{"id":598,"date":"2020-04-18T04:45:59","date_gmt":"2020-04-18T04:45:59","guid":{"rendered":"http:\/\/vikalpvimarsh.in\/?p=598"},"modified":"2020-04-18T04:46:05","modified_gmt":"2020-04-18T04:46:05","slug":"is-the-national-lockdown-in-india-constitutionally-valid","status":"publish","type":"post","link":"https:\/\/vikalpvimarsh.in\/?p=598","title":{"rendered":"Is the National Lockdown in India Constitutionally Valid?"},"content":{"rendered":"\n

It\u2019s\nalways safer to begin with a caveat. I have two. First, this is a sequel. Last\nweek, I wrote about the\nconstitutional scheme<\/a> to\naddress an epidemic like the one at hand.  Second, there is no reason for\nalarm. Even if you were to conclude that all that is being done to protect you\nmay not be legitimate, the chance of a constitutional court being vexed with\nthese questions is as remote as you deciding upon Wuhan as your first vacation\ndestination post lockdown. In fact, our constitutional courts, even the\nvideo-conference versions of them, have almost folded up in the wake of this\nunimaginable national crisis.<\/p>\n\n\n\n

Mila Versteeg, professor of law at the University of\nVirginia, writes in The Atlantic<\/em><\/a> that while the constitutional validity\nof the lockdown in the United States is doubtful, it has bipartisan support and\npeople, scared out of their wits, are also willing to voluntarily sacrifice\ntheir rights. This is not a new phenomenon. Many would remember how, in the\nwake of the felling of the World Trade Centre, America, the land of liberty,\nvoluntarily accepted the draconian Patriot Act for the sake of homeland\nsecurity. Therefore, even presuming that none of the parties in India \u2013 the\nCentre, the states or the people \u2013 have any objection to the virtual house\narrest of the entire nation, should that hinder us from examining whether such\na course is constitutionally kosher?<\/p>\n\n\n\n

Original emergency\nprovisions and Indira\u2019s misuse<\/strong><\/p>\n\n\n\n

Before it was amended in 1978, Article 352 of the Indian constitution<\/a> permitted the declaration of an\nemergency on three grounds \u2013 war, external aggression and internal disturbance.\nFor mysterious reasons, the emergency imposed by Indira Gandhi during the\nBangladesh War in 1971 had not been rescinded even as on that summer day in\nJune 1975 when the Supreme Court vacation single judge V.R. Krishna Iyer, heard\nNani Palkhivala for a whole day in a packed courtroom. It was a challenge by\nIndira Gandhi to the Allahabad high court verdict setting aside her election\nand unseating her as prime minister. Justice Iyer did not grant a blanket stay\nthat day. He merely allowed Mrs Gandhi to participate in the house but not\nvote. The emergency that followed at midnight was invoked on the grounds of\n\u201cinternal disturbance\u201d \u2013 one of the three permissible grounds.<\/p>\n\n\n\n

The constitution is silent on whether, while an emergency\ndeclaration is already in force (with the exception of a separate kind of\nemergency, namely Financial Emergency underArticle 360<\/a>), another can or is at all\nrequired to be promulgated.<\/p>\n\n\n\n

Then came the infamous ADM Jabalpur<\/em> case<\/a>. As overnight most opposition leaders\nwere arrested, many of them successfully secured habeas corpus release orders\nfrom various high courts. These cases landed up before a constitution bench of\nthe Supreme Court.  Attorney General Niren De reportedly was not keen to\ndefend the stand of the Indira government that during an emergency even the\nright to life could be suspended. It is said that oblique hints at revocation\nof the residency rights of his British wife were also instrumental in ensuring\nDe\u2019s appearance in court. He later claimed<\/a> that he tried his best to shock the\njudges into reason, arguing the proposition that during an emergency even if a\nperson were to be killed by the security forces in the presence of the\njustices, they would remain helpless. Sadly, the majority judges did not bite\nthe bait but timidly concurred. Justice Khanna penned his famous\ndissent<\/a>, arguing that the right to life was a natural law right and\nthe remedy of habeas corpus preceded the constitution. Therefore, the right to\nlife and the remedy of moving a habeas corpus petition in court for release\nagainst illegal detention could not even be suspended during emergency. But he\nwas the sole voice of reason and the majority opinion prevailed.<\/p>\n\n\n\n

