Author: Rahul Sharma, Assistant professor from Vivekananda college of Law, Aligarh
INTRODUCTION
The World Health Organization has labelled the Coronavirus illness (also known as COVID-19) a pandemic, which has broken countries throughout the world, destabilised people's living standards, and disturbed global businesses. More than 248 thousand people have died as a result of it over the world.[i]This sickness was initially found in the Chinese city of Wuhan and has since spread to nearly every country on the planet, including India. Since COVID-19 was discovered in India, the Indian government has taken a number of preventative precautions. The Indian government imposed a nationwide lockdown on March 24, 2020, as a precautionary step to prevent the sickness from spreading.
The lockdown was first imposed for 21 days, but it was subsequently prolonged for another 14 days by the government, and it was recently extended for another 14 days by the government. The key question raised by politicians, academics, intellectuals, significant figures, and the general public is: ‘Was the lockdown imposed legitimately, or is it infringing on citizens' fundamental rights?“A catastrophe is a sudden, catastrophic occurrence that severely disrupts a community's or society's functioning and results in human, material, economic, or environmental losses that surpass the community's or society's ability to cope utilising its resources”.[ii]
COVID-19, according to the above description, is a disaster since there are no vaccinations or drugs available to help battle the illness, and it has caused the country's functioning to be interrupted.According to “section 6 of the Disaster Management Act, the government can take” whatever step it deems appropriate for catastrophe prevention, mitigation, preparedness, and capacity building in the case of a dangerous disaster scenario or disaster[iii]. The national government, according to “section 35 of the Disaster Management Act”, has the authority to take whatever action it considers appropriate for disaster relief.[iv]
LOCKDOWN – A VIOLATION OF FUNDAMENTAL RIGHTS
COVID-19 is a coronavirus-related illness that originated in China. On December 31, 2019, this new coronavirus was initially found in Wuhan, “China's Hubei province's largest city, and was first reported to the WHO Country Office in China and the WHO labelled the COVID-19 outbreak a worldwide health emergency on January 30, 2020”. The global coronavirus pandemic has caused death, damage, and turmoil, and COVID-19's breakout has “brought social and economic life to a halt”.To tackle the sickness, the Indian government implemented a total “lockdown in most parts of the 22 states and union territories where confirmed cases had been detected” in the last week of March 2020. Since then, the Indian government has declared victory in the coronavirus epidemic, claiming “that the number of cases would have been higher if the statewide lockdown had not been enacted”. “However, given the recent increase of COVID-19 positive cases” and the state of the economy, we are less likely to embrace this explanation of success.
On “Prime Minister Shri Narendra Modi's request, India conducted a 14-hour voluntary public curfew” on March 22,2020. From March 24, 2020, there was a 21-day national lockdown. Following PM Modi's declaration on March 24, 2020, the Centre justified the pan-India lockdown by citing "lack of consistency in measures implemented by states as well as their execution." “The National Disaster Management Authority (NDMA) used its powers under section 6(2)(i) of the Disaster Management Act, 2005”, to impose the lockdown.[v]
India prolonged the statewide lockdown to May 3 2020 on April 14, 2020, “followed by two-week extensions on May 3 and 17 with significant relaxations”. The government began “unlocking the country in three phases” beginning June 1 (barring “containment zones”).The global coronavirus pandemic has caused death, damage, and turmoil, and COVID-19's breakout has “brought social and economic life” to a halt. To tackle the sickness, “the Indian government implemented a total lockdown in most parts of the 22 states and union territories where confirmed cases had been detected” in the last week of March 2020. Since then, the Indian government has declared victory in the coronavirus epidemic, claiming “that the number of cases would have been higher if the statewide lockdown had not been” enacted.However, given the “recent increase of COVID-19 positive cases” and the state of the economy, we are less likely to embrace this explanation of success.[vi]
On “Prime Minister Shri Narendra Modi's request, India conducted a 14-hour voluntary public curfew” on March 22. From March 24, 2020, there was a 21-day national lockdown. “Following PM Modi's declaration on March 24, 2020”, the Centre justified the pan-India lockdown by citing "lack of consistency in measures implemented by states as well as their execution." “The National Disaster Management Authority (NDMA) used its powers under section 6(2)(i) of the Disaster Management Act, 2005”, to impose the lockdown.
