Sakthivel Advt: Constitutionality of Corona Lock Down An unprecedented lock down has been imposed for 21 days all over India in order to contain contagious Covid 19 also known as Corona Virus in furtherance of powers under the Epidemic Diseases Act, 1897
An unprecedented lock down has been imposed for 21 days all over India in order to contain contagious Covid 19 also known as Corona Virus in furtherance of powers under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 and state governments followed the same by imposing curfew by notification under section 144 of Criminal Procedure Code. No Indian would have ever dreamt of facing a curfew in the guise of a viral infection. In fact, any student who studied XII standard Biology, would have dreamt of facing curfew when they studied or study Corona virus as an ordinary flu with symptoms of cough, running nose, high temperature and difficulty in breathing, would be there for 7 days whether you take medicine or not.
Lock down on account of viral infection, may not be a laughing stock any more as few countries have adopted lock down method to contain its spread at the community level on the advice of World Health Organisation. Thus, lock down may be interpreted as a positive measure on account of containing an infection as long as those measures do not infringe the rights enshrined in our Constitution, the right to expression, right to assemble, right to life and liberty and right that the government does not act arbitrarily. Thus, all these rights have been curtailed. State and district borders have been sealed, people are restricted from venturing out; gatherings on account of anything including on religious and political grounds have been banned; transport by road, railway and airport have been closed; citizens movement are curtailed; stringent measures notified to restrict movement of people except for essentials and lodging the violators for 14 days isolation, etc.
The Constitution itself does not consider the fundamental rights as absolute. Thus, the State can impose reasonable restrictions of the fundamental rights by Legislative Acts and in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The Supreme Court in Anuradha Bhasin Versus Union of India & Others in Writ Petition (Civil) Nos. 1031 & 1164 of 2019 dated 10-01-2020 held “(i) Restriction on free speech and expression may include cases of prohibition. (ii) There should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate. (iii) Whether a restriction amounts to a complete prohibition is a question of fact, which is required to be determined by the Court with regard to the facts and circumstances of each case and apart from it, the Supreme Court also held that
whether the imposed restriction/prohibition was least intrusive, brings us to the question of balancing and this Court has already applied the balancing approach with respect to fundamental rights and the directive principles of State Policy Proportionality. Article 14 of the Constitution of India mandates that it shall be the endeavor of the State to improve public health, but any of act of the State shall be expressed even if the same is flowing out of Directive principles of state policy, by way of legislation. The state governments have imposed the lock down by invoking the provisions of The Epidemic Diseases Act, 1897 along with Criminal Procedure Code and the central government has notified for lock down of the entire country for maintaining social distance for a period of 21 days commencing from 25th March, 2020 invoking powers under the Disaster Management Act, 2005 as stated supra. The Epidemic Diseases Act, 1897 has two-fold provisions in case of insufficiency of the existing laws firstly Section 2 empowers the state governments to take such measures to prescribe such temporary regulations to be observed by the public or by any person or class of persons as shall deem necessary to prevent the outbreak of such disease or the spread thereof and Section 2A empowers the central government to take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary. Section 6 of the Disaster Management Act, 2005 empowers the national authority for laying down the policies, plans and guidelines for disaster management and Section 10 provides for its implementation. Thus, the action of both central and state governments need to be tested within the scope of these two acts as the Constitution has not contemplated any extraordinary powers to suppress any powers under the fundamental rights, except during declared emergency even then the fundamental rights are not scrapped. The Epidemic Diseases Act, 1897 provides powers for such measures which are not available in other acts, to state governments and thus, the action of closing down malls, schools, gatherings for any purposes, shall be justified and quarantining international passengers are also justified. Though the Disaster Management Act, 2005 contemplates the measures to aim to reduce the risk, impacts/effects of disaster or threatening disaster, the act is applicable only to the affected area or to part of the country. As both Acts have not contemplated imposition of lock down, the state governments have notified