Coronavirus lockdown set for extension, but lack of clarity about its legal definition needs redressal
We are living in difficult times, with a life-threatening coronavirus bringing life to a standstill in a number of nations across the world. Some of the said nations, including India, have employed what is termed as a 'lockdown' to contain the spread of the virus
Legally, can you notify the undefined? Can an offender violate an undefined offence? The answer would be in the negative.
We are living in difficult times, with a life-threatening virus bringing life to a standstill in a number of nations across the world. Some of the said nations, including India, have employed what is termed as a 'lockdown' to contain the spread of the virus.
But the question that remains unanswered is: Under Indian law, what precisely is a 'lockdown'? As things stand, the term 'lockdown' is not defined under Indian law.
On 22 March, pursuant to a decision by the Central and state governments, various state governments and Union Territories in India issued orders wherein they used the phrase 'notify a lockdown' in specified territorial jurisdictions in order to combat the threat of COVID-19. The said orders did not define a 'lockdown', nor did any state government regulations issued earlier in March to combat the coronavirus.
A few days later, a nationwide 'lockdown' was declared. Further, it was directed that the said lockdown be treated like a 'curfew' [another term not defined in law]. Following the declaration, guidelines were issued by the Ministry of Home Affairs on 25 March, with addenda issued later. While the guidelines did (in Clause 7) mention the term 'lockdown', it was still not defined.
The order on migrant workers dated 29 March, issued by the home ministry, also used the phrase 'lockdown measures' without defining the term.
Over the past few days, there have been references to 'lockdown violators'. Section 188 of the Indian Penal Code, 1860, for instance, makes the disobedience of an order promulgated by a public servant an offence.
The question that arises is, till we know what a 'lockdown' [as notified by orders of state governments in India and referred to in orders of the Central government] amounts to under the law, how does one determine who has violated it?
The dictionary definition — and popular understanding — of the term 'lockdown' includes two interpretations: (i) the confinement of prisoners to their cells for all or most of the day as a temporary security measure; or (ii) an emergency measure or condition in which people are temporarily prevented from entering or leaving a restricted area or building (such as a school) during a threat of danger. Thankfully, it is not the first interpretation which is the cause for concern at present.
With respect to the current situation, we are concerned with the second interpretation, that of restricted movement of people. From various orders/guidelines issued by the Government of India, the lay person has been given to understand that a lockdown means s/he cannot leave a place of residence other than to perform an essential service or to obtain essential goods or services. Yet, can law be left to individual interpretation, given that law in India is codified?
For example, following the COVID-19 pandemic, South Africa amended regulations issued under the Disaster Management Act, 2002 on 25 March, to include a chapter that defined a lockdown to mean "restrictions of movement of persons during the period for which this regulation is in force and effect namely from 23H59 on Thursday March 2020, until 23H59 on Thursday 16 April 2020, and during which time the movement of persons is restricted." The term 'movement' was also defined in the Amendment.
Orders have been issued in India under Section 144 of the Code of Criminal Procedure, 1973 to restrict movement/assembly of people. However, the code nowhere uses or defines the term 'lockdown', and neither does the Epidemic Diseases Act, 1897 or the Disaster Management Act, 2005, or any rules/regulations issued under them.
Courts in India have also not interpreted the term 'lockdown' with reference to restrictions on movement of persons.
This is at variance with the orders issued by the state governments that 'notified a lockdown', a phrase that has since been used regularly, and even referred to in the home ministry guidelines and its order of 29 March.
This lack of definition of a phrase which is being utilised as a crucial tool to combat a pandemic, is a lacuna that ought to be addressed, given that the 'lockdown' is on the verge of being extended and/or may be notified again in the future.
The author is an advocate
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