India prolonged the statewide lockdown to May 3 2020 on April 14, 2020, “followed by two-week extensions on May 3 and 17 with significant relaxations”. The “government began unlocking the country in three phases” beginning June 1 (barring “containment zones”). A lockdown is an all-encompassing edict that restricts a variety of civil freedoms.The first tier of restrictions in a lockdown are “freedom of mobility, freedom to practise one's chosen profession, trade, or occupation, and freedom to dwell in any region of the country”. The second layer of restrictions is the result of instances of excess when enforcing the first, resulting in a blatant “infringement of the otherwise anonymous right to life and personal liberty”.
“The fact that the state's capacity to order a lockdown and people' rights to reject excessive limitations on their civil freedoms are both born out of the same constitution, the holy text,in the words of Justice Rohinton Nariman, makes this examination” of lockdown critical. As a result, the examination is governed by the Indian Constitution.
It's worth noting that the National Disaster Management Act of 2005 established restrictions restricting freedom of commerce, activity, and profession. Notably, these standards do not impose any restrictions on one's ability to roam freely. Citizens' freedom of movement is “restricted through a network of executive orders issued under Section 144 of the Code of Criminal Procedure, 1973”, in conjunction with the Home Ministry's addition and the colonial-era Epidemic Diseases Act.
Any individual “who is deprived of his right to livelihood” without following the law's reasonable and “fair procedure can dispute the deprivation” as a violation of Article 21's right to life. One would suppose that when the Government of India announced a national lockdown under the Disaster Management Act 2005 “to halt the spread of COVID-19, they felt obligated, under Olga Tellis' settled law, to pay individuals whose livelihoods would be harmed by the lockdown”.
Thousands of individuals, however, were bereft of their livelihood virtually overnight, with no notice, choice, or warning. Many people who worked for a daily salary became “homeless and hungry”, and they began wandering back to their town. Others who were worried about their paychecks at the end of the month joined the lengthy march to safety. This mass evacuation of employees to their villages prompted state governments to issue orders “to provide them with food and shelter, but no certainty of compensation” was offered. When petitioned, the “Supreme Court” chose to reject the case, stating imperiously that “if food was given, what need did people have for a wage?”
“With all humility, such dismissal appears to disregard the law established by a Constitutional Bench of the Supreme Court in Olga Tellis, which states that any person who is deprived of his right to livelihood except in accordance with a just and fair procedure established by law can challenge the deprivation as violating the right to life conferred by Article 21”.
The Court was required to determine "whether citizens had been deprived of their livelihood in a just and fair manner and whether the state was required under Article 21 of the Indian Constitution to pay citizens a compensatory minimum wage if they were deprived of such livelihood as a result of directions under the Disaster Management Act, 2005".
Not only did the Court fail to scrutinize the scope of power under the Disaster Management Act to ensure that it did not go beyond the mandate of Article 21, but it also failed to investigate whether the law-enforced procedure under the Industrial Disputes Act was being followed by workers in both organised and unorganised industries.
“Article 21, which is a fundamental right, includes the right to privacy as part of the right to life”. However, in the public interest, the exercise of such a right may be limited.[vii]“In the case of Justice K.S Puttaswamy v Union of India[viii], the Supreme Court decided that the right to privacy is a fundamental right under Article 21 of the Constitution, and established the following criteria” to determine whether the State's limits on the exercise of this right are reasonable:
1. The activity must be supported by legal authority.
2. The activity must be motivated by a reasonable goal.
3. A proper balance must be struck “between the restrictions imposed and the necessity for them”.
4. The “existence of procedural safeguards against exploitation of the limitation”.[ix]
The installation of limitation on the above-mentioned criterion must be examined in the current COVID-19 circumstance. The second requirement is met since a reasonable goal of the action is to protect public health and life. The Epidemic Diseases Act of 1987 establishes “a legal basis for the action done, so passing the first criteria”. “There is also a healthy balance between” the necessity for and the state's interference with basic rights. The only omission appears to be in the “case of the last argument”.The aforementioned Act “neither defines the word dangerous epidemic sickness nor provides any safeguards against the abuse of the powers granted” to the government. It also protects state personnel who carry out their duties under the Act from legal prosecution, thereby opening the door to misuse of the power granted by the Act. As a result, the Act does not appear to pass the Puttaswamy reasonableness test.
