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the law of lockdown

on 24th march, 2020, india announced an official 21-day lockdown, as part of its efforts to deal with covid-19. we ask gopika nambiar, an advocate, to explain the legal methods used to affect the lockdown in india.

On  24 March 2020, as the clock struck eight, the Honorable Prime Minister of India announced a complete ‘lockdown’ for a period of twenty one days to implement the practice of social distancing , which till date is viewed as the most effective way to combat the invisible and seemingly omnipresent enemy that COVID-19 is. Subsequently, considering the exigencies prevailing in the country, the lockdown has been extended until May 3, 2020. This power to impose a lockdown or prescribe any other measure to control, combat and prevent an epidemic such as this stems from two legislation – the Epidemic Diseases Act,1897 and the Disaster Management Act, 2005.

The Epidemic Diseases Act, 1897 which has been invoked by numerous states to impose multi-fold restrictions, is a statute that empowers state governments to take measures , prescribe temporary regulations etc which it deems necessary, to prevent the outbreak and spread of the disease. The Act by itself does not prescribe the kinds of measures that can be adopted by the state Government ; instead it pragmatically grants discretionary power to the state Governments to frame regulations , impose proscriptions etc., depending on the needs and necessities that the situation warrants. Though the legislation itself does not define the word epidemic, COVID 19 which has been classified as a ‘pandemic’ by the World Health Organisation, unequivocally necessitates and justifies the use of this legislation by state Governments.

The Central Government traces its powers under the Disaster Management Act, 2005. The definition of ‘Disaster’ under the legislation is of wide ambit and includes a catastrophe, mishap , calamity or grave occurrence – outbreak of COVID-19 naturally falls within the contours of a ‘catastrophe’. This statute establishes an authority known as the National Disaster Management Authority, with the Prime Minister of the country as the Chairperson along with nine members. This authority has on  24 March, 2020 invoked its power under S.6(2)(I) of the said Act to direct all concerned to ensure social distancing, for the prevention of the spread of COVID-19. S.6(2)(I) is also typically a generic provision that enables the Authority to take all such measures as it considers necessary for the prevention , mitigation etc of the disaster.

The National Executive Committee, under the Chairmanship of the Principal Secretary to the Government, Ministry of Home Affairs, pursuant to the direction issued by the National Disaster Management Authority exercising its power under S.10(2)(l), issued detailed guidelines, the first of which were published on 24th March, 2020. It is these guidelines that prescribe the condition of a ‘lockdown’ to facilitate the goal of social distancing. The term ‘lockdown’ is not defined in any of the aforementioned statutes but the dictionary tells us that it is  ‘a state of isolation or restricted access instituted as a security measure’

A perusal of these Guidelines (all of which have been uploaded on the website of the Ministry of Home Affairs , Government of India) would put to rest our misconceptions of being deprived of all essential services. Paragraph 3 of the guidelines categorically provide that hospitals as well as medical establishments such as chemist shops,  laboratories, ambulance services etc, would  remain open and available. While ordering that private and commercial establishments be closed down, paragraph 4 of the guidelines make an exception for shops dealing with food , groceries etc. It also advises district authorities to encourage and facilitate home delivery of essentials, which is a truly imperative step in achieving the goal of social distancing.

Paragraph 14 of the Guidelines, while stating that the Executive Magistrates will be deployed as ‘Incident Commanders’ for the overall implementation of the measures in their respective jurisdictions, also provide that Incident Commanders will issue passes for enabling essential movements. Paragraph 15 clarifies that these strict restrictions fundamentally relate to the movement of people but not that of essential goods.

The Central Government, after extending the lockdown beyond 14th April, 2020 has issued a set of comprehensive and consolidated guidelines. These guidelines while restricting activities in areas identified as ‘COVID-19 hot spots’ , permit certain activities in the field of agriculture, public health , banking , industry , allows  resumption of construction activities in rural areas etc, w.e.f 20th April, 2020. However, public transport including railways and aviation will remain suspended.

Thus, these guidelines protect our essential needs and at the same time, allow unavoidable ventures into public spaces. However, persons stepping out, especially in groups, without any purpose or for non-essential , trivial reasons in the light of the present situation, are being charged under under S.188 of the Indian Penal Code and S.51 to 60 of the Disaster Management Act, 2005. The punishment under these provisions range from six months to two years in prison. S.269, S.270 and S.271 of the Indian Penal Code dealing with negligent acts and disobedience of quarantine rule can also be invoked. Many state Governments have invoked S.144 of the Code of Criminal Procedure to prohibit public gathering.

Various state Governments, in a bid to ensure the availability of treatment centers and quarantine facilities, have resorted to invoking S.65 of the Disaster Management Act, 2005. This provision enables the Government to requisition any premises, resources or even vehicles, for which compensation would be paid to persons interested. This is how private hospitals , hotels, auditoriums etc have been requisitioned to make sure that treatment is not hampered due to non-availability of infrastructure.

The Government has also come up with a unique idea of converting railway coaches into quarantine centers. The Disaster Management Act, 2005, which has been pressed into effect by the Central Government envisages joint and concerted efforts by the Center, state and district level authorities to combat, mitigate and prevent disasters. It is precisely such an effort that would be imperative in this crucial period to redress the difficulties that would be faced by various strata of the society.

As Henrik Ibsen said, ‘A community is like a ship, everyone ought to be prepared to take the helm’. We, the citizens of India, need to realize that all of us are now at the helm and all we need to do to keep the ship of existence afloat, is to diligently practice social distancing . By doing so, we  render the greatest service of ensuring not only our well-being but that of our fellow country-men.

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