JURIST Guest Columnist Tanay Goyal, a second-year law student at NALSAR in Hyderabad, India, discusses the legislation the Indian government relied on to implement lockdowns amid COVID-19 and the issues with this strategy...
On Tuesday, 24 March 2020, Prime Minister Narendra Modi declared on national television that India would be under lockdown for twenty-one days in order to prevent the spread of the global pandemic COVID-19 (Coronavirus). The decision of the Prime Minister was made two days after he had advised the citizens of India to follow the Janta Curfew, which was a voluntary curfew. The Janta Curfew acted to prepare Indian citizens for the current lockdown.
The Ministry of Home Affairs published the official notification and invoked the lockdown under Section 6 of the Disaster Management Act. The Home Secretary issued guidelines for this lockdown under his powers in Section 10 of the Disaster Management Act, as the Chairman of the National Executive Committee constituted under Section 8 of the Act.
It is surprising to see that the terms ‘lockdown’ and ‘curfew’ have not been defined under Indian law but are still being used to curtail the fundamental right of movement enshrined under Article 19(1) of the Indian Constitution. This cannot be termed invalid as this right is subject to reasonable restrictions under Article 19(2). The closest understanding of ‘lockdown’ can be construed from the Epidemic Diseases Act (EDA). Section 2 and 2A of the EDA give power to the State and Central governments to take necessary steps in the situation of an epidemic to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country.
Looking to the the Disaster Management Act, which was used to enforce the lockdown, Section 2(d) reads: “‘Disaster means a 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.” This section is not meant to deal with epidemics or diseases of any kind but causes such as, but not limited to, tsunamis and earthquakes. However, the Ministry of Home Affairs declared the spread of COVID-19 as a “notified disaster”, thus bringing into play Section 2(d) of the Disaster Management Act. This enabled the State Governments to use a larger part of the State Disaster Response Fund (SDRF) to combat the spread of the virus.
It is interesting to see that when the lockdown was announced, its application was not sourced from any law. It is not explicitly provided anywhere that the government has the power to declare something of this nature. It looks as if the policy had first been declared, and then the later the government considered which law applied. Declaring the COVID-19 outbreak as a “notified disaster” is a first-of-its-kind measure taken to increase the scope of government powers that can be used in order to make quick administrative decisions to fight this disease. It is important for the government to back its policies and decisions with legal provisions as it validates those actions.
In furtherance of the declaration of a nationwide lockdown, the Ministry of Home Affairs published guidelines using Section 10(2)(l) of the Disaster Management Act on the measures State and Central Governments must take during this twenty-one day period. The guidelines established that all types of transport services (air, train, and road travel) will not be operational during this period. Commercial and private establishments shall remain closed, except for ration shops, banks, ATMs, media services, and telecommunication companies. The guidelines also said under paragraph 17 that any person who violates these containment measures will be liable under Sections 51 to 60 (Offenses and Penalties) of the Disaster Management Act, and under Section 188 of the Indian Penal Code which creates the punishment for disobedience to order duly promulgated by a public servant.
In the case of Paschim Banga Khet Mazdoor Samity V State of West Bengal, the Supreme Court held that the government is obligated to provide adequate health facilities to the citizens of India. But the current status of medical facilities (including, but not limited to, testing kits, hospitals, and the number of people trained to combat something of this nature) suggests that India needs something more than a Disaster Management Act or an Epidemic Diseases Act that only grants powers to the government to take steps they deem necessary. India requires a methodological and comprehensive framework to combat a pandemic of this nature.
For more on COVID-19, see our special coverage.
Tanay Goyal is a second-year law student at the National Academy of Legal Studies and Research (NALSAR) University of Law in Hyderabad, India.
Suggested citation: Tanay Goyal, COVID-19: The Law of the Lockdown, JURIST – Student Commentary, April 25, 2020, https://www.jurist.org/commentary/2020/04/tanay-goyal-india-lockdown/
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