With 8.7 million people in the world directly affected[1] and the entire human race shook, the corona pandemic could be the biggest and most consequential threat faced by the human race since World War 2.

Introduction
India under the leadership of Hon. Prime Minister Narendra Modi responded actively towards the infectious disease. The government depended upon a four section strong Victorian Era law, The Epidemic Diseases Act of 1897, to begin its response toward Covid-19.

The Central Government directed all the states and union territories to invoke section-2 of this Pre-constitution law thus dividing the power to respond between the Center and State. This allowed the states to issue orders regarding quarantines and contact tracing as well as having the Executives issue movement restrictions and curfew by the virtue of powers granted under Code of Criminal Procedure.

Then, the Central government used a relatively recent law, the Disaster Management Act of 2005 to implement a nationwide lockdown restricting every governmental and private service that wasn't deemed essential.

These pre-emptive actions taken by the government were indeed desirable in the current situation, however, they cannot be allowed to pre-empt the Constitution. To quote Cicero's maxim Inter arma enim silent lēgēs meaning in times of war, the law falls silent in a country like India which is a federal republic, with a parliamentary democracy that operates under the framework of a written Constitution, and whose Courts formally exercise powers of judicial review over legislative and executive action, will be irrelevant.

As Justice HR Khanna said … [the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law[2].

Thus, even though well meaning such extraordinary measures can foster a dystopian state by making the people weaker and the state stronger. A pandemic is serious and no doubt drastic measures are unavoidable but it is scary how credulous everyone has been to let go of democracy and are probably inspired by our autocratic neighbor. Democracy is not restricted to peace times, fundamental rights cannot be compromised with, and life is not only about surviving the pandemic.

In this article, I attempt to foreground why draconian and obsolete legislations cannot be allowed to veil justice, bypass our constitutional values and basic human rights in the name of national security.

Relevance of lockdown

Every law is passed in public interest. Every decision of the Center and State must be taken in public interest, meaning what is best for public at large. Before scrutinizing the constitutional validity of the lockdown we need to address a few questions. First, was the lockdown necessary? Well, yes. But is it a cure to the virus or does it prevent the spread?  As we all witnessed, it only slows the spread of virus. It is at best just a pause. It can be used to give the government enough time to discuss and assess the situation with all the states, to come up with an action plan, to build the medical structure required and to spread awareness. A lockdown providing certain emancipations based on empathy for poorest and most vulnerable (as provided in Article 38) and commitment towards fundamental rights and directive principles towards citizens, would have produced completely different outcome.

Legal framework behind the lockdown

The source of our fundamental rights as well as of these acts used to implement the lockdown lie within the sacred document, the Constitution of India. Thus, whenever there is an issue between the state policy and its effect on citizens, the Constitution will be the judge.

The lockdown was initiated at 3 levels by the government. At the national level, by the order passed on 24th March 2020[3], invoking section 6(2)(i) and section 10 of the National Disaster Management Act of 2005. Section 6(2)(i) allows the National Disaster Management Authority to take any measure for the prevention and mitigation of the disaster as it may consider necessary whereas, section 10 authorizes it to issue binding directions and guidelines to several state governments, for the purpose of dealing with the disaster. Thus, at the national level the lockdown was ordered and implemented essentially by series of executive decrees passed under section 10 of NDMA working as umbrella legislation.

At the state level, the lockdown was initiated by the virtue of section 2 of the Epidemic Disease Act of the colonial era. This section allows the state government with arbitrary power to pass any regulation it deems fit for the containment of the epidemic. Hence, under the directions of state governments, by the virtue of this section, the Executive have passed orders for shutting establishments, ban on gatherings and restriction upon transport and movement.

Thirdly, at the district level, where successive orders have been passed by the magistrates and police officers under various sections of the Code of Criminal Procedure (section 144)  restricting the movement of citizens.

Thus, the legal framework of the lockdown at all the three levels can be summarized as rule by Executive, without any proportionality test by the Judiciary and the Legislation essentially in deep freeze. Every executive order, most of them being vaguely worded and publically unavailable, are validated by section 10 of NDMA and section 2 of EDA.

It is scary how readily the government opted for an authoritative approach and how gullible and incapacitated we have become to the government. The government, thereby, dismissed democracy by merely using some broadly worded laws providing unchecked power to State as a mean to bypass the Constitution.  Thus, the government was operating as an Orwellian state without even declaring an Emergency. This is evident from the arbitrary clauses present in these said legislations used to defend state action. One of them being section 62 of the NDMA, which says:
 notwithstanding anything contained in any other law, thus meaning when invoked it shall be applicable irrespective of any contrary provision in any other law. However, the doctrine of ultra vires strictly says no legislation or law can be in contrary to the constitution. So, does doctrine of necessity over powers doctrine of ultra vires? And was the lockdown constitutionally valid since it eroded fundamental rights enshrined under Article 14, 19 and 21.

Impact on Fundamental Rights

It is true that we are facing unprecedented challenge and no one can surely tell the ideal way to deal with it. But it must have been tackled without compromising with the fundamental rights and civil liberties.

The 44th amendment of the Indian Constitution made it clear that Emergency (Article 360) can only be declared when the security of India is under threat from war, external aggression or armed rebellion. Thus, for proclamation of emergency, inner disturbance leading to armed rebellion must be present. Hence, the government had resorted to a creative approach to get unfettered power and used a web of executive decrees under broadly worded laws to implement the lockdown.

This approach taken by the government was necessary but was executed without planning. And hence, the possible bonafide intentions were eclipsed by the arrogance towards due process and ignorance towards the poor and vulnerable. Even in the case of Emergency Article 21 cannot be suspended (Maneka Gandhi vs. Union of India, 1978)[4], yet migrant workers and daily wage workers were treated like a liability.

