The health crisis of COVID-19 has brought the world to a standstill. As of now at least 120 Countries have been under either localised or national lockdown. This is to ensure public safety. Every continent on the planet has waged a war against coronavirus. There are around 3.4 million confirmed cases worldwide and about 38,000 confirmed cases in India and rising. India is the second most populated country in the world and it ranks 29 on the population density scale. 1countries By Density Population. (2020-04-07). Retrieved 2020-04-27, from http://worldpopulationreview.com/countries/countries-by-density) This makes India a fraught with volatility. In all of this, how is India doing? Among the confirmed cases, 26 per cent of Indian patients have recovered this is, however, lesser than the global recovery rate which is 32 per cent. Be that as it may, what is most interesting is that the death rate in India due to or even remotely in relation to COVID-19 is about 3% which is less than half of the global death rate which is 7%. 2Data collected through various sources – Economic Times, NY Times
Duty of the government
It is the Indian government and authorities that have ensured the safety of its citizens. They have been proficient in their duty towards their citizens.
Henry Clay Sr. American attorney and statesman he said that ‘Government is a trust and the officers of the government are trustees, and both the trust and the trustees are created for the benefit of the people.’ India believes that – the government is of the people, for the people and by the people.
In light of the health crisis, light should be shed on the judgement of the Apex court where the court held that – A healthy body is the very foundation for all human activities. Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends on the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority–perhaps the one at the top. 3Vincent Panikurlangara vs. Union of India (UOI) and Ors. AIR 1987 SC 990
The apex court in another case stated that – It is now settled law that right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities. 4State of Punjab and Ors. vs. Mohinder Singh Chawala and Ors. AIR 1997 SC 1225
Article 21 is the heart and soul of the Indian Constitution and in light of COVID-19 – Protecting this right is paramount. To secure the safety of India’s residents, the government implemented a nationwide lockdown. This is the first time a lockdown is initiated in India. Usually, if any situation erupts which either disrupts or has the potential to disrupt public peace and order, a curfew is implemented.
These two terms are similar though not the same. Naturally, anyone would think – what is the difference between a lockdown and a curfew?
On the 22nd of March 2020, the Prime Minister announced a complete lockdown for 21 days. Lockdown essentially is a stay-at-home order or in the words of the Prime Minister Janata Curfew. Lockdown is also known as Prison Protocol. During a lockdown, there is a shut down of movement. Due to the state that COVID-19 has brought upon us, it is imperative to practice social distancing. What is the exact purpose of the lockdown? As COVID-19 is a respiratory contagious disease which has proved to be fatal beyond measures – There is an imminent need to find a cure. Be that as it may, a vaccine is months away, as this is a new virus. All that while, prevention is necessary, lockdown is prevention.
Legality of the Lockdown
The term lockdown is not expressly created by any provision of the law. As stated earlier, the government has the duty to protect its people and safeguard their fundamental rights. It gains its implied authority from the Disaster Management Act 2005, the Epidemic Diseases Act 1987 and the Indian Penal Code, 1860. Public health sanitation, hospitals and dispensaries don’t fall under the purview of the Central government. These but a subject of the State list (Entry 6). However, the centre is granted the power to make laws related to quarantine (Entry 81). What is also noteworthy is that social security is a subject of the state list (Entry 23). This provides the central government to take charge of the health crisis.
The central government to take control of the situation has applied the Disaster Management Act, 2005. The Act contains about 20 rules and regulations. Firstly, does the COVID-19 health crisis amount to a disaster? To answer this let’s take a look at the definition of disaster under the Act – 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.5’Disaster Management Act, 2005 S. 2 On a plain reading, it can be concluded that the health crisis is a disaster. So, the invoking of The Disaster Management Act is valid.