Janata\u2019s constitutional\npurge and the new legal regime<\/strong><\/p>\n\n\n\n

For all the brouhaha made by the court in recent times of\nburying ADM Jabalpur<\/em> six feet under, the Janata Party\ngovernment had done that already in 1978 through the 44th\nconstitutional amendment<\/a>.  Not only did Morarji Desai\u2019s\ngovernment substitute \u201cinternal disturbance\u201d with \u201carmed rebellion\u201d but it also\nclarified in Article 359<\/a> that the right to life (Article 21<\/a>) and the right against double\njeopardy and self incrimination (Article 20<\/a>)\ncould not be suspended even during an emergency.<\/p>\n\n\n\n

Under the constitution, it is during the period of\nemergency that the niceties of separation of powers between the three wings of\ngovernment, as well as the division of powers between the Centre and the states\nare legally permitted to be blurred. The constitution, upon promulgation of emergency,\npermits the Centre not only to give executive directions to the states but also\nto the legislature in matters such as public health, law and order and police,\nwhich are otherwise state subjects with only a limited role for the Centre.<\/p>\n\n\n\n

Even during normal times, Article 256<\/a> stipulates that the Centre can give\ndirections on how to implement laws made by parliament.  Article 257<\/a> states that the executive power of the\nstates should be exercised in a manner that does not \u201cimpede or prejudice\u201d the\nexecutive power of the Centre. The Centre is also permitted to issue directions\nto the states towards this end. Article 355<\/a> (which the Janata Party perhaps forgot\nto amend when it purged our constitution of \u2018internal disturbances\u2019) enforces a\nconstitutional duty on the Union to protect the states against \u201cexternal\naggression\u2019 as well as \u201cinternal disturbances\u201d.<\/p>\n\n\n\n

While indisputably the \u2018coronavirus pandemic\u2019 would\nqualify as a situation of \u2018internal disturbance\u2019, it certainly cannot be\ncovered by any of the three existing grounds in Article 352 which would permit\nthe Central government to declare an emergency, suspend fundamental rights,\nincluding Article 19<\/a> which protects the basic freedoms of\ncitizens, and control the executive and legislative functions of the states.<\/p>\n\n\n\n

Two centuries, two statutes<\/strong><\/p>\n\n\n\n

Under this constitutional framework, two laws provide the\nCentre and the states the statutory basis for acting against the Coronavirus.\nThey are the Epidemic Diseases\nAct, 1897<\/a> (EDA) and\nthe Disaster Management Act, 2005<\/a> (DMA). The case of the government\nperhaps is that these two laws arm it with sufficient powers and there is no\nnecessity to fall back on the \u201cemergency provisions\u201d of the constitution. This\nwarrants a closer examination of these two laws.<\/p>\n\n\n\n

The EDA is of 19th<\/sup> century vintage, enacted by a colonial\npower with a ruthless administrative apparatus uncontrolled by a constitution\nbased on fundamental individual rights. A closer look would indicate that even this law is intended to address a situation<\/a>when\na \u201cstate or any part thereof is visited by, or threatened with, an outbreak of\nany dangerous epidemic disease\u201d and the government is of the opinion that \u201cthe\nordinary provisions of the law for the time being in force are insufficient for\nthe purpose\u201d.<\/p>\n\n\n\n

