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LEGALITY OF LOCKDOWN

This article is written by Malka Waris of 1st semester of Lloyd Law College, Greater Noida, an Intern under Advocatepedia.

ABSTRACT

The article explores the legal context of lockdowns, touching on their constitutionality, proportionality, and how the imperatives of public health are balanced against the rights of individuals. The paper is an attempt to highlight the complex legal landscape surrounding lockdowns through the study of case studies and legal precedents for insight into future policy decisions.Lockdowns have been adopted globally as the first response to public health in attempts to curb the spread of infectious diseases, most notably the COVID-19 pandemic. Effective in curbing the spread of infectious diseases, lockdowns also present a tremendous challenge to individual liberties and socioeconomic well-being.

INTRODUCTION

Lockdowns, one of the most extreme measures adopted by governments across the world to curb infectious diseases, have thrown up a myriad of legal questions. Balancing health problems of society with the right of an individual to be free has always been a serious challenge for societies, and the legality of such restrictive steps is a burning issue under debate. Nonetheless, the specificity of such policies made it impossible not to raise questions about the legitimacy of the legal basis for restricting freedom.

LEGALITY OF LOCKDOWN

A lockdown legally means, the government or legal powers have the law-governed authority to bind an individual citizen movement as well as other things relating to the control of spreading some infectious disease or for handling a public health issue which poses a threat at least from the point of law? Lock-down is no technical term. Lock-down has been used merely in referring to the governmental activities related to the task defined here and situation mentioned by Government people,where free movement of people is restricted with the except for basic goods and services. Citizens should be advised to remain indoors.
Lockdowns have probably been one of the most debated and legally scrutinized topics in recent times, especially in the context of the COVID-19 pandemic. While lockdowns have been imposed in almost every country in the world to control the spread of infectious diseases, it raises very serious legal questions about the balance between public health concerns and individual liberties.

* Here are some key aspects to consider:

Constitutional Authority: Governments always derive their authority to impose the lockdown from their constitutions or other foundational legal papers. These papers usually allocate to the government powers to govern and protect public health.

Emergency Powers: In various countries, governments have an emergency power that gives them extreme powers to make extraordinary orders during a crisis, in this case, a pandemic. These powers usually feature the restriction of movement of people, imposing quarantines, and closing certain businesses.

Proportionality: The lockdown must have proportional restrictions that match the seriousness of the disease threat. This is to mean the government should weigh public health protection with the rights and freedoms of the individuals concerned.

Necessity: The lockdown measures should only be taken if necessary, that is, in case less restrictive measures are equally effective in attaining the given public health goal.Lockdowns should not be an open-ended measure. The government must have a defined approach to when the measures may be lifted once danger passes.

Judicial Review
Most countries have judicial system ability to review the validity of acts of the government or lockdowns. In theory, people can petition or sue to challenge their supposed breach of rights as to the legality of lockdown restrictions.

LEGAL BASIS FOR LOCKDOWN

Lockdowns are mostly practiced by governments through provisions either under existing laws or as part of emergency powers. The laws usually allow authority to take measures deemed necessary under the pretext of public health protection, such as quarantining or isolation with restriction on movement. Yet, the legal framework applied and the extent of their power differ from one country to another.
QUARANTINE :- It refers to limiting activities and/or isolation of suspected persons from other people who are not sick or suspect baggage, cargo, containers, aircraft, or conveyances, facilities, goods, and postal parcels in a way that is likely to prevent the possible spread of infection or contamination.
ISOLATION :- It means separation of ailing or contaminated persons or affected baggage, containers, aircraft or conveyance, facilities, goods or postal parcels from other people in such a way that the infection or contamination shall not spread. Though not defined similar provisions are found in the Epidemic Diseases Act, 1897.

