Written by Manika Sharma
First Year, LLM. Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The pandemic has had a catastrophic impact on the entire human race and as a consequence of the spread of the coronavirus, governments across the globe were forced to formulate strict action plans. India, to slow down the penetration of the deadly virus, on 24th March 2020 had imposed twenty-one days nation-wide “lockdown” w.e.f 25th March 2020, by Executive action. The Central and the State Governments were imposing and extending the duration of this “lockdown” by invoking the widely worded provisions of the National Disaster Management Act (NDMA), 2005, and Epidemic Disease Act (EDA), 1897, respectively. At the ground level, the authorities are imposing restrictions on the movement of people by invoking Section 188 of the Indian Penal Code (IPC), 1860 as well as the provisions of the Code of Criminal Procedure Act, 1973 (CrPC), to ensure adherence to the notifications. The peculiarity of Section 188, IPC, which talks about disobedience to order duly promulgated by a public servant, is that it is attracted even in lack of “intention” to disobey the orders i.e. as soon as there is a contravention of the orders a person becomes liable.
In the absence of a vaccine for coronavirus, the imposition of “lockdown” was considered to be the only escape route to break the chain of transmission. The World Health Organisation also issued an advisory highlighting the importance of social distancing and the use of alcohol-based sanitizer. In the absence of a “lockdown,” our health system would have collapsed owing to population density and count of our country. The Government's active prerogative of an early lockdown has helped our health system to strongly fight the battle against coronavirus by flattening the curve. However, there exist some socio-legal spillovers of “lockdown”. This article is an attempt to understand the meaning of terminologies used in the circulars by the Ministry of Home Affairs, trace the accountability of the Governments, demystify the social cost of COVID-19 prevention measures, and finally interpreting the role of Judiciary in the current situation.
Understanding the terminologies
The circulars for COVID-19 have been issued under Sections 6, 8, and 10 of NDMA and have acknowledged COVID-19 within the meaning of “disaster” under section 2 (d) of the Act, however, the same resist the temptation to define the term “lockdown”. There are four points worth mentioning here;
Firstly, the language of section 2(d)  of the NDMA is inclined to embrace calamities or mishaps arising from natural or man-made causes rather than to include the current situation of the “pandemic or health disaster”. However, the Centre has somehow managed to push COVID-19 into the definition of “disaster”. In addition to this, the EDA also has nothing which would justify such acknowledgment. However, Sections 2 and 2A envisage powers of State and Central Government respectively, to forge temporary special regulations that shall be indispensable to prevent the epidemic.
Secondly, it is imperative to mention that Part XVIII of the Indian Constitution does not include health emergencies, therefore, a “lockdown” cannot be equated to the proclamation of “national emergency”. Consequently, it would not be wrong to say that neither Part XVIII of the Constitution nor the NDMA, 2005 is categorically capable of fitting in the current state of things. However, from the stand-point of accountability and State’s responsibility, the NDMA is quite lenient and flexible unlike the strict checks and balances enshrined in the Indian Constitution. Further, the text of the NDMA scarcely lists down the responsibilities of State and Central governments, for example, Sections 36 and 39 are the only provisions which selectively talk about ensuring basic needs like temporary shelter, transporting personnel, etc.
Thirdly, another significant aspect to be pointed out here is with respect to the authority of the Ministry of Home Affairs (MHA) to promulgate orders for the COVID-19 pandemic. It is a known fact that the MHA is entrusted with multiple responsibilities like ensuring internal safety, supervising the Central Armed Forces, disaster management, etc. The powers and duties of MHA include its capacity to issue guidelines and monitor catastrophes or crises but the same also explicitly excludes drought and epidemics from its purview. Therefore, it is patent that the Ministry has a wide range of responsibilities to carry out but managing an epidemic is not one of those responsibilities. Further, it would be correct to observe that these actions intrude upon the division of powers envisaged in our Constitution.
