It’s always safer to begin with a caveat. I have two. First, this is a sequel. Last week, I wrote about the constitutional scheme to address an epidemic like the one at hand. Second, there is no reason for alarm. Even if you were to conclude that all that is being done to protect you may not be legitimate, the chance of a constitutional court being vexed with these questions is as remote as you deciding upon Wuhan as your first vacation destination post lockdown. In fact, our constitutional courts, even the video-conference versions of them, have almost folded up in the wake of this unimaginable national crisis.

Mila Versteeg, professor of law at the University of Virginia, writes in The Atlantic that while the constitutional validity of the lockdown in the United States is doubtful, it has bipartisan support and people, scared out of their wits, are also willing to voluntarily sacrifice their rights. This is not a new phenomenon. Many would remember how, in the wake of the felling of the World Trade Centre, America, the land of liberty, voluntarily accepted the draconian Patriot Act for the sake of homeland security. Therefore, even presuming that none of the parties in India – the Centre, the states or the people – have any objection to the virtual house arrest of the entire nation, should that hinder us from examining whether such a course is constitutionally kosher?

Original emergency provisions and Indira’s misuse

Before it was amended in 1978, Article 352 of the Indian constitution permitted the declaration of an emergency on three grounds – war, external aggression and internal disturbance. For mysterious reasons, the emergency imposed by Indira Gandhi during the Bangladesh War in 1971 had not been rescinded even as on that summer day in June 1975 when the Supreme Court vacation single judge V.R. Krishna Iyer, heard Nani Palkhivala for a whole day in a packed courtroom. It was a challenge by Indira Gandhi to the Allahabad high court verdict setting aside her election and unseating her as prime minister. Justice Iyer did not grant a blanket stay that day. He merely allowed Mrs Gandhi to participate in the house but not vote. The emergency that followed at midnight was invoked on the grounds of “internal disturbance” – one of the three permissible grounds.

The constitution is silent on whether, while an emergency declaration is already in force (with the exception of a separate kind of emergency, namely Financial Emergency under Article 360), another can or is at all required to be promulgated.

Then came the infamous ADM Jabalpur case. As overnight most opposition leaders were arrested, many of them successfully secured habeas corpus release orders from various high courts. These cases landed up before a constitution bench of the Supreme Court. Attorney General Niren De reportedly was not keen to defend the stand of the Indira government that during an emergency even the right to life could be suspended. It is said that oblique hints at revocation of the residency rights of his British wife were also instrumental in ensuring De’s appearance in court. He later claimed that he tried his best to shock the judges into reason, arguing the proposition that during an emergency even if a person were to be killed by the security forces in the presence of the justices, they would remain helpless. Sadly, the majority judges did not bite the bait but timidly concurred. Justice Khanna penned his famous dissent, arguing that the right to life was a natural law right and the remedy of habeas corpus preceded the constitution. Therefore, the right to life and the remedy of moving a habeas corpus petition in court for release against illegal detention could not even be suspended during emergency. But he was the sole voice of reason and the majority opinion prevailed.

Janata’s constitutional purge and the new legal regime

For all the brouhaha made by the court in recent times of burying ADM Jabalpur six feet under, the Janata Party government had done that already in 1978 through the 44th constitutional amendment. Not only did Morarji Desai’s government substitute “internal disturbance” with “armed rebellion” but it also clarified in Article 359 that the right to life (Article 21) and the right against double jeopardy and self incrimination (Article 20) could not be suspended even during an emergency.

Under the constitution, it is during the period of emergency that the niceties of separation of powers between the three wings of government, as well as the division of powers between the Centre and the states are legally permitted to be blurred. The constitution, upon promulgation of emergency, permits the Centre not only to give executive directions to the states but also to the legislature in matters such as public health, law and order and police, which are otherwise state subjects with only a limited role for the Centre.

Even during normal times, Article 256 stipulates that the Centre can give directions on how to implement laws made by parliament. Article 257 states that the executive power of the states should be exercised in a manner that does not “impede or prejudice” the executive power of the Centre. The Centre is also permitted to issue directions to the states towards this end. Article 355 (which the Janata Party perhaps forgot to amend when it purged our constitution of ‘internal disturbances’) enforces a constitutional duty on the Union to protect the states against “external aggression’ as well as “internal disturbances”.

While indisputably the ‘coronavirus pandemic’ would qualify as a situation of ‘internal disturbance’, it certainly cannot be covered by any of the three existing grounds in Article 352 which would permit the Central government to declare an emergency, suspend fundamental rights, including Article 19 which protects the basic freedoms of citizens, and control the executive and legislative functions of the states.

