2 April 2020 4:01 AM GMT
It is the first time, in the history of independent India, that the country has come to a complete standstill. Given the grave threat posed by the SARS CoV-2, the 21-day lockdown is undoubtedly, the need of the hour. However, many have questioned the Constitutional validity of such an action. At the outset, I would like to draw a distinction between the Constitutional validity of...
It is the first time, in the history of independent India, that the country has come to a complete standstill. Given the grave threat posed by the SARS CoV-2, the 21-day lockdown is undoubtedly, the need of the hour. However, many have questioned the Constitutional validity of such an action. At the outset, I would like to draw a distinction between the Constitutional validity of the lockdown itself and the measures taken to enforce it. In this article, I will deal with the former, and analyse first, whether the Ministry of Home Affairs Guidelines are in consonance with the fundamental rights guaranteed under the Constitution and two, whether the Central government can issue such guidelines when 'Public Health' is a State subject.
Is the lockdown constitutionally valid?
To answer simply – yes, the State has the power to order such a lockdown if it benefits the public at large. This is in spite of the debilitating consequences it may have in the present and future. The right to life guaranteed under Article 21 of the Constitution is the most sacrosanct fundamental right. Without life, there can be no liberty. Thus, it paves the way for all other rights to exist.
The Supreme Court, in State of Punjab v. M.S. Chawla, has interpreted Article 21 in a broad manner, stating that "right to health is integral to the right to life. The government has a constitutional obligation to provide health facilities." Thus, the State has a positive obligation under Article 21 of the Constitution to swing into action in the face of a public health emergency such as the present pandemic to protect the lives of its people.
A lockdown primarily affects two of our fundamental rights: the right to move freely throughout the territory of India and the right to practice any profession, or to carry on any occupation, trade or business. These rights have been guaranteed under Article 19(1)(d) and (g). However, a reading of Article 19(5) and (6) make it clear that 'reasonable restrictions' can be imposed on these rights in the interests of the general public provided it is done by a duly enacted law. In Narendra Kumar v. Union of India, the Supreme Court held that to determine the reasonableness of a restriction, among other factors, it must consider the background of the circumstances in which the order is issued and "whether the restraint caused by the law is more than necessary in the interest of the general public." In Bannari Amman Sugars Ltd. V. CTO, the Supreme Court further observed that a restriction does not become unreasonable merely because it operates in a harsh manner.
The uncertain nature of the SARS CoV-2, its rapid spread and the absence of a vaccine is compounded by the fact that the Indian health infrastructure doesn't have the capacity to handle a China/Italy/US/Iran like situation. A lockdown helps enforce social distancing and isolation, which is essential to contain the virus spread. China has attributed its successful recovery to its lockdown of Hubei province. While one may consider this kind of restraint on our movement and profession extreme and unprecedented, it is not in excess of what is required in the current predicament. In fact, it is necessary in the interests of the general public. Thus, the Guidelines issued under the Disaster Management Act, 2005 will qualify as a reasonable restriction under Article 19(5) and (6).
Public health is a state subject, how can the central government order a lockdown?
Federalism is one of the fundamental pillars of our polity and is part of the basic structure of the Constitution. The division of powers between the Centre and the States is enumerated in the Union, State and Concurrent Lists of the Seventh Schedule of the Constitution and residual powers are vested in the Central Government. Public health falls under Entry 6 of the State List, giving the States the power to legislate on all matters concerning public health within its jurisdiction. Meanwhile, Entry 81 of the Union List allows the Centre to make laws on inter-state quarantine and quarantine of ports and ships. Accordingly, Section 2 of the Epidemic Diseases Act, 1897 provides States with the powers to take all necessary measures to contain an epidemic, while Section 2A empowers the Centre to take measures for inspections and detention of ships. States have invoked Section 2 of the 1897 Act to enforce orders detailing measures to combat the virus.
However, the Centre has taken a different route to impose the lockdown, as extraordinary times demand extraordinary measures. COVID-19 has claimed almost 29,000 lives and has been classified by the WHO as a pandemic. To curb its deadly spread, the government has invoked the Disaster Management Act, 2005 and permitted various Government Authorities to take measures to effectively enforce social distancing. The Act was legislated under the head of 'Social Security' which is provided by Entry 23 of the Concurrent List. The Act defines the term "disaster" broadly and includes within its ambit a "grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life, human suffering." Further, the occurrence must be "of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area."
The SARS CoV-2 pandemic has caused substantial loss of life, particularly in countries which have been unable to slow its spread, such as in Italy and the US. India is particularly vulnerable because, to quote the Vox, "public health care in the country is poor" and "private health care is expensive." While the WHO recommends a doctor to patient ratio of 1:1000, the ratio for India, given that treatment of COVID-19 is limited to government hospitals, is 1:11,000. India is also facing shortage of ventilators. For a population of 1.3 billion people, we are estimated to have a mere 30,000 to 50,000 ventilators. The threat posed by COVID-19 is grave and considerably beyond the coping capacity of the Indian healthcare system.