The law indeed gives wide powers to \u201ctake, or require or\nempower any person to take, such measures and, by public notice, prescribe such\ntemporary regulations to be observed by, the public or by any person or class\nof persons as it shall deem necessary to prevent the outbreak of such disease\nor the spread thereof, and may determine in what manner and by whom any\nexpenses incurred (including compensation if any) shall be defrayed.\u201d<\/p>\n\n\n\n

However, it does not provide that this power can be used\nin violation of any existing law, much less a constitution which was then not\neven in existence. Under our constitutional system, a law born before our first\nRepublic Day may be allowed to survive it provided it passes the agni pariksha<\/em> of the constitution. Till date,\nneither the EDA nor measures taken under it have been subjected to that test.\nMore importantly, the Central government\u2019s power under this law only seems to\nbe restricted to controlling the movement and detention of vessels at ports.<\/p>\n\n\n\n

What does the Disaster\nManagement Act say? <\/strong><\/p>\n\n\n\n

The second legislation, the DMA, is of 21st century\nvintage and mandates setting up a three-tier Disaster Management Authority at\nthe national, state and district level to formulate a disaster plan for its\nlevel.<\/p>\n\n\n\n

Section 11(3), DMA, sets out the aspects of such a plan.\nIt is to deal with measures to be taken in mitigation and to address preparedness\nand capacity. Section 19 mandates the state authority to lay down guidelines\nfor providing standards of relief.  Section 22(2)(h) permits the state\nauthority\/executive committee to give directions to government departments on\nactions to be taken in response to any threatening disaster. Sections 24 and 34\nempower the state executive committees and the district authority to control or\nrestrict the movement of vehicular traffic or people from or within a\nvulnerable or affected area, and to take any measures that may be warranted by\nsuch a situation. Also directions can be given to government departments\non taking such steps and measures \u201cfor rescue, evacuation, providing immediate\nrelief saving lives.\u201d<\/p>\n\n\n\n

Section 30 replicates this model for the district level.\nSection 34 empowers the district authority to \u201ccontrol and restrict vehicular\ntraffic\u201d, as well as \u201crecommend such measures as are necessary.\u201d Section 35\npermits the Central government to take such measures as (a) coordinate work\nbetween the various authorities and government departments (b) deployment of\nforces and (c) other matters to secure \u201ceffective implementation\u201d. Section 36\ncreates a statutory responsibility on all Central government departments to\ncomply with the directions of the national authority.<\/p>\n\n\n\n

The DMA also requires all government departments to\nformulate their own disaster management plans. Section 47, DMA, empowers the\nCentral government to constitute aNational Disaster\nMitigation Fund<\/a>. Section 50 authorises, in times of a threatened\ndisaster, the authorities to permit the administration to procure without\nadherence to the usual tender procedure. Section 51 sets an imprisonment term\nof one year (two years in the event of loss of lives) for persons obstructing\ndischarge of functions by any government officer or employee. WhatsApp rumour\nmongers would be interested to know that Section 54 prescribes a one-year\npenalty for spreading fake news or false alarm. Section 56 even has a similar\npenalty for a government servant who refuses to perform his duty. Section 61 is\nan important provision which prohibits discrimination on grounds of sex, caste,\ncommunity, descent or religion in the matter of providing compensation or\nrelief to victims. Section 6 empowers the Central government to issue binding\ndirections to authorities and state governments. Lastly, Section 72 gives this\nlaw an overriding effect. <\/em><\/p>\n\n\n\n

Protection of states from\n\u2018Internal Disturbance\u2019<\/strong><\/p>\n\n\n\n

While considering the validity of the Armed Forces\n(Special Powers) Act,1958<\/a> which\nconferred sweeping powers to the armed forces in disturbed areas, the Supreme\nCourt inNaga People\u2019s Movement of\nHuman Rights<\/em> v. Union of India<\/em><\/a> held that:<\/p>\n\n\n\n

