• Shrishti Kulshrestha

Is Lockdown legally sustainable?

Updated: Jan 11



This article is written By – Shrishti Kulshrestha

1. INTRODUCTION


“Stay at home”…. “Quarantined”…. “No movement”… “No business”….We all are continuously hearing all these terms due to the world wide pandemic- “COVID-19”. We all are confined in our homes to stay safe as a result of the lockdown. The lockdown first came in the form of a janata curfew on 22 March accepting the request made by the Prime Minister. Later the 21-day lockdown announced via his address to the nation on 24 March. Before it could expire, again it was extended through another broadcast on 14 April until 3 May 2020 and again on 1st may it was extended to 17thmay2020 and the same chain goes on.

“lockdown” is not a legal term and actually it is not even same as curfew. To enforce a lockdown provisions of Indian Penal code can be used which includes Section 188 which states disobedience to the directions given by a public servant, Section 269 i.e. negligent act likely to spread infection of disease dangerous to life and Section 270 -malignant act likely to spread infection of disease dangerous to life.

‘Curfew’ again is not a legal term. Generally, exercise of a power available to the District Magistrate, SDM, or any other executive magistrate under Section 144 of the Code of Criminal Procedure is, in common parlance, referred to as a ‘curfew’.

So, is this lockdown legally valid?

2. WHETHER GOVERNMENT HAS POWER TO EXECUTE COMPLETE LOCKDOWN?

There is no legal term like lockdown so, firstly the question is what lockdown means? According to Cambridge dictionary, lockdown means “a situation in which people are not allowed to enter or leave a building or area freely because of an emergency”.

The emergency or lockdown can be declared under following provisions of Indian laws.2.1 ARTICLE 352 OF INDIAN CONSTITUTION

Article 352 of the Indian constitution provides three grounds for imposing national emergency. The emergency can be imposed on the following three grounds: War, External aggression & Armed rebellion. It can clearly be seen that there is no provision under the article 352 of Indian constitution stating any emergency for the medical or health situations. At the same time the lockdown is in derogation to Article 13, Article 19 and many other fundamental rights. So, the articles of constitution are nowhere satisfactory from the current scenario. Even Sir KTS Tulsi said that “And this should have been the constitutional provision exercised by the central government.”2.2 DISASTER MANAGEMENT ACT, 2005

It can be often seen the PM, news reporters and even newspapers using the act. What is actually the relevance of this act in current scenario?2.2.1 Whether COVID-19 falls under the ambit of Disaster management act?

Sec. 2(d) states “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area;”

So yes, COVID-19 creates a grave occurrence in all over the country and results in substantial loss of life and human suffering therefore, it falls under the definition of disaster and hence falls under the ambit of Disaster management act. 2.2.2 Whether Disaster management act provides power to declare lockdown?

Firstly, section 3 of the DMA provides the establishment of the national disaster management authority. Furthermore, the powers and functions are stated under section 6 of the same.

Section 6 of the disaster management act states the powers and functions of National disaster management authority (NDMA).

According to section 6 of the act, “(1) Subject to the provisions of this Act, the National Authority shall have the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster.

(2) Without prejudice to generality of the provisions contained in sub-section (1), the National Authority may–

(a) lay down policies on disaster management;

(b) approve the National Plan;

(c) approve plans prepared by the Ministries or Departments of the Government of India in accordance with the National Plan;

(d) lay down guidelines to be followed by the State Authorities in drawing up the State Plan;

(e) lay down guidelines to be followed by the different Ministries or Departments of the Government of India for the purpose of integrating the measures for prevention of disaster or the mitigation of its effects in their development plans and projects;

(f) coordinate the enforcement and implementation of the policy and plan for disaster management;

(g) recommend provision of funds for the purpose of mitigation;”

Here, under this section it has clearly been stated that the National Authority have the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster. Therefore, National Authority may lay down policies on disaster management, lay down guidelines to be followed by the different Ministries or Departments of the Government of India for the purpose of integrating the measures for prevention of disaster or the mitigation of its effects in their development plans and projects and also coordinate the enforcement and implementation of the policy and plan for disaster management.

Further in section 35, the measures that had to be taken by the central government have been stated. It provides the central government with some powers to deal with the disaster management but these powers are limited under ten points. This section states that “(1) Subject to the provisions of this Act, the Central Government shall take all such measures as it deems necessary or expedient for the purpose of disaster management.”