It wasn't the order of lockdown but how it was implemented that left the whole nation disabled. The lockdown primarily affected two fundamental rights, the right to trade and the right move across the territory of India. These rights guaranteed under Article 19 of our Constitution, however, can be subjected to certain reasonable restrictions as mentioned in Article 19(5), in general public interest. Temporary suspension of these rights in order to prevent spread of an infectious disease shall qualify as a reasonable restriction in public interest. In order for these reasonable restrictions to pass the proportionality test, the plan to mitigate and minimize the sufferings of people during the lockdown must have been thorough and should have been spelled out to the public in advance.

The DPSP are the handbook for the state action. But the government seemed addicted to unchecked power and ignored one of its primary duty under Article 47 i.e. ensuring adequate nutrition, standard of living and public health standards. The conditions the poor were subjected to have turned this public health emergency into a human right crisis. The conditions of shelter homes and quarantine centers were poor; in several places people were not provided any meal for days.

The migrant labors soon gave up hope from government and decided to walk back home but were condemned for breaking the lockdown and faced police atrocities and denied entry at several state borders. The government forgot that in crisis like these, not everyone has the privilege to follow law and the visuals were reminiscent of the horrors of the time of partition when last time such mass movement was witnessed.

The effect of lockdown was thus faced differently by people of different socio-economic placing this evidently violates not just Article 14 but Article 21 as well. Right to life, personal liberty, livelihood and dignity under Article 21 cannot be usurped even under an Emergency. Yet, in India of 2020 people were flogged by police, stripped publicly, died due to hunger and exhaustion, also in some cases the details of several infected persons were made public(Right to privacy also under Article 21)[5].

The Supreme Court is one agency that should have been the sentinel for the people in this time of vulnerability but its actions have been disappointing and rather late. Its observations seem to lack sensitivity towards the deprived. This was evident when a PIL[6] was filed by Harsh Mander before the Supreme Court demanding payment of minimum wage for workers as their right to livelihood was abolished but the Supreme Court questioned, why did the labors need money? When they are being provided meals by the government!

The Chief Justice of India S.A. Bobde thought that the poor only need money for food. He failed to recognize any other reason for which they could need money. The Hon. Court need to revive itself as the Sentinel of the Constitution and remember its own judgments when time and again the ambit of Article 21 has been broadened and it is declared that Right to life means much more than mere animal existence but a life with dignity.

The Supreme Court has on several occasions believed the State's narrative on its face value and on the word of Solicitor General. It didn't bother to judicially scrutinize their claims and has been rather subservient towards the government[7].

Hundreds of lives of the poor were lost because of preventable reasons and millions other suffered. The lockdown kept on extending and the consequential non-viral deaths too. The citizens were let down by this autocratic approach of the government who were high on this unfettered power which was previously witnessed during the infamous emergency times under Mrs. Indira Gandhi.

Conclusion
Hunger is still the greatest cause of human deaths and has always been but it seldom affects the privileged. But unlike the actions of our government the virus has affected both the rich and poor. And this makes me wonder if that is the reason why the government decided to completely ignore the plight of the poor while implementing the lockdown? And does in order to contain the virus was the government willing to sacrifice the lives of poor or was it just ignorant? Either way the government has failed us.

Lockdown is a substantial word to be used so easily. To be effective it should have been well planned keeping public interest in mind. Measures should have been taken to comfort the people, reduce their uncertainty and redress their grievances by giving enough time for people to stock rations and medicines, those stranded in distant cities to get back home, provide them transport, provide the doctors and police with proper gear (PPE) and ensure no one goes hungry during the lockdown. A systematic and pre-informed lockdown enabling people to be financially, psychologically and physically prepared for imminent state of deep freeze would have motivated them to stay at home and abide by law more as compared to the violent assertion and compulsion of the lockdown.

With the lockdown lifted the most important question is that - can the government be addicted to this power? And is the darkest period of Indian democracy yet to come?
The symptoms of totalitarianism were present even before the lockdown. The handling of Kashmir, Assam and CAA protests stand as prime examples. The lockdown showed how easy it is for the government to suspend the rights and forget its obligations and how exploitable we have become. The lack of transparency in the actions of the government (PM CARES) and the aggression towards those questioning the government showed India has taken step back from democracy. It was witnessed when the government is willing even a colonial era law can be used to bypass the constitution.

The lockdown can be argued to be in public interest but the approach of the government simply lacked in it. And the wounds are already visible be it the economy, health sector or the hunger index at one hand and glorious rallies of the ruling party canvassing for the upcoming election at other. And a despotic rule can be possible in future. The Supreme Court is the only institute that can save the egalitarian values of our Constitution. Let's be optimistic and hope Indian democracy upholds itself as government of, by and for the people.
 
End-Notes:

1. Corona Virus, Worldometer, https://www.worldometers.info/coronavirus/, last seen at 20/06/2020.
2. ADM, Jabalpur v. S.S. Shukla, (1976) AIR 1207.
3. MHU, Government of India, , Lockdown order, https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_26032020_0.pdf, last seen 20/06/6060
4. Maneka Gandhi v. Union of India, (1978) AIR 597.
5. Justice K.S. Puttaswamy(retd.) v. Union of India, Writ Petition (civil) no 494 of 2012.
6. Harsh Mander and Anr. v. Union of India and Anr.,Writ Petition(Civil) No. 10801/2020 (Supreme Court, 21/04/2020.
7. Ibid.
   
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