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Constitutionality of Lockdown

Pandemic occur when epidemic spreads between the countries. The outbreak of an advanced Pneumonia tormented the whole world within a small span of days. This outbreak has been surviving without any cure, which intensifies it menace. A first world State or a third world State, a powerful and developed nation or a developing nation, none of this mattered expect the quality of co-operative governance, awareness, diligence and effective implementation. India even stood at a similar turmoil where the fundamentals of the Constitution as well as International law were alleged to be infringed by the Government.

This was the result of the implementation of the lockdown on an emergency basis without invoking emergency envisaged in the Constitution of India. It seemed to be a carte blanche executive action that was first put into force and then backed by the laws of the land.

The absence on an explicit pandemic law led the uproar of masses regarding the violation of their Fundamental Rights by the Government, when the same had established all these rights as irrevocable. Considering that emergency breaks the federal structure of India and the Government executed lockdown by interpreting laws that had been previously invoked, it provides a ground of validity as any law that passes through Legislature is deemed to be in conformity with the Constitution of India.

This article analyses the reasonableness and extent of lockdown in view of the aforementioned jurisprudence, both at the national and international stature, with the help of Grund-norm, peremptory norm and the concept of necessitas non hebet legum. It even tries to provide for, what is ought to be done, and, not what must be done for both the present and sustainable future to avoid partisan perspective at the time when co-operative federalism is the need.

Introduction:
On 31st December, 2019, World Health Organization was first informed about the cases of advanced pneumonia, which by 30th January, 2020, was declared as “public health emergency of international concern”. This pandemic having its similarity with the previous outbreak, fell into the similar lines of precautionary measures while learning from the past mistakes and decided upon social distancing as the cure. The success over the deadly was determined through the means of lockdown around the globe including that in India which led to the growing apprehension among the people of every age, sex and profession.

India as a stakeholder seems to be the most at risk for her being the second largest populous nation of the world with a patchy health care system and a high rate of migration. Apart from her sheer size, the density of the population in India lies as to 420 people on each square kilometre inculcating places like Dharavi in Mumbai or even the concept of extended family in the typical Indian household facilitates contact with virus-bearing droplets emitted by breathing, talking, coughing or sneezing.

This lockdown is not a legal term but a design to achieve the law of isolation to substantiate the concept of social distancing. Unfortunately it not only did the same but also substantiated the fear of men regarding their future. Insecurities ranged from economical recession on a macro level to global mental health depreciation on an individual level.

Research Question:
Whether the implementation of lockdown adheres to the fundamentals of the Constitution of India considering the existing lacunae of pandemic laws?

Hypothesis:
With the criticisms flowing in through every channel, the aftermath is discussed more than that of the fundamentals. Every law is scrutinized on the basis of its validity at the first hand and then on the grounds of morality. The Constitution of India has been crafted in a way to acknowledge the need of the natural laws while providing the flexibility to read the laws basing on the interpretation of its true purpose. Moreover, it provides with a federal structure where the Legislature makes laws within the restraint of the Basic Structure Doctrine while the Judiciary has the power to review the laws.

There lies a thin difference between validation and review of the laws by the Judiciary. The validation of the law is done at the very moment of its enactment by the Legislature through the powers conferred by the Constitution. The verity that no law could be enacted in violation of the fundamentals of the Constitution; the Judiciary provides for the review of its reasonableness and extent. It is the approach to that end where the laws are interpreted within the ambit of the Doctrine of Harmonious Construction and to prevent any colourable legislation. Thus, the validation of the laws of lockdown are not the fundamentals to be invoked but the understanding of its extent, reasonableness and implementation are the aspects of concern.

These demarcations and ideologies have been borrowed by India from other nations and the vice versa after 1950. The involvement and contribution of India at an international level has been immense. It endows India with the responsibility of State in relation to the concept of collective security. The laws might be constitutional to the forum of its own land but may have its differences at the global stature. Though State sovereignty is of the highest priority, no nation shall violate the peremptory norms of the international law.

Analysis Of The Issue:
Background:

The Constitution of India took 2 years, 11 months and 18 days of efforts to analyse the present need while having a foresight India. It is an amalgamation of ideological principles of various nations, molded as per the Indian perspective. Thus, is the longest and most detailed Constitution of the world for any sovereign State. In addition, the Constitution being neither rigid nor flexible in nature provides the need of judicial activism through amendments and judicial interpretation in existing lacunae of law.

Thus, upholding the living document to its roots as per the procedure established and even providing for accountability over other governmental bodies. It provides for the duties of the governmental institutions, demarcates between fundamental, political and social code in a structured hierarchy and substantiates the rights and duties of the citizens as well. Thus, it does not provide for the powers of the government, rather provides for the limitations to those powers provided. Similarly with these attributes, the Constitution of India inculcates the special powers of the Government as a remedy during the time of emergency at any hierarchy provided as:

Article 352 In The Constitution Of India, 1949

Article 352 in the Constitution of India provides for the proclamation of National Emergency if the President of India is satisfied with the security of whole of India or any part of it being threatened by way of war or external aggression or armed rebellion; where:
  1. War amounts to a conflict between two or more State, government or paramilitary force with the usage of violent mechanisms to enforce their respective right by exerting force. In other words, the threat against territorial integrity or political independence of a State or any other matter being inconsistent to the purpose of maintaining peace.
  2. External aggression has not been defined in the system but precedents provide it to be unilateral and informal attacks by one State on the other.
  3. Armed Rebellion has been defined with the help of judicial interpretation that states it to be a conflict against the agent of the State I.e. the Government which as a cause becomes a threat to the security of India.

