Posted on: August 24, 2020 Posted by: admin Comments: 0

Author  : Rajat Shandilya, Student at Faculty Of Law, Aligarh Muslim University

INTRODUCTION:

The entire world is in a phase of being at a standstill due to the outbreak of the Corona Virus  as a result of which almost  the entire world is forced to be in a state of lockdown, which is the only way along with social distancing to curb the spread of the deadly virus. In the same regard the government of India also took the step of implementing a lockdown in the entire nation. And undoubtedly this lockdown has resulted in drastic changes in the life of the people in general during the time of the pandemic. It is a well acknowledged fact that every procedural step taken by the government has a specified process or mechanism behind it and so does the lockdown imposed by the government has the same. This article aims to examine the legal mechanism behind the imposition of the nationwide lockdown and it also focuses on examining the legality of the lockdown in relation with the fundamental rights guaranteed under the constitution specifically article 14 and 21 of the constitution of India. The union government imposed the lockdown by issuing order dated 24th Mar 2020.   The order passed by the Ministry of Home Affairs, Government of India, declaring     nationwide lockdown vide the notification dated 24th Mar. 2020, due to the outbreak of novel Corona Virus (Covid19) is constitutionally valid.

The order passed by the Ministry of Home Affairs is constitutionally valid as there has been no violation of any fundamental rights as the government is empowered to put reasonable restrictions subject to law and order, public policy, morality & decency, for the exercise of fundamental rights enshrined under Part III of the constitution of India. Thus, the government of India has not violated any of the fundamental right of any individual and also public at large. Fundamental rights are not absolute; they are subject to reasonable restrictions.[1]

NATIONAL LOCKDOWN AND THE DISASTER MANAGEMENT ACT 2005

The constitution of India places the pith and substance of lockdown and its related powers in hands of the government. The National Disaster Management Act, 2005, was passed under the concurrent list–meaning both state and Union has legislative powers.  It is submitted that this notification has been promulgated by invoking section.6(2)(i) of the Disaster Management Act, 2005,Section 36 of the D.M.A makes it obligatory on the central government to comply with the orders of the National Disaster Management Authority set up under the Act, also the Section.72 of the D.M.A, 2005 provides that the provisions of Act, will have an overriding effect on all other laws,  and it is observed that in such a situation that the cases of Covid-19 is increasing continuously and to stop this, lockdown is an appropriate step by which social distancing can also be maintained and the same has been suggested by WHO.

By the virtue of Section 10(2)(l)[2]the Disaster Management Act 2005, The Disaster management authority which is chaired by the Prime Minister of the country  is empowered to lay down guidelines for, or give directions to, the concerned Ministries or Departments under the ambit of Government of India, the State governments and the state authorities regarding measures to be taken by them in response to any threatening disaster, as is declared by the government of India. In this difficult time of pandemic the cases of Covid-19 are increasing continuously and this disease is a communicable disease. There is no vaccine available till date, and the social distancing is the only way, in the country like India having second largest population in the world and considering the existing panorama of the country it is reasonably understood that the aforementioned notification dated 24th Mar. 2020 is apt and permeated with the idea of the safety of the citizens and reflecting a responsible approach to tackle this pandemic. Hence it is necessary to impose lockdown otherwise the number of patients will reach at their peak and then it will become very dangerous for all.

THE APPLICABILITY OF EPIDEMIC DISEASES ACT 1897:

Also Section 2 of EDA (Epidemic Diseases Act 1897) entails power to take special measures and prescribe regulations as to dangerous Epidemic disease[3]. Though the epidemic disease act has been legislation from the colonial period but it is still effective as it gives all the required powers to the central and all the concerned state governments to take special measures in order to curb the outbreak of any of the epidemic disease.

Recently, in April 2020, an amendment was brought in the Epidemic Diseases Act, which has covered the aspect of the safety of the professionals fighting as frontline warriors during the time of pandemic.

 THE NATIONAL LOCKDOWN AND ARTICLE 14 OF THE CONSTITUTION:

 Art.14 provides equality before law and equal protection of laws. Two-tests have been laid down by the Hon’ble Supreme Court overtime, where every law passed by the government has to be in accordance with the requirements of Art. 14 of the constitution of India, the imposition of lockdown in India satisfy the requirements so laid down.

