COVID-19: CONSTITUTIONAL VALIDITY OF THE LAW WITH REFERENCE TO THE LOCKDOWN
The author is Aashish Agrawal, pursuing LL.B (3yrs)
Course from Amity University Lucknow Campus
It is the first time in the history of the Independent India that
the country has come to complete standstill. Given the grave threat posed by
the SARS COV-2, the 21- day Lockdown is undoubtedly, the need of the hour. However,
the question has been raised regarding the Constitutional validity of such
action which is discussed below in my article.
Yes, the state has the power to order such lockdown if it
is in the benefits of the public at large. This is in spite of the debilitating
consequences it may have in the present & future. The right to life
guaranteed under Article 21 of the Constitution is the most sacrosanct
fundamental right. Without life, there can be no access to liberty. Thus, it
paves the way for all other rights to exist.
The Supreme Court, in the case of State of Punjab V. MS Chawla, interpreted Article 21 in the broad
manner, stating that the “Right to health is an integral part of the Right to life.
The government has a constitutional obligation to provide health facilities.”[1]
Thus the state has a positive obligation under Article 21 of the Constitution
to swing into action in the face of the public health emergency such as present
pandemic to protect the lives of its people.
A lockdown primarily affects two or four fundamental
rights:
·
Right to move freely throughout the territory
of India
·
Right to practice any occupation, trade or
business
These rights have been guaranteed under the Article
19(1)(d) and 19(1)(g) of the Constitution. However, while regarding Article 19(5) and 19(6) make it
clear that the ‘Reasonable Restrictions’ can be imposed on these rights in the
interest of the general public provided it is done by a duly enacted law. In the case of Narendra Kumar V. Union of India,
the Supreme Court held that to determine the reasonable restriction, among
other factors it must consider the background of the circumstances in which the
order issued and “whether the Restraint caused by the law is more than the
necessary in the interest of the general public.”[2]In the case of Bannari Amman Sugar Ltd. V. CTO, the
Supreme Court further observed that a restriction does not become unreasonable
merely because it operates in a harsh manner.[3] In
fact, it is necessary in the interest of the general public. Thus, the
guidelines issued under the Disaster Management Act, 2005 will qualify as the
reasonable restriction under Article 19(5) and (6).
Public
Health is a State subject, how can the Central Government order a Lockdown?
Federalism is one of the fundamental pillars of our polity
and is a part of the basic structure of the constitution. Article 245 of the Constitution of India states that the Parliament or
central government may make laws for whole or any part of India and the state
government may make laws for whole or any part of the state.[4] The division of powers between the center and the state is
enumerated in the Union, State and Concurrent lists of the 7th
schedule of the Constitution and residual powers are vested in the central
government.
Public health falls under Entry 6 of the State list, giving
the states the power to legislate on all the matters concerning public health
within its jurisdiction. In any case, Entry 29 of the Concurrent List enables the
central and state governments to enact on issues relating to the counteraction
of an irresistible or infectious ailment spreading starting with one state then
onto the next. The entry doesn't constrain the powers of the legislating
authority to simply public order or health, yet takes into consideration any
significant enactment to be passed, so long that it is to keep the disease from
spreading across state wards. Since, both central and state government is enabled to
legislate on an entry in the Concurrent List, a potential crash or irregularity
between the two enactments can't be precluded. So as to address this worry, the
creators of the Constitution accommodated Article 254, which reads:
“Article 254 - Inconsistency between laws made by
Parliament and laws made by the Legislatures of States shall,
to the extent of the repugnancy, be void.[5] The ‘Doctrine of Repugnancy’, which is well explained by
the Supreme Court of India in the case of M. Karunanidhi v. Union of India, deals with an event “where
the provisions of a Central Act and a State Act in the Concurrent List are
fully inconsistent and are absolutely irreconcilable, the Central Act will
prevail and the State Act will become void in view of the repugnancy”.[6] In this way, the Constitution recognizes the power of
parliamentary law over state enactment in the concurrent list. The activity of
Article 254 isn't intricate. According to Section 2 of the Epidemic Diseases Act, 1897
provides states with the power to take all necessary measures to contain an
epidemic, while Section 2A empowers the center to take measures for inspections
and detention of ships. States have invoked Section 2 of the Epidemic Diseases Act,
1897 to enforce orders detailing measures to combat the virus. However, the
center has taken a different route to impose lockdown, as the extraordinary
times demand extraordinary measures.COVID-19 has claimed almost 29000(approx) lives & has
been classified by the World Health Organization as a Pandemic. To control it's destructive
spread, the government has invoked the Disaster Management Act, 2005 and allowed
various government authorities to take measures to effectively enforce social
distancing.
The Act was enacted under the head of ‘Social Security’ which
is given by Entry 23 of the Concurrent List. The Act characterizes the term ‘Disaster’
under section 2(d) of DMA, 2005 means comprehensively and incorporates inside
its ambit a “grave occurrence in any territory, emerging from the Natural or
Man-Made or unintentionally or carelessness which bring about significant causes,
or by accident or negligence which result in substantial loss of life, human
suffering.”[7] Further, the event must be "of such nature or extent
as to be past the adapting limit of the network of the influenced zone."
By naming COVID-19 as a disaster, the government has properly recognized the
extent of the issue. The Prime Minister, being the ex officio chairperson of the
National Disaster Management Authority (NDMA) under Section 3(2)(a) of Disaster
Management Act, 2005 has the power under Section 6(2)(i) to take measures for
the prevention and alleviation of the disaster. Utilizing this power, NDMA has allowed
various different authorities to take measures to contain the spread of the
virus. The guidelines for social distancing have specifically been
issued under Section 10(2)(l) of the 2005 Act by the National Executive
Committee, which is constituted under the Act to assist the NDMA in its
efforts. It is also pertinent to the note that the Disaster
Management division comes under the aegis of the Ministry of Home Affairs,
making the MHA the nodal ministry in this crisis.
CONCLUSION
The Covid-19 flare-up will undoubtedly be delegated a
debacle under the DMA, 2005, permitting the central government wide powers to
manage the pandemic by setting down approaches, plans and rules for disaster
management to ensure a timely and effective response to the catastrophe.
Section 38 of the DMA throws an obligation on the states to follow the headings
of NDMA. Besides, Section 72 of the DMA, 2005, gives that the
arrangements of the Act will be overriding affect every single other law, to the
degree that they are conflicting.
Therefore, the order passed by the ministry of home
affairs, will override all state orders and municipal orders to the extent that
they are inconsistent with the Home Ministry’s order.
In this manner, to the extent the lawful legitimacy of the
lockdown concerned, the Center's activities are sound in law.
[1]
AIR 2013 SCC 83
[2] AIR 1960 SC 430
[3] AIR 1960 SCC 625
[5] Article 254 of the Constitution of
India
[7] Reference from Disaster Management
Act, 2005 under Section 2(d)
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