A lockdown has been imposed in India, although this isn’t a legal term. The restrictions on movement and services apparently derive their legal basis from two instruments separated by more than a century of experience with at least 10 major pandemics in between. One would expect that some major lessons would have been learnt from them for the evolution of these instruments—the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005. Prohibitory orders have also been invoked under Section 144 of the Code of Criminal Procedure. But it is not clear from where the executive powers of the government flow.
EPIDEMIC DISEASES ACT, 1897
The Act is very short and permits the government when “satisfied” that there is a threat of “the outbreak of any dangerous epidemic disease” to take any measures which are necessary for containing the outbreak of the disease (Section 2). These measures include the “inspection of travellers, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease”. It also specifies: “No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act” (Sec.4). There is no provision for confinement of the entire population to their residence.
DISASTER MANAGEMENT ACT, 2005
The Act provides for the establishment of a National Disaster Management Authority for “laying down the policies, plans and guidelines for disaster management” (Sec. 3). There is also the constitution of a National Executive Committee consisting of Secretaries in charge of 15 ministries—in which the Ministry of Home Affairs is conspicuous by its total absence (Sec. 8). Thus, in the perspective of the legislators, a “disaster” is not supposed to be a “law and order” or “security” problem. The basic function of the National Authority is to recommend guidelines for minimum standards of relief and loan repayment (Sec. 12), while that of the National Executive Committee is to prepare a national plan that includes measures to be taken for the prevention and mitigation of disasters, for the integration of mitigation in development plans, and for preparedness and capacity building (Sec. 11). It is only “in the event of threatening disaster situation” that the State Executive Committee (Sec. 24) or the District Authority (Sec. 35) may control and restrict vehicular traffic or entry of any person to, from or within, the vulnerable or affected area. There is no use of the terms “lockdown”, “isolation”, “distancing” or “quarantine” in the entire Act, or any provision for confinement of the total population.
SECTION 144 OF THE CRIMINAL PROCEDURE CODE
Section 144 gives a magistrate, if in his opinion “there is sufficient ground”, the authority to direct any person to abstain from a certain act if he considers that such direction is “likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, of an affray”. Direction may be for prohibition of assembly of five or more persons; and a magistrate may also “either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section”.
Imposition of Section 144 does not imply curfew or confining people within their homes for a specified time-period in a day. Examples of restrictions that states have imposed are: Maharashtra has shut its borders, restricted travel within the state, groups of five or more cannot gather, all commercial establishments and government offices, except those providing essential goods and services, have been asked to shut; Tamil Nadu has also shut its borders and only essential services are allowed; Delhi has shut its borders, prohibited all non-essential travel, and closed all non-essential services; Kerala has banned non-essential travel and services in five districts. None have directed that all the people have to be confined to homes.
SECTION 188 OF THE INDIAN PENAL CODE (IPC)
Prominent among the penal provisions that have been invoked for scaring the people into obeying the lockdown is Section 188 of the IPC that states “disobedience to order duly promulgated by public servant” that causes danger to human life, health or safety and can be punished with imprisonment or a fine.
OTHER SECTIONS IN THE IPC
Section 269 can be invoked to imprison or fine a person for a “Negligent act likely to spread infection of disease dangerous to life”. Section 270 can be used for a “Malignant act likely to spread infection of disease dangerous to life”.
ESSENTIAL COMMODITIES ACT, 1955
This law allows the government to control the acquisition, production, supply, storage, transport, distribution, disposal, use or consumption of commodities which are essential in order to secure their equitable distribution and availability at fair prices in the market. This includes commodities such as foodgrains, foodstuffs, edible oilseeds or oils and sugar (and would be applicable to masks and hand sanitisers, especially for hospitals, healthcare workers, people working in essential services, and law enforcement personnel—all those who cannot afford to quarantine themselves). It can also regulate the collection of any information or statistics; conduct entry, search or examination of premises and records.
ESSENTIAL SERVICES MAINTENANCE ACT, 1981
This law (that has not been invoked) ensures that essential services such as transport, postal, water supply, power supply, sanitation, etc., are not interrupted due to lockouts, layoffs or workers’ strikes. But in the current crisis, the importance of this law lies in the fact that these services have to keep running in the country when all the people have been asked to isolate themselves in their homes.
MINISTRY OF HOME AFFAIRS GUIDELINES, MARCH 24, 2020
As per the Ministry of Home Affairs (which has illogically become the nodal authority by default) guidelines for the containment of Covid-19 epidemic are: all government offices (except for police forces, treasury, public utilities, disaster management, power generation and transmission, post offices, prisons, sanitation) are to be closed; as are all commercial and private establishments (except for provision shops, banks, insurance offices, ATMs, print and electronic media, telecommunications, delivery of essential goods, petrol and gas outlets, capital and debt market services, cold storage and warehousing, and private security services); all industrial establishments (except for essential commodities and continuous process units); all transport services (except for essential goods, fire, law and order, and emergency services); hospitality services (except for stranded tourists, medical and emergency staff, air and sea crew, and quarantine facilities); all educational, training, research, coaching institutions; all places of worship; and all sports and social gatherings. The only sector not subject to closure is healthcare institutions. Only those persons arriving in India after February 15, 2020, and others directed by healthcare personnel are to be in quarantine. Everyone is supposed to ensure precautions against the virus and social distance measures. There is no direction to isolate the entire population in their homes.
POLICE ACT, 1861
The Inspector-General of Police has the full powers of a magistrate (Sec. 5). But the duty of all other police officers is to promptly obey and execute all orders and warrants lawfully issued; prevent the commission of offences and public nuisances and detect and bring offenders to justice (Sec.20). The police officer is also expected to regulate public assemblies and processions and the playing of music on the streets as prescribed by the Superintendent of Police (Sec.30). Every person not obeying the orders issued by the SP has to be presented before a magistrate for conviction (Sec.32). Section 46 of the Code of Criminal Procedure authorises a police officer to use “all means necessary” to effect an arrest. And Section 129 allows the dispersal of an assembly by force but does not address the quantum of force that may be used to achieve this. But on no account can a police officer hit a person who is peacefully walking on the streetor not confined to his home.
Yet, with the Home Ministry looking on benignly, there is widespread evidence of the police and the administration using force to make people remain indoors all the time even when they are following the necessary precautions of hand-washing, wearing masks and coughing/sneezing into the crook of their elbows, as well as practising social distance measures. There are videos of police arbitrarily beating passengers and pedestrians, sending wireless messages to beat cops to seize cars and scooters as well as pictures of them making workers do sit-ups and issuing notices for market timings. District magistrates have also been pasting red notices outside houses where individuals have gone into self-isolation after arriving in India after February 15. No purveyor of necessary services in the informal sector is being allowed to carry food, water, soap, medical aid and humanitarian assistance either through vans or carts to the lakhs of people in need but isolated in their hutments and homes.
Matters are getting worse as thousands of migrant workers are fleeing the cities on account of the failure of governments to provide money, food and shelter, and are forcibly detained without the necessary support systems.
Under what authority of law is all this being done?
—The writer is a lecturer, engineer and founder of the Delhi-based Hazards Centre