On the 24th of March 2020, the Ministry of Home Affairs released a notification,6Government of India, Ministry of Home Affairs, No. 40-3/2020-DM-I(A) announcing that as COVID-19 has become a pandemic – there is a need for consistency in the application and implementation of various measures across the country while ensuring maintenance of essential services and supplies, including health infrastructure.
This was the legality under which the central government made rules and regulations. As health is a matter of the state list. And so, the state government also has the authority to issue rules during such an hour of need. The provision for the state government’s authority can also be derived from Section 2 of the Epidemic Diseases Act, 1897. This section provides that when the state government is satisfied that the existing provision of law is insufficient; it can in order to ensure the safety of the residents prescribes such rules as are necessary to prevent the outbreak of the disease.
The extent of the Lockdown
The Prime Minister is the chairman of the National Disaster Management Authority,7Constituted under Disaster Management Act, 2005 S. 3 (NDMA) pursuant to Section 10 of the Act the National Executive Committee has the authority to issue orders, advisory notifications and guidelines pertaining the same.
The (NDMA) issued an order with guidelines on the lockdown. Most of the government departments are to shut down with the exception of the essential departments. As these are required to contain the pandemic and to keep the country running. These departments can function with bare minimum staff.
The most essential is the health care industry, this industry is kept open and functioning with full force. All the commercial and private establishments are closed down apart from groceries and food stores; banks, insurance and ATMs; media houses; communication services; e-commerce (only essential goods); fuel and power outlets; security board; storage facilities and lastly personal/private security services.
Industrial establishes and transport services to remain shut except those catering to essential goods. In the hospitality sector, only those which are accommodating tourists and persons stranded due to lockdown are allowed to stay open including those used as quarantine facilities. All educational institutes are to remain shut. Places of worship are shut for public without exception. The guidelines make it clear that these restrictions fundamentally relate to the movement of people, but not to that of essential goods.
Effect of violation
The violation of the guidelines and orders issued by the Ministry of Home Affairs as well as NMDA will result in legal action being taken against the violators. Penalty for violation is under Section 51 to 60 of the Disaster Management Act, 2005 and under Section 188 of the Indian Penal Code, 1860. Under the Indian Penal Code, unlike most provisions, the intention to cause harm does not matter. What matters is that the violator was aware that he was violating the order promulgated by a public servant. Section 51 to 60 of the Disaster Management Act, 2005 are well thought as they cover a wide range of actions that could potentially affect the attempt at disaster management.
As per the Disaster Management Act, 2005 the punishment for the violation as under Section 51 – 60. The minimum is imprisonment for a term which may extend to one year or with fine, or with both. The maximum punishment is imprisonment for a term which may extend to two years, and also with fine.
Since the violators of the protocol can be held liable under the IPC, the role of the police becomes clear. Understandably, due to the nature of the act which is knowing disobedience and subsequent harm arising thereof, the act is deemed criminal in nature. The punishment as prescribed is imprisonment of either a term which may extend to six months or fine which may extend to one thousand rupees or both.
The origins of the word curfew are complicated, the word is derived from the French word “couvre-feu”. In a sense, a curfew is also like a lockdown, as when a curfew is imposed the order can be to stay at home. The order can also be anything else. A curfew may be strict or relaxed. When it is strict individuals cannot leave their house at all. Whereas when it is relaxed individuals are not allowed to leave their house during a specified window. India has imposed curfew many times. Although a centralised curfew has not been imposed yet, localised curfews have been imposed in India many times.
Legality of curfew
Curfew under Indian law derives its validity from Section 144 of the Code of Criminal Procedure, 1973. The preventive power under this section is granted to the states to ensure peace and tranquillity among the people. Section 144 is a matter of executive jurisdiction to be exercised by District Magistrate. In common parlance section, 144 is also referred to as curfew. Curfew is enforced in areas where there are exigent cases of a public nuisance or apprehension of some form of danger; either of which is capable of causing immense harm to the public, hence the nature of the executive power.
