National Lockdown v/s Article 21
Author : Smit H. Thakkar (L.J. School of Law)
As the world is fronting a global pandemic disease which is Novel Coronavirus (COVID-19), India from the initial stage has been combating against the virus by implementing Nation-wide Lockdown for 21 days where citizens were appealed and ordered to stay indoors and maintain social distancing to preclude the spread of the disease.
This step of government to curb the movement of the citizens freely within the country is safe-guarded under the Article 21 of the Constitution, which by the 44th Amendment Act of the Constitution, 1978 cannot rescind under any emergency except some exceptions provided under the Article itself.
PREAMBLE OF INDIAN CONSTITUTION
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens…”
As our Preamble of the Constitution states ‘WE THE PEOPLE’, where ‘WE’ means the citizens together will be united in every situation.
Every stride by the government or any authority under the Supreme Law is put under a bar of scanner, i.e. their policy or directives are lawful in the eyes of Supreme Law of the land.
Similarly, Nation-wide Lockdown is imposed by the Ministry of Home Affairs under the Section 6 (2) (i) National Disaster Management Act, 2005 to rescind the outburst of the COVID-19 in India.
Later due to the order of Nation-wide Lockdown all citizens were ordered under the law to stay at home and waive their right to move freely, carry any trade or profession [Article 19] and also the order laid down restriction on the Right to Life & Personal Liberty [Article 21].
The order to lay down the Lockdown over whole Nation was a necessary step in order to safeguard the life of the citizens by limiting their Fundamental Right under Article 19 & 21.
Both Articles are the most essential Fundamental Rights which are provided to citizens by the Constitution.
But in this global pandemic, to combat and sustain it the government laid prohibition on mass gathering in public place and order to prohibit the gathering of more than 4 individual in any private place.
With such steps Industries, various Educational Institutions and even the Courts were closed for a temporary time frame. Solely the essential commodity selling shops were open with proper care and management.
RIGHT OF LIFE & PERSONAL LIBERTY DURING LOCKDOWN
What is Article 21 [Right to Life & Personal Liberty]?
“Article 21: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The question arises out of the lockdown that what about Article 21 which is not abrogable also in times of emergency which was observed by the honorable Supreme Court in the case of Maneka Gandhi v. Union of India the court interpreted to move as per will is under the purview of Article 21 and can’t be abolished at any time, even not in emergency.
But as per the provision it has given the state an indemnity to rescind it under the procedure of law.
The Supreme Court in Vincent v. Union of India, emphasized that a healthy body is the very foundation of all human activities. Article 47, a Directive Principle of State Policy in this regard lays stress note on the improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the state.
In Consumer Education and Research Centre v. Union of India, the Supreme Court laid down that:
“Social justice which is a device to ensure life to be meaningful and livable with human dignity requires the State to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilized living.
The health and strength of worker, the court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”
Thus under the eyes of law ‘Personal Right to Life’ is curbed down in the lockdown phase but has been exercised for betterment and protection of the citizens which is the primary function of the government and to avoid any loss of life due to a virus outbreak.
This is not a violation of Article 21 as to live a Healthy Life is a right interpreted by the Supreme Court and the state exercised to provide healthy life to citizens.
RIGHT TO EDUCATION VIOLATED DURING LOCKDOWN
“Article 21A: The State shall provide free and compulsory education to all children of 6 to 14 years in such manner as the State, may by law determine.”
The struggle for the State to guarantee Fundamental Rights escalates as a secondary wave of issues surface.
These are concerned with education and privacy. The legislature by inserting Article 21A made Right to free and Compulsory Education, a Fundamental Right under the Indian Constitution.
Before crystallizing it as a Fundamental Right, the Supreme Court had held that Right to Education (RTE) is encompassed under Article 21 of the Indian Constitution. Moreover, right received legislative mandate with the promulgation and enactment of Right to (Free and Compulsory) Education Act, 2009.
Additionally due to temporary vacations in educational institution, many small stomachs who were dependent on the mid-day meal scheme now have to struggle to get food in lieu of being an underprivileged on the financial terms.
While the government has been actively making a strong efforts to keep the nation and its citizen safe from the virus and for that they have acted in good faith and curbed some fundamental rights which gives an area of exemption under the procedure of law and dose not violates the order passed by the government, they have given opportunity to sell essential goods and make the daily life easy without any disturbance.
They have also given chance to the Manufactures and other citizens to enjoy their Fundamental Rights with prior permission from the appropriate authority.
All this shows the efforts government has made to achieve a balance between the motive of lockdown and complying with the constitutional provisions.
‘We the People of India’ also have the Duty to obey the Laws to ensure the compliance of procedure to establish a WELFARE STATE.