After the novel coronavirus outbreak, the Government of India has imposed an unprecedented covid 19 national lockdown as part of a series of steps to reduce the transmission of the virus. The virus had assumed the status of a pandemic, impacting almost every country across the globe. Though the lockdown has been welcomed by the medical community as a necessary measure, the enforcement has left millions of people unprepared for this severe disruption, particularly farmers and the workforce engaged in the informal sector. Apart from this, there are complex issues involved in confining over a billion people to their homes.
Invasive technology was employed to create lists of persons suspected to be infected with COVID-19. Drones were deployed to monitor compliance by quarantined individuals. Smartphone applications are being used for detection and contact tracing. One particular application, Aarogya Setu, is now required to be downloaded by all persons employed in workplaces, which itself is open to legal challenge. In the Puttaswamy (Privacy) judgment of 2017, it was held that to sustain privacy restricting action the State had to show that, a) the restrictions were sanctioned by law; b) were made pursuant to a legitimate state aim; c) there exists a rational relationship between the purpose and the restriction; and d) that the State has chosen the “least restrictive” measure available to achieve its objective, all of which are absent in Aarogya Setu. The Puttaswamy (Aadhar) judgment of 2018 had also mandated that there should be a data protection law, which is also missing in the case of Aarogya Setu.
Other legal challenges include a Supreme Court ruling on health care workers (HCWs) lack of personal protective equipment (PPE). The Supreme Court directed the Government to provide PPE to HCWs but did not provide for any form of compliance monitoring of its own orders. The Supreme Court ruled in Parmanand Katara that private hospitals must also admit non-COVID-19 emergency patients. In practice, however, private hospitals have not been admitting non-COVID-19 emergency patients.
When, on the 11th of March, the WHO declared the novel coronavirus (COVID 19) outbreak to be a pandemic, India lost no time in taking the first step to quarantine itself.
Section 6(2)(i) of the Disaster Management Act, 2005 was invoked by the Ministry of Home Affairs that had restricted the movement of residents. The common people were not allowed to move outside their houses due to the implementation of this Act. This Act also ordered a closure of factories, offices, and shops that were operational. Only shops that provided essential goods and services were allowed to function. Due to the absence of a vaccine and poor infrastructural quality, India does not have the capacity to handle this crisis. Even though this lockdown order may seem unprecedented, it is reasonable in nature and is the best way to battle the spread of the COVID-19 outbreak.
“Quarantine” means the restriction of activities and/or separation of suspect persons from others who are not ill or of suspect baggage, cargo, containers, aircraft or conveyances, facilities, goods and postal parcels in such a manner as to prevent the possible spread of infection or contamination.
“Isolation” means the separation of ill or contaminated persons or affected baggage, containers, aircraft or conveyance, facilities, goods or postal parcels from others in such a manner as to prevent the spread of infection or contamination. Though not defined, similar provisions are found in the Epidemic Diseases Act, 1897.
“Lockdown” the term is being used by government officials and others to describe a situation where the free movement of goods is restricted, with the exception of essential items declared by the Government of India under Sections 2, 3, 4 of the Epidemic Diseases Act.
''Curfew" Generally means, Exercise of power available to the District Magistrate, SDM, or any other executive magistrate under Section 144 of the Code of Criminal Procedure is, in common parlance, referred to as a ‘curfew’.
There are mainly two constitutional provisions that are related to the lockdown order, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005. Instead of following the emergency provisions of the Constitution of India, the Central Government found a way to impose the lockdown by the application of these two constitutional frameworks.
Epidemic Diseases Act, 1897
The Epidemic Diseases Act, 1897 was a hurriedly drafted legislation that was enacted in order to curtail the spread of the bubonic plague that had spread in 1896, in Bombay. This plague had forced people to migrate out of the city. This Act has just four provisions.
Section 2 of this Act says that temporary regulations can be made by the State Government if the Government is satisfied that an outbreak of a disease is of an epidemic nature. Such temporary regulations have to be followed by the people of the country as they were made in order to prevent the spread of such an outbreak. It also says, there should be segregation of people in the hospital to prevent the disease from spreading from one person to another.
Section 2A states that if the Central Government is satisfied that due to a pandemic or epidemic outbreak, an ordinary legal framework would not be able to run the legislature the Central Government may make certain rules and prescribe certain regulations to control the spread of such a disease.
