Legality of Lockdown

The article has been written by Prithiv Raj Sahu, a student of KIIT School of Law, Bhubaneswar (4th year).

Article 352 of the Indian Constitution allows the President to declare emergency when he is satisfied that the security of India on any part of its territory is threatened by war, external aggression or armed rebellion.
Article 356 allows for declaration of a state emergency for a specific state when the President is satisfied that the government of a state cannot be carried on in accordance with the provisions of the Constitution.
Article 360 of the Indian Constitution provides for declaration of a financial emergency when the President is satisfied that the financial stability or credit of
India or of any part of the territory thereof is threatened.

Under this constitutional framework, two laws provide the Centre and the states the statutory basis for acting against the Coronavirus. They are the Epidemic Diseases Act (EDA) and the Disaster Management Act, 2005 (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. This warrants a closer examination of these two laws.

Epidemic Diseases Act, 1897

In 1896, Bombay (now Mumbai) faced a plague that killed thousands of people. Same as Coronavirus, very little was known about the disease at that time. It was said to be transmitted through bacteria and it was unknown from where this disease came. To restrict the mass movement and gathering of people, ‘The Epidemic Diseases Act’ was enacted on Feb. 4, 1897, which conferred the British Indian government powers to restrict people from gathering in large numbers. Even the Preamble (which provides for why this act been enacted) of this statute states as “better prevention of the spread of dangerous epidemic disease

Section 2(1) of this Act provides for special powers to the state if that State’s Government thinks that ordinary powers of the states are insufficient for curbing the impact of the dangerous epidemic disease, then the State Government can take any such measures and provide for regulations which it deems necessary to prevent and determine in what manner and by whom expenses incurred shall be defrayed.

Under Section 2(2) of the same act, the state government may also provide for regulation regarding the inspection of people entering within their state boundaries and if any person is suspected of the epidemic disease, the govt. may provide for temporary accommodation (in today’s case quarantining someone) if that person is suspected by the inspecting officer of being infected by the disease. Central Govt. may also provide for measures and prescribe for inspection of ship or vessel leaving or arriving at Indian ports.

Disaster Management Act, 2005

The DMA mandates setting up a three-tier Disaster Management Authority at the national, state and district level to formulate a disaster plan for its level.

Some of its relevant sections are:

Section 11(3) sets out the aspects of such a plan. It is to deal with measures to be taken in mitigation and to address preparedness and capacity.
Section 22(2) (h) permits the state authority/executive committee to give directions to government departments on actions to be taken in response to any threatening disaster.
Sections 24 and 34 empower the state executive committees and the district authority to control or restrict the movement of vehicular traffic or people from or within a vulnerable or affected area, and to take any measures that may be warranted by such a situation. Section 30 replicates this model for the district level.
Section 35 permits the Central government to take such measures as (a) coordinate work between the various authorities and government departments (b) deployment of forces and (c) other matters to secure “effective implementation”.
Section 36 creates a statutory responsibility on all Central government departments to comply with the directions of the national authority.
Section 51 sets an imprisonment term of one year (two years in the event of loss of lives) for persons obstructing discharge of functions by any government officer or employee.
Section 6 empowers the Central government to issue binding directions to authorities and state governments.

Section 144 CRPC

This section imposes power to executive magistrate to restrict particular or a group of persons residing in a particular area while visiting a certain place or area. Section 144 is there to dispose of urgent cases of nuisance or apprehended danger by a competent magistrate so empowered to take such actions.

Orders Passed during Corona Virus

It is the first time, in the history of independent India that the country has come to a complete standstill. The Prime Minister Modi’s May 24 address to the nation which announced a four-hour lead time for bringing the entire nation under ‘lockdown’, the National Disaster Management Authority (NDMA) issued social distancing guidelines on March 24 considering the “corona virus pandemic” as a “disaster” within the meaning of the DMA. The Union home secretary forwarded these lockdown guidelines to the states and Union Territories by an order of the same 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. Certain exceptions for medical staff, journalists, petrol pumps, essential stores, etc have been provided for. The district collectors are to be the “incident commanders” in each district who would also decide on who should be issued exception passes. Downstream, 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.

Conclusion

A lockdown is a requirement for people to stay where they are, usually due to specific risks to themselves or to others if they can move freely. The term “stay-at-home” or “shelter-in-place” is often used for lockdowns that affect an area, rather than specific locations.

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