CONSTITUTIONAL VALIDITY OF COVID 19 LOCKDOWN?
Another question is if there were any other options besides enforcing a lockdown: Could the government have declared an emergency and seized complete control of the situation “under the powers granted by Article 352 of the Indian Constitution”?The answer to this question is a resounding ‘no.' “The government could not have used article 352 of the Constitution because it no longer includes the term internal disturbance,which was a broad term that covered a variety of activities before the 44th Amendment to the Indian Constitution amended it and limited its applicability to situations of national security caused by war, external aggression, or armed rebellion”. “People are protesting the lockdown restrictions” in some parts of the country.Rather of following the regulations, “such as social separation”, they have repeatedly broken them and questioned “the government's choice to enforce the lockdown”. They appear to be “arguing that the lockdown is infringing on their human rights because they are unable to move and function freely”, as guaranteed by Article 19 of the constitution.[x]
Part III of the Indian constitution covers fundamental rights. While it is accurate that everyone should have the freedom to express their rights without fear of retaliation, none of the articles or legislation can be considered absolute since exceptions exist in unusual circumstances.This argument was made by the “Supreme Court in the case Re: Noise Pollution v Unknown[xi], when the Court emphasised that while free speech and the right to express oneself are essential rights, they are not absolute”.[xii]Furthermore, when an individual exercises his or her basic rights, he or she should do so in a way that does not damage others. “Demonstrations are also a manner of expression of the rights provided under article 19(1)(a)” according to the Supreme Court.[xiii]Demonstrations, whether political, religious, social, or other, that cause “public disturbances or act as nuisances, or cause or threaten to cause some actual public or private injury, are not protected under article 19(1)(a)”.
As a result, based on the Supreme Court's decisions, “we can deduce that mass gatherings and protests” by a small segment of the population may cause significant inconvenience and may increase the risk of the “deadly disease spreading to other parts of the population”, endangering the lives of others, thereby constituting a “violation of Article 21 of the Constitution, which protects” the lives of others.[xiv]It's also important to remember what a citizen's basic responsibilities are. Article 51-A states that every citizen is responsible for upholding and protecting India's sovereignty, unity, and integrity, as well as promoting harmony and fraternity.[xv]
In Javed v State of Haryana[xvi], it was ruled, “Fundamental rightsshould not be read in isolation”, according to the court. They must be examined with the chapter on state policy directive principles and article 51A fundamental duties.
The court ruled in a daily decision in the case The Registrar High Court v The State of Maharashtra[xvii]“that while the court expects appropriate actions from the State authorities, it also expects individuals to remind themselves of their basic responsibilities” in dealing with the COVID-19 pandemic epidemic. As a result, when certain groups of individuals ignore the lockdown and walk to the streets in large numbers to carry out their own functions, they are breaking the Constitution's essential fundamental obligations.They are not only breaching the laws when they meet in large groups, but they are also preparing the path for the sickness to spread. Others in their immediate vicinity will suffer as a result of this. We're all familiar with the necessity doctrine, which states that "necessity knows no law."
LEGALITY OF NATIONAL “HOUSE-ARREST”
The Janata Curfew was announced four days in advance, but the millions of Indians who needed to organise their lives and enterprises received just four hours' warning. Heartbreaking scenes “at railway stations, interstate bus terminals, state crossings, labour markets, and other areas where scores of people have been forced to work” while separated from their families have been captured as part of the chaotic aftermath of the statewide lockdown.Even if an emergency is technically declared, the right to life cannot be taken away as a result of the Janata government's modification. The emergency measures have not even been triggered in this situation. If the government can circumvent the Constitution's emergency provisions and take such drastic measures with widespread support, one might wonder if such provisions – which not only specify how fundamental rights can be suspended but also lay out the constitutional-legislative oversight over such suspension – are now completely meaningless.
