Is 'Lockdown" Constitutionally Valid?", Gujarat HC Seeks Response Of Centre, State on PIL

The Gujarat High Court on Tuesday heard a PIL challenging the constitutionality of the lockdown, asking the Union of India & State of Gujarat, the two respondents, to take instructions in the matter.

"The Prime Minister declared a lockdown by invoking EDA, and DMA for 3 weeks on 24.03.2020 starting from 00:00:00 hours on 25.03.2020. This lockdown has been extended thrice thereafter; on 14.04.2020, 01.05.2020 and 17.05.2020 which continues till date. The measures include the shutting of all non-essential government establishments, all commercial and private establishments, industries, transport by air, rail and road, hospitality services, educational institutions, places of worship, political gatherings, etc. with certain exceptions", reads the plea by social activist Vishwas Sudhanshu Bhamburkar.

It is argued that the lockdown caused untold hardships to the people of the country - food crises and hunger, migrant crises, medical crises and various other issues.

It submits that the lockdown saw curfew being imposed from 7pm to 7am, without there being any law and order or public disturbances that warranted the imposition of curfew, which continues even today. It disallowed persons who were senior citizens, or persons above the age of 65 years, to step out of the houses. The lockdown also ordered the people of the country to not step out of their houses except during specific times and for very specific purposes, which were to get medical help or to buy essentials for sustenance of life.

"The lockdown resulted in the people of the country being put under house arrest without being accused of any offence. It also suspended Articles 13, 14, 19 and 21 of the Constitution of India by keeping the people of the country illegally restrained inside their houses without any backing of the law", it is alleged.

The petition contend that the word lockdown, or its synonyms or equivalent does not find mention in either the Epidemic Diseases Act, the Disaster Management Act or the Constitution of India. "In fact, the Constitution of India prevents the suspension of Articles 20 and 21 even during a declared emergency. However, the situation that has been in existence is worse than that of an emergency without one being declared, with or without following the due process of law", it is urged.

It is submitted that for acting against the Coronavirus, the Centre and the states could invoke two legislations- They are the EDA and the DMA. "The case of the government perhaps is that these two laws arm it with sufficient powers and there is no necessity to fall back on the 'emergency provisions' of the constitution", the petition reads. It embarks on a closer examination of the statutes to assert that "the EDA is of 19th century vintage, enacted by a colonial power with a ruthless administrative apparatus uncontrolled by a constitution based on fundamental individual rights". "A closer look would indicate that even this law is intended to address a situation when a 'state or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease' and the government is of the opinion that 'the ordinary provisions of the law for the time being in force are insufficient for the purpose'", law indeed gives wide powers to "take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by, the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed." However, it does not provide that this power can be used in violation of any existing law, much less a constitution which was then not even in existence, it is stressed.

The petition discloses that the authority concerned has not provided any safeguards before implementing the lockdown. The provisions of DMA, more particularly sections 12 and 13 which ensured the welfare of the persons and protected their livelihoods (Article 21) and other reasonable interests were not invoked; therefore the lockdown was neither imposed constitutionally nor has it been implemented legally, logically nor scientifically.

"The plethora of criminal cases registered against persons ostensibly for violation of the said lockdown, when the lockdown itself is violative of the Constitution of India has caused untold harassment to the citizens who have chosen to live in accordance to the Constitution of India and have refused to follow illegal orders...the said lockdown, prevented the people of the country from traveling from one part of even the city/town to another, let alone from one part of the country to another, a violation of Article 19 of the Constitution of India...notification(s) of lockdown violated, undermined and ignored the provisions of various laws that have been passed by Parliament such as not allowing more than one person on a two-wheeler or not allowing more than 2 persons in a car, or the laws pertaining to National Food Security Act, 2013, migrant labour, labour laws, etc. causing untold hardships to the people of the country...", it is pressed.

The plea points out that the intent of the said lockdown, was solely to buy time to set up facilities to deal with the diseases and medical conditions that COVID-19 would bring in its wake- "In the guise of measures to limit the spread of COVID-19, also resulted in the most vulnerable section of the society becoming more vulnerable to the extent of facing their survival and existence resultantly exposing them to low level of immunity in these days of unknown and unlimited scare of a disease of which cure is unknown"

"The DMA, in so far as its sections 12 ans 13 provide for Guidelines for minimum standards of relief, and Relief in loan repayments etc,were thrown to the wind and the lockdown was implemented without any application and became more of an event rather than a serious effort to use the lockdown to create and ramp up the facilities so that the spread of COVID-19 could be mitigated. This has led to frustration in the National COVID-19 Task Force", it is submitted.