Article 356 In The Constitution Of India, 1949

Article 356 in the Constitution of India provides for the proclamation of State Emergency if the President of India receives a report of the failure of the constitutional machinery in any particular State I.e. the State is neither able to implement the directions by the Union nor maintain the law and order within the State due to political, economical or social reasons.

Article 360 In The Constitution Of India, 1949

Article 360 in the Constitution of India provides for the proclamation of Financial Emergency if the President of India is satisfied with the financial stability or credit of India being threatened. The State goes from an economical failure to the state of bankruptcy in regard to its market.

Present Scenario: On 24th March, 2020, India acknowledged the affect of Covid-19 and declared a “Nation wide lockdown” for 21 days and which has been extended with time. This lockdown established the closure of all transports, educational institutions, in person market activities and service sectors; exception being all the essential units like medical, banking and necessary domestic commodities but with the restriction of social distancing and sanitation and the District Magistrate as the incident commander. These terms and condition brought about a roar amidst the legal fraternity as it seemed to be an immediate decision first and then backed up by law after implementation. The Government invoked a law of colonial vintage; the Epidemic Diseases Act, 1897 read with Disaster Management Act, 2005.

Epidemic Disease Act, 1897:

During the Bubonic Plague in Bombay, the need of legalization of health care system was recognized to prevent epidemics. It empowers the Government to restrict the transportation of the vessels and allows detention of the people if satisfied of being a plausible victim to the disease. This Act is opted as a temporary regulation to prevent the spread of outbreak and even penalizes the offender with imprisonment or/and fine as per the proportionality of the act.

Disaster Management Act, 2005:

This Act provides with an administrative framework at all hierarchy of governance. It inspects into the capacity, resources and preparedness by establishing a Disaster Management Authority.

Legalization Of Lockdown In Conformity With The Constitution Of India:

An emergency is a natural or man made event that threatens the human life and human population at large with the need of speedy addressal. Covid-19 though has been invoked on an emergency basis but the needs of the aforementioned article under the Constitution of India are not sufficed. Financial strain might be a future aspect of Covid-19; State mechanism failure is evidently not a recourse considering the success rate in controlling the Covid-19 spread when compared with other nations, the outbreak not having the traits of a crisis and by making the lockdown uncompromising with the implementation of Section 144 of the Code of Criminal Procedure, 1973 (Henceforth referred to as CrPC) and National emergency being amended, the outbreak cannot be read within its ambit in the present.

Article 352 included “internal disturbance” as one of the criteria to proclaim national emergency but was replaced by the phrase “armed rebellion”. The former had a vague scope which even inculcated an internal rebellion or a protest that could not be equated to national emergency while the latter specifies an event that affected the security of the agent of the State I.e. the Government and indirectly the security of the State.

The Government being bound by enacting the principles of the Constitution, it is its duty to secure a social order for the welfare of the people. Moreover, the division of power between the Centre and State provides public health and order under the State supervision but Entry 29 of the Concurrent List enables the Centre to take the necessary steps for the prevention of the spread of disease from one State to another and in case any discrepancies arise, Doctrine of Repugnancy could always be approached.

This enables the usage of supplementary emergency provisions envisaged in the Constitution of India which provides for the Government to protect all the States from external aggression and internal disturbance. Though the term “internal disturbance” was amended and replaced, it still found its existence within the ambit of Article 355. This term having a wide scope even inculcated the idea of a disaster that causes threat to human life. Thus, the emergency due to Covid-19 was not covered under Article 352 of the Constitution of India but could be read under the parasol of Article 355.

The aforementioned power allows the Government to invoke the reasonable steps needed for the welfare of its people. The Epidemic Diseases Act, 1897 enabled the Government to restrict internal and external State transportation to prevent the spread of Covid-19 and even allowed the detention of people who could have been the possible carrier of the virus. Thus, the Right to movement was curtailed on the ground of preventive measure and reasonable restriction.

The fact that the term ‘lockdown’ has not been defined, the implementation stands at a turmoil of understanding. This is where the applicability of Disaster Management Act, 2005 is recognized which not only provides with a definition of disaster but also enables the Governments of any hierarchy to provide with directions and administrative framework of implementation. It even provides the power of accountability for the preparedness level per se by establishing Disaster Management Authority. Hence, the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005 comes into play in legalizing the laws of lockdown.

References:
  • Disaster Management Act, 2005
  • Constitution of India; Articles - 37, 38, 246.
  • M. Karunanidhi vs Union Of India, (1979) 3 S.C.R. 254 (India).
  • Hajer Al-Dahash, Menaya Thayaparan and Udayangani Kulatunga, Understanding the terminologies: Disaster, Crisis and Emergency.
  • United Nations General Assembly Resolution 3314 (XXIX), Definition of Aggression, UNGA, Dec. 14, 1974.
  • Sarbananda Sonowal vs Union Of India & Anr, (2005) 5 S.C.C. 13 (India).
  • Kedar Nath Singh vs State Of Bihar
  • Minerva Mills Ltd. & Ors vs Union Of India & Ors, (1980) 1 S.C.R. 206 (India).
  • S.R. Bommai vs Union of India, (1994) 3 S.C.C. 1 (India).
Written By: Vibhu Raj Gupta; a 4th year student of BBA.LLB(H) from Amity University, Kolkata.

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