On 24th March 2020, the Prime Minister of India, Narendra Modi announced at 8m pm nationwide lockdown from 25th March 2020 till 14th April 2020. The 21 days’ lockdown was announced after a 14 hour ‘Janata Curfew’ observed on 22nd March 2020. Immediately after an announcement of the lockdown, it limited the movement of people, and a series of restrictions in the working of various educational, governmental, commercial and all transport services got suspended. India observed four phases of lockdown to date. This lockdown was announced to curtail the spread of Covid-19 pandemic and transmission of the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) causing COVID-19.
This was an immediate preventive measure to keep people distanced and to control the spread of the virus from human to human body. India observed four-phase lockdown till date and various unlock phases with some recessions to the movement given. Under Section 6(2)(i) of the Disaster Management Act, 2005, the Central Government backed its lockdown order. During this whole process, only the movement of essential goods and services were allowed. Now the question arises whether the Central Government order had Constitutional backup? This article would cover the legality of lockdown order of the Central Government.
China is the first country wherein the first case of Covid-19 was observed. Immediately it covered many countries in the outbreak. India was one among them. At the end of January, India observed its first coronavirus case. In March, when the lockdown was announced on 24th March 2020, India had approximately 500 cases. On 11th March 2020, the World Health Organisation (WHO) declared the outbreak of Covid-19 as Pandemic. It suggested each country in the world to take preventive measures. If countries detect, test, treat, isolate, trace, and mobilize their people in the response, those with a handful of cases can prevent those cases becoming clusters, and those clusters becoming community transmission.[i] It was need of the hour to take urgent and aggressive action to control the spread of the virus. India had a threat of widespread Covid-19 due to high population, and the health system of India was not as advanced as of other countries. Social distancing is one of the most efficient solution to control the human to human transmission of Coronavirus.
Constitutional Articles empowering the Central Government – The Central Government has certain powers to make laws for the country. There are various articles under the Constitution whereby the lockdown orders, rules and regulations become legally valid and in the subject matter of the Government –
- Article 245 – Under this Article, the Parliament can make any law subjected to the provisions of Constitution for the whole of India or any territory of India. Also, no law would be invalid on the ground of extra-territorial operation.
- Article 246 – There are three lists for the distribution of subjects of legislation of laws in Seventh Schedule. These three lists cover various subjects for power to make laws by the Union and State Government. Certain entries will cover the validity of lockdown regulations.
a) Union List– In this list, the union government has exclusive powers to make laws on any of the matters listed in List I of the respective schedule. Now there are certain decisions taken by the union government on certain matters concerning Coronavirus spread. It suspended various services. Some of the entries of Union list wherein government made orders and regulation which were Railways (22), Airways (29), Carriage of passengers and goods by railways or air (30), Interstate trade and commerce (42), industries (52), Inter-state migration; Interstate quarantine (81). All these entries are the subject matter of Central Government, and it is constitutionally valid wherein the Government made certain restrictions or measures.
b) State List – Under the State List, the State has exclusive power to make laws for their respective State in List II. Public Order (1) and Public Health (6) lies under the State List. Under Article 249 of the Constitution, the Parliament has the power to make laws in the state list in the national interest.
c) Concurrent list- This list consists of subjects wherein both the State and Union have the power to make laws. In the matter of concern of lockdown, Entry 29 of List III deals with Prevention of an infectious or contagious disease from one State to another affecting men or animals or plants. Under this entry, both the Union and the State has legislative power. The spread of Covid-19 comes under this entry. Therefore, the Central Government also has the power to take preventive measures order in this entry.
- Article 256 – Under this article, the Central Government has the power to ensure to implement the laws made by the P Parliament. The preventive measure of lockdown taken to control the spread of Covid-19 under the Disease Management Act, 2005 and Epidemic Diseases Act, 1897.
- Article 355 – This article of the Constitution gives an emergency invoking power to the Union Government to invoke an emergency in the case of external aggression and internal disturbance. An outbreak of deadly Coronavirus caused an internal disturbance in the country. After the 44th Constitutional Amendment ‘internal disturbance’ was replaced with ‘armed rebellion’, in the power of invoking emergency under Article 352 of the Constitution. Thus this article does not qualify the pandemic situation.
- Kuldip Nayar v. Union of India[ii] – A law made by the Parliament under Article 245 cannot be questioned based on an alternative present to it or more reasonable view present.
- State of West Bengal v Committee for Protection of Democratic Rights[iii] – Article 246 distributes the subject of Union and State. If there lies any conflict between the List I and List II, the power of Parliament supersedes and law made by the former should be applicable.
Therefore, the above Articles and Relevant cases validate the Central Government to make laws and regulations during the lockdown. Central Government is given the power to make laws for the national interest. The current situation was such that we needed the Central Government to take preventive measures in the form of proper legislation to control the spread of life-risking Coronavirus.