Finally, the executive organ of the nation chose to use a vague and undefined term “lockdown” to issue circulars for COVID-19. From the texts of multiple orders/notifications issued by the Home Ministry and para 25 to 52 of the Status Report submitted by the Central Government before the Supreme Court, on 31st March 2020, in Alakh Alok Srivastava v Union of India , it is clear that the idea is to facilitate social distancing and quarantine facilities and to track the affected people.
However, the question still remains: can “curfew” be used synonymously with the word “lockdown”? Even if it is so, we still reach a dead-end, as even the former term is not defined anywhere in the Indian legal system.
The Governments usually implement a curfew by putting into use Section 144 CrPC, 1973. Under this section, the District Magistrates on the behest of the State government are empowered to take prompt actions to eliminate factors that impede human health or safety or disrupt public tranquility, etc. In the vacuum of an unambiguous and categorical scope and ambit of “lockdown”, it is difficult to determine the spheres of exercisable rights and affix responsibilities on the State and trace its accountability.
Tracing Accountability amid the epidemic
The Indian government’s strategy to address the situation has set the Executive wheel in action in exclusion to the authority of Parliament. This, in turn, attacks on the chain of accountabilities and checks and balances enshrined in our Constitution as, to date, the other two organs are given a back seat throughout the action plan. It is correct that in order to control and manage the current situation of crisis, the State and the Central governments are vested with wide powers, which the language of NDMA and EDA very well take care of, but it is also equally important to have scrutinizing parameters to evaluate and check the measures which the before-mentioned Acts lack. It should be understood that the decision of announcing and extending “lockdown” is a policy matter and falls exclusively within the gamuts of the Government, however, its implementations and the responsibilities of States can be questioned. To support that NDMA and EDA lack accountability it is required to invert our understanding derived from these texts and by doing so the invisible irregularities will float on the surface. A few of them are listed below:
● The ill-defined, vague, and wide discretionary powers vested in the executives without much checks and balances. For instance, Section 35 (1) of the NDMA allows the central government to take “all such measures as it deems necessary or expedient for the purpose of disaster management”. This literally opens the door to unlimited and unchecked exercise of authority.
● The non-existence of provisions catering to redress, in the event of inadequate and arbitrary measures taken by the governments.
● Lack of legislative scrutiny: Both the Acts envisage loosely worded provisions vesting wide powers with the executives, for instance, Section 10 of the NDMA. The two Acts demonstrate a shift in the policy-making dynamics. The legislative organ is kept out of the chambers while drafting disaster management guidelines and action plans.
● No mention of accountability of the executives. No attempt has been made to address a scenario where the situation deteriorates or a particular section of the society is overburdened by the measures taken. For instance, where the situation of migrant workers is dilapidated due to the action plan of the governments. Therefore, the already deprived are the ones who are burdened the most.
The aforementioned hidden anomalies have an impact on the answerability of Central and the State Governments. People distressed by the State's actions can opt for retaliation during elections, but this accountability scheme itself doesn’t provide an immediate solution.
Another aspect of this electoral liability is that non-citizens, affected by the measures taken, are not compensated for because voting is a statutory right which can be availed only by citizens. Another way of fixing accountability is the determination of the State’s responsibilities by the Judiciary. The Judiciary is expected to actively ascertain the degree of effectiveness of measures and stand for justice and fairness. It is an effective mechanism to hold the authorities responsible.
The idea of accountable governance is not new to democracy like India, the functionalities of three organs, namely Executive, Parliament and Judiciary, are distributed to promote answerability, limited government and to avoid arbitrary use of power. Therefore, the executive branch is answerable to the parliament and to the judiciary. Since the Government’s decisions have circumvented the Parliament, the Judiciary is the only viable forum left to diagnose the public distress.
The social cost of COVID-19
The thread of discrimination, gender bias, and other inequalities form the fabric of a seemingly gender-neutral and equally applicable measure taken by the Governments to fight the COVID-19 pandemic. This is because implementations of such measures violate the founding principles of equality under Article 14 and the implied rights like the right to livelihood, health, dignity, etc under Article 21 of our Constitution.
