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The objective of this article is to understand the legal principle governing the nationwide lockdown and the subsequent policy decisions/regulations issued by the Central and State Governments as precautionary and controlling measures to prevent the widespread pandemic Coronavirus Disease of 2019 (Covid-19).
The present article will focus on the following:
The process followed in relation to declaring the “National Lockdown”;
“Lockdown”, “Curfew” and other restrictions imposed – meaning and interpretations;
The framework of the Essential Commodities Act, 1955 and the guidelines issued for the supply and distribution of essential commodities;
Incidents relating to the violation of lockdown guidelines issued by the Government;
Consequences of the breach of guidelines issued for such supply and distribution.
Process followed in relation to declaring the “National Lockdown”
a. After the World Health Organization on 11.03.2020 declared Covid – 19 a global pandemic, the Ministry of Home Affairs (“MHA”) vide its letter dated 14.03.2020 to Chief Secretaries of all the States declared Covid-19 as a “disaster” falling under Section 2(d) of the Disaster Management Act 2005 (“2005 Act”).
b. The National Disaster Management Authority (“hereinafter NDMA”) is conferred with the power under Section 6(2) of the 2005 Act to lay down policies on the disaster management. As per Section 3(2)(a) of the 2005 Act, the Hon’ble Prime Minister, being the Chairman of NDMA, exercising powers under Section 6(2)(i) of the 2005 Act, issued Order No. 1-29/2020 (PP) (Pt 2) dated 24.03.2020, directing the National Executive Committee, as constituted under Section 8(1) of the 2005 Act, to assist the NDMA to perform its functions as mentioned under the 2005 Act.
c. Pursuant thereto, the MHA acting through the Home Secretary in his capacity as Chairperson of the National Executive Committee, issued the order of lockdown under the Section 10(2)(l) of the 2005 Act vide Letter DO No. 40-3/2020-DM-I(A) dated 24.03.2020 w.e.f. 25.03.2020 till 14.04.2020. Thereafter, on the recommendation of the NDMA vide order bearing No. 1-137/2018-Mit-II (FTS-10548) dated 14.04.2020, the MHA vide Letter DO No. 40-3/2020-DM-I(A) dated 14.04.2020 extended the lockdown period from 14.04.2020 till 03.05.2020.
d. The 2005 Act is enacted to provide for the effective management of disasters and for matters connected therewith or incidental thereto1. In the case of Swaraj Abhiyan - (I) Vs Union of India (UOI) and others2 the Hon’ble Apex Court held that the scope of the NDMA is not only to monitor and implement disaster management plans but also to prevent and mitigate the effects of a disaster.
e. In this context, it is relevant to note that Entry 81 of the Union List provides for interstate migration and interstate quarantine; Entries 2 and 6 of the State List provides for police, public health and sanitation, including hospitals and dispensaries; Entry 29 of the Concurrent List provides for prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants. The Hon’ble Supreme Court in the case of Bandhua Mukti Morcha Vs Union of India3 has held that the “right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes protection of health”. The Hon’ble Apex Court in the case of State of Punjab Vs Mohinder Singh Chawla4 has held that “the right to health is integral to the right to life and the Government has a constitutional obligation to provide health facilities”.
f. There is no doubt that the right to health being a fundamental right, the protection of the same is an obligation on the Central and State Governments. In view of having declared Covid - 19 a national disaster, Central and State Governments - exercising its powers under the Seventh Schedule of the Constitution of India, the Disaster Management Act 2005 and the Epidemic Diseases Act 1897 - have taken extraordinary measures to control and prevent the wide spread of the pandemic. If one considers the pith and substance of the nature of measures taken to control the pandemic, it is abundantly clear that the lockdown measures are legally sound and are taken to prevent the extension and wide spread of the infection by enforcing social distancing and isolation.
“Lockdown”, “Curfew” and other restrictions imposed – meaning and interpretations
a. In the recent times, we have come across the terms such as “lockdown”, “curfew”, “Janta-curfew” and other allied terms in the restriction of our free movement and also free movement of commerce and e-commerce.
b. The 2005 Act provides for the implementation of a National Plan for disaster management for the whole of the country under Section 11 of the 2005 Act. The National Executive Committee set up under Section 8 of the 2005 Act, in discharge of its power under Section 10 of the 2005 Act, will implement the National Plan which would include methods for prevention, integration and preparedness for dealing with the disaster - which again is unfettered to an extent, which provides for the Government to take extreme measures as it exists today for curtailing the disaster.
c. The 2005 Act under Section 14 also casts a duty on the State Governments to follow the directions of the NDMA. Only when the State Governments are not cooperating or a State Government is ineffective, then the national emergency is declared. Since all the State Governments are cooperating and coordinating with the Central Government, there arose no need for declaring national emergency in the current situation.
d. For the better prevention of the spread of a dangerous epidemic, State Governments under Section 2 of the Epidemic Diseases Act 1897 have the “power to take special measures and prescribe regulations as to dangerous epidemic disease”. Under this section State Governments have sweeping discretionary powers to mould restrictions as per the need.
e. Another measure adopted by the State Governments for the proper implementation of the lockdown is under Section 144 of the Code of Criminal Procedure, 1973 (“herein after Cr.P.C”). The State Governments acting through the District Magistrate have issued guidelines for the closure of shops, gathering of people and restricted the movement of the public. More commonly, the restrictions imposed under the Section 144 of Cr.P.C, is also termed as “Curfew” as in colloquial term. Curfew refers to the restrictions imposed on the public against their free movement. However, there is no legal meaning as assigned under any law to the term “curfew”.
f. The State Governments have used a combination of provisions under the Epidemic Diseases Act 1897 and Section 144 of Cr.P.C to impose restrictions on free movement.
