India announced complete lockdown for 21 days starting March 25, putting around 135 crore people locked in their homes, with only emergency services being exempt from its preview. It’s important to analyse the legal framework under which the Central Government has restricted the movement of all of its citizens and whether such action is in consonance with the rights of citizens of India as enshrined under the Constitution of India, 1950.
On March 11, the World Health Organization officially declared the Covid-19 outbreak a pandemic due to the global spread and severity of the disease. Immediately thereafter, Home Ministry on March 14, declared Covid-19 as a notified disaster under the National Disaster Management Act, 2005. After taking a series of measures restricting entry of international travellers to India and isolation and quarantine of those who came from abroad, On March 24, the Prime Minister announced a complete lockdown of 21 days commencing March 25, to prevent the further spread of Covid-19. Though lockdown, strictly speaking, is not a legal term.
Legal Framework
The three primary legislations invoked by the Central Government to contain the spread of coronavirus are Epidemic Disease Act 1897, Disaster Management Act 2005 and the Indian Penal Code 1860 (only for offences), none of them use the term lockdown. However, Epidemic Disease Act, 1897 does empowers the State Governments to isolate or segregate the infected persons, whom it deems necessary to prevent the outbreak of such dangerous epidemic in the State.
It is worthwhile to analyse the aforementioned legislation in detail to understand the present 21 day lock down by the Central Government with legal perspective.
Epidemic Disease Act, 1897
The Epidemic Disease Act, was enacted by the Britishers to control the spread of bubonic Plague in Bombay in the year 1897. The Act comprises of only 5 sections and authorises State Governments to take necessary action including segregation of infected persons, which it deems necessary to prevent the outbreak of such dangerous Epidemic in the State.
Further, as per Section 2A of the Epidemic Disease Act, 1897, Central Government is authorised to prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in India and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.
Further, Section 3 , says that any person disobeying any regulation or order made under that Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code, which provides for punishment for Disobedience to order duly promulgated by public servant and prescribes 6 months imprisonment or fine upt0 Rs. 1000/- or both.
Invoking Epidemic Disease Act 1897
Epidemic Disease Act 1897 has been invoked by States to contain the spread of various diseases, such as State of Odisha invoked Epidemic Disease Act, 1897 and made inoculation mandatory for prevention of Cholera in Puri in the year 1963 and persons disobeying the said regulation were punished under Section 188 of the Indian Penal Code, 1860. One such interesting case is of J Choudhary v. State reported in AIR1963Ori216, wherein the petitioner refused to get himself inoculated against cholera saying that he had a conscientious objection against inoculation and that he had taken sufficient preventive homoeopathic medicine to protect himself against an attack of cholera. The High Court held that the Petitioner had contravened the said regulation and held inter alia:
“If the petitioner feels that the Homoeopathic method of providing immunity against attack of cholera should be put on a par with the allopathic method of inoculation, it is open to him to move the appropriate authorities and get a suitable exemption clause inserted in the Regulations. But in the absence of such an exemption clause he must be held to have contravened the provisions of the said Regulations.”
In addition to above, it has been invoked to contain the spread of plague in Surat in the year 1994 and most recently to contain the spread of Nipah virus by Kerala.
As it can be seen, the Epidemic Disease Act, 1897 is limiting in nature as it authorises State Governments to take necessary actions, including segregation of infected persons, but does not provide for further mechanism such as control of spread through other means like mandatory wearing of PPE (Personal Protection Equipment) by the medical and sanitary staff involved in patient care. Further, the role of Central Government is limited to prescribing regulations for inspection of ships and persons sailing therein. Therefore, there was a need to enact a more comprehensive piece of legislation, which provided for a well-co-ordinated action on part of Central and State Government for effective management of disasters.
The National Disaster Management Act
National Disaster Management Act, 2005 is a post colonial Act, which provides for micro-management of any disaster by establishment of a three tier Disaster Management Authority, with National Disaster Management Authority being chaired by the Prime Minister of India, State Disaster Management Authority having Chief Minister as its ex-officio Chairman and District Disaster Management Authority having Collector or District Magistrate or the Commissioner as its ex-officio Chairman.
Scheme of the Act
The Act has been enacted for the effective management of disasters and for matters connected therewith or incidental thereto. Section 2(d) of the Act defines Disaster as:
“(d) “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;”
In line with the aforesaid definition of the Act, Central Government on March 14th, 2020 notified COVID-19 as a disaster for effective management and prevention of COVID 19.
