This article is written by Priyanshi Soni, student of Symbiosis Law School, Noida. This article seeks to highlight the right of freedom of movement as enshrined in the Indian Constitution and restrictions imposed on it during the current pandemic situations along with discussing the varied impact it had on different sections of the country.
Table of Contents
Introduction
The right to freedom of movement is one of the several fundamental and human rights provided to us. The government must ensure this right unless there is a need for reasonable restrictions by law. In India, this right is given to all its citizens. However, COVID-19 pandemic has led to the imposition of such laws which we were not used to in our normal lives. This led to the curb of many of our freedoms, such as speech, expression, trade, movement, etc. but yes, these restrictions were necessary and reasonable to protect the general public interest. But were these restrictions proportionate for every section of society? Even if these were the need of the hour, could it have been in such a way to equally protect the interest of all the individuals?
Right to freedom of movement as per the Indian Constitution
Article 19(1)(d) under Part III of the Indian Constitution deals with the fundamental right to freedom of movement. It guarantees the citizens of India the right to move freely throughout the territory of India. This right overlaps with Article 19(1)(e) which talks about the right to freely reside in any part of the country. The word “freely” connotes “without any absolute restriction”. Wherever and however one likes, he can move without any restriction. However, this right is subject to reasonable restrictions given by law which is mentioned under Article 19(5). Article 19(5) states that states can impose restrictions on the freedom of movement of people either in the interest of the general public or for the protection of rights of the scheduled tribes.
This right allows a citizen to move freely within and between states. Laws that mandate wearing helmets are not a restriction but promote safe movement by citizens.
In Dr. N.B. Khare vs The State Of Delhi (1950), the petitioner challenged the validity of the East Punjab Public Safety Act, 1949 (as extended to the Province of Delhi). It was challenged on the grounds that it empowers the District Magistrate and State Government to pass an externment order which restricts the movement within the limits of a place and that the petitioner was ordered the same, directing him not to stay in Delhi. He contended that this Act leaves to subjective satisfaction of the Executive regarding whether the person is to be the and second, that the Act doesn’t fix maximum period for the same. The Supreme Court rejected these contentions stating that the Act is not invalid merely because of the subject satisfaction because such a restriction is reasonable at times of emergency and also that since the Act is in itself temporary, there shouldn’t be any contention of externment orders being indefinite.
In another similar case of State of MP v Baldeo Prasad (1960), the petitioner’s contention was accepted by the High Court and the Court held that such an act of restriction by authorities should be done after giving proper reason or conditions which necessitated restricting the right.
Reasonable restrictions to the freedom of movement
As we know, Article 19(5) talks about reasonable restrictions that can be imposed by the state in the free movement of people either in the interest of people or in the interest of scheduled tribes.
Of the several existing laws, the Official Secrets Act of 1923 is an example of a restriction on the free movement made in the interest of the general public. This Act denies access to people in prohibited areas. This is in the interest and security of the people and hence justified.
Another reason for restriction being the protection of rights of the scheduled tribes. Scheduled Tribes are aboriginal tribes having a distinct culture, customs, language, and they are concentrated countrywide but mainly settled in the North East. It is considered important to protect their interest and thus, restricting outsiders from inhabiting these areas so that there will be less conflict of interest and less undesirable effects upon these tribal people.
Right to movement and personal liberty
There has been a long-standing controversy regarding whether the deprivation of personal liberty by detention is covered under a denial of rights under Article 21 only or 19(1)(d) as well.
A.K.Gopalan v. the State of Madras (1950)
In this case, this question repeatedly arose. It has been settled that a person can claim and rely on any fundamental right and it will eventually be the duty of the court to decide as to which fundamental right is violated.
In this case, the Supreme Court viewed Articles 19 and 21 too narrowly. Here, the petitioner was detained under the Preventive Detention Act, 1950 in jail and so filed a writ petition that this hampered his rights under Articles 19(1)(d) and 21. The Court held that Article 21 which protects personal liberty, implies personal liberty in the sense of the physical body’s liberty and not rights given under Article 19. This case, thus, held that personal liberty in cases of detention has to be covered under Article 21 and not 19(1)(d).
Kharak Singh v. The State Of U. P. & Others (1962)
In this case, unreasonable surveillance and domiciliary visits by police not authorized by any law and thus held to be violative of the right to freedom of movement. The Court observed that even psychological restraint of freedom of movement is violative of this Article.
Govind v. State of M.P. (1975)
Again, in this case, the petitioner contended that regulations given under the Police Act of M.P. i.e, Madhya Pradesh Police Vidheyak, 2002, violated his fundamental right to privacy which is a part of the right to free movement which is part of Article 21 as well as Article 19. The police officials paid many domiciliary visits and secret surveillance which hampered his privacy. It was contested that the petitioner led a life of a criminal. The Supreme Court held that this was a reasonable restriction by police officials as the regulations of the Act itself can only be enforced if there was determination via available material which showed a criminal background at the end of the person’s life. The regulations were held to be constitutional and not violative of Article 21.