THE EPIDEMIC DISEASE ACT, 1897

This was one of the most hurried laws drafted to wallow away the bubonic plague that wrecked life in Bombay in 1896, causing people to leave the city. The statute contains only four provisions.The Bubonic Plague marked the first time the colonial Act was enacted by the British in the then state of Bombay.It is a state government Act. The Act tries to protect the common citizens of a particular area during the outbreak of an epidemic of a dangerous disease.The Epidemic Diseases Act of the colonial period consists of four sections and aims at better prevention of the spread of dangerous epidemic diseases.
Section 1 of the Act describes the title and extent of the Act.
Section 2 and 2A of the Act has given the state governments and Union Territories the powers to make regulations for dealing with the epidemic.The state may take or require or empower any person to take some measures and by public notice prescribe such temporary regulations to be observed by the public when the State government is satisfied that the state is threatened with an outbreak of any dangerous epidemic disease and if it thinks that the ordinary provisions of the law are insufficient for the purpose.The State Government may make regulations, relating to the inspection of persons travelling by railway or otherwise, segregation in hospitals, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.
Section 3 provides for punishment where any regulation, made under the Act is contravened.Under Indian Penal Code, Section 188 says that if the person does not honor or insults the public order issued by a public servant; the punishment that will be dealt with is jail imprisonment up to 1 month or penalty with fine up to Rs. 200 or with both.In case the common public is affected on account of refusal of a person to abide by public order, the punishment ranges up to 6 months jail and/or fine up to Rs. 2000.The Act prescribes six months' imprisonment or a fine of Rs. 1000 or both on any person disobeying the Act.
Section 4 deals with legal protection to implementing officers acting under the Act

DISASTER MANAGEMENT ACT,2005

The administrative framework, according to it, through which disaster measures are to be dealt with is the Disaster Management Act, defined by section 2 as a catastrophe, mishap, calamity, or grave occurrence in any area arising from natural or man-made causes or by accident or negligence, causing widespread loss of life and human suffering, damage to and destruction of property or damage to or degradation of, the environment and such nature or magnitude that is beyond the coping capacity of the affected area's community.This law was supposed to be enacted in case of a situation like an earthquake, flood, or fire rather than a disease like COVID-19. However, on March 14, the Home Ministry declared the Coronavirus outbreak as a "notified disaster", thus, bringing into play the provisions of the Disaster Management Act.This has, therefore, enabled the National Executive Committee to issue directives to the governments to undertake necessary steps and has conferred its powers to act under this Act to the Union Health Secretary. It further extends the usage of disaster funds created for this purpose.The Act has teeth and the ability to grapple with a disaster situation including the power to imprison, fine etc. It has the means to regulate social media as well. There have been instances when this Act has been combined with the Epidemic Diseases Act, with the latter acting as a basis for such containment measures as a blanket restriction on flights coming to India, prohibition on public gatherings of more than 100 people, etc, and various other measures undertaken in the aftermath of the virus outbreak.
Punishment is also prescribed under 2005 Act whoever is found to be in contravention of the guidelines issued by the 2005 Act can also be prosecuted under Section 188 and Section 270 of the Indian Penal Code, 1860.

Obviously, no one piece of legislation could possibly have controlled the outbreak. That is why we find that quite a few provisions of the Indian Penal Code, Criminal Procedure Code, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 are being used to control the current outbreak.

Since the Prime Minister addressed the nation on the "essential features of Coronavirus" on March 25, when a nationwide lockdown was declared, different states have tried to enforce it by issuing Executive Orders under Section 144 of CrPC, and some by invoking the Epidemic Diseases Act, 1897 only.

State Government's Role in Public Health

The Constitution of India under entry 6 of state list empowers state to make laws on Public health and sanitation; hospitals and dispensaries.
e.g: The epidemic disease act 1897,disaster management act 2005.

HOW CAN AUTHORITIES PUNISH VIOLATORS?

It has been observed that some of the videos are becoming viral where the Police is using force,Police is singing a song and is urging people to go back home and stay indoors. As clearly put forth by the ministry of home affairs in its guidelines that if any person found violating the Orders can be charged u/s 188 of Indian Penal Code, 1860. In case of Lock-down the Police cannot arrest a person in case of violation however if person gets adversarial to authorities Police can arrest the person u/s 269 and 270 of Indian Penal Code, 1860. Both these sections are cognizable, bailable and non-compoundable in nature. U/s 269 maximum imprisonment described up to 6months or fine or both.Under Sec 270 Imprisonment: has been counted as max up to 2 years or fine or both.

CONCLUSION

Ultimately, governments have the authority to impose lockdowns during public health emergencies to protect the well-being of their citizens. This authority is derived from their constitutional powers and emergency legislation. While these restrictions may infringe upon individual liberties, they are necessary to mitigate the spread of disease and save lives.

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