For instance, Work from home (WFH) is a carefully budgeted solution in order to ensure that there is minimal interference with the growth of the Indian economy. It is an exposed fact that the COVID-19 outbreak has initiated a chain reaction that has disturbed the entire economic equilibrium of big companies like Uber as well as that of daily wagers. Hence an early reaction like WFH to some extent has saved the economy from sinking, but the social cost of WFH which we as a community are paying will also have long term implications.
The WFH ensures that work that can be done using a computer device is not disturbed, which predominantly includes employees of the IT industry. However, owing to the very nature of work farmers, construction laborers, rickshaw drivers, etc are the ones who are affected the most. Therefore, the right to life and livelihood are selectively violated by this measure.
In addition to this, the unequal division of labor in a patriarchal household will worsen the condition of women during the lockdown. Now, females are expected to work in the capacity of an employee as well as do the household work which makes them even more vulnerable to mental and physical health issues. Hence, in the near future, the judiciary can expect an increase in cases of domestic violence as well as divorce, also the demand for clinical counseling may also escalate.
India’s fight against COVID-19 has come with a social cost which is a major setback for the realization of human rights and hence causes issues such as oppression because of gender and patriarchy, depriving people of their dignity, livelihood, etc…. This will have a huge impact on the relationships that people share with each other and also that between the citizens and State even after coronavirus is tacked with.
The Role of Judiciary
The Constitution of India confers a great deal of responsibility on the judiciary to stand for the rights of the people, to question the actions of the Government, and also to seek explanations for such actions. It is not expected from the Courts to go into the policy considerations with regard to the lockdown however, it can cater to the needs of people and to ensure their basic rights.
From the above discussion, it is clear that we do not have a concrete definition and scope of the term “lockdown” and also that it does not come within the sphere of “emergency” under Part XVIII of the Constitution. This implies that Part III of the Constitution is enforceable but there are instances of its selective violations also. However, it would definitely be a challenge for the Courts to determine what rights are unenforceable currently and to what extent.
Another dilemma that surrounds the current judicial discussion is to weigh on one hand basic human rights and on the other hand to strive for the least possible economic disturbance. The Supreme Court in the first instance ordered for free testing for COVID-19 irrespective of whether the labs are government labs or privately owned. Subsequently, on 13th April 2020, the transaction cost and the economic aspect of free COVID-19 testing were argued before the Court and the pendulum of justice swung in the favor of economics. It may be mentioned that explicit categories of people were listed out who would be still eligible for free testing, like low-income groups and people under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana. However, the honorable Supreme Court seems to have overlooked the responsibility of the Government to ensure good health of the citizens. The Supreme Court under Article 21 has acknowledged tons of ancillary fundamental rights like the right to health and dignity but when the time comes to strictly implement them, even the basic ones, they do not see the daylight.
Questions for future and concluding remarks
One needs to sit back and think;
Why was the power to promulgate ordinance under Articles 123 and 213 of the Constitution, not exercised, as this would have taken the actions on the table of the legislature?
Apart from the electoral accountability under the Indian Constitution, whether the NDMA and EDA provide for adequate checks to make the decision-making authorities legally accountable?
The Country is fighting a battle for its survival by standing on only one pillar that is the Executive through MHA which is again questionable. Further, governance by the Executive organ without passing through the doors of the Parliament would be like turning a blind eye towards the basic structure with regard to the powers and restrictions laid down for the three organs, in the Indian Constitution. Further, by collaboration, cooperation, and complementing the efforts of each other, the three organs would have more efficiently handled a crisis like this. For the future, an amendment introducing “health emergencies” under Part XVIII of our Constitution would be helpful. This would engage the check and balances enshrined Part III of the Constitution, during the formulation and execution of the disaster management plan. Under this approach the Government is made more accountable both socially and legally, it curtails or minimizes the arbitrary use of power, the authorities would have a concrete outline of the power it is supposed to exercise, the subjects would be guaranteed transparency throughout the disaster management process and finally, there would be a measuring rode to judge the degree of intrusion by the authorities while constructing the roadmap for handling the health disaster.
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