Author :- Madhurika De
To quote the Prime Minister,
“Every State of the country, every Union Territory, every district, every municipality, every village, every street, every locality is being put under lockdown. This is an effect of curfew only.”
In history of independent India for the first time, lockdown became a need of hour due to threat posed by COVID 19. It was the end of January when first patient in India was tested positive of COVID 19. But since after that the number started increasing. In some states and union territories, the outbreak of COVID 19 was such that it leads to epidemic. In almost all the states and union territories educational institutions were closed ,offices were closed and everyone was asked to work from home, all the tourist spots, all religious institution, parks, movie theaters, Gym, swimming pools and other entertainment areas were being closed. People were ask to use mask, maintain social distance and wash their hands frequently and many other precautionary steps. On 22 March 2020, Prime Minister Narendra Modi declared Janta Curfew for 14 hours. After that in some states and union territories government issued complete lockdown either in whole state or in some districts of the state. Then on 24th March 2020 Prime Minister Narendra Modi declared a nationwide lockdown for 21 days i.e. lockdown 1. At the last day of lockdown 1 i.e. on 14th April 2020 Prime Minister Narendra Modi declared a nationwide lockdown i.e. lockdown 2 for another two weeks. Then again at the last day of lockdown 2 i.e. on 17th April 2020 Prime Minister Narendra Modi further extended a nationwide lockdown till 31st May 2020 i.e. lockdown 3. On 30 May Prime Minister Narendra Modi, declared that in contaminant zone lockdown would be further extended till 30 June 2020. Also he declared that all the services shall resume in a phased manner starting from 8 June which is termed as Unlock 1.
MEANING OF LOCKDOWN, CURFEW, AND QUARANTINE
In these difficult times, we often hear the words like “lockdown”, “curfew”, “quarantine”. It is very important to understand this term as all this terms looks like they are synonymous but all these words have different meaning.
The word Lockdown is not legal term thus it is not defined under law. Lockdown means where the free movement is restricted except the essential items.
Curfew is enforced during lockdown in case any person disobeys the directions of public servent or any person who spread infection.
Quarantine means providing restriction of activities or imposing separation of persons who is ill from other person who is not ill so to prevent spread of infection.
VALIDITY OF LOCKDOWN UNDER INDIAN CONSTITUTION
Many objections are being raised whether such lockdown is valid under Indian Constitution or not. First is whether the State has the power to order such a lockdown and answer to this is yes, if it benefits the public at large. Without life, there can be no liberty thus right to life guaranteed under Article 21 of the Constitution is the most important fundamental right. The nature of COVID 19 is such that Indian health infrastructure doesn’t have the capacity to handle the situation as there were rapid spreads and also no vaccine is available for the COVID 19. There is no direct provision in Indian constitution about Right to health but it is the judicial activism that leads to insert Right to health as a fundamental right and it is part and parcel of Article 21 of Indian constitution i.e Right to life with personal liberty. In consumer Education and research centre vs. Union of India , Supreme Court has held that right to health and medical care is guaranteed under article 21 of Indian constitution thus Right to health is fundamental right.
In State of Punjab v. M.S. Chawla , Supreme Court has held that right to health is integral to the right to life. The government has a constitutional obligation to provide health facilities.
Indian constitution has given us fundamental rights but the lockdown affects two of our fundamental rights. First is the right to move freely throughout the territory of India which is guaranteed under Article 19(1) (d) of Indian Constitution and the right to practice any profession, or to carry on any occupation, trade or business guaranteed under Article 19(1) (g) of Indian Constitution. But Article 19(5) and (6) of Indian Constitution provided that reasonable restrictions can be imposed on these rights in the interests of the general public provided it is done by a duly enacted law. The Guidelines issued under the Disaster Management Act, 2005 qualifies a reasonable restriction under Article 19(5) and (6).
The Supreme Court in Narendra Kumar v. Union of India held that in order to determine the restriction is reasonable or not, circumstances must be taken into consideration to analyze under which condition the order is issued .Supreme Court in Bannari Amman Sugars Ltd. V. CTO held that a restriction does not become unreasonable merely because it operates in a harsh manner.
THE EPIDEMIC DISEASES ACT, 1897
The Epidemic Diseases Act’ was enacted on Feb. 4, 1897, because in 1896 thousands of people were killed because of plague which transmitted through bacteria to stop mass gathering. The statute has only four provisions because this statue was enacted one of the most hurriedly as plague that devastated life in Bombay in 1896, forcing people to migrate out of the city.
Karnataka was the first state to implement this legislation when more than 20 people were positive of COVID 19. Then Haryana, Maharashtra, Delhi, Goa, and other states followed the lead and started implementing The Epidemic Diseases Act, 1897.
Under Section 2(1) of the Act State is provided with special powers that if state Government thinks ordinary powers of the states are insufficient to curb 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. Section 2(2) of the Act provides that 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 if that person is suspected by the inspecting officer of being infected by the disease. Also the Act provides that if Central Government may also provide for measures for inspection of ship or vessel leaving or arriving at Indian ports.
Section 3 of the Act provides penalty for disobeying any regulation or order made under the Act. Anybody disobeying any regulation of the Act shall be punished in accordance with Section 188 of the Indian Penal Code i.e. which is an offence of disobeying directions of a public servant.
THE NATIONAL DISASTER MANAGEMENT ACT, 2005
This Act provides for an action plan right to the district level and local level to draw, implement and execute a disaster management plan by central government. The Act defined disaster under Section 2(d) as any form of grave occurrence which arises either from natural or manmade causes and leads to substantial loss of life and property including environment, where the local community is unable to cope with occurrence. Section 3 of the Act provides that National Disaster Management Authority is required to be set up where Prime Minister shall be chairperson. Section 14 of the Act provides that, a State Disaster Management Authority is to be set by where Chief Minister of that State shall be the Chairperson. Section 25 of the Act provides that, a District Disaster Management Authority is required to be set up where either Collector or District Magistrate or Deputy Commissioner of that district shall be the chairperson.
Section 11(3) of the Act deals with the measures to be taken in mitigating and to address preparedness and capacity. Section 22(2) (h) provides that state authority to give directions to government to take action in response to any threatening disaster. Sections 24 and 34 of the Act empower both state authority and the district authority to control or restrict the movement of vehicular traffic or people from or within a vulnerable or affected area and same rule shall be applicable at district level as per Section 30 of the Act. Section 35of the Act provides that Central government to take such measures so that various authorities and government departments are working in coordination of each other for effective implementation. Section 36 of the Act provides Central government departments should acct in accordance to the directions of the national authority. Section 47, provides Central government to constitute a National Disaster Mitigation Fund. Section 51 to 60 of the Act provides punishment. Section 51 provides imprisonment for a term of one year for persons obstructing discharge of functions by any government officer or employee and two years in the event of loss of lives. Section 54 provides penalty for spreading fake news or false alarm. Section 56 of the Act provides penalty for government servant who refuses to perform his duty. Section 61 of the Act prohibits discrimination on grounds of sex, caste, community, descent or religion in the matter of providing compensation or relief to victims.
After analysis it is clear that legality of present outbreak cannot be determine by single law , it include various laws like Indian Penal Code, Criminal Procedure Code, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005. Now there are some basic flaws in this Act , for instance, in Epidemic Act 1897 was enacted in colonial period by British India Government Also this Act provide that Central government’s have power is only to restrict and control movement and detention of vessels at ports. Also this Act is silent regarding dangerous epidemic disease.
But these Acts comes handy in accordance with guideline issued by World Health Organization. But definitely new law should be enacted regarding the availability and distribution of vaccine and drugs and implementation of response measures.