Under section 36 of the disaster management act, it is the responsibility of the central government to take preventive measures and also to follow the orders of national disasters management authority. Section 36 states “It shall be the responsibility of every Ministry or Department of the Government of India to—

(a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority;

(b) integrate into its development plans and projects, the measures for prevention or mitigation of disasters in accordance with the guidelines laid down by the National Authority;

(c) respond effectively and promptly to any threatening disaster situation or disaster in accordance with the guidelines of the National Authority or the directions of the National Executive Committee in this behalf;

(d) review the enactments administered by it, its policies, rules and regulations, with a view to incorporate therein the provisions necessary for prevention of disasters, mitigation or preparedness;

(e) allocate funds for measures for prevention of disaster, mitigation, capacity-building and preparedness;

(f) provide assistance to the National Authority and State Governments for—

(i) drawing up mitigation, preparedness and response plans, capacity-building, data collection and identification and training of personnel in relation to disaster management;

(ii) carrying out rescue and relief operations in the affected area;

(iii) assessing the damage from any disaster;

(iv) carrying out rehabilitation and reconstruction;

(g) make available its resources to the National Executive Committee or a State Executive Committee for the purposes of responding promptly and effectively to any threatening disaster situation or disaster, including measures for—

(i) providing emergency communication in a vulnerable or affected area;

(ii) transporting personnel and relief goods to and from the affected area;

(iii) providing evacuation, rescue, temporary shelter or other immediate relief;

(iv) setting up temporary bridges, jetties and landing places;

(v) providing, drinking water, essential provisions, healthcare, and services in an affected area;

(h) take such other actions as it may consider necessary for disaster management.”

National executive committee is working on the guidelines issued by the national authority of disasters management (section 10). Section 47 of disaster management act, empowers the Central government to constitute a National Disaster Mitigation Fund.

Section 6 empowers the Central government to issue binding directions to authorities and state governments as stated above.

And, Section 72 gives this law an overriding effect which states- “The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. —The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”3. ORDERS PASSED ON THE PENDAMIC

Currently, the declarations have been made by the prime minister of the country as the chairman of NDMA. As section 3 (2) (a) provides “the Prime Minister of India, who shall be the Chairperson of the National Authority, ex officio;” Prime Minister Modi’s first address to the nation which announced for bringing the nation under ‘lockdown’ for 21 days on 24th march, was issued under social distancing guidelines by the national disaster management authority considering the coronavirus as a “disaster” as stated under disaster management act in its definition clause.3.1 HIERARCHY OF THE LOCKDOWN EXECUTION

The lockdown is executed under 3 stages.❖ The central lockdown is declared by the prime minister as the chairman of NDMA {at central level}❖ The state authorities are responsible to follow the guidelines issued by the NDMA. {at state level}❖ The district collectors are the “incident commanders” in the district and also in several states, the competent authorities have issued orders under Section 144 of the Code of Criminal Procedure, 1973, prohibiting more than five people from assembling in public places. {at district level}4. NATIONAL “HOME CONFINEMENT” – Legality

The orders that had been passed under Section 144, CrPC restrict collective assembly. So, the question arises that

“Can the NDMA direct a “lockdown” which draws the “lakhsman rekha” at the citizen’s door and compels her into virtual imprisonment for 21 days?”

The Directive Principles of State Policy, which are considered to be fundamental obligations in the governance of the country. Article 39 (a) & (e) require the government to take steps to ensure that citizens have a right to adequate means of livelihood, and citizens are not forced by economic necessity to enter avocations unsuited to them.

​The present lockdown creates the condition that run contrary to these obligations.

Section 144 CrPC as well the cognate provisions in state police usually prohibit assemblies. Still the ‘Lakhsman Rekha’ as been taken to all our doorsteps.

The main issue again arises that without any declaration of emergency is “lock-down” constitutionally valid?

Firstly, here the Doctrine of necessity became loud and clear and thus clearly states that the necessity knows no law and when the life of 150 crore citizens are under threat for whatever it is worth, if we are willing to accept that these deadly times are fascinating us to act beyond the four corners of our basic law, at the very least let us not lose focus on the equally serious mandate of both the EDA and DMA and all the provisions provided under it.

CONCLUSION

21 days is considerably a long time to stay back home but it is equally essential for the safety of us, our families and the Nation. A wholehearted support to the administration in this hour of national crisis is the duty of every Indian. These were the legal grounds on which the lockdown is being executed but at the same time there should be a check on the validity of the orders passed by the government and also to keep an eye on the all the constitution’s infringement.

The most important thing that can be noticed during this COVID-19 lockdown that instead of having many laws and many different-different acts there must be a comprehensive and complete act to cope up with such situations.

AUTHOR Shrishti Kulshrestha is student at Amity University Madhya Pradesh.
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