The framework of Essential Commodities Act 1955 and the guidelines issued for the supply and distribution of essential commodities
a. The Essential Commodities Act 1955 (“1955 Act”) is enacted to regulate the production, supply and distribution of a whole host of commodities that it declares ‘essential’, in order to make them available to consumers at fair prices. Additionally, the Government can also fix the maximum retail price (MRP) of any packaged product that it declares to be an “essential commodity”.
b. Section 2A of the 1955 Act envisages powers to the Central Government, if it is satisfied that it is necessary in the public interest and for reasons to be specified in the notification published in the Official Gazette, to add or remove any essential commodities from the Schedule issued under the 1955 Act.
c. The Central Government is vested with the power under Section 3 of the 1955 Act to control the production, supply, distribution., etc of essential commodities where, if it is of the opinion that it is necessary or expedient so to do, for maintaining or increasing supplies of the essential commodities or for securing their equitable distribution and availability at fair prices.
d. The MHA in its Annexure to the Order No. 40-3/2020-DM-I(A) dated 24.03.2020 issued guidelines on the measures to be taken by the Ministries/Departments of Government of India/State/Union Territories for the he containment of Covid-19 epidemic in the Country. These guidelines essentially specify the services that are available for the general public during the lockdown period. Pursuant to the extension of lockdown vide Letter DO No. 40-3/2020-DM-I(A) dated 14.04.2020, the MHA has issued revised consolidated guidelines vide order dated 15.04.2020. The latter guidelines stated that the former guidelines would continue to remain in force till 03.05.2020. However, to mitigate the hardship faced by the public, certain additional activities are allowed to come into effect from 20.04.2020.
e. To implement these guidelines, the District Magistrate has deployed Executive Magistrates as Incident Commanders in the respective local jurisdictions. The Incident Commanders are responsible for the overall implementation of measures taken by the Central Government during the lockdown period. All other Department Officials in the specified area will work under the directions of such Incident Commanders. The Incident Commanders will issue passes for enabling essential movements and will, in particular, ensure that all efforts for the mobilization of resources, workers and material to augument and expand hospital infrastructure shall continue without any hindrance.
Consequences of a breach of lockdown/guidelines issued for such supply and distribution
a. The MHA in its Annexure to the Order No. 40-3/2020-DM-I(A) dated 24.03.2020, while issuing guidelines on the measures to be taken by the Ministries/Departments of Government of India/State/Union Territories for containment of Covid-19 epidemic in the Country, has also specified that whoever, without reasonable cause, is found violating any of these containment measures during the lockdown period, they will be held liable to be proceeded against as per the provisions of Section 51 - 60 of the 2005 Act.
b. The 2005 Act provides for punishments for obstruction, false claim, misappropriation of monies or material and false warning with both imprisonment and fine.
c. The 2005 Act also provides for punishing the heads of the Department of the Government and its officers, with the sanction of the Central/State Government, if they fail to discharge the duty as envisaged upon them under this Act, and if they are found to be in violation of the guidelines /provisions of the 2005 Act.
d. Section 71 of the 2005 Act bars the jurisdiction of all Courts and vests the Supreme Court and High Courts with the exclusive jurisdiction to try the matters in relation to the guidelines issued under the said Act. Section 72 of the 2005 Act is a non-obstante clause, with overriding powers over any other law for the time being in force. The said provision reaffirms the extra ordinary powers vested with the authorities to take measures during the time of a notified disaster.
e. Apart from the punishment prescribed under 2005 Act, whoever is found to be in contravention of the guidelines issued by the 2005 Act can also be prosecuted under Section 188 and Section 270 of the Indian Penal Code, 1860.
f. In the midst of the lockdown period, amidst the stringent steps and the extraordinary measures, there have been few incidents of violation of the guidelines. It is interesting to see how the Government intends to prosecute such offenders, since few State Governments did mention that they may prosecute under the National Security Act 1980 as well.
Conclusion
In the wake of the unprecedented times, and the unprecedented methods adopted by the Government, it is not wrong to state that these measures will go a long way in determining the legal future of the implementation of these laws and that it would also lead to a radical change of the laws which are being put into test.
In order to curtail and control the situation at hand, the Government has relied upon statutes such as the Disaster Management Act, 2005; the Epidemic Disease Act, 1897; the Essential Commodities Act, 1955; the Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860. It is interesting to see that in view of the existing circumstances, the lockdown order or the welfare measures taken /guidelines issued by the Government has not been questioned before any Courts and that the nation is united to fight the bigger enemy i.e., the pandemic Covid-19.
Nischal Dev is a Partner and Shiva Krishnamurti and Nanda Kishore are Associates at AK Law Chambers.
Citations:
[1] Preamble, Disaster Management Act, 2005
[2] (2016) 7 SCC 498
[3] AIR 1984 SC 802
[4] (1997) 2 SCC 83