LOCKDOWN: - LEGAL TEETH BEHIND ITS EXECUTION

Unprecedented times call for unprecedented action, and the faceoff of humanity with a global epidemic is one such even. It is testing every notion and convention setup by the tedious and metamorphic process of social acceptability ranging from how we greet to the legal functioning of the nation. Such emergency situations need stricter and different executive approaches to maintain a smooth basic functioning and to avoid anarchy. But experience has taught that such uncommon and panic invoking events have the potential to put the current order or democracy in a very precarious position. Reichstag fire of 1933 marking the inception of the Hitler’s dictatorship over the Nazi Germany or a revolution known as JP movement coupled with the Raj Narain verdict led to the Emergency in India under art. 352 are some glaring examples.

The current lockdown imposed on the 24th March 2020 by the Prime Minister also finds its execution in a cocktail of various legislations to deal with the unique situation at hand. The forceful execution of the same with the instances of hard force used by the police, arrests and detentions has been scrutinized on the constitutional and legal grounds. The national lockdown draw its authority from Sec. 2A of The Epidemic Diseases Act, 1897 which gives the power to regulate gathering of the people, control travel and impose special regulation to control the spread of the ‘Dangerous Epidemic’. But the Act being an obsolete one suffers from glitches which makes its authority questionable, firstly it does not define what can be construed as an dangerous epidemic but as it was imposed to deal with Bubonic Plague or Black death spreading in the State of Bombay at that time it sets the bar very high and make its imposition questionable for a disease not nearly as dangerous as the Black death. Secondly, the Act being archaic gives power to the central government to inspect and restrict movement as specifically mentioned the ships at the ports and if necessary detention of the ship and the people travelling. This leaves travel by air and other modes prevalent now in a gray area. ‘Sec 3 of the EDA, 1897’ Authorize a person’s arrest, who is in the violation of the regulations put in place by the EDA, 1897 under Sec. 188(Disobedience to order duly promulgated by public servant) of the IPC, 1860.

EDA is used in tandem with Disaster Management Act, 2005, though this was created to deal with disasters such as flood, fire and earthquakes rather than an epidemic such as COVID 19 and therefore lack to provide legal backing to specific needs such as restrict movement, quarantine or distribution of drugs, vaccines and tests. But being a recent act caters to more modern necessities such as controlling the social media and creating a special fund to deal with the epidemic. Also it calls for formation of a national executive committee for swift responses and providing centralised guidelines to deal with the menace. The two acts in fusion works to provide the central administration with a legal arsenal to keep the wheel rolling.

The stricter implementation of the lockdown and restriction of movement is done, as some arrests are made by the use of specific sections of the IPC such as Sec. 269(Negligent act likely to spread infection of disease dangerous to life), Sec 270(Malignant act likely to spread infection of disease dangerous to life), but its application is restricted and not beyond the argument that how movement of a person alone with no symptoms of the epidemic and with proper gear can be called even negligent leaving aside malignant. The people who are being quarantined and found in violation can be booked under Sec 271(Disobedience to quarantine rule) in addition to them local authority can impose a curfew under Sec 144 of the CrPC which can be implemented with strict and harsh actions.

A view at the mechanism of executing the lockdown shows that even though a lockdown can be imposed by the centre but the power to its strict and more authoritative application resides with the local and state administration, thus shows a tandem and division of power in the execution of measures to deal with the situation. Also it results in more reasonable implementation providing with necessary flexibility and avoiding extraordinary dominance. This unforeseeable epidemic has also drawn attention towards the obsolete colonial era legislations, making effective and lawful control difficult and calling for an audit to amend the archaic provisions of the law to equip the machinery for proper, simpler and more meaningful legal mechanisms to allow swift administration.

Mayank Joshi
Ex Vidhigyan
NLIU, Bhopal (CLAT 2019 Batch)

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