Fundamental Rights validating the lockdown order by the Central Government
Any law or order of the Government has to validate the Basic Structure of the Constitution. Part III of the /Constitution cannot be infringed by any government order or rule or Act. The lockdown order by the Central Government has to comply with this part. Certain articles are arguable for an infringement: –
- Article 19(1)(d) and Article(19)(1)(g) – Article 19(1)(d) confers freedom of free movement throughout the territory of India and Article 19(1)(g) confers the freedom to carry on trade and commerce.[iv] During a lockdown, the movement of people was restricted, and even various business operation got shut. Due to this, various migrant workers had to suffer. Also, many businesses suffered. Some lost their jobs, and some lost means to earn a living. Lockdown made people restricted to so many services. Only essential services were permitted.
However, Article 19(5) and Article 19(6) gives the power to the government to make reasonable restrictions on the exercise of such rights. Such restriction can be imposed in the interests of the general public. The State has the power to make laws to impose any reasonable restriction. Lockdown order was a crucial decision to be taken to control the spread of Covid-19. Until we come up with a proper vaccine, social distancing is the only preventive measure. India is a densely populated country. To stop the community transfer, such restrictions have to be imposed for the national interest and the welfare of people. Saving the lives of the people from such a threat has to be the primary concern of the government.
- Article 21 – This article states that no person shall be deprived of his life or personal liberty unless procedure established by law. It is agreed that imposing lockdown and restriction on movement of people is taking away the Right to personal liberty. But the right to life is equally important. The Government must ensure that the fundamental rights of people are well protected. The spread of Covid-19 is life-threatening, and already it took thousands of lives in this country. Therefore, the lockdown order will, in turn, save the lives of people. Article 21 is the heart and soul of the Constitution. Safeguarding the health of the people is equally important, and it comes under Article 21 of the Constitution.
- Madras v. V.G. Rows[v]– On laying down the test of reasonable restriction, the court focused upon the objective of the restriction imposed.
- Narendra Kumar v. Union of India[vi] – The Supreme Court observed that reasonable restriction can be imposed if it’s in the interest of the people and should be necessary for the situation.
- State of Punjab v. M.S. Chawla[vii]– It was observed that providing health facilities is also part of Article 21. It is the constitutional duty of the Central Government to ensure that public health is taken care of and requires measures are taken up.
Special Acts used by the Government
- The Epidemic Diseases Act, 1897
This Act was first enacted for the outbreak of Plaque in Mumbai during former British rule in India. Its objective was to implementation of containment measures to prevent the spread by providing special powers. This Act was also used to combat swine flu, cholera, malaria and dengue from time to time. There are 4 sections under this Act covering powers of the Central Government and preventive measures to be taken upon.
Section 2A of the Act discusses the Powers of Central Government –
“When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.”[viii]
To combat the novel Coronavirus, this Act provides special power to the government.
- Disaster Management Act, 2005
The Disaster Management Act, 2005 provides the legal framework for controlling the virus and risks related to it. It empowers the Central Government to deal with the disaster that covers natural as well as man-made disasters. It empowers the Government to take action to make proper laws and orders to reduce the impacts caused by the disaster. The objective of the Act is to “provide for the effective management of disasters”. This Act provides down policies, plans and guidelines for the management of disaster under Section 6 of the Act.[ix] The Government announced the lockdown order under this Act.
When we talk about health emergencies or any such outbreak, the most effective concern of the government is to protect their people lives. It should be the duty of the government to focus upon saving lives. It should impose preventive measures and regulation related to it. This spread of novel Coronavirus is one such health emergency that killed millions of lives in this whole world. In fact, to date, we do not have any effective and permanent solution to control such massive destruction. The Central Government’s lockdown order welcomed many questions on the legality of the order. But it has to be kept in mind that life is the most important concern of any government. Following social distancing, norms are the only solution to control the spread. In countries like India with dense population, lockdown is the only practical solution to restrict the spread. Even counties like New Zealand, China, France, US, U.K. and many more followed the lockdown order as an immediate solution. All the above Articles and Constitutional provisions make the lockdown order of the Central Government Constitutionally Valid.
Frequently Asked Questions
- What are the Constitutional Articles empowering the Central Government to take lockdown order?
- What are the cases wherein the Central Government holds supremacy to make laws?
- Does the lockdown order make the violation of a fundamental right?
- How was the lockdown order constitutionally valid?
- What are the special Acts under which the COVID-19 spread gets validity?
[ii] (2006) 7 SCC 1
[iii] (2010) 2 SCC 571
[iv] Constitution of India
[v] 1950 SCC OnLine Mad 255 : AIR 1951 Mad 147 (FB) : (1951) 1 Mad LJ 628 (FB) : 1951 Cri LJ 515
[vi] (1960) 2 SCR 375 : AIR 1960 SC 430