Legal Articles

A legal analysis of India’s nationwide lockdown in light of the COVID-19 pandemic

The recent COVID-19 pandemic has affected a vast number of jurisdictions around the world. Some jurisdictions have taken no measures, some have taken limited measures, whilst others have opted for a nationwide lockdown.

India is the most recent country to impose a nationwide lockdown. Thus, its 28 states together with its 8 Union territories, with a population amounting to an estimated 1.3 billion, have gone into total lockdown. This nationwide lockdown was announced by Prime Minister Narendra Modi on the 23rd of March 2020. At the time, India only had circa 500 confirmed cases of people infected with COVID-19.

This nationwide lockdown means that all Indian citizens have to stay at home and avoid contact with other Indian citizens with the exception of the other co-habitants living with them in the same residence. All construction work, public transport, markets, shops and places of worship were closed. Prime Minister Modi gave the nation a 4 hour head start before executing the lockdown. Thus, Indian citizens only had 4 hours to go book public transport to go back to their villages and buy food and water to sustain themselves during the 21 day lockdown period. It has been envisaged that citizens would be allowed to go out to buy food and water, however, the police are making this endeavor quite difficult. The police brutality rate has risen dramatically with police officer even having shot a delivery driver in the foot earlier this week.

The decision to go for a nationwide lockdown has been characterized as a highly aggressive action. However the Indian government has said that this type of action is needed if it intends to control the COVID-19 pandemic. In some states, the population density of India is circa 35,000 people per square kilometer, thus there is a higher probability of the virus spreading in these areas.

The enabling law that allows the Prime Minister of India to declare a nationwide lockdown is The Disaster Management Act of 2005. This act “provides for the effective management of disasters and for matters connected therewith or incidental thereto”. The most important article with regards to this lockdown is article 6 of the act, specifically article 6(2)(i).

This act also established the ‘Disaster Management Authority’. As per article 6(2)(i), this authority may;

“take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary;”

Furthermore, for the execution of the aforementioned lockdown, the Disaster Management Act also provides for national executive authority which is to exercise the powers for the issuing of the regulations or guidelines that will be in vigore during the 21 day lockdown period. Moreover, the aforementioned act also contains a provision (Article 38) whereby it binds all the states and territories of the Republic of India to adhere to the published guidelines and to adopt and enforce the measures contained in such guidelines.

“Article 38, State Government to take measures.

(1)Subject to the provisions of this Act, each State Government shall take all measures specified in the guidelines laid down by the National Authority and such further measures as it deems necessary or expedient, for the purpose of disaster management.”

Particular importance has to be given to Articles 38(2)(d), (e) and (h) of the Disaster Management Act. Article 38(2)(d) states that the government may include measures for any of the following matters, namely;

“allocation of funds for measures for prevention of disaster, mitigation, capacity-building and preparedness by the departments of the Government of the state in accordance with the provisions of the State Plan and District Plans;”

This article is a sine qua non in India’s present lockdown situation. The allocation of funds has to be a primary objective in all states across the Indian Republic. Obviously most funds have to be allocated to the health departments so as to enable them to test more citizens. Although India confirmed circa 500 cases of COVID-19 prior to the lockdown, this number may be far from the true number of infected individuals since at the time tests were not being carried out at a high rate. Thus, it is expected that the government would allocate a large portion of funds towards testing Indian citizens.

Article 38(2)(e) concerns the integration of the measures promulgated by the Indian government;

“ensure that the integration of measures for prevention of disaster or mitigation by the departments of the Government of the State in their development plans and projects;”

Obviously, if the 28 states of the Indian republic do not integrate the measures promulgated by the republic, then the probability of the virus spreading would increase dramatically. This article ensures that all states adopt and integrate the measures within their public departments so as to ensure that all 28 states are adopting uniform measures to control the spread of the virus.

Article 38(2)(h) of the Disaster Management Act;

“establishment of adequate warning systems up to the level of vulnerable communities”

Nearly 70% of India’s population lives in rural villages. Thus only circa 30% of the population lives in Urban areas. Warning persons living in urban areas of the measures being taken by the government is not that difficult, since most government departments in india are situated in such urban areas. The difficult task is notifying persons living in the many rural areas of the Indian territory, where some do not even have access to a radio let alone a television to watch the news on.