Constitutional Aspect of COVID-19 Pandemic In India
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Constitutional Aspect of COVID-19 Pandemic In India

We never saw the Indian Government combatting the situation so well before the Coronavirus Pandemic.

April 16, 2020

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The Global Pandemic of COVID-19, has seen the Indian Government implementing never seen before ways of combating the situation. Whether it be the ‘Janta Curfew’, or the recent ‘Nation Wide Lockdown, we are seeing some measures which were never taken before. 

Owing to the lack of precedents, these moves have created an atmosphere of confusion and terror because the common masses are not able to comprehend as to what is happening around them. This article aims to draw the differentiating line between ‘Curfew’ and ‘Lockdown’ so as to demystify the current situations.

Curfew: What does it essentially mean?

When we talk about ‘Curfew’, it is a measure by which the government keeps people off the streets, generally during emergency situations like riots, affray, public tranquility, etc. During the curfew, people are forced to stay inside their houses to control the prevailing situations. 

This would mean that police would have the authority to use enough force for maintaining the curfew. However, as iterated in the case of Jayantilal Mohanlal Patel v.Eric Renison and Anr., this would not in any way amount to ‘Shoot-at-Sight’ order, until and unless the transgressor threatens the lives of officials and commoners. 

As per the views of Madras High Court Judge K Chandru, a curfew is imposed by the administration using inherent executive powers vested in the State Government. That is to say, a State Government has the power to issue executive orders under any subject it is competent to make laws as per the state list.

Talking about curfew, this would be public order. “Curfew is much more than a usual prohibitory order,” Chandru iterated. People often confuse ‘Curfew’ with Sec 144 of Cr.P.C. However, when closely analyzed one can easily differentiate between the two. 

Curfew can be looked upon as an escalation of usual prohibitory orders under Sec. 144. While Sec. 144 does impose restrictions on public gatherings, it in no way restricts one within the perimeter of his home, while in case of ‘Curfew’ serious restrictions are imposed on the movement of people in the area. 

The severity can be understood from the stance that even to move out for essential services is restricted. These restrictions are only eased if one gets official permission which again is a very cumbersome task.

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Lockdown: Understanding and Explaining its Implications

To check the further spread of COVID-19, the State Governments have imposed restrictions owing to the advisory released by the Center, thus suspending transport and other related services. 

These restrictions derive their legality from Epidemic Disease Act, 1897, which has been for the first time implemented nationwide since independence. Sec. 2 of this act gives authority to state governments to “take special measures and prescribe regulations as to dangerous epidemic disease”. 

The Act was invoked owing to the fact that Indian Penal Code, 1860[8], being a general law, alone could not have tackled the spread of such a deadly infectious disease and hence an act which was specifically tailor-made for this cause was invoked. It provides for sweeping discretionary power for states to mold the restrictions as per its need.

Lockdown is essentially a curfew, but with less restrictive implications. It is an emergency-like system under which private and public offices, private establishments, and public transport are completely closed.

Just like a Curfew, people are required to stay indoors, however unlike curfew people can still come out of their homes for accessing essential services like hospitals, banks, etc. 

Thus, lockdown, unlike curfew, is invoked to regulate public interactions and not control or restrict it. Its main aim can be traced to increasing social distancing between people. 

Being more lenient enforcement, this does not empower police to arrest people violating it.

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Section 144 of Cr.P.C: How is it different?

Sec. 144 imposes restrictions on assembly of people. It restricts the congregation of five or more people within a particular area. 

Under the law, anyone in violation of this order can be booked under Sec. 188 of Indian Penal Code, 1860 for disobeying a public servant. The Section provides the basic framework for imposing restrictive actions to prevent riots, affrays, etc. 

The main aim of Sec. 144 is to prevent social gatherings so as to minimize the chances of mishaps, generally in tensed situations. This, however, poses no restriction on the movement of individuals and hence is more lenient than both ‘Curfew’ and ‘Lockdown’. 

This, however, provides for the much-needed social distancing which is the main motive of lockdowns and this is the reason why many states across India have implemented Sec. 144 coupled with Lockdowns orders to achieve their goal of social distancing to check the spread of COVID-19. 

The Section allows detention or arrest of people found in direct violation of these orders. Thus, what we can understand from the above-mentioned facts is that Sec. 144 has not much role to play in checking the spread of COVID-19. However, it provides the basic essential framework to implement such social distancing norms.

Conclusion

Analyzing the differences, it’s crystal clear that though the media has been using the words ‘Curfew’ and ‘Lockdown’ interchangeably, there exists a vast difference between the two. The fear that has been instilled in the minds of people is completely baseless. 

Though some states have indeed invoked curfew, the same is not true for pan-India. The Nationwide Lockdown in no way equals to Curfew. The police actions that we are seeing are nothing but police excesses, which occur when people are ignorant of laws. 

What we need to understand is that the current procedures have been carried out only with the aim to check the spread of COVID-19. However, this doesn’t mean that people can move about freely because Section 269, of Indian Penal Code, 1860 punishes those negligently spread infection and Section 270, of same will be invoked if people malignantly fail to act during an epidemic. 

Thus, what we need to fear is not the law, but the consequences if it is not complied with. The atmosphere of terror needs to calm down because all this is being done to ensure the safety of the nation and its people. 

As long as one abides by the laws, and has a sound knowledge of his rights the current 21-Days Lockdown is not much of an issue to him. However, at this hour of dire action, we need to co-operate with authorities to ensure a better future for everyone.

“Alone we can do so little; together we can do so much." – Helen Keller

This Article Is Contributed By: Mohd. Rameez Raza

Organised By: Vaibhav Srivastava, Harsh Vardhan Singh & Team

Event: Legal Webinar

Organization : Table  To Screen

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