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Monday, June 1, 2020
Home Law The urgency of Nationwide lockdown and how it differs​ from a curfew: A legal...

The urgency of Nationwide lockdown and how it differs​ from a curfew: A legal study

In simple terms, these three are the degrees of the measure taken by the State to control a particular situation. So, the fundamental difference lies in the degree of severity. The first step is Section 144- despite that, if the situation is not under control Government can announce Lockdown; if Lockdown too can’t control the situation then the state can opt for curfew as a last resort. Curfew is the most severe.

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Aastha Tiwari
BA.LLB, LLM

In the last six years of his tenure, our Prime Minister has addressed the nation six times, out of which two times was about the Wuhan Coronavirus. This shows the urgency of the situation. In his second address to the nation over COVID-19, PM Modi announced complete lockdown across the country for 3 weeks from midnight 24th March 2020 till the 14th April 2020. The importance of this lockdown is that it is a uniform lockdown. Before this, there were partial lockdowns in different states and the State Governments had the discretion to regulate it accordingly. But this time it is across India. Other countries like Italy and Iran have tried partial lockdown and have miserably failed.

There are certain legal points that will be discussed in this article. Questions like, what empowered the central government to take such an extreme step without declaring emergency? or what is the difference between curfew and lockdown? or What is Section 144, CrPC? Or something as trivial as whether only use of vehicles is banned?

To answer the first question, it pertinent to note that until the 24th march, it was the Indian Epidemic Disease Act, 1897 which granted both the State and Central governments to take any temporary measure for controlling and preventing the outbreak of a disease. The Act also states that whoever contravenes any order or regulation made under the Epidemic Disease Act, he/she shall be punished as per section 188 of IPC. The Act also gives the power for inspection, segregation and temporary accommodation of persons suspected by the inspecting officer of being infected with any such disease. 

This Act, however, is quite limited. It does not have provisions to enforce mandatory quarantines or social distancing, to provide for quick release of money, or to take over the government or private buildings to provide relief etc. It gives powers to health officials but very little to the law enforcement agencies, which are now implementing complete lockdown. That is the reason why the Central Government took course of Disaster Management Act, 2005. The penalties given under the Disaster Management Act (DMA) is much stricter than those given under the India Penal Code. It provides powers to the enforcement agencies to whatever it takes to stop the disaster.

The range of DMA is wider than the Epidemic Act in more ways than one-it provides for detention of any person for defying government orders including government officials and directors of the private companies. The jail term prescribed is one year for the first offence and two years for the second. The officials notified as nodal officers (district magistrates in this case) can summon anyone to perform duties for disaster mitigation and relief. A department head could be held responsible for any dereliction of duty by the personnel reporting to him etc.

Section 144, CrPC, Curfew and Lockdown

In simple terms, these three are the degrees of the measure taken by the State to control a particular situation. So, the fundamental difference lies in the degree of severity. The first step is Section 144- despite that if situation is not under control Government can announce Lockdown; if Lockdown too can’t control the situation then state can opt for curfew as a last resort. Curfew is the most severe. 

Where Section 144 empowers Executive Magistrate (District Magistrate or SDM)to pass an order (prohibitory order) in public interest, Lockdown or Curfew can only be passed by the District magistrate. Secondly, even though the nature of all three provisions might be different, their grounds are the same, i.e. danger to human life, riot, Affray, Public tranquility. So, if there is riot or anything that apprehends danger to public health, then any of the above measures can be taken. Thirdly, it is to be noted that where Section 144 prohibits only unlawful assembly(five or more than five people coming together) or arms(sale or purchase of arms), Lockdown may prohibit some more things along with ‘prohibiting unlawful assembly’ and ‘arms’. Like, it can shut down flights, trains and all sorts of public transport. Both u/s 144 and lockdown, essential services remain open- though it depends upon the discretion of each state to decide what all to include in the list of ‘essential services. The scope of essential services is further restricted in Curfew. What might be allowed in a lockdown might not be allowed under a Curfew- like banks, petrol pumps might be opened in a lockdown but suspended in a curfew situation. Where the objective of lockdown is to restrict the movement, the object of curfew is to confine people in their homes. During curfew, if someone wants to come out of his/her residence, he/she has to take prior permission of the police. It is however to be noted that whether it is S.144 or Lockdown or Curfew, government has the authority to ban the internet services.

In the light of the present situation, there are certain provisions under Indian Penal code that are very important to be discussed. Section 188punishes those who disobeys the order of public servant with an imprisonment up to 1 month or fine of 200 rupees or both, and if such disobedience causes danger to human life, health or safety the imprisonment may extent to 6 months or fine up to 1000 rupees or both. The offence is cognizable, that means police can arrest without warrant. This is the same provision the reference of which is given under Indian Epidemic Act.

Section 269punishes those who negligently or unlawfully do any act that they know would spread the infection of any disease dangerous to life. It has punishment that extends to 6 months or fine or both. Section 270is a graver form of S.269 and it punishes those who malignantly do something that would spread infection; here criminal intent is to be seen. The imprisonment may extend up to 2years or fine or both.Section 271is particularly relevant as it talks about quarantine situation. It states that whoever knowingly disobeys any rule made by the Government for putting people in a state of quarantine, anyone who disobeys the order shall be punishable with the imprisonment for 6 months or fine or both.

Therefore, it is important to stay at home, avoid panic. The world is not coming to an end, it is slowing down for a while though. There are a number of services that will stay open, like Hospitals, nursing homes, police, fire stations, ATMs, shops dealing with food, groceries, fruits, vegetable, dairy, meat, fish, animal fodder etc. Banks, insurance offices, print and electronic media, E-commerce delivery of essential goods like food, pharmaceuticals and medical equipment, Petrol pumps, LPG and gas retail outlets, Capital and debt markets notified by SEBI, Cold storage and warehouse, Telecom, internet, broadcast and cable services will be available. Everything that is necessary for day to day activity will be provided. However, all transport services (air, rail and roadways) are suspended, industries that not involved in essential commodities, all hospitality services (hotels etc) shall be suspended except those accommodating stranded tourists and persons stranded due to lockdown.

All places of worship, social, political, sports, entertainment, cultural gatherings are barred; all educational, training and research institutions will be closed. The purpose is to avoid crowd gathering as much as possible. And since the enemy here is an invisible one, the situation in many aspects is graver than a war. Social distancing is the only option left. So, walking, driving, riding-everything that helps you move from one point to another is prohibited. The restriction is on your movement and not your vehicle. Therefore, instead of cribbing about the situation, let’s make it an opportunity to transform ourselves into a better generation.

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Aastha Tiwari
BA.LLB, LLM

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