BASIS OF LOCKDOWN IN ACOORDENCE WITH ARTICLE 14: INTELLIGIBLE DIFFERENTIA AND REASONABLE NEXUS:

While Art. 14 allow reasonable classification for the purpose of legislation it forbids any sort of class legislation[4].the test of reasonable classification was laid down by Supreme Court in Buddhan Chaudhary v. State of Bihar[5] which provides the following directions:

 (a)The classification proposed in the legislation must be formed on intelligence differentia and

(b) There must be also nexus between the classification and the object of the Act or rules.

The expression Intelligible Differentia means different capable of being understood and should be reasonable and not arbitrary[6].In this present time the union government of India had imposed a pan lockdown which is reasonable decision and taken with the view to serve the interest of the country as well as for the public. It is the foremost duty of government to provide safety to the public and protection of them. Imposition of lockdown was in order  to reduce the number of patients affected by Corona Virus and as there is no vaccine of this disease yet so only social distancing is the only option to remain safe and in this view the government had declared nation vide lockdown. The imposition of lockdown is reasonable and consistent with the principle of intelligible differentia and orders are not arbitrary and are completely reasonable.

 It can be said that the law can only make and set apart the classes according to needs and exigencies of the society[7]. In this difficult time of pandemic the government of India has imposed lockdown which is a reasonable classification with object to reduce and control the number of patients affected by the Corona Virus and to secure the life of the citizens of the India.

 NATIONAL LOCKDOWN AND  ARTICLE 21 OF THE CONSTITUTION :

Art.21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[8] Art.21 of Indian  Constitution provides protection to life and personal liberty which is same as that of provisions of American Constitution.[9]   This right is provided to ‘citizens as well as non- citizens.’[10]

That imposition of lockdown in India, in  no case violates Article 21 of the constitution of India and the imposition of lockdown does not violates procedure established by law, as held in case Maneka Gandhi v. Union of India[11]

The Imposition of lockdown is in accordance with the principle by SC in Maneka Gandhi[12] case  that is ‘three-fold test’ in accordance with the ‘procedure established by law’ (1) the law must prescribe a procedure (2) the procedure must satisfy the requirements of Art. 14 and 19 and (3) it should be just fair and fair and reasonable. The Imposition of lockdown is not an arbitrary order and does not violates the principle laid down in the case of Maneka Gandhi, and is clear observance of the principles of the natural justice in enforcing the said orders.

 Further, it has been observed by the SC in People’s Union of Civil Liberties v.Union of India[13] that any restrictions on fundamental rights to personal liberty can be imposed, when there is grave danger to public safety arising due to sudden circumstances, and here the situation of such nature has arisen which need to be taken into consideration with immediate effect. Therefore, the government is entitled to enact any legislation in relation to an industry, control of which is declared by the parliament to be expedient in public interest.The national lockdown in no way violates article  21 of the constitution  and is in accordance with law.                                                                                                                             

CONCLUSION:

The entire world is going through a hard time because of the outbreak of the Global pandemic known as the Corona Virus in almost 190 countries of the world. Almost every country around the world is forced to go into a phase of lockdown as a precautionary measure to control and curb the transmission of the Pandemic. India also, as a precautionary measure implemented a 21 days nationwide lockdown. This article has focused to touch over the legal framework of the lockdown and it carefully examines all its important aspects ranging from the provisions under the Disaster Management Act 2005 to the Epidemic Diseases Act and also has justified the lockdown in relation to the important fundamental rights of the constitution.

FOOTNOTES

[1] Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

[2] SECTION 10(2)(l), Disaster Management Act (53 of 2005).

[3]  Section 2 of Epidemic Disease Act, (3 of 1897).

[4] Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191; see also Ameronissa v. Mehboob, AIR 1953 SC 71; Kedar Nath Bejoria v. State of West Bengal, AIR 1953 SC 404; Vajravella Mudaliar v. SpecialDeputy Collector for Land Acquisition, AIR 1965 SC 1017.

[5]  AIR 1955 SC 191.

[6] M.P. Jain Indian Constitutional Law, 876 (7th  edn. Lexis Nexis Butterworth publication, Nagpur 2016).

[7] Suresh Kumar Kaushal v. Naz foundation, (2014) 1 SCC 1.

[8] INDIA CONST. Art 21.

[9]   Fifth Amendment of American Constitution.

[10] Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 998.

[11] AIR 1978 SC597.

[12] Ibid.

[13] AIR 1997 SC568.


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