the legal framework. Mere suspension of police officers does not serve the purpose of deterring them and they must be dealt with by the courts in accordance with law. Police misconduct and abuse of power has been condemned by the Supreme Court and through several judgments it has held the state liable and granted pecuniary compensations for infringement of fundamental rights.

Conclusion

Article 21 ensures protection of life and personal liberty to all the citizens. Life here does not mean mere animal existence, but right to live with human dignity. According to J. Bhagwati, “This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws”. The aforementioned occurrences are a clear infringement of this sacrosanct right. The lockdown provisions and legislations dealing with epidemics not only fail to safeguard the Fundamental Rights of citizens but also prove to be deficient. A strong plan of action, efficient surveillance networks, effective regulations and resilient health systems are imperative to deal with such a crisis. Ergo, there is an urgent need for a solid, all-encompassing and humane legislation that, inter alia, clearly provides for an administrative structure for crisis management and positively corresponds to the current situation. Until any such legislation is formulated, citizens need to be vigilant and courts need to ensure that there is no transgression of authority.

References

• ‘WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020’ (World Health Organisation, 11 March 2020) https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020

• Mackenzie JS, Smith DW, ‘COVID-19: a novel zoonotic disease caused by a coronavirus from China: what we know and what we don’t’ [2020] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7086482/

• Mohammed Iqbal, ‘Coronavirus | Prohibitory orders in Rajasthan after 3 new cases test positive’ The Hindu (Jaipur, 19 March 2020) ; Alok Deshpande, ‘Section 144 imposed in all cities of Maharashtra: Uddhav’ The Hindu (Mumbai, 22 March 2020)

• ‘High level Group of Ministers reviews current status, and actions for prevention and management of COVID-19’ (Press Information Bureau, 11 March 2020) https://pib.gov.in/PressReleseDetail.aspx?PRID=1606050

• ANI, ‘COVID-19 notified disaster; Centre announces Rs 4 lakh ex-gratia for deaths’ The Times of India (New Delhi, 14 March 2020)

• Writankar Mukherjee, Ratna Bhushan,Teena Thacker, ‘Coronavirus terror in India: Sanitisers, masks sold out, prices peak’ The Economic Times (Kolkata New Delhi, 5 March 2020)

• ‘The Plight of Migrants Remains the Foremost Casualty of India’s Covid-19 Response’ (2020) The Citizen Bureau https://www.thecitizen.in/index.php/en/NewsDetail/index/9/18713/-The-Plight-of-Migrants, Anisha Sircar, ‘India’s Coronavirus lockdown is bringing out the worst in its police force’ Quartz India (27March 2020)

• Maneka Gandhi v UOI [1978] AIR 597 (SC)

• Rudal Shah v State of Bihar [1983] AIR 1086 (SC)

• Bhim Singh v State of Rajasthan [1986] AIR 494 (SC)
• Smt. Gian Kaur v The State Of Punjab [1996] AIR 946

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