Does the current legal framework support the orders passed during Coronavirus lockdown?

As we enter the middle of the lockdown, there is little reason to discuss its legality. There appears to be general public and political consensus behind it to the extent that it does not even appear to have been challenged in the courts.

Even if someone does challenge it, getting the Court to hear the matter would be exceptionally difficult, given the current restrictions on filing.

In any event, by the time the Court would rule on the legality, the three-week lockdown period would most likely be over. The lockdown is hence de facto, even if not de jure, valid.

However, this does not mean that we shouldn’t examine its legality. A terrified populace may be willing to give up their freedoms in the short term. The problem is that freedoms, once surrendered, are difficult to get back.

There are many constitutional issues with the lockdown. The effect it has on the rights of people to work to earn their daily wages might tantamount to a violation of Article 21. Shutting of virtually all businesses, in the absence of showing that this was the least coercive method to achieving the goal of stopping the spread of the Coronavirus, might violate Article 19(1)(g). The requirement of having to carry the government’s version of the events unfolding may infringe Article 19(1)(a). Restrictions on people moving between States would possibly be contrary to Article 19(1)(d).

It is, of course, certainly arguable that the measures are justified in the face of the looming healthcare emergency. Each of these Constitutional issues would require greater examination by the Courts, which they unfortunately probably may not receive. But this article intends to examine only the validity of the legal tools used to impose the lockdown.

The lockdown has been implemented using two pieces of legislation – the Epidemic Diseases Act, 1897 (‘Epidemics Act’) and the Disaster Management Act, 2005 (‘Disaster Act’). Section 2 of the Epidemics Act empowers the state government to "prescribe such temporary regulations to be observed by the public…to prevent the outbreak of such disease or the spread thereof".

Various state governments have issued lockdown orders using the powers conferred by the Epidemics Act. Curiously, in the case of most states, the initial lockdown orders were valid only till March 31. The websites of several state governments do not appear to have extended the notification for the entire 21-day period of the lockdown, i.e. till April 15.

It seems that most states have relied upon the Central Governments guidelines concerning the 21-day lockdown. However, a closer examination of the actual notifications issued by the Centre does not seem to support such a view.

The Prime Minister declared the lockdown on March 24, which was backed up by a notification issued under the Disaster Act. The notification by itself, interestingly, does not explicitly restrict any movement of persons and restricts itself to the closure of shops, business and industrial establishments, schools etc.

Thus, there appears to be a legal lacuna concerning the free movement of persons, save some creative interpretation of the orders passed under the Disaster Act.

Even as regards the orders passed directing closure of non-essential services, there is grave doubt whether the Disaster Act confers the power on authorities to issue the kind of orders that have been issued.

The guidelines have been issued by the National Executive constituted Disaster Act under Section 10 (2)(l) of that Act. The provision empowers the National Executive Committee to "lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster".

However, this provision does not appear to empower the National Executive to issue directions to individuals and private businesses to shut shop. The directions can only be issued to state and Central governmental departments.

In fact, the guidelines issued in the face of the crisis of migrants fleeing to their villages are even more questionable. The guidelines direct employers to make payments to the workers for the period of the lockdown. They also direct that landlords will not seek rent for a period of one month. Laudable as the objectives behind the notification are, there is no legal basis for forcing acts of what should be charity on employers and landlords. On a purposive reading of the Act, the role of mitigation would largely be upon the government and not on individual citizens who may themselves be victims of the disaster.

But perhaps the most worrying feature of the guidelines is that that they seem to have been issued as though the framers consider themselves to have untrammelled powers. The Disaster Act has been applied as though it gives the government emergency powers of unimaginable amplitude.

Even when an Emergency is declared under Article 352 of the Constitution, there is parliamentary supervision. Article 352 (2) requires any proclamation of Emergency to be approved by both Houses of Parliament within a period of one month from its issuance.

In the case of the guidelines and orders issued under the Disaster Management Act, there is virtually no control or supervision by any authority. It is, in effect, the imposition of an Emergency without complying with the process provided for in the Constitution. There is also limited legal recourse since under Section 71 of the Disaster Act, jurisdiction of courts inferior to the High Courts is barred.

The lockdown may in fact be necessary to protect public health. However, the framework currently in existence does not appear to be sufficient to give a sound legal basis for the issuance of the orders that have been passed.

Perhaps, once the crisis blows away, we need to enact legislation that would confer such powers on the executive albeit tempered with necessary safeguards and controls. This is necessary because the controls which have been imposed in this time of emergency could also be used in less troubled times.

As Lord Atkin said in Liversidge v. Anderson, "amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace".