The legality of Lockdown in India #Covid-19

Do you believe coronavirus alone is keeping us indoors?

At least, I don’t think so and I will tell you why.

As of 7th may, 2020, more than 52,000 people have been affected by the deadly virus in India alone, and over a billion people stranded in their homes.
The government has announced a complete LOCKDOWN throughout the country sparing essentials.

What is the Legality of Lockdown in India?

Indians, especially are very government abiding citizens but that didn’t keep the authorities from passing legal orders to enforce the LOCKDOWN.

“Stay home- stay safe“ slogan is not just a recommendation from the government but an order backed by legal sanction.

What are those laws and what penalties one would invite by disobeying them?

Lockdown is a North American term and in its generic sense means confining of prisoners to their cell in order to control a riot. But 2020 has a new meaning: Confining of Individuals to their homes in order to control a PANDEMIC.

This makes it look the same as Curfew under CrPC 144 as this is also notified by District Magistrate and the objectives and impact seem similar.

What could be the differences between a Lockdown and a Curfew?

• During the Curfew, all the essential services are closed for a specific period of time but during a lockdown, essential services are open.
• Curfew is imposed in a given region in emergency situations or perceived danger of some event, but lockdown is declared in very rare circumstances like an outbreak of a disease.
• Curfew is much stricter and is imposed for a specific area for a limited period of time and can invite a maximum punishment of three years.

How it all did start?

Union government has asked the state governments to invoke the Epidemic Disease Act 1897 and Disaster Management Act 2005.

You might ask why did the union government not do that by itself.

The answer to this lies in the seventh schedule of the Constitution where “public health and sanitation; hospitals and dispensaries” lie in the state list.

Why Epidemic Disease Act?

This is a colonial law passed in 1897, there was an outbreak of bubonic plague in the then State of Bombay. As given in the Act and It says, “An act to provide for better prevention of the spread of dangerous Epidemic Diseases”.

Section 2 of EDA 1987(Epidemic Disease Act 1987) gives power to take special measures by the state and prescribe regulations.

Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the [State Government] is satisfied that [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the [State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof…

THE EPIDEMIC DISEASES ACT, 1897

This Act enables the State Government if it is satisfied that ordinary provisions are not enough to stop the outbreak, It can make special regulations for the same. This explains the ban on public transport and private commute, shutting down schools and colleges, no mass gathering, and work from home regulations.

Section 2 also enables the Central Government when satisfied that ordinary provisions are insufficient to prevent the outbreak, may take measures and regulations for the vessels arriving or leaving the port. Cancellation of visas, screening at airports, airlifting stranded Indians abroad and etc.

Section 3 of this act talks about the penalties for disobeying any regulation or order made under this ACT shall be deemed to have committed an offence under section 188 of the Indian Penal Code.

3. Penalty—Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code
(45 of 1860).

188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

THE EPIDEMIC DISEASES ACT, 1897
THE INDIAN PENAL CODE, 1860

Section 4, however, gives protection to persons acting under the Act which is amended with an ordinance recently.

4. Protection to persons acting under Act.—No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.

THE EPIDEMIC DISEASES ACT, 1897

What about fundamental rights?

Let me remind you one cannot seek remedy for freedom of movement provided under article 19 (1)(d) of fundamental rights as here the reasonable restrictions of interest of general public given in 19 (3)(4) has to be read together.

Your right to Personal Liberty given in article 21 in Fundamental Rights cannot be upheld against the public health environment.

Punishment for violating Covid-19 Orders

You could probably be tried and prosecuted for the following offences:

As per IPC section 268 which talks about public nuisance where one does an act or guilty of illegal omission which causes any common injury, danger or annoyance to the public.

As per IPC section 269 which is about acting carelessly to endanger the public health and life can lead up to six months of imprisonment and fine.

As per IPC section 270, which talks about any malignant act likely to spread infection of disease dangerous to life, is punishable with imprisoning for a term which may extend to two years with fine.

As per IPC section 271 which talks about disobedience to quarantine rules made by the government and punishable with imprisonment which may extend up to six months, or with fine, or with both.

There are several rules that can be enforced during health emergency like the Essential Commodity Act, National List of Essential Medicines of India, 1996, the Municipal Corporation Act, State Public Health Act, etc.

Recent implementations of this Act.

• In 2009, Section 2 of this act used to tackle the swine flu outbreak in Pune.
• In 2015, Chandigarh implemented to deal with Malaria and Dengue
• In 2018, Notification was issued in Vadodara.

Conclusion

This shall pass too. #StayStrong and #StayatHome.

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