under Section 144 of Criminal Procedure Code which empowers District Collectors to issue such direction to prevent, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility. Though the entire action in respect of Corona is mostly done in the name of the Prime Minister / central government, both central and state governments have come together in the matter of arresting the spread of a pandemic in the true spirit of federal India. Even then a curfew-like situation is anathema to the free movement and also free expression of opinion on the status of Corona unless the same can be justified in the democratic spirit. All orders pertaining to the lock down speak about the threatening trend of Covid 19, its declaration as pandemic by the WHO and effective measures to prevent the spread of the same and also of imposition of lock down keeping the global experience of countries which have been successful in containing the spread of Covid 19 unlike some others where thousands of people died and recommendations of successful countries in containing the spread of Covid 19. The notifications have not specifically referred to any specific countries’ experiences but refer the WHO’s declaration as pandemic. It is true that on the date of declaration of nationwide lock down, the central government has the benefit of analyzing various countries’ experiences on the spread of Covid 19 on the one side there are countries like China and Italy imposing lock downs and on the other side, countries like South Korea, Sweden and Germany going ahead without complete lock downs and thus, the world is equally divided on the question of imposition of lock down to prevent the spread of a pandemic. Apart from it, the WHO has also stressed that the only way, the communal spread can be prevented is by testing and quarantining the affected. In addition, there is also evidence to show that the spread of Covid 19 may not be as serious as expected on account of rising temperature level and in the midst of scientific evidence that the Indian mutation of Covid 19 is less virulent. Under these circumstances, South Korean experience shows that instead of locking down the entire country, large-scale tests can identify the affected people and such people alone may be quarantined and further, serious cases alone may be recommended for treatment at hospitals and any area has considerable cases, such areas only may be locked down. Most of the countries, in spite of large-scale Corona cases, preferred to deal with Corona cases as ordinary flu and locking down was considered forceful detention and they did not incline to sabotage the guarantee of freedom available to the citizens. Even the Indian Constitution considers freedom of expression and movement as revered right of any citizen. In the light of mortality rate going higher on account of certain diseases compared to the projected mortality rate on account of Covid 19, it is vital to decide whether the lock down on account of Covid 19 is out of arbitrary exercise of power or is excessive in nature and if so, then lock down can be construed as violation of fundamental rights as held in P.P.Enterprises vs Union of India AIR 1982 SC1016. According to the latest National Health Profile 2019 released by the Union Ministry of Health and Family Welfare, life expectancy has increased but non-communicable diseases (NCDs) and infectious diseases continue to take a toll and access to healthcare is far from equitable across the country. More particularly, diabetes, hypertension and lung disease, plague the country in significant numbers and are projected to increase. Type-2 diabetes patients will number 134 million by 2025 and deaths due to the disease numbered 254,500 in 2017. Hypertension, in the meanwhile, is responsible for 10.8 percent of deaths in India. An estimated 224 million people live with the condition in the country. The country also faces a high burden of lung disease. In the case of chronic obstructive pulmonary disease (COPD), India loses a million lives every year. The country is regarded as the COPD capital of the world: cases increased from 28.1 million in 1990 to 55.3 million in 2015. Considering the magnitude of the above national health profile of India, it is clear that the intensity of Covid 19 is not going to be more infectious. Hence, this lock down needs to be determined in an objective manner and from the standpoint of the interest of the general public and not from the point of the persons upon whom the restrictions are imposed or upon abstract considerations, expressed in Hanif Qureshi vs State of Bihar 1958 SC731. Therefore, any comparison of one infection with another may not be the right approach to make an act as unconstitutional. Considering the lock down in an objective manner with available material leaving the hardships faced by unaffected people, the restriction of lock down is an excessive exercise. Nobody is going to object or claim curtailment of fundamental rights in case somebody infected with communicable disease is restricted from movement or healthy people being prevented in the interests of the general public, from visiting an infected area, Lucy vs State of Goa AIR 1990 Bombay 355.