Section 3 of this Act states that the person who does not follow the provisions made under the Act would be deemed to have committed an offense. This offense is punishable by Section 188 of the Indian Penal Code, 1860, which is an offense for disobeying the directions given by a public servant.
Section 4 of this Act grants protection to the people who act under this Act. People who perform an act in good faith and are not held liable for these acts. States have invoked Section 2 of this Act so that they could ensure the minimization of the spread of the virus.
The Disaster Management Act, 2005 provides those powers which the Epidemic Diseases Act, 1897 does not provide. The DMA is an administrative framework that allows the Central Government to make plans to reduce the impact, effects, and risks related to the virus. It also empowers it to declare that the country is under a disaster and there should be certain plans to stop that disaster. This Act covers each and every natural as well as a man-made disaster which also includes the coronavirus. This Act also gives power to the Central Government to take action against those who do not abide by the laws and orders of this Act. Till the lockdown order, many States had enacted the Epidemic Diseases Act, 1897 to prevent the spread of the coronavirus, then the lockdown order was passed under Section 6 and Section 10 of the Act. The DMA was passed so that the National Disaster Management Authority could be set up to provide a set of framework under the Chairmanship of Narendra Modi, the Prime Minister of India. Not more than nine members are nominated by the Prime Minister in this Committee. Section 6 of the DMA empowers the Central Government to manage a disaster situation in India effectively. The term disaster is defined in the DMA under Section 2(d) which includes the loss of life or human suffering from natural or man-made causes. The coronavirus outbreak can clearly be called a disaster under the DMA, this gives the Central Government powers and allows it to make rules to deal with the outbreak of the novel coronavirus. It also allows the Central Government to make plans and guidelines to manage this situation by taking the necessary steps needed for a functional response to this disaster.
According to Section 38 of this Act, the States are bound to follow the directions and decisions of the National Disaster Management Authority.
According to Section 51 of this Act, if any person does not follow the orders of the government and goes on to obstruct the laws, he has to face imprisonment for a term of one year.
Section 54 of this Act states that spreading of fake messages and false alarms would lead to a penalty for a year. People who spread fake messages on WhatsApp should pay attention to this Section. According to Section 61 of this Act, there can be no discrimination on the basis of caste, sex, religion or community while providing relief to the victims of such a virus.
Section 72 of this Act states that there would be an overriding effect of the provisions of this Act on the other laws which are inconsistent. All these acts are clearly applicable in the case of India and should be followed as prescribed by the law.
During the lockdown, Section 188 of the Indian Penal Code has been widely invoked against those not following it. In a communication to the states on March 24, the Home Ministry said persons violating the containment measures will be liable to be punished under provisions of the Disaster Management Act 2005, besides Section 188 IPC. A look at these and related provisions:
Section 188 IPC deals with those disobeying an order passed by a public servant, and provides for imprisonment ranging from one to six months. For those violating orders passed under the Epidemic Diseases Act, Section 188 IPC is the provision under which punishment is awarded.
Section 51 of the Disaster Management Act, 2005 provides for punishment for two kinds of offences: obstructing any officer or employee of the government or person authorised by any disaster management authority for discharge of a function; and refusing to comply with any direction given by the authorities under the Act. Punishment can extend to one year on conviction, or two years if the refusal leads to loss of lives or any imminent danger.
For spreading fear
Section 505 IPC provides for imprisonment of three years or fine, or both, for those who publish or circulate anything which is likely to cause fear or alarm. Section 54 of the Disaster Management Act provides for imprisonment, extending to one year, of those who make or circulate a false alarm or warning regarding a disaster or its severity or magnitude.
For false claim to aid
Under Section 52, Disaster Management Act, whoever makes a false claim for obtaining “any relief, assistance, repair, reconstruction or other benefits” from any official authority can be sentenced to a maximum of two years imprisonment and a fine will be imposed on the person.
For refusing to do duties
In case of refusal or withdrawal of any officer who has been tasked with any duty under the Act, the officer can be sentenced to imprisonment extending to one year. However, those who have written permission of the superior or any lawful ground are exempt from such punishment. A case cannot be initiated without the explicit sanction from the state or central government.
For refusing to help
Any authorised authority under the Act can requisite resources like persons and material resources, premises like land or building, or sheds and vehicles for rescue operations. Though there is a provision for compensation under the Act, any person who disobeys such an order can be sentenced to imprisonment up to one year.
