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Lockdown: Constitutional Or Coercive?

A main concern on exceptional and emergency natural measures is what's been described as a toxic lockdown culture in some countries. --U.N. Human Rights Office [i]

The 21-day lockdown that was initially declared by the Prime minister of India [ii] on March 24th, was touted as the ‘largest cordon sanitaire in world history'. Now of course many such days have passed with many more versions of such lockdowns through executive orders by the Union ministry. In this grave situation, lawful restrictions by the union and the state governments to protect the country from the epidemic may be necessary, however the prevailing coercive lockdown by the union may not be exactly legal.


In the case of Modern Dental College & Research Centre v. State of Madhya Pradesh[iii] the court said that no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore be justified.

Time and again the apex court has reiterated that in the event of necessity, public authorities should use least restrictive measures and balance them against constitutional liberties guaranteed to the citizens. Like if measures such as closure of state boundaries, travel and assembly restrictions would do; a mandatory nationwide would definitely not satisfy the test of proportionality. As such if the legality of these sanctions is ever to be challenged in a court of law, the orders placing such restrictions and the constitutional authority of the state or the central governments in issuing such orders become vital questions of law.

The necessity and the impact of the prevailing lockdown in the country is not ad rem to the discussion of its legal standing. The discussion on whether or not such a proclamation and the executive orders in furtherance of the same are backed by legal sanction, is a vital point of discussion because in a woke democracy even in the cases of emergency, wholesale violations of freedoms guaranteed by the constitution cannot be entertained. Quarantine is a measure that adversely affects the fundamental right to move freely throughout the territory of India (Article 19(1)(d)). With the police using brute force [iv] to enforce this lockdown, many more such personal freedoms come into the picture.

Moreover, the impact of the complete lockdown on the poor and the vulnerable sections is definitely a constitutional concern. It thus becomes obligatory to analyze at this stage- the concerned laws, whether proclamations have been made under legitimate authority and even where the governments do have the authority, whether such orders respect constitutional principles.

Public Health Emergency Laws

The colonial era dated Epidemic Diseases Act[v] which is the relevant legal framework in the scenario of pandemics as such, is very sketchy. This four-sectioned 1897 Act has been criticized several times for its redundancy in terms of both scientific and rights perspective. The history of this legislation is infamous for the intrusive measures that the British employed to control the spread of plague in the time. This legislation is not rights oriented and certainly not competent for today's public health emergency management. It is not sufficient to prevent or control the spread of epidemics like the Coronovirus, and so doesn't serve its very purpose.

The Epidemic diseases Act is somewhat regulatory in nature, unlike the Disaster management act[vi] more comprehensive about roles and obligations in the case of emergencies. This is the reason perhaps that the MHA declared the Coronavirus outbreak as a notified disaster[vii] to bring into play the provisions of the Disaster Management Act and issue advisories to the state governments. However this act does not intend to deal with any kind of epidemic diseases or health threats. This is very clear from the very definition of disaster in the definitions clause of the Act. Thus, the orders being issued by the MHA under this legislation are questionable, to say the least.

In 2009, a National Health Bill[viii] attempted to formulate a legal framework on public health services and respond to public health emergencies. It provided the obligations of the central and state governments and also had some reference to protection of rights during response to epidemics. The bill had also sought compatibility review of the EDA and other local laws however; it did not make it to see the light of the day. So in the current scenario, India can only look enviably at laws like USA's Public Health Authority act that establishes the federal government's quarantine authority or Mexico's Public Health Emergency Response Act[ix] which a clear description of the individual civil rights of persons quarantined or isolated, because it does not have an equivalent competent legislation to deal with the challenges of the time.

Union or States-who's incharge?

Be it the Model Public Health care Act of 1955 or the aforementioned 2009 NHB, many attempts of enacting a comprehensive legislation in the public health sector failed as states saw this as an encroachment of their domain. The constitutional authority governing public health lies with the states. The enforcement of mass quarantines may also come within their purview via their police powers as per Schedule VII. The Epidemic diseases act too empowers the State governments to prescribe temporary regulations on the outbreak of any dangerous epidemic disease and also makes them in charge of the expenses incurred. The role of the Central government is restricted to entry into international boundaries. The 2020 ordinance[x] enhances this power to some extent, but certainly not enough to let the Union government call shots.

With little to no legal backing, the government is resorting to the infamous Section 144[xi] to enforce lockdown or issuing notifications under Section 6(2)i and Section 10 (2)l of the Disaster management Act which, as discussed prior, is not befitting to cater for public health emergencies. By invoking it, the Central government has enabled the National Executive committee to give directions to the state governments, allow for usage of disaster funds and also exercise the powers delegated to the Union Health Secretary under the Act.

As per Schedule VII, in an area patently within domain of the state government and a usurpation of powers by the union cannot take place merely on the declaration of a disaster. Constitutionally speaking, only in declaration of an emergency under Article 353 the union can direct State on how to use its executive power. The Union can or could have exercised its exclusive control to regulate foreign entry, interstate commerce and trade and commerce with foreign countries to deal with the situation.

There is a purpose of constitutional demarcation of powers between the centre and the state. Various states have their own public health legislations, varying in quality and content, and many have amended the provisions of the ED Act. When there is already such lack of uniformity in domestic laws of the states, the center's collective orders in this regard are bound to create more of a disorderly jumble. At three instances now, the Central government issued a lockdown for a certain number of days, while the Telangana government decreed to extend it for few more days.

Within the democratic system, transparency in government actions and executive orders is necessary. The gravest of emergencies is not a free pass for the governments to encroach upon the legislative territories of each other or issue arbitrary directions to the public. The apex court in its recent judgment in the Anuradha Bhasincase[xii] that entailed government restrictions of fundamental rights said that government can impose restriction as long as they are sanctioned by law, reasonable in nature and for a legitimate purpose. In desperate attempts to cope with the instant health emergency, the ‘sanction of law' part may have gone for a toss.

End-Notes:
  1. Toxic lockdown culture' of repressive coronavirus measures hits most vulnerable, UN NEWS (27 April 2020), https://news.un.org/en/story/2020/04/1062632
  2. National Diasaster Management Authority, Govt of India, Order No. 1-29/2020-PP(Pt.II) https://www.mha.gov.in/sites/default/files/ndma%20order%20copy_0.pdf
  3. (2016) 7 SCC 353
  4. Coronavirus lockdown in India, BBC News Asia (28 March 2020), https://www.aljazeera.com/programmes/newsfeed/2020/03/indian-police-force-coronavirus-lockdown-offenders-200330102752863.html
  5. The Epidemic Disease Act of 1897. Act No 3 of 1897 [cited 2020 May 08] https://indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf
  6. National Disaster Management Act 2005 [Internet][cited 2020 May 08] https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf
  7. Ministry of Home Affairs, Govt of India, Order No. 4-3/2020-DM –I (A), 24th March 2020, https://www.mha.gov.in/sites/default/files/MHAorder%20copy_0.pdf
  8. National Health Bill. Working draft. Version Jan 2009, http://www.prsindia.org/uploads/media/Draft_National_Bill.pdf
  9. New Mexico public health law handbook. Civil Proceedings Involving State Public Health Powers. (April 2020) http://jec.unm.edu/manuals-resources/manuals/NewMexicoPublicHealthLawHandbook.pdf\
  10. The Epidemic Diseases(Amendment) Ordinance, 2020 Ministry: Health http://egazette.nic.in/WriteReadData/2020/219108.pdf
  11. The Code of Criminal Procedure, 1973
  12. Writ Petition (Civil) No. 1031/2019

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