LOCKDOWN and CONSTITUTION!

By Shubham Diwate

(Constitutional validity of Lockdown)

04 May, 2020

COVID-19 vacations (# Quarantine situation) giving us quality time and memories with Family but indeed not for all of us. Everyone seems enjoying this vacations by engaging in watching movies, some in making delicious dishes, some by reading books; but not all of us. Because of Lockdown there is loss of work, wages, basic living facilities and ultimately it disturbed the lifestyle of Humans. The choice between COVID-19 and economic death is a hard one.

Following questions may incite us to check constitutional validity of lockdown:-

Is it constitutional to lock people behind doors?

Is it valid to give no access to earn basic needs of people?

Isn’t it unfair to those who were already fighting to cope up with basic needs and this lockdown shattered their life?

Is it fair to give them mental agony?

As we enter the middle of the lockdown, there is little reason to discuss its legality. The effect it has on the rights of people to work to earn their daily wages might tantamount to a violation of Article 21. In the case of the State of Punjab V. M. S. Chawla, the Supreme Court had interpreted Article 21 of the Constitution of India in a broader sense where it is said that the Centre has the constitutional obligation for providing certain health facilities to the common people.

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). There are mainly two constitutional provisions that are related to the lockdown order, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005. Instead of following the emergency provisions of the Constitution of India, the Central Government found a way to impose the lockdown by the application of these two constitutional frameworks. And the Guidelines issued under the Disaster Management Act, 2005 will qualify as a reasonable restriction under Article 19(5) and (6).

The Ministry of Home Affairs invoked Section 6 (2)(i) of the Disaster Management Act, 2005, and issued an order on Mar. 24, 2020, directing the ministries or departments of Government of India, state and union territory governments and authorities to implement the measures laid down in the central order. The measures restrict residents’ movement outside of their homes and order a closure of all offices, factories and shops, except those considered as essential goods and services.

The district collectors are to be the incident commanders in each district who would also decide on who should be issued exception passes. Downstream, in several states, the competent authorities have issued orders under Section 144 of the Code of Criminal Procedure, 1973, prohibiting more than five people from assembling in public places.


Some Constitutional Provisions and Powers of Central Government:

Clause (a) and (e) of Article 39 require the government to take steps to ensure that citizens have a right to adequate means of livelihood, and citizens are not forced by economic necessity.

Article 245 of the Constitution of India states that the Parliament or central government may make laws for whole or any part of India, and the state government may make laws for whole or any part of the state. Article 245 lays the basis for the division of powers between the centre and the state, whereas, Article 246 provides for the ‘Distribution of Legislative Subjects’ between the central and state governments. It does so by creating three lists, enumerated in the Seventh Schedule of the Constitution, namely the Union List Concurrent List, and State List.

Entry 29 of the Concurrent List empowers the central and state governments to legislate on matters pertaining to the prevention of an infectious or contagious disease spreading from one state to another. The entry does not limit the powers of the legislating authority to simply public order or health, but allows for any relevant legislation to be passed, so long that it is to prevent the disease from spreading across state jurisdictions.

Article 254

Inconsistency between laws made by Parliament and laws made by the Legislatures of States;
The Doctrine of Repugnancy’, which is well explained by the Supreme Court of India in the case of M. Karunanidhi v. Union of India, deals with an event “where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy”.

There is some debate in the media that the government could have declared a national emergency under Article 352 of the Constitution. However, this was legally not permissible as post the amendment of this Article in 1978 (44th Amendment), such an emergency can be declared only if the security of India or any part thereof is threatened by war or external aggression or armed rebellion. These are the only three grounds under which an emergency can be declared under Article 352. So, effectively, the only choice that the government had was to rely on Entry 29 of the Concurrent List and invoke its powers under the DMA, which it did.

Recent Petitions Challenged:

The plea has challenged the constitutional validity of Government Order dated March 29, 2020 issued by MHA only to limited extent being that “All the employers, be it in the industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction.”

A Writ Petition has been filed in Supreme Court by Karnataka Based Company ‘Ficus Pax Private Limited’ challenging the constitutional validity of Notification issued by Central Government to pay full wages of workers during the lockdown period.

A Writ Petition has been filed in High Court of Bombay (Nagpur Bench), In the Matter of challenge

In concluding remark, we can observe that by taking early lockdown steps undoubtedly government has done very brave and great job. If someone seems it as violation of their constitutional rights but it’s definitely reasonable restriction which was taken in the greater good of public.

Concurrent list:

https://en.wikipedia.org/wiki/Concurrent_List#Items_on_the_list

State list

https://en.wikipedia.org/wiki/State_List#Items%20on%20the%20list

Disaster Management Act, 2005 PDF

Epidemic Diseases Act, 1897 PDF

Case referred:

Liversidge V. Anderson ()

https://legalheritage.sclqld.org.au/liversidge-v-anderson-1942-ac-206

State of Punjab V. M. S. Chawla (Article 21)

https://indiankanoon.org/doc/1569214/

Narendra Kumar V. Union of India (Reasonable Restrictions)

https://indiankanoon.org/doc/1276331

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