Legal shield: For any offence under the Disaster Management Act, a court will take cognisance only if the complaint is filed by the national or state or district authority, or the central or state government. However, there is another provision: if a person has given notice of 30 days or more about an alleged offence, and about his intention to file a complaint, he or she can approach the court which can then take cognisance. The Act protects government officers and employees from any legal process for actions they took “in good faith”. Under the Epidemic Diseases Act too, no suit or other legal proceedings can lie against any person for anything done or intended to be done under good faith.
Fueled by mandatory stay-at-home rules, social distancing, economic uncertainties, and anxieties caused by the coronavirus pandemic, Domestic Violence has increased globally. The pandemic and the lockdown are trying times for every individual but for the already vulnerable group, the women and young children, specifically girl children, are facing the worst of it all.
Impact on women: There has been a rise in instances of violence, sexual, physical and mental against women. The National Commission for Women (NCW) has recorded a more than twofold rise in gender-based violence.
Total complaints- Rose from 116 in the first week of March to 257 in the final week of March.
Rape or attempt to rape- Rose sharply from 2 to 13.
Domestic violence- Increased from 30 to 69 over the same comparative period.
Police apathy towards women- Almost threefold increase as the police are busy enforcing the lockdown to curb the spread of COVID-19.
Cases under Right to live with dignity (Article 21)- Rose to 77 from 35. Such cases could pertain to discrimination on the basis of gender, class, or caste or all three of them combined. These cases might be a fragment of the actual number as many women will not be able to reach out due to various reasons.
Impact on Children: Young Children are facing the brunt of discord between parents, the discord has nothing to do with the economic class, education, etc, happens across the spectrum. Coronavirus can scare children now, which could create emotional problems for months or even years to come. Even if the lockdown gets over the schools and colleges will continue to remain shut for the next 2-3 months. That's why it is going to be very difficult to manage children and their energies.
Impact on students: Separation from playgroups and friends and their daily routine of playing is creating a lot of anxiety for children, they are losing their attachments Children’s social life and learning have been affected and most of them are finding it difficult to stay away. A lot of students from marginalised sections are finding it very difficult to cope with studies with no access to the internet. The problem of fees, examinations, and internet connectivity to attend the class.
Migrants and legal challenges
Lakhs of migrant workers were rendered jobless as urban areas were shut due to lockdown. Night shelters run by local authorities began overflowing, and supplies started dwindling. These migrants were left with no choice but to head towards their hometowns.Governments are of the view that the migration crisis is purely as a consequence of the challenges of Covid-19. However, some experts argue that there are some structural inadequacies in public understanding of circular rural-urban migrants.Circular migration is the temporary and usually repetitive movement of a migrant worker between home and host areas, typically for the purpose of employment.
The first is an inability to recognise the size and importance of these communities. The second is inability to correctly count such migrants because of the informal conditions in which they live and work, and their shuttling between their villages and cities. These inabilities have real costs, rendering governments ill-prepared to anticipate the responses of migrant communities at crucial moments. It is being said that the policymakers were unprepared for the speed and desperation with which these migrants attempted to return home following the lockdown order. The Supreme Court has stated that the migrants be treated in a humane manner, including by providing them with enough food, water, beds and supplies as well as psychosocial counselling in shelters that are run by volunteers and not security forces.
The pandemic has compelled the government to suspend work, movement, businesses, services, liberty and more. The Constitution itself, however, cannot be suspended. Any measures enforced under statutory frameworks must conform to the Constitution. Nevertheless, practically, with the near-complete shutdown of India’s justice system, such operation of the Constitution lies in limbo. Several situations today warrant the intervention of the judiciary. For instance, the enforcement of the constitutional rights of life, health and food requires urgent resolution. Any constitutional challenge, however, requires unfettered access to lawyers and courts. The non-inclusion of both in the state’s list of permitted activities effectively denies such access. The judiciary too has retreated into the background. While the higher courts heard ‘urgent’ matters, the lower courts entertained only ‘remand’ cases. In doing so, they have ceded important constitutional and legal space to the executive. Video-based online proceedings have been proposed as an alternative. But their success rests on the assumption that everyone has equal access to properly functioning equipment as well as fast Internet. The idea also assumes that all courts are Internet-enabled and all functionaries are tech-savvy.