The Legal Framework Behind Lockdown

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On Tuesday, 24th March 2020, the Government of India under Prime Minister Narendra Modi declared a country-wide complete lockdown till 14th April 2020, to combat the Covid-19 pandemic. It all started with the Janata curfew which was observed throughout the nation on 22nd March 2020. As we enter the Unlock Phase 2 (Unlock 2.0), there is a slight reason to discuss its legality. Chances of the Supreme Court hearing the matter are bleak due to the current restrictions on case filings. However, that doesn’t prevent us from scrutinizing its legality and assessing the laws and regulations which were enacted to implement the lockdown. 

Laws Governing the Lockdown

The Central government took recourse to two laws that provide the Central Government and the State Governments the statutory basis for acting against a catastrophic global pandemic like COVID-19: the Disaster Management Act, 2005 (DMA, 2005), and Epidemic Diseases Act, 1897 (EDA, 1897).

The Ministry of Home Affairs (MHA), headed by Mr. Amit Shah, invoked the lockdown under Section 6(2)(i) of the Disaster Management Act, 2005. The ministry published the official notification stating the rules and guidelines to be followed by every State and Union Territory, under section 10 of the abovementioned act. It limited the movement of 1.3 billion people and which led to the closure of offices, non-essential shops, schools, colleges, places of worship, gyms, salons, and malls. It also resulted in the closure of all modes of transport services. The Disaster Management Act of 2005 provides for the establishment of the National Disaster Management Authority to be chaired by the honorable Prime Minister. Section 6 of the DMA, the powers and functions of the National Authority includes laying down policies and guidelines to be followed by all States, Union Territories, and Union Ministries for the prevention of the said disaster. According to the DMA, 2005; ‘disaster’ means a calamity, catastrophe, or grave occurrence in an area, arising from natural or man-made causes resulting in substantial loss of life or human suffering. This act was mainly established to encounter situations like an earthquake or flood and not a disease. On 14th March, the Union Ministry of Home Affairs declared COVID-19 as ‘notified disaster’ because of which the provisions of the Disaster Management Act, 2005 can be applied in this scenario. Furthermore, the National Disaster Management Authority published social distancing regulations and other safety measures on 24th March for the safety of citizens.

Various states such as Maharashtra, Karnataka, and West Bengal also invoked Section 2 of the Epidemic Diseases Act, 1897.  Section 2 of the EDA, 1897 states that if the state government is satisfied that the state or if a particular area within the state is threatened with an outbreak of any dangerous epidemic disease, it can pass orders or prescribe temporary rules and regulations to be followed by the public to prevent the outbreak and upsurge of that particular disease. Even though terms like ‘lockdown’ and ‘curfew’ aren’t defined under the Indian law, we can derive the closest meaning of ‘lockdown’ from the Epidemic Diseases Act of 1897. Lockdown can be defined as a situation in which free and absolute movement of goods is impeded, except the essential items and goods which are defined under Section 2,3, and 4 of the EDA, 1897.

Some of the numerous new terms which we came across in this lockdown are ‘quarantine’ and ‘isolation’. Both of these terms are defined under the Indian Aircraft (Public Health) Rules, 1954. ‘Quarantine’ means the restriction of activities or separation of suspect persons from others who are not ill or of suspect baggage or goods to prevent the spread of infection or disease. Similarly, ‘Isolation’ means separation of ill or contaminated persons or affected baggage and from others to prevent the spread of infection.

Punishment for Violating the Law

The guidelines published by the Ministry of Home Affairs (MHA) also mention the punishment if anyone violates the respective guidelines and orders, he/ she will be held liable under Sections 51 to 60 of the Disaster Management Act, 2005, and Section 188 of the Indian Penal Code (IPC). Sections 51 to 60 of the DMA, 2005 lays down the offenses and penalties, whereas Section 188 of the Indian Penal Code states that if any public servant disobeys an order and causes obstruction, injury, or annoyance to a person who is lawfully employed, he or she will be punished with imprisonment for a term which may extend to one month or with fine.

A Need for Concrete Steps

People might feel that the lockdown is tantamount to the violation of the fundamental right of movement and the right to assemble peacefully within the territory of India, under Article 19 (1) (d) and Article 19 (1) (b) of the Indian Constitution. It cannot be termed void as this right is subject to reasonable restrictions under Article 19(2). 

The situation is getting worse with the crippling of economic activity because of the increase in the unemployment rate and a sudden plunge in import-export and business activities. Close to 14 crore people lost their jobs and domestic workers, on the other hand, are being confronted with financial hardships and other challenges. There are only two laws which are governing the domestic workers, the Unorganized Workers Act, 2008, and the Sexual Harassment of Women at Workplace Act, 2013. But both of these acts are incompetent and ineffective. Even though the government has been allocating funds, initiating schemes and packages, and providing transport facilities to help them, the Legislation needs to come up with something more than a Disaster Management Act to fight against a global pandemic like COVID-19. With the death toll crossing the 20k mark, the government must come up with new schemes and medical policies, especially for the lower sections of society. Moreover, we require a legal framework with better and updated rules and regulations to revive the splintered economy. There is a stringent need for enacting a COVID-19 law to resuscitate the economic, medical, education, and financial sectors.

References

  1. https://www.nationalheraldindia.com/india/explained-the-legal-framework-behind-the-lockdown
  2. https://www.indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf

This Article is written by Shishir Johary, Student at NMIMS School of Law, Mumbai. 


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