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CONSTITUTIONALITY OF NATIONAL LOCKDOWN
The pandemic of COVID19 has led the Government to impose lockdown over the territory. It really got a point where we conclude that whatever is being done, is legitimate and people follow it because they are scared of the virus but the legitimacy should be analysed on constitutional grounds.
It is stated in The Atlantic that constitutionality of the lockdown in the USA is doubtful, even though it has the support of people, & they are ready to sacrifice their rights. Therefore, nothing hinders us from determining whether the house arrest of all the people is constitutionally kosher or not.
Original Emergency provisions
Before the 44th Amendment,1978, Article 352 of CoI provided a declaration of an emergency on three bases, war, external aggression, internal disturbance. Justice Khanna in ADM Jabalpur case penned his dissent, stating that the right to life is a natural law and no law can ever suspend this right of a person. He also argued that habeas corpus petition preceded the constitution and cannot be taken away. Therefore, both of these cannot be suspended even in an emergency. Morarji Desai’s led government substituted “internal disturbance” with “armed rebellion” and clarified it in Article 359 that Article 20 & 21 cannot be suspended during an emergency through the 44th amendment.
Article 256 & 257 of CoI provides that Centre can give directions on how to implement laws & executive power of the state shall not impede that of the centre respectively. Article 355 duty bounds the Union to protect every state against “internal disturbances” & “external aggression”.
The pandemic of novel coronavirus qualifies to be a matter of internal disturbance & cannot be covered in Article 352 wherein emergency could be proclaimed. There are two-act which are related to this outbreak namely, Epidemic Diseases Act, 1897 (EDA) & Disaster Management Act, 2005 (DMA). The former one was enacted in the 19th century by colonial power through ruthless administrative apparatus when there was not a constitution bases on an individual’s fundamental rights. The law empowers the government to take necessary actions as it shall deem necessary to prevent the outbreak or spread thereof.
Supreme Court in Naga People’s Movement of Human Rights v. Union of India held that under Article 355, the Union government has an obligation to prevent the states from internal disturbances and therefore the implementation of the Armed Forces (Special Powers) Act, 1958 is valid. Sarkaria report even stated that directions can be issued under Article 355 without even declaring emergency under Article 352/356.
PM Modi declared lockdown and guidelines were issued to states & UTs under DMA. All non-essential establishments, transports, educational institutions were shut down with certain exceptions. It is to be noticed that 4 days’ time was given before Janta curfew & barely 4 hours were given before lockdown to arrange the livelihood. Railway stations, bus terminals, labour markets, supermarkets, state borders got crowded impeaching the objective of lockdown. Labour class ended up being away from their homes which is the majority in the country. How can this happen without assuring them minimum wages to live, will the right to life which includes livelihood right be snuffed away simply through Article 256 r/w DMA.
Without even proclaiming emergency, how can these rights be taken away & imposing Section 144, Crpc, how can virtual imprisonment be imposed for 21 days killing mostly the daily wager? It completely violates Clause (a) & of Article 39 which are duties of the government to keep in mind while taking any action.
Therefore, without a proper declaration of emergency, right to livelihood & right to movement rests in operation, can the lockdown be imposed on the people?
- CoI- Constitution of India
- r/w- read with
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*All rights with respect to this article vests with the author*