Two centuries, two statutes

Under this constitutional framework, two laws provide the Centre and the states the statutory basis for acting against the Coronavirus. They are the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA). The case of the government perhaps is that these two laws arm it with sufficient powers and there is no necessity to fall back on the “emergency provisions” of the constitution. This warrants a closer examination of these two laws.

The EDA is of 19th century vintage, enacted by a colonial power with a ruthless administrative apparatus uncontrolled by a constitution based on fundamental individual rights. A closer look would indicate that even this law is intended to address a situation when a “state or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease” and the government is of the opinion that “the ordinary provisions of the law for the time being in force are insufficient for the purpose”.

The law indeed gives wide powers to “take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by, the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.”

However, it does not provide that this power can be used in violation of any existing law, much less a constitution which was then not even in existence. Under our constitutional system, a law born before our first Republic Day may be allowed to survive it provided it passes the agni pariksha of the constitution. Till date, neither the EDA nor measures taken under it have been subjected to that test. More importantly, the Central government’s power under this law only seems to be restricted to controlling the movement and detention of vessels at ports.

What does the Disaster Management Act say?

The second legislation, the DMA, is of 21st century vintage and mandates setting up a three-tier Disaster Management Authority at the national, state and district level to formulate a disaster plan for its level.

Section 11(3), DMA, sets out the aspects of such a plan. It is to deal with measures to be taken in mitigation and to address preparedness and capacity. Section 19 mandates the state authority to lay down guidelines for providing standards of relief. Section 22(2)(h) permits the state authority/executive committee to give directions to government departments on actions to be taken in response to any threatening disaster. Sections 24 and 34 empower the state executive committees and the district authority to control or restrict the movement of vehicular traffic or people from or within a vulnerable or affected area, and to take any measures that may be warranted by such a situation. Also directions can be given to government departments on taking such steps and measures “for rescue, evacuation, providing immediate relief saving lives.”

Section 30 replicates this model for the district level. Section 34 empowers the district authority to “control and restrict vehicular traffic”, as well as “recommend such measures as are necessary.” Section 35 permits the Central government to take such measures as (a) coordinate work between the various authorities and government departments (b) deployment of forces and (c) other matters to secure “effective implementation”. Section 36 creates a statutory responsibility on all Central government departments to comply with the directions of the national authority.

The DMA also requires all government departments to formulate their own disaster management plans. Section 47, DMA, empowers the Central government to constitute a National Disaster Mitigation Fund. Section 50 authorises, in times of a threatened disaster, the authorities to permit the administration to procure without adherence to the usual tender procedure. Section 51 sets an imprisonment term of one year (two years in the event of loss of lives) for persons obstructing discharge of functions by any government officer or employee. WhatsApp rumour mongers would be interested to know that Section 54 prescribes a one-year penalty for spreading fake news or false alarm. Section 56 even has a similar penalty for a government servant who refuses to perform his duty. Section 61 is an important provision which prohibits discrimination on grounds of sex, caste, community, descent or religion in the matter of providing compensation or relief to victims. Section 6 empowers the Central government to issue binding directions to authorities and state governments. Lastly, Section 72 gives this law an overriding effect.

Protection of states from ‘Internal Disturbance’

While considering the validity of the Armed Forces (Special Powers) Act,1958 which conferred sweeping powers to the armed forces in disturbed areas, the Supreme Court in Naga People’s Movement of Human Rights v. Union of India held that:

“Reference in this context may be made to Article 355 of the constitution whereunder a duty has been imposed on the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. In view of the said provision, the Union government is under an obligation to take steps to deal with a situation of internal disturbance in a State… The provisions of the Central Act have been enacted to enable the Central government to discharge the obligation imposed on it under Article 355 of the constitution and to prevent the situation arising due to internal disturbance assuming such seriousness as to require invoking the drastic provisions of Article 356 of the constitution.“

The Sarkaria Commission report has stated that under Article 355, the Union can issue a wide array of directions, without having to resort to invoking Article 352 (emergency) or Article 356 (president’s rule). In fact, the report cautions against a hasty imposition of president’s rule by stipulating that the Union can also act under Article 355 i.e. without imposing president’s rule. Article 355 can stand on its own. The report indicated that it should first be ensured that the Union had done all that it could in discharge of its duty under Article 355, that it had issued the necessary directions under Articles 256-257 and that the state had failed to comply with or give effect to the directions.

