Guest Article

Raju, a migrant labourer, got his everything destroyed in the floods in Bihar. He then came to Delhi in search of a job so that he could tend to his family. He landed a good job and just when his life was getting on track there came a rude shock. Complete lockdown of the country! Raju was thrown out of a job and was weeping, sitting in his small shack looking at his children who were reeling under hunger for 3 days. All he could do was curse his fate and the government for bringing this misery upon his family.

Little did Raju or numerous others, from every stratum of the society, knew at the time that the government wasn’t to be cursed but blessed. They weren’t destroying but saving lives from an invisible monster. Never has humanity faced a crisis as grave as it is facing today from the unseen enemy i.e. Covid19.

Now given that already all of the readers are well aware of the effects and the outcomes of the Covid19, therefore in this article, we will first talk about the need for the lockdown from a technical viewpoint, then we will discuss its application from the legal point of view, and then finally discussing the way forward.

Covid19 Lockdown : A technical analysis.

Before analysing the lockdown, let’s first discuss the potential of infection of the Covid19. For this, we need to be acquainted with the term R naught. Three possibilities exist for the potential spread or decline of disease, depending on its R0 value:

  • If R0 is less than 1, each existing infection causes less than one new infection. In this case, the disease will decline and eventually die out.
  • If R0 equals 1, each existing infection causes one new infection. The disease will stay alive and stable, but there won’t be an outbreak or an epidemic.
  • If R0 is more than 1, each existing infection causes more than one new infection. The disease will spread between people, and there may be an outbreak or epidemic.
  • What is R0?

The R0 of the new coronavirus so far seems to hover around 2 to 2.5 according to the WHO. According to ICMR, if the lockdown was not initiated, then 1 infected person had the potential to affect 406 persons.

Now, let us see this data in wake of the facts that the WHO recommended doctor to patient ratio is 1:1000. Given that the treatment of covid19 is available only in Government hospitals, this ratio is 1:11000. This is further complicated by the shortage of ventilators, with merely 30,000 to 50,000 ventilators in the country of 1.3 billion.

The corona virus has shaken the world economy like never before.
The corona virus has shaken the world economy like never before.
Image Source : Giphy

So, we can gauge the dangers that this stain poses in India, that too in the backdrop of the huge health care limitation in both infrastructural as well as the nutritional perspective. Making a majority of the population vulnerable to this pandemic.

Lockdown from a legal perspective.

When the lockdown was applied, various legal experts questioned its constitutional validity, holding that it was unconstitutional and that the central government is transgressing its powers. So here we will discuss its constitutional validity.

Firstly, in the seventh schedule, where there are 3 lists providing for the division of powers between the centre and the state, there the subject of Public health is provided in entry number 6 in the state list. However, entry number 81 in the central list allows the central government to make laws on inter-state quarantine and quarantine of ports and ships. Deriving the power from this, the central government imposed an inter-state lockdown, which complemented the curfew and lockdowns imposed by various states on a case to case basis.

Secondly, the curfews and lockdowns enforced by the states are validated by section 2 of the Epidemic Diseases Act, 1897 which provides the states with all the powers to take necessary measures to contain an epidemic.

Thirdly, entry 23 of the concurrent list empowers both the central and the state governments to make laws with respect to social security. In pursuance of which the central government passed the National Disaster Management Act (NDMA), 2005. Section 6(2)(i) of the NDMA Act, 2005 empowers the central government to take measures for the prevention and mitigation of the effects of a disaster. By declaring the COVID 19 as a disaster, the central government was duly authorised to take any measures necessary for the mitigation of the threats posed by the covid19. Hence, the central government announced a complete lockdown, even for the states which didn’t announce the same. And it was duly empowered to do so.

Lockdown vs Transgression of Fundamental rights

In the wake of the lockdown, another argument arises that no doubt it was legally valid but it nevertheless, violates the fundamental rights of the citizens. So, is it still a valid step taken by the government when seen through the prism of Fundamental rights? 

Now, in this context, under article 21 there is an onus upon the state to protect the right to life and personal liberty of its citizens. This right is sacrosanct as without life there can be no liberty. Moreover, in the State of Punjab vs MS Chawla, the Honourable Supreme Court held that the “right to health is an integral part of the right to life”. So by imposing the lockdown the government is not just protecting the life by curbing liberty but also by ensuring good health of the citizens, trying to curb the pandemic and thereby protecting their right to life.

Lockdown has raised questions over violations of fundamental rights
Lockdown has raised questions over violations of fundamental rights
Image Source : Twitter

It further needs to be discussed that even if justified on legal laws, does this curb on liberties fit within the definition of reasonableness criteria, as if provided by the constitution and upheld by the various Supreme court Judgments. The liberty that was affected by the lockdown is a set of rights guaranteed as a fundamental right under Article 19(1)(d) and Article 19(1)(g) i.e. Right to move freely throughout the territory of India and the Right to practice any profession or to carry on any occupation, trade or business. However, upon these right too reasonable restrictions can be placed under Article 19 (5) and Article 19(6) of the constitution. Where in the Supreme Court too held in Narender Kumar v Union of India that to determine the reasonableness of a restriction, among other factors, it must consider the background of the circumstances in which the order is issued and “whether the restraint caused by law is more than necessary in the interest of the general public”. Now as discussed above, given the staggering R naught of the Covid19 and the sheer risk of spread of the pandemic in the absence of lockdown, it’s anybody’s guess that the restriction on the fundamental rights was completely reasonable and was not just an option but a necessity.

Way forward

Now coming back to Raju, who’s stranded and is reeling in sheer hunger, what could be done for him, to alleviate his suffering. Here is where the other component of the state responsibility comes to place, where the state along with ensuring the security of the citizens also cares for its citizens. This care we have been a spectator to, where all the agencies of the state, especially police, doctors and civic agencies are taking due care of all its citizens, by providing treatment to the Covid19 patients, evacuating the stranded ones, providing accommodation and supplying essentials to the needy, sometimes at the risk of risking their own safety.

 The state has done a commendable job in the same, standing up to the humungous task in hand and bringing relief to numerous families like that of Raju and others, wiping their tears and becoming a messiah for the families in need.  No doubt the sufferings of the citizenry are many, and this abrupt break on the path of life has been tough. But this break was necessary to put a brake on Covid19, pending the search for a vaccine to defeat it completely. Lastly, I just want to reiterate what the honourable Prime stated: “Jaan he to Jahan he”.

And in the words of poet

“Mere junoon ka nateeja zaroor niklega,

Isi siyah samundar se noor niklega”

Ameer Qazalbash

Dedicated to all the corona warriors

Shri Arshdeep Singh Panwar is a lawyer turned police officer. He graduated from the Faculty of Law, Delhi University and went on to serve society in his role as an advocate. He earned accolades for his public service from the beginning of his career. Subsequently, he continued his public service, this time donning a Khaki uniform. He’s a fourth-generation police officer currently working with Delhi Police as an ACP. He also holds the distinction of being a National Champion in Shooting.

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