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''State Has Statutory And Vicarious Liability To Protect Citizens": Madras HC Dismisses PIL Questioning The Legality Of Lockdown With Rs. 50,000 Cost:[Read Order]

Mehal Jain
22 Jun 2020 11:46 AM GMT
State Has Statutory And Vicarious Liability To Protect Citizens: Madras HC Dismisses PIL Questioning The  Legality Of Lockdown With Rs. 50,000 Cost:[Read Order]
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The Madras High Court on Wednesday dismissed, with exemplary costs, a PIL contending that there is no provision in The Epidemic Diseases Act, 1897 or The Disaster Management Act, 2005 to impose a lockdown and therefore, the orders for the same, have been passed without any authority of law besides being arbitrary.

The petition argued that the lockdown, as imposed by the government of India on March 24 for the first time, and as lastly extended on May 31, which continues to be in force in the state of Tamil Nadu, is unconstitutional in view of the restriction of movement of persons, gatherings of religious, social and political in nature and night curfew. It is urged that the lockdown is in Violation of Article 19 (b) (d), 21, 25 and 14 of The Constitution of India and further excessive of the National Disaster Management Biological Disasters Guidelines, 2008 and National Disaster Management Plan, 2019.

Refuting the aforesaid submission, the division bench appreciated that Section 2 of The Epidemic Diseases Act, 1897 confers power upon the State Government to take special measures and prescribe regulations as to dangerous epidemic disease. Section 2 (d) of the said Act defines "disaster" which includes catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made 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.

Similarly, Chapter V of the Disaster Management Act, 2005 deals with measures by the Government for disaster Management. Section 35 (2) (d) of The Disaster Management Act specifically provides that the Central Government shall take measures to ensure that the Ministries or Departments of the Government of India take necessary measures for preparedness to promptly and effectively respond to any threatening disaster situation or disaster.

Further Section 35 (2) (i) provides that the Central Government shall take measures as it deems necessary or expedient for the purpose of securing effective implementation of the provisions of this Act.

"Therefore, it is not as if the respondents have imposed the lockdown without any authority of law. The power to impose the lockdown is very much available under the aforesaid Acts. The lockdown is one of the measures taken up by the respondents to curb and restrict the spread of the pandemic. Therefore, the imposition of the lockdown as a measure of curtailing the spread of the pandemic by the respondents cannot be said to be arbitrary", concluded the bench.

In any event, the Court was of the view that the imposition of lock down or relaxing the lock down is a matter to be decided by the instrumentalities of the Government by taking note of various factors and the ground realities- "This Court cannot, in exercise of power under Article 226 of The Constitution of India, interfere with the decision taken by the respondents in an effort to curb the pandemic".

The bench noted that when already similar writ petitions filed as public interest litigation have been dismissed by a coordinate bench of this Court, the present writ petition is not warranted- "The writ petitioner, in our opinion, has filed this writ petition not in any public interest, but otherwise".

"The petitioner ought not to have filed the present writ petition styled as a Public Interest Litigation consuming much of our time. We therefore hold that the present writ petition has to be dismissed with exemplary costs. In the light of our above conclusion, we dismiss the writ petition with costs of Rs.50,000/- (Rupees Fifty Thousand Only) payable by the petitioner to the Honourable Chief Justice Relief Fund", ordered the Court.

The bench further wished to emphasise that the entire world is witnessing an extraordinary situation whereby the livelihood of several citizens were affected due to the burgeoning spread of the Pandemic - Covid- 19. Even though efforts are being taken on a war-footing, it's rapid spread could not be curtailed with ease. "It is also to be stated that the State had a statutory as well as vicarious liability to protect its citizens. It is in this direction that the respondents have passed orders imposing lockdown and restricted the movement of the citizens. While so, the question of infringement of fundamental rights will not arise", observed the Court.

It reiterated that imposition of lockdown is one of the measures taken by the respondents in the larger interest of its Citizens and to ensure that their health and life are not jeopardised in any manner. The lock down, according to the respondents, is the panacea for all the woes confronted by the Country at the moment. The object of the lock down is only to curtail the spread of the virus in all earnestness. Even according to the petitioner, the restrictions imposed by the respondents during the first phase of lock down have been by and large relaxed in the successive lock down keeping in mind the larger interest of the public. "While so, the contention of the petitioner that the lock down had impaired his fundamental rights guaranteed under Articles 19 (b), (d), 21, 25 and 14 cannot be countenanced", said the Court.

Before the bench, the Additional Solicitor General for India advanced that the World Health Organisation had declared Covid-19 epidemic as a Pandemic. On the basis of the guidelines given by the World Health Organisation and after consulting the experts in the field, the UOI and the National Disaster Management Authority have thought it fit to impose a nation wide lockdown in exercise of the power conferred under Section 8 (2) (ii) of the Disaster Management Act, 2006 and 10 (2) (i) of The Disaster Management Act. The imposition of lockdown is imperative to save the lives of the citizens at large from the pandemic. The Central Government has a statutory obligation to protect its citizens in times of a crisis of this nature and volume. Thus, it was contended that the nation wide lockdown has become imperative to save the lives of the citizens and there is no arbitrariness involved in passing the order dated 30.05.2020 by the government of India which is impugned in this writ petition.

The Advocate General for the state had invited the Court's attention to the order dated 15.05.2020 passed in WP No. 7655 of 2020 and order dated 18.05.2020 passed in WP No. 7602 of 2020. In both the aforesaid writ petition, a Mandamus was sought for to reopen the temple, mosque, churches and other religious shrines inter alia allowing people to offer prayer, preach and profess as per their custom by maintaining social distancing and other reasonable restrictions prescribed to contain corona virus spread. In the aforesaid orders, this Court dismissed the writ petition by holding that in the event of permission being accorded to open the places of religious worship, there will be a huge crowd. It was specifically held that even though the petitioner in WP No. 7602 of 2020 claims to be a social activist, he has not come forward with any solution as to the maintenance of social distancing norms by the persons who come to the place of religious worship. Similarly, in the present case, it is the contention of the petitioner that the lockdown is unnecessary and it has not curbed the spread of virus. Such a contention of the petitioner is without any basis. In a grave situation of this magnitude, it is for the administrators to decide and take steps to curb the pandemic by consulting the experts in the field. The need to maintain social distancing and a ban on public gatherings has now become a global norm in many countries and the State cannot be an exception. The Advocate General has also stated that several States have invoked the provisions of the The Epidemic Diseases Act, 1987 and The Disaster Management Act, 2005 to impose the lockdown.

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