It is advanced that while four days' lead time was given for the Janata Curfew, barely four hours' time was given to the crores of Indians to arrange their lives and livelihoods in an orderly manner. The PIL laments that the chaotic aftermath of the national lockdown has been evidenced by heartwrenching scenes at railway stations, inter-state bus terminals, state borders, labour markets etc. where scores of people have been subjected to a period hat this was necessitated because of a combination of four reasons that individually was lethal enough to ensure their extermination. "(i) The livelihood of the migrant labourers was snatched away. (ii) Immediately upon the announcement of the lockdown, they were rendered shelterless at their place of work. (iii) The only other reprieve for them, their shelter at their native place was snatched away from them by non-availability of transportation, and (iv) The journey to their villages, hundreds, even thousands of kilometres away, was undertaken by foot resulting in 'official' death figure of 44 persons. I say official because the actual number of persons who were walking is not known, nor is it known as to who has walked where", reads the petition.

Moreover, it draws the attention of the court to the police brutalities. People have not only been beaten up; they have been brutalised to such an extent that the behaviour against these persons can only be called inhuman.

"their right to work to earn their daily wages and shutting of virtually all businesses, was patently violative of Article 19(1) of the Constitution", it is stated. It is pointed out that in the present case, only the DMA, has been invoked. It is not a declared Emergency under Articles 358 to 360 of the Constitution of India. Even if one were to suppose, without admitting, that this is a de facto Emergency under Articles 358 to 360 of the Constitution of India, attention is drawn to Article 359(1A) which states that Articles 20 and 21 cannot be suspended.

Reliance is placed on Chapter V of The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, on W A G E S , W E L F AR E A N D O T H E R FACILITIES. It is submitted that even this amount which is to be paid in normal circumstances has not been provided for and the ameliorative measures in this piece of benevolent legislation have been given a complete go by. Employers challenged the guidelines about the full salary to the workers without work due to lockdown, the Apex Court has granted the interim order against the guidelines and also directed not to prosecute the employer if they have not paid the wages. Later on, the Central Government has withdrawn the said guidelines about payment of wages to the workmen during the lockdown period.

The situation at bus stands, railway stations and even along all the arterial roads of all the major business hubs and industrial towns has thrown all norms of social distancing to the winds, defeating the very intent with which the lockdown was imposed, it is sought to be indicated.

"Realistically in India, where about 32% of the population lives in Urban India, which is 7% of the land area of the country. Thus the population density in the cities is such that there is absolutely no way that social distancing can be maintained - thus making the lockdown an exercise in futility. Especially seen in terms of dealing with COVID-19 pandemic, it is pertinent to note that experts say that India has enter ed in the stage 3 with localized transmission in various pockets and the Government of India has identified 10 such hot spots with localized transmission", reads the plea.

Besides, the deteriorating impact that the lockdown has had on the economy has been explained- the enforcement of the lockdown has led to less that 5% of transport vehicles being on the road on the road. This translates into products not reaching their destination, the supply chain getting broken and if continued, the supply chains will be damaged beyond repair and will need to be rebuilt. The lockdown has also resulted in edible oil units operating at 40-50% of their capacity and food processing units are operating at 50% of their capacity. While it may not be immediate, this will lead to a food crisis the outcome of it will be most horrendous, especially for the marginalised sections of society.

"At present, in the territorial jurisdiction of Ahmedabad, there are patently absurd orders that are in force. Even through neither the Constitution of India, nor the DMA, nor the EDA, nor the Motor Vehicles Act, 1988 prohibits it, on two wheelers, the mode of transportation of almost the entire middle class, pillion riders are not allowed. This absurdity extends to the extent of not even allowing someone to be dropped off at the nearest railway/bus station/airport, especially when even public transport has been halted in the city due to the lockdown. Furthermore, deliveries have also been stopped after 7:00 pm, which is absurd", contends the petitioner.

It is argued that in case of the guidelines and orders issued under the DMA, there is virtually no control or supervision by any authority. It is, in effect, the imposition of an Emergency without complying with the process provided for in the Constitution. There is also limited legal recourse since under Section 71 of the DMA, jurisdiction of courts inferior to the High Courts is barred. Even when an Emergency is declared under Article 352 of the Constitution, there is parliamentary supervision. Article 352 (2) requires any proclamation of Emergency to be approved by both Houses of Parliament within a period of one month from its issuance.

"While orders under Section 144, CrPC restrict collective assembly, can the NDMA direct a "lockdown" which draws the "lakhsman rekha" at the citizen's door and compels him/her into virtual imprisonment for 21 days? Is this not a virtual death sentence to the daily wager, the street vendor, the migrant worker, the small trader? Section 144 CrPC as well the cognate provisions in state police Acts (such as Section 30(3), Delhi Police Act, 1978) usually prohibit assemblies. But the lockdown has taken the 'Lakhsman Rekha'to all ourdoorsteps. Again, returning to the fundamental issue – without a declaration of emergency and, therefore, with the right to movement and the right to livelihood still in operation, is a "lock-down" constitutionally valid?", the petitioner demands.