[dropcap]O[/dropcap]UR Prime Minister has declared that the country shall be in a state of Lockdown for 21-days which in all likelihood will be extended by at least 7 more days or till the end of April 2020.
We all have been directed to stay at home and though most of us will just obey the directions without posing any questions, some feel that we can’t be forced to stay at home.
Those some need to know that the Act under which the Prime Minister has invoked such powers is categorical and clear and any violation of this lockdown can be properly dealt with by the State Authorities under the laws explained hereinbelow.
A number of provisions could have been invoked by the Prime Minister while putting the country into a state of lockdown, some of them are the following:
- Epidemics Disease Act, 1897
- Disaster Management Act, 2005
- Constitution of India, 1950
- Indian Penal Code, 1860
- National Security Act, 1980
Primarily the Prime Minister is given the lockdown orders under Section 2 (d) of the Disaster Management Act (DMA), 2005. Section 2 (d) defines “Disaster” as:
(d) “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area;
Ministry of Home Affairs had laid down guidelines for all the States and Union Territories across the country under Section 10 (2) (l) of the DMA 2005, hence making all the provisions of the Act applicable across the country. Section 10 (2) (l) reads as:
Section 10 (2)(l): lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster;
Section 51 to Section 60 of the DMA, 2005 lays down the penalties that can be imposed by the State under the Act against any person violating the 21-days lockdown. The imprisonment can be up to 2 years under the Act.
Section 60 of DMA, 2005 also makes it clear that no Court shall take any cognisance of any complaint under this Act except the national authority, the state authority, the central government, the state government, the district authority or any other authority or officer authorised in this behalf by that authority or government.
Emergency Provision under Constitution not Invoked?
In the United States, President Donald Trump invoked the emergency provisions as prescribed under the American Constitution to fight against the pandemic. However, in India, the emergency powers as provided under the Constitution of India were not invoked as when an emergency has imposed all powers of the state government gets vested in the central government. There was no requirement of imposing the emergency for the following two reasons: one, the state governments are supporting the central government directives; and two, Section 38 of the DMA, 2005 clearly casts a duty upon the state governments to follow the directives of the National Authority headed by the Prime Minister under Section 6 (2)(i) of the DMA, 2005.
Emergency provision shall be invoked when any state government oppose the directives of the lockdown as imposed by the national authority headed by the Prime Minister. Following this, it also means that the provisions of the National Security Act, 1980 are also not come in play.
State List, Union List and Concurrent List
As per the Constitution, though Public Health is a state subject. The Concurrent List in the Seventh Schedule of the Constitution also shares over 52 rules which empower both state and central government to enforce various rules.
While the State List 6 includes Public health and sanitation, hospitals and dispensaries, the Concurrent List 26 covers legal, medical and other professional rights. The List 29 covers prevention of the extension from one state to another of infectious or contagious diseases or pests affecting men, animals or plants.
All of the above-mentioned lists makes it categorical and clear that the state governments which have law and order and health under them will abide by the directives of the central government willingly and not by coercion.
Epidemics Disease Act, 1897
The Cabinet Secretary through a press statement issued by the Ministry of Health Affairs in the initial days of the COVID-19 pandemic had invoked Section 2 of the Epidemics Disease Act (EDA),1897.
This is primarily the first Act through which a penalty can be imposed on the person violating any order, rule or regulation promulgated under the EDA,1897. This is also the first time when under any law Section 188 of the Indian Penal Code, 1860 (IPC) is invoked to punish any person violating the law laid down under the EDA, 1897. Section 4 of the EDA, 1897 also gave protection to all persons who were acting in good faith to uphold the rules and regulations laid down under this Act.
Section 188 of the IPC lays down penalty for ‘Disobedience to order duly promulgated by public servant’. Apart from Section 188, another relevant section in COVID-19 times would be Section 270 of IPC.
Section 270 applicability is more relevant than any other law/provision in place in the country as on today. Section 270 reads out as follows:
Section 270: Malignant act likely to spread infection of disease dangerous to life. —Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
From the above-mentioned analysis of all the laws, it’s important to note that the central government has intentionally not invoked Emergency provision under the Constitution of India. The central government categorically used DMA, 2005 to good effect to let the state government take control of the situation locally and at the same time be under the direct control of the union government.
COVID-19 is a pandemic which can only be controlled through disciplined citizen behaviour and by effective use of state-machinery which is at the disposal of the local governments.
Kartik Seth is an Advocate practising in Supreme Court of India.