Orders passed on the Coronavirus

Coinciding with Prime Minister Modi’s May 24 address to the nation which announced a four-hour lead time for bringing the entire nation under ‘lockdown’ for 21 days, the National Disaster Management Authority (NDMA) issued social distancing guidelines on March 24 considering the “coronavirus pandemic” as a “disaster” within the meaning of the DMA. The Union home secretary forwarded these lockdown guidelines to the states and Union Territories by an order of the same date.

The measures include the shutting of all non-essential government establishments, all commercial and private establishments, industries, transport by air, rail and road, hospitality services, educational institutions, places of worship, political gatherings, etc. Certain exceptions for medical staff, journalists, petrol pumps, essential stores, etc have been provided for. The district collectors are to be the “incident commanders” in each district who would also decide on who should be issued exception passes. Downstream, in several states, the competent authorities have issued orders under Section 144 of the Code of Criminal Procedure, 1973, prohibiting more than five people from assembling in public places.

Legality of national “house-arrest”

While four days’ lead time was given for the Janata Curfew, barely four hours’ time was given to the crores of Indians to arrange their lives and livelihoods in an orderly manner. The chaotic aftermath of the national lockdown has been evidenced by heartwrenching scenes at railway stations, inter-state bus terminals, state borders, labour markets etc. where scores of people have been subjected to a period of enforced unemployment while being marooned far away from the sanctuary of their homes.

As per the 2011 Census, India has 41 million migrant workers. Add to that domestic workers, daily wagers and construction workers. Conceded, the prime minister, several chief ministers and government advisories have exhorted employers not to deduct wages for the period of the lockdown. However, without a guaranteed wage or some minimum income or compensation, can the right to life, which includes the right to livelihood of these hapless workers, be snuffed out simply by falling back on Article 256 read with the DMA?

We have seen how after the Janata government’s amendment, even if emergency is formally promulgated, the right to life cannot be taken away. In the present case, the emergency provisions have not even been invoked! If the government can bypass the emergency provisions of the Constitution and initiate such drastic steps, albeit with universal consent, one might well ask whether such provisions – which not only specify the manner in which fundamental rights may be suspended but also set out the constitutional-legislative oversight over such suspension – have been rendered completely meaningless.

While orders under Section 144, CrPC restrict collective assembly, can the NDMA direct a “lockdown” which draws the “lakhsman rekha” at the citizen’s door and compels her into virtual imprisonment for 21 days? Is this not a virtual death sentence to the daily wager, the street vendor, the migrant worker, the small trader? Clause (a) and (e) of Article 39 require the government to take steps to ensure that citizens have a right to adequate means of livelihood, and citizens are not forced by economic necessity to enter avocations unsuited to them. These obligations are among the Directive Principles of State Policy which are considered to be fundamental in the governance of the country. The present lockdown would create conditions that run contrary to these obligations. The choice between COVID-19 and economic death is a hard one. The citizen, for howsoever noble a motive, has been left deprived of even her right to chose. Risking inevitable brickbats, I dare say that these were the very difficult choices that required a balancing act – which, according to the leader of one of our neighbouring countries, weighed on him in deciding against an enforced shut down.

Section 144 CrPC as well the cognate provisions in state police Acts (such as Section 30(3), Delhi Police Act, 1978) usually prohibit assemblies. But the lockdown has taken the ‘Lakhsman Rekha’ to all our doorsteps. Again, returning to the fundamental issue – without a declaration of emergency and, therefore, with the right to movement and the right to livelihood still in operation, is a “lock-down” constitutionally valid?

I am conscious of the counter arguments. When the very right to life of the nation is imperilled, such constitutional arguments are heresy. After all, the Doctrine of Necessity proclaims loud and clear that “Necessity knows no law”. For whatever it is worth, if we are willing to accept that these unforeseen times are compelling us to act beyond the four corners of our basic law, at the very least let us not lose focus on the equally critical mandate of both the EDA as well as DMA – namely relief and rehabilitation of the disaster affected, i.e. the poor and most marginalised.

Also, while wholehearted support to the administration in this hour of national crisis is the duty of every Indian, it is equally important to keep flagging crucial issues – such as, has the Disaster Fund mandated by the DMA been operationalised? Is the process of disbursement of compensation under the EDA under contemplation? I fear by our collective silence, we could well be sowing the seeds of a tragedy of unimaginable proportions, which we will reap for a long time.