Explained: The legal framework behind the lockdown
The government took recourse to two laws separated by more than a century to enforce the national lockdown, besides some provisions of the Constitution
In the days leading up to the imposition of nationwide lockdown by PM Narendra Modi on March 24 due to Coronavirus pandemic, especially after he announced a ‘Janata Curfew’ on March 22, there was some speculation if the government would impose a state of emergency, and fears still persist of a ‘Financial Emergency’ being invoked.
According to constitutional expert and former Secretary General of Lok Sabha, PDT Achary, however, although Article 352 of the Constitution originally did give the Centre the authority to do so under three grounds – war, external aggression and internal disturbance – the Janata Party government in 1978 did away with ‘internal disturbance’ clause, replacing it with ‘armed rebellion’. As such, he said, there was no question of an emergency under Article 352 being declared.
There is also a provision to declare a ‘financial emergency’ under Article 360, but this, Achary said, comes into play only when the country is completely broke and would have led to drastic measures like slashing of salaries of even SC and HC judges. “It’s best not to talk too much about it lest someone gets the idea of actually implement it,” he quipped.
So what is the legal and constitutional framework behind the lockdown?
“The Centre took recourse to Article 256 of the Constitution, which stipulates that the Centre can give directions on how to implement laws made by Parliament,” Achary said. Moreover, Article 257 states that the executive power of the states should be exercised in a manner that does not “impede or prejudice” the executive power of the Centre.
The Centre also took recourse to two other laws which provide the Centre and the states the statutory basis for acting against the pandemic: the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA).
The EDA indeed gives wide powers to “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, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.”
However, it was enacted by a colonial power when the country did not even have a Constitution. “Moreover, the Central government’s power under this law only seems to be restricted to controlling the movement and detention of vessels at ports,” Achary pointed out.
The second legislation, the DMA, mandates setting up a three-tier Disaster Management Authority at the national, state and district level to formulate a disaster plan for its level. Some of its relevant sections are:
*Section 11(3) sets out the aspects of such a plan. It is to deal with measures to be taken in mitigation and to address preparedness and capacity.
*Section 22(2)(h) permits the state authority/executive committee to give directions to government departments on actions to be taken in response to any threatening disaster.
*Sections 24 and 34 empower the state executive committees and the district authority to control or restrict the movement of vehicular traffic or people from or within a vulnerable or affected area, and to take any measures that may be warranted by such a situation. Section 30 replicates this model for the district level.
*Section 35 permits the Central government to take such measures as (a) coordinate work between the various authorities and government departments (b) deployment of forces and (c) other matters to secure “effective implementation”.
*Section 36 creates a statutory responsibility on all Central government departments to comply with the directions of the national authority.
*Section 51 sets an imprisonment term of one year (two years in the event of loss of lives) for persons obstructing discharge of functions by any government officer or employee.
*Section 6 empowers the Central government to issue binding directions to authorities and state governments.
Coinciding with the PM’s address to the nation, the National Disaster Management Authority (NDMA) issued social distancing guidelines on March 24, considering the “coronavirus pandemic” as a “disaster” within the meaning of the DMA. The Union home secretary forwarded these lockdown guidelines to the states and UTs by an order of the same date. The measures included shutting of all non-essential government establishments, all commercial and private establishments, industries, transport by air, rail and road, hospitality services, educational institutions, places of worship, political gatherings, etc. Certain exceptions for medical staff, journalists, petrol pumps, essential stores, etc were provided for.
The district collectors were to be “incident commanders” in each district who would also decide on who should be issued exception passes. Downstream, in several states, competent authorities issued orders under Section 144 of the CrPC, prohibiting more than five people from assembling in public places.
Achary, however, opined that the DMA was enacted with a view to deal with natural disasters rather than a pandemic, although the government went ahead and declared it as a ‘disaster’.
Further, he said, “In an ideal scenario, the government should have involved the states in a spirit of cooperative federalism rather than the top down approach that was adopted.”
However, at the end of the day, it came down to the Doctrine of Necessity, which proclaims loud and clear that “Necessity knows no law”.