\u201cReference in this context may be made to\nArticle 355 of the constitution whereunder a duty has been imposed on the Union\nto protect every state against external aggression and internal disturbance and\nto ensure that the government of every state is carried on in accordance with\nthe provisions of the Constitution. In view of the said provision, the Union\ngovernment is under an obligation to take steps to deal with a situation of\ninternal disturbance in a State\u2026 The provisions of the Central Act have been\nenacted to enable the Central government to discharge the obligation imposed on\nit under Article 355 of the constitution and to prevent the situation arising\ndue to internal disturbance assuming such seriousness as to require invoking\nthe drastic provisions of Article 356 of the constitution.<\/em>\u201c<\/p>\n\n\n\n

The Sarkaria\nCommission report<\/a> has\nstated that under Article 355<\/a>, the Union can issue a wide\narray of directions, without having to resort to invoking Article 352\n(emergency) orArticle 356<\/a> (president\u2019s rule). In fact, the\nreport cautions against a hasty imposition of president\u2019s rule by stipulating\nthat the Union can also act under Article 355 i.e. without imposing president\u2019s\nrule. Article 355 can stand on its own.  The report indicated that it\nshould first be ensured that the Union had done all that it could in discharge\nof its duty under Article 355, that it had issued the necessary directions\nunder Articles 256-257 and that the state had failed to comply with or give\neffect to the directions.<\/p>\n\n\n\n

Orders passed on the\nCoronavirus<\/strong><\/p>\n\n\n\n

Coinciding with Prime Minister\nModi\u2019s May 24 address to the nation<\/a> which announced a four-hour lead time\nfor bringing the entire nation under \u2018lockdown\u2019 for 21 days, the National Disaster\nManagement Authority<\/a> (NDMA)\nissued social distancing\nguidelines on March 24<\/a>considering the \u201ccoronavirus pandemic\u201d as a\n\u201cdisaster\u201d within the meaning of the DMA. The Union home secretary forwarded\nthese lockdown guidelines to the states and Union Territories by an order of\nthe same date.<\/p>\n\n\n\n

The measures include the shutting of all non-essential\ngovernment establishments, all commercial and private establishments,\nindustries, transport by air, rail and road, hospitality services, educational\ninstitutions, places of worship, political gatherings, etc. Certain exceptions\nfor medical staff, journalists, petrol pumps, essential stores, etc have been\nprovided for. The district collectors are to be the \u201cincident commanders\u201d in\neach district who would also decide on who should be issued exception passes.\nDownstream, in several states, the competent authorities have issued orders\nunder Section 144 of the Code of Criminal Procedure, 1973, prohibiting more\nthan five people from assembling in public places.<\/p>\n\n\n\n

Legality of national\n\u201chouse-arrest\u201d<\/strong><\/p>\n\n\n\n

While four days\u2019 lead time was given for the Janata Curfew<\/a>,\nbarely four hours\u2019 time was given to the crores of Indians to arrange their\nlives and livelihoods in an orderly manner. The chaotic aftermath of the\nnational lockdown has been evidenced by heartwrenching\nscenes<\/a> at railway\nstations, inter-state bus terminals, state borders, labour markets etc. where\nscores of people have been subjected to a period of enforced unemployment while\nbeing marooned far away from the sanctuary of their homes.<\/p>\n\n\n\n

As per the 2011 Census, India has 41\nmillion migrant workers<\/a>. Add to that domestic workers, daily wagers\nand construction workers. Conceded, the prime minister, several chief ministers\nand government advisories have exhorted employers not to deduct wages for the\nperiod of the lockdown. However, without a guaranteed wage or some minimum\nincome or compensation, can the right to life, which includes the right to\nlivelihood of these hapless workers, be snuffed out simply by falling back on\nArticle 256 read with the DMA?<\/p>\n\n\n\n