Section 144 is covered by the provisions of Article 19(2) of the constitution. For if the impugned restrictive law is examined in its substantive and procedural aspects, it would be found to be not wanting in the attribute of reasonableness.
The district magistrate is one person, questions might arise about such authority in one person. The same was answered by the Punjab and Haryana High Court – stating that – It is true that the authority to decide whether a particular order should or should not be passed has been vested in the District Magistrate, etc., but the vesting of authority in a particular officer to take prompt action under emergent circumstances entirely on his own responsibility or personal satisfaction is not necessarily unreasonable.8Virendra v. Punjab State, AIR 1957 Punj 1
With regard to COVID-19 and the preventive measures, the Delhi government on the 23rd of March 2020, imposed Section 144 in an attempt to stop it from spreading. A question arises – whether the order by the Delhi government was valid?
The answer is a simple yes, the order is valid. As in light of COVID-19, there is an apprehension of danger and potential to cause harm. This is coupled with the urgency of the situation. In many other states including Maharashtra, Rajasthan and Tamil Nadu the lockdown announced by the Prime Minister, was preceded by a curfew.
Extent of curfew
As explained above that the enforcement of section 144 is due to the potential to disrupt public peace and tranquillity added with an element of urgency. Consequently, when any area has curfew public movement is absolutely restricted. Educational institutes along with areas with any type of gathering are shut down. Public gathering or crowding is restricted. The daily activities performed are barred.
An order under section 144, which is indefinite as to time is to that extent one made without jurisdiction.9Cherappai v. Mathoo, ILR 1961 (1) Cr LJ 659. The deciding authority for lockdown as above mentioned is the NDMA headed by the Prime Minister. He decides the extent of the lockdown. Whereas, when it comes to a curfew under section 144 A District Magistrate is the final authority in the District. He/she determines whether there should be any interference with the liberty of the subject, and, if so, to what extent; for the purpose of maintaining public tranquillity or preventing breaches of the peace and has the power to interfere with what he considers a needless exercise by a Subordinate Magistrate of the special powers given by subsection (1).10Ponnambala v. Dorai, AIR 1937 Mad 167
Section 144 is an absolute authority to shut down whatever is so ordered by the district magistrate. It also includes blocking of internet and mobile services. The order under section 144 cannot remain in force for more than two months; with the exception that the state government has the power to extend it by two months to maximum of six months. Furthermore, the order can also be withdrawn as per the satisfaction of the magistrate.
Effect of violation
For any individual to be charged for violation of section 144, the requirement is of a complaint which needs to be made under section 188, IPC, this can be made only after a valid order under section 144 has been promulgated.11Sri Ram Das Gaur vs. The City Magistrate, Varanasi, AIR 1960 All 397 The Magistrate making an order under section 144 has to bring a complaint about an offence under section 188, IPC, before a competent Magistrate under section 195, CrPC.12Sri Raj Narain Singh and Ors. vs. District Magistrate, Gorakhpur and Anr. AIR 1956 All 481
It has also got to be proved that the act of disobedience was such as caused or involved the risk of a breach of the peace or other danger or trouble. 13Dabiruddin Mohammad and Ors. vs. Emperor, AIR 1930 Cal 131 Unless the disobedience of the order, viz., not to cultivate lands in the bed of a tank, causes or tends to cause obstruction, annoyance or injury, etc., to any person lawfully employed; or causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, a person cannot be convicted under section 188, IPC14 Supra note 12
Additionally, under section 188 the punishment the violators will be granted is imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
To sum up, although there are similarities between lockdown and curfew, they are different and the manner of invoking them is also different. Lockdown is invoked by the central government, whereas curfew is invoking by a district magistrate. During COVID-19, lockdown is for the entire nation, but the curfew was implemented in a few select states.
Ultimately, we need to be careful and avoid going out and crowding. The purpose of both of these is to keep us safe. It is recommended whatever is invoked by it lockdown or curfew we follow it strictly.