By - Dr. Yumnam Premananda Singh
Head of Department & Associate Professor, Department of Law, Manipur University
In these difficult time of war against invisible enemy – ‘Corona Virus’, we continue to hear the words like ‘lockdown’, ‘curfew’, ‘quarantine’ and ‘isolation’. In order words now we are under state of ‘lockdown’ and or ‘curfew’, now new terminology ‘total curfew’, ‘isolation’ or undeclared emergency like situations since many days. Except for lockdown and curfew, all the other terms have legal connotation and definition in various laws in force in India, which have been invoked in the midst of the war against COVID 19. Considering that these terms restrict our fundamental rights guaranteed by the Constitution of India, it is important to understand the true import of these terms.
As a law teacher for last 15 years in different Universities and Law Colleges of India, it is surprising to see that the terms ‘lockdown’ and ‘curfew’ have not been defined under Indian law but are still being used to curtail the fundamental rights enshrined under Article 19(1) of the Indian Constitution particularly right to move freely and to assemble peaceably without arms. Legally, this cannot be termed invalid as this right is subject to reasonable restrictions under Article 19(2) of the Constitution itself viz. to maintain public order and in the interest of general public.
To talk about civil liberties like right to life, right to health, freedom of movement, assembly without arms, etc. in the midst of a global total war (no differentiation between of combatant and non-combatant as enemy is invisible, non-discriminatory which cannot be seen by naked eye) may seem out of place. However, I am reminding what Lord Atkin’s legendary dictum – “amidst the clash of arms, the laws are not silent” – applies as much to a public health crisis as it does to times of war or to emergencies. In fact, it is precisely because of the sweeping powers that governments arrogate to themselves during times of crises, that it becomes even more important to scrutinize the legality of their actions; and this importance in accentuated by that fact that often, those sweeping powers tend to entrench themselves into the legal landscape even after the crisis has passed.
The most sweeping impact upon rights, of course, is of nation-wide ‘lockdown’ imposed at the commencement of this war. It is fact that exact scope of the lockdown has been the subject of much confusion. Here, let me clarify that the National Disaster Management Authority’s Guidelines do not themselves impose a ‘curfew’.
The closest understanding of ‘lockdown’ can be construed from the Epidemic Diseases Act, 1897 (ED Act). Sections 2 and 2A of the ED Act give power to the State and Central governments to take necessary steps in the situation of an epidemic to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country. Looking to the Disaster Management Act, 2005 (DM Act) which was used to enforce the lockdown, Section 2(d) reads: “‘Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” This section is not meant to deal with epidemics or diseases of any kind but causes such as, but not limited to, tsunamis and earthquakes. However, the Ministry of Home Affairs, Govt. of India declared the spread of COVID-19 as a “notified disaster”, thus bringing into play Section 2(d) of the DM Act. This enabled the State Governments to use a larger part of the State Disaster Response Fund (SDRF) to combat the spread of the virus.
It is interesting to see that when the lockdown was announced, its application was not sourced from any law. It is not explicitly provided anywhere that the government has the power to declare something of this nature. It seems that as if the policy had first been declared, and then the later the government considered which law applied. Declaring the COVID-19 outbreak as a “notified disaster” is a first-of-its-kind measure taken to increase the scope of government powers that can be used in order to make quick administrative decisions to fight this disease. It is important for the government to back its policies and decisions with legal provisions as it validates those actions.
In furtherance of the declaration of a nationwide lockdown, the Ministry of Home Affairs, Govt. of India (MHA) published guidelines using Section 10(2)(l) of the DM Act on the measures State and Central Governments must take during lockdown period. The guidelines established that all types of transport services (air, train, and road travel) will not be operational during this period. Commercial and private establishments shall remain closed, except for ration shops, banks, ATMs, media services, and telecommunication companies. The guidelines also said under paragraph 17 that any person who violates these containment measures will be liable under Sections 51 to 60 (Offences and Penalties) of the DM Act, and under Section 188 of the Indian Penal Code which creates the punishment for disobedience to order duly promulgated by a public servant.
In the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426), the Supreme Court held that the primary duty of the government is to provide adequate medical for the people. “Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance.” But the current status of medical facilities (including, but not limited to, testing kits, hospitals, and the number of people trained to combat something of this nature) suggests that India needs something more than a DM Act or an ED Act that only grants powers to the government to take steps they deem necessary. India requires a methodological and comprehensive framework to combat a pandemic of this nature. On this background let me explain in the language of law those terms use as a weapon in the mist of this war.
First the weapon of Lockdown – “Lockdown” is not a legal term. A lockdown is a requirement for people to stay where they are usually due to specific risks to themselves or to others if they can move freely. The term is being used by government officials and others to describe a situation where free movement of goods is restricted, with the exception of essential items declared by the Government of India under Section 2, 3, 4 of the ED Act. Certain examples of exercise of lockdown powers of the government can be found after commencement of the war in the Delhi Epidemic Diseases COVID 19 Regulations, 2020; the Maharashtra Epidemic Diseases COVID-19 Regulations, 2020; the Punjab Epidemic Diseases COVID-19 Regulations, 2020; the Himachal Pradesh Epidemic Disease (COVID-19) Regulations, 2020, perhaps in Manipur Epidemic COVID-19 Regulations, 2020 (at the time of writing of this article, the regulation is not available in public domain, we know its existence from local newspaper only) etc.