We have seen how after the Janata government\u2019s amendment,\neven if emergency is formally promulgated, the right to life cannot be taken\naway. In the present case, the emergency provisions have not even been invoked!\nIf the government can  bypass the emergency provisions of the Constitution\nand initiate such drastic steps, albeit with universal consent, one might well\nask whether such provisions \u2013 which not only specify the manner in which\nfundamental rights may be suspended but also set out the\nconstitutional-legislative oversight over such suspension \u2013 have been rendered\ncompletely meaningless.<\/p>\n\n\n\n

While orders under Section 144, CrPC restrict collective\nassembly, can the NDMA direct a \u201clockdown\u201d which draws the \u201clakhsman\nrekha<\/em>\u201d at the citizen\u2019s door and compels her into virtual\nimprisonment for 21 days? Is this not a virtual death sentence to the daily\nwager, the street vendor, the migrant worker, the small trader?  Clause\n(a) and (e) of Article 39<\/a> require the government to take steps\nto ensure that citizens have a right to adequate means of livelihood, and\ncitizens are not forced by economic necessity to enter avocations unsuited to\nthem. These obligations are among the Directive\nPrinciples of State Policy<\/a> which\nare considered to be fundamental in the governance of the country. The present\nlockdown would create conditions that run contrary to these obligations. The\nchoice between COVID-19 and economic death is a hard one. The citizen, for\nhowsoever noble a motive, has been left deprived of even her right to chose.\nRisking inevitable brickbats, I dare say that these were the very difficult\nchoices that required a balancing act \u2013 which, according to the\nleader of one of our neighbouring countries<\/a>, weighed on him in\ndeciding against an enforced shut down.<\/p>\n\n\n\n

Section 144 CrPC as well the cognate provisions in state\npolice Acts (such as Section 30(3), Delhi Police Act,\n1978<\/a>) usually prohibit assemblies. But the lockdown has taken the\n\u2018Lakhsman Rekha\u2019 to all our doorsteps. Again, returning to the fundamental\nissue \u2013 without a declaration of emergency and, therefore, with the right to\nmovement and the right to livelihood still in operation, is a \u201clock-down\u201d\nconstitutionally valid?<\/p>\n\n\n\n

I am conscious of the counter arguments. When the very\nright to life of the nation is imperilled, such constitutional arguments are\nheresy. After all, the Doctrine of Necessity proclaims loud and clear that\n\u201cNecessity knows no law\u201d. For whatever it is worth, if we are willing to accept\nthat these unforeseen times are compelling us to act beyond the four corners of\nour basic law, at the very least let us not lose focus on the equally critical\nmandate of both the EDA as well as DMA \u2013 namely relief and rehabilitation of\nthe disaster affected, i.e. the poor and most marginalised.<\/p>\n\n\n\n

Also, while wholehearted support to the administration in this hour of national crisis is the duty of every Indian, it is equally important to keep flagging crucial issues \u2013 such as,\u00a0has the Disaster Fund mandated by the DMA been operationalised<\/a>? Is the process of disbursement of compensation under the EDA under contemplation? I fear by our collective silence, we could well be sowing the seeds of a tragedy of unimaginable proportions, which we will reap for a long time. an>has the Disaster Fund mandated by the DMA been operationalised<\/a>? Is the process of disbursement of compensation under the EDA under contemplation? I fear by our collective silence, we could well be sowing the seeds of a tragedy of unimaginable proportions, which we will reap for a long time.<\/p>\n\n\n\n

By- \u00a0Sanjoy Ghose<\/a> ( CTC the wire)<\/p>\n","protected":false},"excerpt":{"rendered":"

It\u2019s always safer to begin with a caveat. I have two. First, this is a sequel. Last week, I<\/p>\n","protected":false},"author":1,"featured_media":599,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-598","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-5"],"_links":{"self":[{"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/posts\/598","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=598"}],"version-history":[{"count":1,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/posts\/598\/revisions"}],"predecessor-version":[{"id":600,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/posts\/598\/revisions\/600"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=\/wp\/v2\/media\/599"}],"wp:attachment":[{"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=598"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=598"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/vikalpvimarsh.in\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=598"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}