Three-Tier Authority
The Act envisages preparation of National Plan, State Plan and District Plan for identification of vulnerable areas to different forms of disease and for prevention of disasters, or the mitigation of their effects and capacity building in respect of management of disaster.
The National Disaster Management Authority, established under Section 3 of the DM Act, is responsible for each of the three phases of disaster management continuum with six major responsibilities, namely, pre-disaster (prevention, mitigation and preparedness), during disaster (rescue and relief) and post-disaster (rehabilitation and reconstruction) scenarios. National Disaster Management Authority will be assisted by the National Executive Committee, which is the executive arm of National Disaster Management Authority. The National Crisis Management Committee/National Executive Committee has to take on relief operations on a war footing. The District Management Authorities of the States/Union Territories will be responsible for implementing the nuclear/radiological disaster risk management programmes in their respective areas and each State has to develop a detailed micro-level action plan in a mutually interactive and supplementary mode with its district level plans. G. Sundarrajan vs. Union of India (UOI) and Ors. Reported in (2013)6SCC620.
Further, Section 35 of the National Disaster Management Act, 2005 empowers the Central Government to do following acts for the effective implementation of the Act:
(a) coordination of actions of the Ministries or Departments of the Government of India, State Governments, National Authority, State Authorities, governmental and non-governmental organisations in relation to disaster management;
(b) ensure the integration of measures for prevention of disasters and mitigation by Ministries or Departments of the Government of India into their development plans and projects;
(c) ensure appropriate allocation of funds for prevention of disaster, mitigation, capacity-building and preparedness by the Ministries or Departments of the Government of India;
(d) ensure that the Ministries or Departments of the Government of India take necessary measures for preparedness to promptly and effectively respond to any threatening disaster situation or disaster;
(e) cooperation and assistance to State Governments, as requested by them or otherwise deemed appropriate by it;
(f) deployment of naval, military and air forces, other armed forces of the Union or any other civilian personnel as may be required for the purposes of this Act;
(g) coordination with the United Nations agencies, international organisations and governments of foreign countries for the purposes of this Act;
(h) establish institutions for research, training, and developmental programmes in the field of disaster management;
(i) such other matters as it deems necessary or expedient for the purpose of securing effective implementation of the provisions of this Act.
Offences and Punishment
Section 51 to 60 provides for punishment of offences committed under the Act, with maximum punishment being upto two years of imprisonment.
Punishment for obstruction of any officer or employee of Government in performance of their duty is upto one year of imprisonment and fine, and, if such obstruction causes loss of life or imminent danger ot life then punishment is upto 2 years of Imprisonment (Section 51).
Making or spreading of false claim is punishable upto two years of imprisonment and fine (Section 52).
Mis-appropriation of money or materials by the persons who has been entrusted with the same is upto two years of imprisonment and fine (Section 53).
Making or circulating a false warning in relation to disaster is punishable upto one year of imprisonment and fine ( Section 54).
Further, the act also prescribes punishment for Failure of officer in duty or his connivance at the contravention of the provisions of this Act to be imprisonment up to one year and fine. (Section 56)
Further, Section 57 also prescribes that for any offense under the Act is committed by a Company with either the knowledge of connivance of its Director, Managing Director, Secretary et, then they shall also be proceeded against under the Act.
However, for prosecution of offences under the Act, previous Sanction of the Central Government or the State Government or the Officer authorised under the Act is necessary. Further, no Court can take cognisance of offense under the Act except on the written complaint of the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be.
It is noteworthy that by invoking the National Disaster Management Act, 2005 the Central Government has ensured that the action taken by different states to combat COVID-19 are streamlined. As Health and Police both are State Subject, the responses of the States would have greatly differed. Under the National Disaster Management Act, 2005, all States are working under the supervision and control of health ministry with the States also invoking Epidemic Disease Act, 1897. Thus, there is a comprehensive legal framework to support the existing lock down of 21 days under the Epidemic Disease Act, 1897 and National Disaster Management Act, 2005. It is also pertinent to mention that till now National Disaster Management Act, 2005 has been only invoked for prevention of disaster such as drought, flooding by dams, establishment of Nuclear Power Plant and its effects on environment etc. This is the first time that National Disaster Management Act, 2005 will be used to control the spread of pandemic across India, which will not only test the limits (validity or otherwise) of the Act but also our federal structure, One thing is sure, at the end of 21 days, India will be changed forever.
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