Isn't this a death sentence for daily bettors, street vendors, migratory workers, and small company owners? Clauses (a) and (e) of Article 39 demand that the government make every effort to ensure that people have a right to adequate means of subsistence and that people are not forced to work in jobs that are inappropriate for them due to economic necessities.These responsibilities are “part of the country's Directive Principles of State Policy”, which are seen as essential to the country's government. The current state of emergency would generate situations that would be in violation of these commitments. COVID-19 vs. economic death is a difficult decision. For whatever reason, the citizen has been stripped of his or her rights.For whatever good reason, the citizen has been stripped of her right to choose.[xviii]Returning to the original point, is a "lock-down" constitutionally acceptable in the absence of a state of “emergency, and therefore with freedom of movement and right to livelihood intact”?[xix]
The “doctrine of necessity is a common law doctrine” that is used to help people get through tough situations.[xx]The law does not regard a vacuum, thus rather than allowing the problem to escalate, a solution must be sought.[xxi]As a result, the government used the "principle of necessity to impose the Lockdown as the only way to stop" COVID-19 from spreading.Furthermore, the constitution's article 31-B states that some actions have the power to override “basic rights, and that these actions cannot be declared unconstitutional on that basis”. The people' fundamental rights are not violated as a result of the lockdown.
Despite the fact that certain actions are prohibited, the government supports the provision of essential items, which are a person's fundamental needs. Furthermore, the government gives “food and relief items to the less fortunate members of society”. “All medical facilities are available, and government authorities are always” willing to assist people who require assistance.The government has recently set up special trains and buses to carry migrant workers “back to their homes”. It has effectively optimised“the use of technology in both the private and public sectors to allow work from home”, as well as in schools and colleges for online education.
As a result, the central government's lockdown is legal and has a connection to the shared goal of preventing “the spread of COVID-19 by preserving social distance norms. People's arguments against the lockdown, which emphasise violations of fundamental rights”, lack coherence.As a result, “no fundamental rights have been infringed upon or jeopardized”. Many nations, like the United States and the United Kingdom, have praised “India's efforts in combating COVID-19, and it is critical that we, as citizens, acknowledge the steps and fight against the epidemic as well”. As a result, it is critical that in a difficult and disastrous scenario, everyone comes together, stands together, follows the measures, and successfully overcomes the issue.
FUNDAMENTAL FREEDOM AND PROPORTIONALITY OF RESTRICTION DURING COVID-19
The phrase "extraordinary times call for exceptional measures" is frequently used to explain actions that elicit reflective responses from citizens. There is no denying that in emergent conditions, measurements must also be emergent, and properlyso.However, a line between extraordinary and extra-constitutional actions must be properly made and recognised. The former can only be maintained as long as it does not interfere with the latter. The government has declared a statewide lockdown in response to the COVID-19 catastrophe, and residents have been placed under virtual house arrest.While there is no doubt that ordering a lockdown is imminent under the current factual situation, the type, length, and scope of the lockdown should be subjected to legal review. What is the significance of this? A lockdown is essentially an all-encompassing edict that restricts a wide range of civil freedoms. The first tier of restrictions in a lockdown include“freedom of movement, freedom to practise any profession, trade, or vocation, and freedom to live in any portion of the country”.
The “second layer” of restrictions is the result of instances of excess when enforcing the first, resulting in a blatant “infringement” of the otherwise anonymous “right to life and personal liberty”. The fact that the state's capacity “to order a lockdown and people' rights to reject excessive limitations on their civil freedoms are both born out of the same constitution, the holy text, in the words of Justice Rohinton Nariman, makes this examination” of lockdown critical.As a result, the examination is governed by the Indian Constitution. It's worth noting that the National Disaster Management Act of 2005 established restrictions restricting freedom of commerce, activity, and profession.
