Lockdown violated Constitution, illegally restrained people inside home: Petition in Gujarat HC

The Gujarat High Court on Tuesday heard a PIL challenging the constitutionality of the lockdown, asking the Union of India & state of Gujarat, the two respondents, to take instructions in the matter, legal news website LiveLaw.in has reported.

"The Prime Minister declared a lockdown by invoking EDA, and DMA for 3 weeks on 24.03.2020 starting from 00:00:00 hours on 25.03.2020. This lockdown has been extended thrice thereafter; on 14.04.2020, 01.05.2020 and 17.05.2020 which continues till date. The measures include the 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. with certain exceptions," reads the plea by social activist Vishwas Sudhanshu Bhamburkar.

It is argued that the lockdown caused untold hardships to the people of the country - food crises and hunger, migrant crises, medical crises and various other issues.

It submits that the lockdown saw curfew being imposed from 7pm to 7am, without there being any law and order or public disturbances that warranted the imposition of curfew. It disallowed persons who were senior citizens, or persons above the age of 65 years, to step out of the houses. The lockdown also ordered the people of the country to not step out of their houses except during specific times and for very specific purposes, which were to get medical help or to buy essentials for sustenance of life.

"The lockdown resulted in the people of the country being put under house arrest without being accused of any offence. It also suspended Articles 13, 14, 19 and 21 of the Constitution of India by keeping the people of the country illegally restrained inside their houses without any backing of the law," it is alleged.

The petition contends that the word lockdown, or its synonyms or equivalent does not find mention in either the Epidemic Diseases Act, the Disaster Management Act or the Constitution of India. "In fact, the Constitution of India prevents the suspension of Articles 20 and 21 even during a declared emergency. However, the situation that has been in existence is worse than that of an emergency without one being declared, with or without following the due process of law," it is argued.

It is submitted that for acting against the Coronavirus, the Centre and the states could invoke two legislations - the EDA and the DMA. "The case of the government perhaps is that these two laws arm it with sufficient powers and there is no necessity to fall back on the 'emergency provisions' of the constitution," the petition reads.

The petition says that the authority concerned has not provided any safeguards before implementing the lockdown. The provisions of DMA, more particularly sections 12 and 13 which ensured the welfare of the persons and protected their livelihoods (Article 21) and other reasonable interests were not invoked; therefore the lockdown was neither imposed constitutionally nor has it been implemented legally, logically nor scientifically.

The plea points out that the intent of the said lockdown, was solely to buy time to set up facilities to deal with the diseases and medical conditions that COVID-19 would bring in its wake- "In the guise of measures to limit the spread of COVID-19, also resulted in the most vulnerable section of the society becoming more vulnerable to the extent of facing their survival and existence resultantly exposing them to low level of immunity in these days of unknown and unlimited scare of a disease of which cure is unknown".

It is advanced that while four days' lead time was given for the Janata Curfew, barely four hours' time was given to the crores of Indians to arrange their lives and livelihoods in an orderly manner.

The PIL laments that the chaotic aftermath of the national lockdown has been evidenced by heartwrenching scenes at railway stations, inter-state bus terminals, state borders, labour markets etc. where scores of people have been subjected to a period that this was necessitated because of a combination of four reasons that individually was lethal enough to ensure their extermination.

"(i) The livelihood of the migrant labourers was snatched away.

(ii) Immediately upon the announcement of the lockdown, they were rendered shelterless at their place of work.

(iii) The only other reprieve for them, their shelter at their native place was snatched away from them by non-availability of transportation,

and (iv) The journey to their villages, hundreds, even thousands of kilometres away, was undertaken by foot resulting in 'official' death figure of 44 persons", reads the petition.

Moreover, it draws the attention of the court to the police brutalities. People have not only been beaten up; they have been brutalised to such an extent that the behaviour against these persons can only be called inhuman.

The situation at bus stands, railway stations and even along all the arterial roads of all the major business hubs and industrial towns has thrown all norms of social distancing to the winds, defeating the very intent with which the lockdown was imposed, it is sought to be indicated.

Besides, the deteriorating impact that the lockdown has had on the economy has been explained -- the enforcement of the lockdown has led to less that 5% of transport vehicles being on the road on the road. This translates into products not reaching their destination, the supply chain getting broken and if continued, the supply chains will be damaged beyond repair and will need to be rebuilt. The lockdown has also resulted in edible oil units operating at 40-50% of their capacity and food processing units are operating at 50% of their capacity. While it may not be immediate, this will lead to a food crisis the outcome of it will be most horrendous, especially for the marginalised sections of society.

It is argued that in case of the guidelines and orders issued under the DMA, there is virtually no control or supervision by any authority. It is, in effect, the imposition of an Emergency without complying with the process provided for in the Constitution. There is also limited legal recourse since under Section 71 of the DMA, jurisdiction of courts inferior to the High Courts is barred. Even when an Emergency is declared under Article 352 of the Constitution, there is parliamentary supervision. Article 352 (2) requires any proclamation of Emergency to be approved by both Houses of Parliament within a period of one month from its issuance.