Is 'Lockdown" Constitutionally Valid?", Gujarat HC Seeks Response Of Centre, State on PIL

The Gujarat High Court on Tuesday heard a PIL challenging the constitutionality of the lockdown, asking the Union of India & State of Gujarat, the two respondents, to take instructions in the matter. "The Prime Minister declared a lockdown by invoking EDA, and DMA for 3 weeks on 24.03.2020 starting from 00:00:00 hours on 25.03.2020. This lockdown has been extended thrice thereafter; on 14.04.2020, 01.05.2020 and 17.05.2020 which continues till date. The measures include the shutting of all non-essential government establishments, all commercial and private establishments, industries, transport by air, rail and road, hospitality services, educational institutions, places of worship, political gatherings, etc. with certain exceptions", reads the plea by social activist Vishwas Sudhanshu Bhamburkar. It is argued that the lockdown caused untold hardships to the people of the country - food crises and hunger, migrant crises, medical crises and various other issues. It submits that the lockdown saw curfew being imposed from 7pm to 7am, without there being any law and order or public disturbances that warranted the imposition of curfew, which continues even today. It disallowed persons who were senior citizens, or persons above the age of 65 years, to step out of the houses. The lockdown also ordered the people of the country to not step out of their houses except during specific times and for very specific purposes, which were to get medical help or to buy essentials for sustenance of life. "The lockdown resulted in the people of the country being put under house arrest without being accused of any offence. It also suspended Articles 13, 14, 19 and 21 of the Constitution of India by keeping the people of the country illegally restrained inside their houses without any backing of the law", it is alleged. The petition contend that the word lockdown, or its synonyms or equivalent does not find mention in either the Epidemic Diseases Act, the Disaster Management Act or the Constitution of India. "In fact, the Constitution of India prevents the suspension of Articles 20 and 21 even during a declared emergency. However, the situation that has been in existence is worse than that of an emergency without one being declared, with or without following the due process of law", it is urged. It is submitted that for acting against the Coronavirus, the Centre and the states could invoke two legislations- They are the EDA and the DMA. "The case of the government perhaps is that these two laws arm it with sufficient powers and there is no necessity to fall back on the 'emergency provisions' of the constitution", the petition reads. It embarks on a closer examination of the statutes to assert that "the EDA is of 19th century vintage, enacted by a colonial power with a ruthless administrative apparatus uncontrolled by a constitution based on fundamental individual rights". "A closer look would indicate that even this law is intended to address a situation when a 'state or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease' and the government is of the opinion that 'the ordinary provisions of the law for the time being in force are insufficient for the purpose'", law indeed gives wide powers to "take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by, the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed." However, it does not provide that this power can be used in violation of any existing law, much less a constitution which was then not even in existence, it is stressed. The petition discloses that the authority concerned has not provided any safeguards before implementing the lockdown. The provisions of DMA, more particularly sections 12 and 13 which ensured the welfare of the persons and protected their livelihoods (Article 21) and other reasonable interests were not invoked; therefore the lockdown was neither imposed constitutionally nor has it been implemented legally, logically nor scientifically. "The plethora of criminal cases registered against persons ostensibly for violation of the said lockdown, when the lockdown itself is violative of the Constitution of India has caused untold harassment to the citizens who have chosen to live in accordance to the Constitution of India and have refused to follow illegal orders...the said lockdown, prevented the people of the country from traveling from one part of even the city/town to another, let alone from one part of the country to another, a violation of Article 19 of the Constitution of India...notification(s) of lockdown violated, undermined and ignored the provisions of various laws that have been passed by Parliament...

Is 'Lockdown" Constitutionally Valid?", Gujarat HC Seeks Response Of Centre, State on PIL

Mehal Jain

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