Notably, these standards do not impose any restrictions on one's ability to roam freely. Citizens' freedom of movement “is restricted through a network of executive orders issued under Section 144 of the Code of Criminal Procedure, 1973”, in conjunction with the Home Ministry's addition and the colonial-era Epidemic Diseases Act. It's vital to emphasise at this point that the type of “lockdown differs from jurisdiction to jurisdiction”, and is mostly determined by the government's judgement of the country's civic life elements.Italy, for example, enables residents to exercise alone near their homes during the lockdown; “France permits outdoor exercise, strolling within 1 km, and walking the dog”; while the United Kingdom permits any “sort of exercise (walking or bicycling)”. I'm not sure “whether India should” enable such “concessions” as well, given judgments heavily influenced by “civic” conduct, as well as a variety of other considerations.The main source of these limits is "Article 19(5) of the Constitution, and the essential premise of such limits is a concern for wide public interest".[xxii]
“In the area of constitutional law, there is a well-established contrast between the presence” of power to impose “limits” and the proportionality of those limits.In the present chapter, our examination revolves around this distinction. I studied the limits “in light of their influence or effect on two types of people - traders (right to trade) and migrant workers” - while assessing their proportionality (right to movement). In a society with such wide socioeconomic disparities, broad blanket bans might have severely inequitable enforcement consequences.
Various state governments “have ordered mid-level industry and factory owners to ensure that workers be paid on schedule and in full, even if their activities are completely shut down”. The impact of this limitation on trade freedom is twofold: “activities will be halted, and employees will be required to be paid on time”. The motivation behind this decree is evident (and admirable), but the long-term impact on the economic interests of a corporation that has already closed might be questioned as inequitable.
Such a guideline “might be traced back to the Constitution's Directive Principles of State Policy”. “Article 38”, for example, directs “the state to maintain a social order” in which disparities in wealth, position, and opportunity are minimised. Article 38, on the other hand, provides advice for government acts rather than individual initiatives. As a result, the query that arises is whether, in the name of an endemic, the state can shift the duty of ensuring specific “economic interests for one class of citizens to another”.
“Enforcing such a directive in the guise of reasonable constraints in the public interest would effectively elevate the issue from Directive Principles of State Policy” to basic citizen responsibilities. In other words, it would be an indirect manner of enforcing basic responsibilities on citizens that would otherwise be unenforceable. A directive like this effectively places the burden of “securing a social order” on citizens (in our instance, traders) and appears to be a cryptic way of enforcing the basic responsibility to “render national service when called upon by the state”.One may “argue that morality does not taint such a metric negatively since citizens should have no motivation to shirk their moral obligations” to one another in times of crises. However, the difficulty is “that such a course of action is not contemplated by the Constitution”. Certain executive orders cannot require persons to fulfil economic tasks for other citizens in the absence of a law.
“Restrictions under Article 19(5) might reasonably require citizens to desist from trading operations in the public interest”, but imposing affirmative responsibilities on persons in the absence of a legislation would be unreasonable. “Even if I look at it through the lens of morality, such civic obligations should be left to the people' choice and cannot be enforced by relying on Article 19(5) stating an abstract broad public interest”.To summarise, the “above-mentioned directives go beyond the permissible area under Article 19(5) and might be considered unreasonable to that extent”. “Migrant workers are another another group” of residents who are suffering inequitably as a result of the lockdown. The proportionality of restrictive measures principle is founded on the knowledge that a single “uniform formula does not apply to all situations or all persons at all times”.
“It is thus because natural circumstances in a community” have positioned persons on various rungs of the ladder, with varying degrees of liberty. If the degree of liberty differs amongst citizens, so will the impact of limitations. To say the least, unintelligent limits put all at once on distinctively positioned persons without taking into consideration their uneven placement in society is a classic example of unfair limits.
"The spectacle of migrant labourers being labelledenemy of lockdown" was witnessed by the entire country. We overlooked the fact that, behind the spectacle, a group of citizens was being automatically converted into offenders of a slew of statutes due to excessive limitations put incomprehensibly on them.The term "unintelligibly" refers to the fact that limitations with such a large economic impact on persons should be considered in light of their socioeconomic level. Because even following the “law becomes a luxury not everyone can afford in these times, it is their social position that dictates their behaviour in the face of limits”.[xxiii]
In a society that is profoundly“divided in economic and social terms, the quality of rights, the desirability of restrictions, and the impact of restrictions on citizens will never be the same, and this fundamental feature of our society” places an additional burden on the state to ensure proportionality standards.The imposition of broad limitations may lead to the labelling of one group as lawbreakers purely because of their socioeconomic status. In times of crisis, when “public health concerns loom large, it is all the more important to ensure that the law does not take a back seat, because state-citizen interaction is more intimate in such times, and, needless to say”, the Constitution must always register its intervention whenever state and citizens interact.