By terming COVID-19 as a disaster, the Government has rightly acknowledged the magnitude of the problem. The Prime Minister, being the ex officio Chairperson of the National Disaster Management Authority (NDMA) under Section 3(2)(a) of the 2005 Act, has the power under Section 6(2)(i) to take measures for the prevention and mitigation of the disaster. Using this power, the NDMA has permitted various different Authorities to take measures to contain the spread of the virus. The Guidelines for social distancing have specifically been issued under Section 10(2)(l) of the Act by the National Executive Committee, which is constituted under the Act to assist the NDMA in its efforts. It is also pertinent to note that the Disaster Management Division comes under the aegis of the Ministry of Home Affairs, making the MHA the nodal ministry in this crisis.
Therefore, as far as the legal tenability of the lockdown us concerned, the Centre's actions are sound in law.
Here, I look at the legality of the incidents of police excess against alleged violators of the lockdown. In order to understand the problem, we must first distinguish between a lockdown and curfew.
What's the Difference between a Lockdown and Curfew?
The term "lockdown" has been informally used to describe the measures announced to curb the spread of SARS CoV-19. It must be noted that it has not been officially used in the orders and notifications issued by the Centre. Further, a "lockdown" is different from a "curfew". A "curfew" is usually a short-term measure requiring people to remain indoors. Essential services may also be disrupted as it requires people to be off the streets and is usually imposed to check law and order problems like riots, terror activities or insurgency.
On the other hand, a "lockdown" is a relatively long-term measure, requiring the closure of public and private establishments in order to restrict the large-scale movement of people. What distinguishes a "lockdown" from "curfew" is that essential services continue to operate in a lockdown and people may get out of their homes to access such services. Moreover, a lockdown need not relate to law and order problems only. Thus, a lockdown is less restrictive than a curfew. The effect of the MHA Guidelines is the imposition of a lockdown as it is for an extended period of time and essential services continue to operate.
Can the Police Use Violence to Enforce the Lockdown?
While the Prime Minister has appealed to the people to stay indoors, the Government Order neither uses the term "curfew" or "lockdown" per se. Even in States which have invoked Section 144 of the CrPC, which prohibits the assembly of four or more people in public places, no order has been issued which explicitly makes it criminal to step out of the house. This is less so if one is rendering an essential service or has ventured out to buy essential items. As responsible citizens, it is our duty to ensure that we don't leave our houses. However, even if we do, we cannot be subject to the callous treatment that many have been victim of in the past few days. We live in a country plagued with illiteracy and poverty and many have been caught unaware by the sudden lockdown. The plight of the migrant workers, who are compelled by their poverty to walk thousands of kilometers back home as they cannot afford to live in the city without work, is a compelling reminder of why we must exercise compassion and not violence in this hour of crisis.
It is not my case that all Police Officers are meting out such treatment. The majority of the Police force must be commended for their remarkable efforts in maintaining order in a situation of extreme panic, and braving the threat of the virus by putting their personal safety at risk and turning up to work. It is some errant Police Officials who have chosen to take the law in their own hands and strict action must be taken against them. The MHA Guidelines clearly state that a person found violating its stipulations can be charged under Section 188 of the IPC which provides for a fine or an imprisonment term for one month for the violation of an order of a public servant. Further, the provisions of the Disaster Management Act, 2005 can also be attracted. The Act provides for penalties which can attract fines as well as imprisonment up to 2 years for violating orders issued under Act.
Should People Be Arrested for Violating Lockdown?
However, the abovementioned provisions must be invoked cautiously, with due application of mind. Consideration must be given to the fact that it is difficult for people to approach the Courts, which are functioning on an extremely limited basis, for the enforcement of their fundamental rights. The State must also take care to ensure that the punishment is proportionate to the offence in question, as held by the Supreme Court in Vikram Singh v. Union of India, especially when the Government has not expressly clarified whether a single person walking on the street amounts to an offence.
Yascha Mounk, a professor at John Hopkins University, in his book The People versus Democracy argues that a liberal democracy strikes a balance between two foundational principles, the 'will of the majority' and the 'rule of law', which gives primacy to individual rights. India has prided itself on being one of the leading liberal democracies of the world. Our Constitutional framework may allow for individual rights to be curtailed, but they cannot be completely sacrificed at the altar of the 'will of the majority'. In the face of a public health challenge, it is all the more necessary to be vigilant about human rights, as history teaches us that the gravest human rights violations have taken place during wars, emergencies and disruptive situations. The 'majority' should be careful before applauding or normalising police excesses in the name of public interest when alternate and proportionate penalties exist.
The ideal approach in this case would be for the Police to fine people who are found violating a Section 144 order or the MHA Guidelines on the lockdown. For instance, the U.K. has given its Police Officers the power to issue on-the-spot fines of £60 for people found violating the lockdown rules. Fines, accompanied with positive propaganda, such as the "Corona Warrior" videos shared by the Prime Minister, are the most effective and humane ways of ensuring that people understand the need for social distancing and are hence deterred from stepping out of their homes.
 Criminal Appeal No. 824 of 2013
 (1997) 2 SCC 83.
 AIR 1960 SC 430.
 (2005) 1 SCC 625.