Lockdown is not the same as curfew. One of the foremost differences between the two is that in lockdown, state enforcement authorities like the police cannot arrest persons for not following the lockdown without the permission of the competent court. The State, however, enforce a lockdown through the mechanism provided under Section 188 (disobedience to the directions given by a public servant), Section 269 (negligent act likely to spread infection of disease dangerous to life), Section 270 (malignant act likely to spread infection of disease dangerous to life) and Section 271 (if someone escapes ‘quarantine’) of the Indian Penal Code.
Secondly the Curfew - ‘Curfew’ again is not a legal term. The word ‘curfew’ comes from the old French phrase “couvre-feu”, which means “cover fire”. It was later adopted into Middle English as “curfeu”, which later became the modern “curfew”. Its original meaning refers to a law made by William the Conqueror that all lights and fires should be covered at the ringing of an eight o’clock bell to prevent the spread of destructive fire within communities in timber buildings (Bailey’ Dictionary, 5th Ed.).
Generally, exercise of a power available to the District Magistrate, Sub-divisional Magistrate, or any other executive magistrate under Section 144 of the Code of Criminal Procedure (CrPC) is, in common parlance, referred to as a ‘curfew’. Generally order of District Magistrate always says ‘do hereby prohibit any type of movement outside their residence’; this phrase is considered as a curfew without using the very words in the order itself. In case of Manipur such phase is found in Order of District Magistrate, Imphal East District, Manipur of 24th March, 2020 (as an illustration) and very surprisingly the order of 19th May, 2020 of District Magistrate, Imphal West District, Manipur (as an illustration of the matter) used one phrase i.e. ‘total curfew’, in my word it is simply ‘non legal’ words in ‘legal order’, which creating more confusion in the sense that in curfew no need to prefix total and curfew cannot be divided into total or partial and like (even using the term ‘curfew’ in order issued under Section 144, CrPC is not legally proper – emphasis only).
The authorities in these circumstances, for preventing danger to human life, health or safety, disturbance of public tranquility, or a riot or an affray, may issue such orders. If anyone defies such orders issued under Section 144 CrPC, the enforcement agencies have a right to detain/arrest the violators.
Thirdly, Quarantine and Isolation - The word quarantine comes from qurantena meaning ‘forty day’, used in the 14th-15th centuries Venetian language and designating the period that all ships were required to be isolated before passengers and crew could go ashore during the Black Death plague epidemic; it followed the trentino, or thirty-day isolation period, first imposed in 1347 in the Republic of Ragusa, Dalmatia (modern Dubrovnik in Croatia) [Etymologia: Quarantine, 2013]. Now I come to the legal connotation of the terms ‘quarantine’ and ‘isolation’, which have been defined under the Indian Aircraft (Public Health) Rules, 1954. Similar restrictions are found under the Indian Port Health Rules 1955, framed under the Indian Ports Act, 1908 for passenger ships, cargo ships, and cruise ships. “Quarantine” means the restriction of activities and/or separation of suspect persons from others who are not ill or of suspect baggage, cargo, containers, aircraft or conveyances, facilities, goods and postal parcels in such a manner as to prevent the possible spread of infection or contamination. “Isolation” means separation of ill or contaminated persons or affected baggage, containers, aircraft or conveyance, facilities, goods or postal parcels from others in such a manner as to prevent the spread of infection or contamination. Though not defined the terms, similar provisions are found in the ED Act, 1897.
Isolation should not be mistaken as the same as quarantine or bio-containment. Quarantine is the compulsory separation and confinement, with restriction of movement of healthy individuals or groups who have potentially been exposed to an agent to prevent further infections should infection occur. Bio-containment refers to laboratory bio-safety in microbiology laboratories in which the physical containment of high pathogenic organisms is accomplished through built-in engineering controls.
In the current health needs of the nation, the Epidemic Diseases Act, 1897 seems to be an archaic framework, owing to the changing priorities in public health emergency management. The first and the basic flaw that can be seen is that the Act is silent on the definition of “dangerous epidemic disease”. But however, it is clear that no law can effectively control this epidemic. It is this reason we will find that various provisions of Indian Penal Code, Criminal Procedure Code, the Epidemic Diseases Act and the Disaster Management Act are being invoked to control the current epidemic (or pandemic which means an epidemic that’s spread over multiple countries or continents).
I will end this article to stating that lockdown is not a curfew (not allowing powers to enforcement agencies). However, the combined exercise of various laws allows the enforcement agencies to enforce a lockdown like a curfew or total curfew in case of Imphal City and all other District Headquarters of Manipur. The absence of such specificity in the intersecting legal regimes – as discussed above – has lead to a lot that has been lost in translation at the implementation and enforcement levels, with reports of policemen physically assaulting individuals for being out on the street. So, therefore, in this war against COVID 19 though it is responsibility of all concerned but proper balance must be made between ‘saving lives and saving livelihoods’ as well as ‘liberties and lives’. In this critical juncture balancing guidance on when and how civil liberties (in wider term human rights) can be restricted to prevent the spread of infectious disease is found in the Siracusa Principles, a non-binding document (developed by the Siracusa International Institute for Criminal Justice and Human Rights and adopted by the UN Economic and Social Council in 1984). The Siracusa Principles state that restrictions on human rights under the International Covenant on Civil and Political Rights must meet standards of legality, evidence-based necessity, proportionality, and gradualism, noting that public health can be used as grounds for limiting certain rights if the state needs to take measures ‘aimed at preventing disease or injury or providing care for the sick and injured.