Lockdown decided in opaque manner has come back to bite nation

These are unprecedented times. More than one-third of the global population is under complete lockdown to contain the spread of COVID-19 which has already touched 600,000 lives with a death toll of over 26,000. We are just at the beginning of the curve of this spread and uncertainty looms large over the possible impact in the next few weeks.

In the circumstances, the government had very few options, but to take certain measures against a pandemic whose extent and dimensions were unknown. For this reason, what was announced by the prime minister on March 23 should be deemed a logical corollary for containing the spread of COVID-19.

Considering the gravity of the emerging situation, this may not be the time to raise the issue of legality or constitutionality of what is being thrust upon the entire population. Prime Minister Narendra Modi alluded to the sheer necessity of introducing such a measure in the context of `life’ and `hope to be alive’ due to the potential spread of the virus in the next few weeks.

But the government decision bypassed Parliament, gave no time for the population to get ready to face the lockdown and clear guidelines were not ready before the announcement was made on March 23.

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The home ministry notified the order and guidelines for giving effect to this lockdown on March 24.  The government took recourse to various provisions of the Disaster Management Act, 2005 (a Congress-era legislation), in particular its section 6 and 10.

Besides this, the government also invoked The Epidemic Diseases Act, 1897, a colonial era enactment that sought to define an `epidemic’ as something which is confined to an area requiring containment. Since both the enactments come under the purview of the Central government, it could invoke them to contain COVID-19.

The sudden announcement of the lockdown, though expected, hit the basic livelihood of a large sections of our society, in particular daily wagers who worked in the urban setting. The Government, rightly perhaps, was simply planning on augmenting medical resources to contain the impact of COVID-19. Complete lockdown was thought as a proper measure to contain the spread. But, there was no indication as to whether the government had seriously considered the impact of such a decision on the poor.

As reports come in, it is clear that lakhs of migrant workers are moving from urban centres, where they do all kinds of menial jobs, to their villages in various parts of the country. With no means of transportation or even money to travel, the poor seem to be left in a lurch. Not only that, they have been placed under the mercy of “lockdown implementation brigades” that include the police force.

This raises a larger question of legality and constitutionality. Although the Disaster Management Act, 2005 provides the executive unbridled powers to enforce certain kinds of community behaviour, it does not take away the most basic rights given to the citizens under the Constitution. Though the above enactment bars jurisdiction of courts for challenging any of the decision taken by the National Disaster Management Authority, it does not bar the intervention of High Courts and the Supreme Court. In the name of implementing a lockdown no one including the police and other agencies can treat bonafide citizens in a high-handed manner.

Unfortunately, these higher echelons of justice have themselves locked down. It is also a moot point as to who will approach the High Courts and the Supreme Court on behalf of these hapless millions who are currently scrambling to protect their basic livelihood and life.

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The higher judiciary has the complete authority under our Constitution to take note of these ordeals of the most ordinary citizens’ suo moto.  The strength of our institutions, upon whom the efficacy of the basic rights granted by Constitution stands, should be tested in such unprecedented times.

Considering what the World Health Organisation (WHO) stated in clear terms on March 11 regarding the global spread of the virus, was India’s response and preparedness short by few yards? WHO, inter alia, had stated “Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death. Describing the situation as a pandemic does not change WHO’s assessment of the threat posed by this virus. It doesn’t change what WHO is doing, and it doesn’t change what countries should do.”

It took another two weeks for the prime minister to come out with a measured and concrete response. On March 11 Parliament was in session and had taken a three-day recess to celebrate the festival of Holi. Besides this, some key ministers and politicians were busy at the time in the Madhya Pradesh imbroglio.

By then, India was involved in evacuating its nationals stranded in China, South Korea, Italy and Iran where the virus had significantly spread. It took a while for the government to decide on strict airport checks and to come out with clear quarantine guidelines for all those who travelled from virus-infected countries.

As noted by the WHO in its assessment and guideline, the nature of this virus and its spread should have alerted the government to initiate early measures. The coronavirus’ unique ability to spread rapidly and incubate for 14 days before symptoms showed up would be a sure recipe for a disaster, in India’s densely packed population.

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The Prime Minister’s first televised speech on March 20 certainly put the issues in the correct perspective by referring to remedies such as social distancing, janata curfew and applauding the work done by the health, sanitary and other staff. It was also amply clear from that speech that a major announcement for a lockdown was already in the pipeline. Panic buying of groceries and other household items had already started.  But, the point is that the government seemed to have deliberately delayed making this move due to political exigencies.

Even Parliament which was in session at that time was bypassed, except for a few briefings and side references by ministers. The announcement came only upon the closure of the parliamentary session on March 23 after quickly passing financial bills with no debate whatsoever within two hours. The prime minister was very much present in the house during the passage of the Finance Bill on that day. He, however, chose to remain silent despite Opposition demands for a statement on COVID-19.

The script for Modi’s address was perhaps already ready to be read out, but not in Parliament. Clearly, Parliament was bypassed in the announcement of the shutdown. As is the practice, no major policy decision can be taken or announced by the government when Parliament is in session without its approval. Even the Finance Minister did not give an indication or announce any financial package prior to the shutdown announcement during the passage of the Finance Bill despite repeated demands by the Opposition.

The lockdown and financial measures to the tune of ₹1.70 lakh crore came on March 25 and 27^th March, two days after the closure of Parliament’s winter session.

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The last two weeks have seen the steady rise of COVID-19 in India. This pandemic has brought unprecedented uncertainty and untold misery to the people of India. With COVID-19 as an impending national calamity, Parliament should have been the proper forum for a major and substantive statement by the prime minister on the last day of the session. Further, it would have added to the glory of the institution of the Parliament and would have elevated the Prime Minister to a level of a statesman.

The Parliament announcement would also have taken care of many of the legal tangles that appear to have cropped up in implementing the 21-day lockdown. First of all, the lockdown of the entire nation is unprecedented, for which the population will have to pay huge social and economic costs. At least, it would have helped economically marginalised people to prepare themselves better.

Finally, it is not just simply about showing to the world that we are decisive and are capable of handling a crisis of this nature. It is also about how we nurture and nourish our institutions. After all, we the people created the Constitution and its apparatus including Parliament, courts and other institutions to take care of the entire population in a humane and considerate way without violating their most basic rights.

(The author teaches at the Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal.)