CONCLUSION
The Government of India has the legal authority to impose lockdown and quarantine, but it lacks constitutional spirit. The legitimacy of the state's coercive activities “under the Epidemic Diseases Act goes against the basic concept of democracy”. “There is a need for appropriate laws to cope with health emergencies” caused by epidemics and pandemics such as COVID-19.Such law must include procedural checks in the use of authority by state officers, as well as the notion of state responsibility. People's rights must be effectively balanced with the state's responsibility to preserve people's health. As a result, as “the Supreme Court of India has stated in many judgments, a harmonic structure of Parts III and IV of the Indian Constitution” is the best answer.
While the nation is in the intermediate of an unparalleled catastrophe, the public health emergency necessitates a response that prioritises preserving lives. In these extraordinary circumstances, there is no other option but to enact extraordinary measures, such as a nationwide lockdown, in which it becomes necessary to restrict basic fundamental rights guaranteed by the constitution and deduced by judicial activism in order to mitigate the pandemic's unintended consequences. The truth we are witnessing now is far more shocking than a work of fiction. “Fundamental rights are the most fundamental human rights, whose existence is only validated by the constitution”.
[i] Worldometer, ‘Reported Cases and Deaths by Country, Territory, or Conveyance’ ,available at: https://www.worldometers.info/coronavirus/ (last visited on March 4, 2022). [ii] IFRC, ‘What is a disaster?’,available at: https://www.ifrc.org/en/what-we-do/disaster-management/about-disasters/what-is-a-disaster/ (last visited on March 4, 2022). [iii] Disaster Management Act 2005, s 6(2)(i). [iv] Disaster Management Act 2005, s 35(1). [v] Available at: https://www.freepressjournal.in/india/was-covid-19-lockdown-a-violation-of-our-fundamental-rights (last visited on March 4, 2022). [vi] Available at: https://www.freepressjournal.in/india/was-covid-19-lockdown-a-violation-of-our-fundamental-rights (last visited on March 4, 2022). [vii] The right to privacy.docx ,available at: https://www.coursehero.com/file/82750953/The-right-to-privacydocx/ (last visited on March 4, 2022). [viii] WRIT PETITION (CIVIL) NO 494 OF 2012 [ix] Harleen Kaur, ‘Can the Indian Legal Framework deal with COVID-19 Pandemic? A review of Epidemic Diseases Act’ (Bar and Bench, 27 March 2020) ,available at: https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act (last visited on March 4, 2022). [x] The Constitution of India 1950, art 19(1) (d). [xi] Re: Noise Pollution v Unknown AIR [2005] SC 3136 [xii] Religious Freedom And Environmental Protection – Academike, available at: https://www.lawctopus.com/academike/religious-freedom-environmental-protection/ (last visited on March 4, 2022). [xiii] Bimal Gurung v Union of India [2018] SCC SC 233. [xiv] The Constitution of India 1950, art 21. [xv] The Constitution of India 1950, art 51-A(e). [xvi] Javed v State of Haryana [2003] 8 SCC 369. [xvii] The Registrar High Court v The State of Maharashtra Suo moto PIL No. 10541 of 2020 [xviii] Is the National Lockdown in India Constitutionally Valid?,available at: https://thewire.in/law/is-the-national-lockdown-in-india-constitutionally-valid (last visited on March 5, 2022). [xix] Is 'Lockdown' Constitutionally Valid?', Gujarat HC Seeks,available at : https://www.livelaw.in/news-updates/is-a-lockdown-constitutionally-valid-gujarat-hc-seeks-response-of-centre-state-on-pil-157714 (last visited on March 5, 2022). [xx] Leo Matriculation Higher Secondary v The Chairperson [2013] 1 CWC 353. [xxi] INDIAN CASE LAWS DICTIONARY,available at: https://indiancaselaws.files.wordpress.com/2014/04/m1.pdf (last visited on March 5, 2022). [xxii] Available at:https://www.barandbench.com/columns/fundamental-freedoms-and-proportionality-of-restrictions-in-the-lockdown (last visited on March 5, 2022). [xxiii] Constitutional provisions and migrant workers in India,available at: http://www.earlytimes.in/newsdet.aspx?q=292737 (last visited on March 5, 2022).