“An Ounce Of Prevention Is Worth A Pound Of Cure”-The proverb is best suited during this COVID-19 crisis.
On 24 March 2020, Prime Minister Narendra Modi pronounced that India would be under lockdown for twenty-one days to forestall the spread of the worldwide pandemic COVID-19. NDMA (National Disaster Management Authority) issued social distancing guidelines on March 24 considering the novel coronavirus “pandemic” as a disaster within the meaning of the DMA. While the lockdown has contained community spread of COVID-19 a legal and legislative review of this exercise has avoided examination so far. It is very weird that the term the terms ‘lockdown’ and ‘curfew’ have not been defined anywhere in the Indian Legal System but are still being used to curtail the fundamental right of movement enshrined under Article 19(1) of the Indian Constitution. Now let us see some law invoked by the state during the lockdown.
EPIDEMIC DISEASES ACT, 1897:
In 1896, Bombay (now Mumbai) faced a plague that killed thousands of people, to restrict the movement of the people and mass gathering British Indian government enacted The Epidemic Diseases Act on 4th of Feb,1897 Sec 2 of this act talks about Power of the government to take special measures and prescribe regulations as to dangerous epidemic disease. The state has invoked section 2 to enforce orders to combat the virus.
DISASTER MANAGEMENT ACT, 2005-
The Disaster Management Act, 2005 and allowed different Government Authorities to take measures to viably enforce social distancing, The Act was legislEntry 23 of the Concurrent Limited under the head of ‘Social Security’ which is provided by the state, sec 2(d) defines a disaster as a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. Section 51 to 60 of the Act provides for offences and Punishments.
THE INDIAN PENAL CODE,1860-
Section 188 of the IPC lays down penalty for ‘Disobedience to order duly promulgated by public servant’. Apart from Section 188, another relevant section in COVID-19 times would be Section 270 of IPC.
Section 270 applicability is more relevant than any other law/provision. Section 270 is defined in the Indian Penal code as follows :
Section 270: Malignant act likely to spread infection of disease dangerous to life. —Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both
SECTION 144 OF THE CRIMINAL PROCEDURE CODE,1973-
This section empowers any executive magistrate to restrict persons residing together in a particular area section 144 is there to dispose of urgent cases of apprehended danger or nuisance
ESSENTIAL COMMODITIES ACT, 1955.
This act was enacted in the year 1955 and came into force on the 1st of April 1955 to maintain the free flow of any essential commodity or to make it available to the public at large at fair prices the Central government has the power to regulate upon that commodity. At the time of this Corona Virus Pandemic, it was very obvious that the prices of sanitizer’s and masks will shoot up due to demand-supply mechanism to avoid this situation the Ministry of Consumer Affairs has invoked its power under this act and had brought sanitizers and face masks under the ambit of this act.
CONSTITUTION OF INDIA,1949-
State List 6 includes Public health and sanitation, hospitals and dispensaries, the Concurrent List 26 covers legal, medical, and other professional rights. List 29 covers prevention of the extension from one state to another of infectious or contagious diseases or pests affecting men, animals, or plants.
All of the above-mentioned lists makes it straight out and clear that the state governments which have law and order and health under them will comply with the directives of the central government readily not any pressure or undue influences
While the first two laws are regulatory laws the latter two are penal legislation which grants power to the state to initiate criminal action against any who violates these restrictions. One very important thing to note here is India is using pre-constitutional legislation (EDA,1897) which was used by the Britishers to control Plague. Under our constitutional law, pre-constitutional law is allowed to survive if it does not violates fundamental rights of our constitution (Article 13), neither the EDA nor measures taken under it have been exposed to that test. All the more critically, the Central government’s capacity under this law just is by all accounts confined to controlling the development and detainment of vessels at ports.
Public health falls under Entry 6 of the State List, giving the States the power to legislate on all matters concerning public health within its jurisdiction. Meanwhile, Entry 81 of the Union List allows the Centre to make laws on inter-state quarantine and quarantine of ports and ships.
