Legality of Lockdown

After Unlock 2.0 we again hearing that some state govt going for lockdown, firstly on March 24 Prime Minister Narendra Modi announce 21 day lockdown than it’s extended many times. So, today let’s talk about legality of the lockdown is this legal or illegal ? Govt can put lockdown or not ?

Under Section 6 of the Disaster Management Act Ministry of Home Affairs announce the nationwide lockdown under his powers in Section 10 of the Disaster Management Act, as the Chairman of the National Executive Committee constituted U/S 8 of the Act.

The term Lockdown and curfew have not been defined under Indian law but are still being used to markdown the fundamental right of movement induct under article 19 [1] of the Indian constitution. This cannot be termed invalid as this right is subject to restrictions under Article 19 [2].

Section 2 and 2A of Epidemic Diseases act gives power to the Central or State Government to take necessary steps in the situation where people have danger to life or mankind. Section 2 [d] reads; “‘Disaster means a 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.”

This section is not meant to deal with epidemics or diseases of any kind but causes such as, but not limited to, tsunamis and earthquakes. MHA declared the spread of COVID-19 as a “notified disaster”, thus bringing into play Section 2(d) of the Disaster Management Act. This enabled the State Governments to use a larger part of the State Disaster Response Fund to fight the spread of the virus.

In furtherance of the declaration of a nationwide lockdown, the Ministry of Home Affairs published guidelines using Section 10 [2][l] of the Disaster Management Act on the measures State and Central Governments must take during this twenty-one day period. The guidelines established that all types of transport services (Air, Train, & Road travel) will not be operational during this period. Commercial and private establishments shall remain closed, except for ration shops, banks, ATMs, media services, and telecommunication companies and other essentials.

The guidelines also said that any person who violates these containment measures will be liable under Sections 51 to 60 (Offenses and Penalties) of the Disaster Management Act, and under section 188 of the Indian Penal Code which creates the punishment for disobedience to order duly promulgated by a public servant.

Yes, we can say that In an ideal scenario, the government should have involved the states in a spirit of cooperative federalism rather than the top down approach that was adopted earlier.

However, at the end of the day, it came down to the Doctrine of Necessity, which proclaims loud and clear that “Necessity knows no law”.