The other aspect in this lock down is related to unorganized labour, people living below poverty line, who mostly rely on daily wages and the sufferings of the migrant labourers. These people constitute more than 65% of the total population. Any sudden lock down shall jeoparadise the income of these people. As Article 21 guarantees protection of life and personal liberty that no person shall be deprived of his life or personal liberty except according to procedure established by law which includes earning a livelihood (Narendra Kumar v State of Haryana AIR 1995 SC 519.) and to live with dignity Budhadev Karmaskar Versus State of West Bengal 2011 (10) SCC 351. Thus, the lock down should have taken into consideration these aspects prior to any such move to deprive the life and dignity. Though the various Governments announced schemes to mitigate the sufferings, such schemes cannot completely take care of the livelihood as it is only offered as a minimum solace considering the quantity of such benefits and delay in receiving them. Therefore, there should have been more compelling circumstances in order to deny the right guaranteed under Article 21 and the governments ought to have considered sufferings of crores of people on a comparative scale with that of the Corona sufferings. The governments supported by the ICMR have determined that the Covid 19 shall zoom into an unimaginable level in India without complete lock down as in the case of Italy and Spain. The Prime Minister Mr.Narendra Modi addressed the nation prior to lock down to bear with him for lock down in spite of the sufferings as the scientists anticipated more rapid infection of Covid 19. Thus, the governments themselves based upon scientific data have taken the lock down notification concisely knowing the sufferings of the crores of people and the governments may rely on Article 47 which directs the governments to improve the public health and considering the balancing among the fundamental rights and the directive principles of state policy as stated supra, the governments may attempt to justify relying on the directive principles of state policy.
But, the action of lock down may be justified from the view of apprehension and anticipation. In fact, the Disaster Management Act provides powers for mitigating circumstances of threatening disaster. The threatening scenario may or may not be real but there is every possibility of happening, sometimes mere mathematical permutations and combinations of projected figures and strongly believed by vast section of the people as true and probable. The larger question that the panic created by the media and more particularly the social media, can be construed as a valid ground for imposition of curfew and whether the governments are justified in curtailing freedoms on the apprehension of the people or to alleviate the fear among the people. In case of such fear and apprehension is on the basis of experts opinion and unavailability of concrete remedies and definitely such panic needs to be addressed by the Governments. But, any remedial measure cannot endlessly curtail the fundamental rights and it should also satisfy the proportion of such measure. This has been answered by the Supreme Court by order dated 10-01-2020 in Anuradha Bhasin Versus Union of India & Others ( CDJ 2020 SC 026)
“ 6. It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19 (1)(a) if the need be so, in compliance with the requirements under Article (2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict.
The requirement of balancing various considerations brings us to the principle of proportionality.
In the case of K. S. Puttaswamy (Privacy-9J.) (supra), this Court observed:
“310..Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law…”
Further, in the case of CPIO v. Subhash Chandra Aggarwal, (2019) SCC OnLine SC 1459, the meaning of proportionality was explained as:
“225…It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…”
Thus, the governments have based their lock down for 21 days hoping to resolve the crisis or to make gap in the communal spread of pandemic Covid 19 on the basis of advice by ICMR and WHO and the governments have also permitted essential activities and also movement of people for essentials including attending banks, marriages, funerals, etc. Thus, it is a qualified lock down with a purpose to brake the communal spread. Further, the governments have expressed their inability to tackle such a situation due to lack of testing facilities and specified hospitals in case of communal spread as most advanced countries suffer with shortage of medical facilities, more particularly, respiratory support system and it is known to everybody that there is no medicine for the same. Therefore, the governments may utilize this period to buffer their medical capacities. Such a period of 21 days of lock down may be proportionally right one contrary to any arbitrary exercise of power.
In the case of Om Kumar v. Union of India, (2001) 2 SCC 386 the principle of proportionality, in light of administrative orders, was explained as follows:
By “proportionality”, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures have been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. The legislature and the administrative authority are however given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality. “
Therefore, the question of lock down for a period of 21 days is in accordance with scientific proportion to control and manage the extraordinary pandemic Covid 19 and as such, the said period may be justified constitutionally in spite of infringement of fundamental rights but any extension of the same needs to be in proportion of the infection but any endless period of lock down is definitely contrary to constitutional ethos.
K.Sakthivel,
Advocate,
Madras High Court.
[4/25, 12:54] Sekarreporter: ..