Reasonable restrictions and curbing of the right to free movement during a pandemic
As the saying goes, “Extraordinary times call for extraordinary measures”. The pandemic has brought many restrictions in our ordinary life. From restricting our movement via imposed lockdowns to freedom of expression and assembly. Public gatherings, restaurants, malls, etc. were put to close, especially during the early period of the pandemic.
The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) (Article 12), at the global level, protect the freedom of movement as a basic human right. International Human Rights also recognizes that it is the duty of the government to promote the best health of its country’s citizens. It allows the government to put on any reasonable restriction required to ensure the health and safety of the public whenever there is a threat to the life of people or the security of the nation.
Generally speaking, the current restrictions on movement impact mostly the people who do not have a home, are poor, and also the women, to whom the pandemic has shown a grim picture of domestic abuse. Migrants are the hardest hit by these restrictive measures.
In the lockdown, the National Disaster Management Authority Act (NDMA) 2005, the Epidemic Diseases Act, 1897, along with the varied usage of Section 144 of the Code of Criminal Procedure by the states, are being used as tools. As per NDMA (2005), it gives power to authorities to make policies as and when required regarding the speech and expression of the public for the sake of disaster management. Coming to Section 144 of CrPC, a grey area is always present with respect to this Section as it empowers magistrates to abstain any person from doing any act which may hamper public order, health, and safety, etc. this has at times seen the misuse of power by the government.
What does the word “lockdown” signify
In a lockdown, people are restricted from moving or leaving an area. Only essential supplies, such as medical help, groceries, etc., are provided to them and all the non-essential items remain shut for the given period.
In these extraordinary/emergency times, a lockdown is necessary for the interest of the general public, for their security and safety, provided the measures imposed are not ‘extra-constitutional. That’s where the concept of “reasonable restrictions” comes into play. As we already discussed above, these restrictions are mentioned under Article 19(5) of the Indian Constitution. Restrictions on free movement can be imposed in the reasonable interest of the general public i.e., for the good of or protection of rights of STs, provided such a restriction is not arbitrary and must have a reasonable relation to the objective to be achieved. It is necessary that the restrictions need to be reasonable. For example, when a law deprives a person of the possession of his property for an indefinite period, it is considered to be und=reasonable and arbitrary.
The restrictions which are in place during the current pandemic
The NDMA does not directly put a restriction on the freedom of movement of people, though it restricts freedom of trade/occupation. Restriction on freedom of movement is put by the order passed by the government under Section 144 of CrPC along with the Epidemic Diseases Act. The restrictions put in place are inspired by Article 19(5) and are in the general public’s interest.
Restrictions and their proportionality
In the constitutional realm, it is important to take into account if the restrictions that are imposed are reasonable and proportional to what is required to be achieved with them and as per the need of the hour.
Impact on traders
It is laudable that many state governments decided to give full wages to their employees during the lockdown, but the impact on the shut businesses is inequitable. It is argued that putting a restriction on one group of people while imposing on other groups to mandatorily work in a time of crisis is nowhere mentioned in the Constitution and thus implies inequality. Although it is a moral duty on the part of those people to serve others, the Constitution is silent on the same.
Impact on migrant workers
This principle of proportionality in imposing restrictions is based upon the idea that the impact of restriction and so the proportionality aspect varies for all the citizens. The restrictions put in were inequitable when we talk about the migrant workers. If we see with these lenses, then it can be said that they were unreasonable restrictions as they did not take into account all classes/groups of citizens. Those migrant workers who were labelled as violators were not completely at fault as disproportionate restrictions were placed upon them without taking into consideration the socio-economic condition of everyone.
Needless to say, society is divided on the basis of many socio-economic differences that exist among the members of the society. It is the responsibility of the state to impose such laws and restrictions which are proportional from the point of view of everyone and not disadvantageous to one class and advantageous to others.
Conclusion
To conclude, the right to freedom of movement is a fundamental right provided to us by our Constitution. It is recognized as a basic human right globally. In today’s times of pandemic, the restrictions are necessary for the general public interest, but the impact of such restrictions is very disproportionate. Although the government puts restrictions that are proportional in the eyes of the general public, when we see the ground level difference that exists in society it is required on the part of the state to ensure reasonable standards of proportionality.
References
- https://www.barandbench.com/columns/fundamental-freedoms-and-proportionality-of-restrictions-in-the-lockdown
- https://www.opendemocracy.net/en/can-europe-make-it/what-happens-freedom-movement-during-pandemic/
- https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response
- https://www.amnesty.org/en/countries/asia-and-the-pacific/india/report-india/
- https://www.barandbench.com/amp/story/apprentice-lawyer/freedom-of-speech-and-expression-in-the-times-of-coronavirus
- https://www.business-standard.com/about/what-is-lockdown
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