While it was good on the part of the government to impose the lockdown at the initial stage of the outbreak, being a densely and highly populated country the no. of cases is less in number as compared to other countries. The government now is at the interjunction between the health, and right to life and personal liberty of the society. “The right to life, meaningless without the right to livelihood”.
COVID-19 pandemic would qualify as a situation of ” internal disturbance”, as it will not fall under any of the exiting ground mentioned in National Emergency (Article 352) which would allow the government in the centre to declare Corona Virus Pandemic an emergency under the act of Constitution of India,1949 which would also mean that government would not have the right to suspend fundamental rights, including Article 19 of the constitution which protects the basic freedom of citizens regarding freedom of speech. Etc.
In one of the landmark case in legal i.e ADM Jabalpur vs. Shivkant Shukla case (1976) 2 SCC 521 the term “Internal disturbance was replaced with Armed rebellion” the Janata Party government substituted these terms through 44th constitutional Amendment not only this it also elucidated in Article 359 that Right to life (Article 21) and Right against self-incrimination and double jeopardy (Article 20) could not be suspended even during an emergency.
In Bannari Amman Sugars Ltd. V. CTO, (2005) 1 SCC 625 it was held that restriction becomes preposterous simply because it works harshly.
Right to Health: A Fundamental Right
In Paschim Bangal Khet Mazdoor Samity & Others V State of West Bengal & Others, it was held that in a welfare state, the government has a primary duty is to ensure the welfare of the people by providing adequate medical facilities for its people as it imposes an obligation on the part of the state to safeguard the life of every person and it will the topmost priority of the government, Failure on the part of a government will result in the violation of the right to life enshrined under Article 21 of Constitution of India, but it is also not practically possible for a government to spend an unlimited amount of expenses on a particular person similarly providing medical facility to an individual by the government cannot be unlimited, in case of State of Punjab vs. Ram Lubhaya Bagga it was observed that medical facilities can be availed by the person but the amount of reimbursement may be limited
All in all, India the number of reported cases is still low compared to other nations across the globe, it might be due to Immunity of Indian people is better as compared to other people around the world, laws might help in curbing the rate of the pandemic up to some extent but much will depend upon people how consensually and sincerely they are following them hence it requires the effort of the whole country not only the state that can help our country to come out of this COVID-19 pandemic.
1. THE DISASTER MANAGEMENT ACT, 2005.
2. The Epidemic Diseases Act, 1897.
3. THE INDIAN PENAL CODE,1860.
4. ESSENTIAL COMMODITIES ACT, 1955.
5. THE CRIMINAL PROCEDURE CODE,1973
6. Tanay Goyal.(2020,April 25).COVID-19: The Law of the LockdownRetrieved June 23,2020 from https://www.jurist.org/commentary/2020/04/tanay-goyal-india-lockdown/
7. SHARMA, D. (2020, May 27). Lockdown and Related Laws in India. Retrieved June 23, 2020, from https://lawgupshup.com/2020/05/lockdownand-related-laws-in-india-2/
8. Additional District Magistrate (ADM), Jabalpur vs Shivakant Shukla 1976 (2) SCC 521.
9. State of Punjab vs. Ram Lubhaya Bagga, AIR 1988 SC 117.
10. Bannari Amman Sugars Ltd. V. CTO, (2005) 1 SCC 625.
11. Paschim Bangal Khet Mazdoor Samity & Others V State of West Bengal & Others, (1996) AIR SC 2426/ (1996) 4 SCC 37
12. Bakshi, P.M., “The Constitution of India”, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003.
13. BURROWS, M., & ENGELKE, P. (2020). (Rep.). Atlantic Council. doi:10.2307/resrep24634
Student, Symbiosis Law School NOIDA
Mr Anupam Pandey is a Second Year Learner from Symbiosis Law School Noida and is an enthusiast in reading and writing. His interest lies in Indian Criminal Law, Intellectual Property Law and Energy Law’s. He loves reading books and writing on various legal issues, researching and writing creations of his mind. For any Clarifications, Feedback, and Suggestion, you can reach him at firstname.lastname@example.org