Analysis: Plea for military deployment to enforce lockdown

Reading time: 8-10 minutes.

An appeal or a request made in an urgent or high- priority matter is referred to as a plea. And the movement of armed forces as well as their logistical support infrastructure around the world is called military deployment

To battle against the corona virus outbreak and ensure proper, bona fide implementation of the countrywide lockdown, a writ petition was filed in the Supreme Court of India under Article 32 of the Indian Constitution for the issuance of a writ in the nature of Article 21, looking for a direction to guide the authorities or the people in-charge to deploy armed forces around the nation so that the current unruly situation comes to be in control of the authorities. So as to come up with a strategy to safeguard the fundamental rights of the citizens, the plea had sought a direction to the authorities for putting down guidelines. It also mentioned about the barbaric attack on the health care workers and police officials by mobs in some states while the discharge of their respective duties in the course of the lockdown.

As per the petitioner K.R. Shenoy, the deployment of military forces for the common benefit of the citizens of the nation should be done at the earliest with the sole purpose of combating the spread of corona virus, for the proper implementation and maintenance of the nationwide lockdown. It has also asserted that that the Central Bureau of Investigation (CBI) or the National Investigation Agency (NIA) should be governed to inquest into events linked to gathering of people in various parts of the nation during the lockdown.

Nevertheless, despite the steps taken by various state administrations for controlling the spread of the contagion, the professionals working in the health sector and police officials were still getting harshly attacked, giving rise to numerous problems in managing the novel corona virus as claimed by the petition. It was also a notable factor that the people who are quarantined or under treatment are continuously attempting to escape from the quarantine centers and hospitals, which is recurrently increasing the possibility of the spread of the virus, therefore calling for more security measures to be adopted and increased at these places. The issue of the gathering of people in some states, where the cases of COVID- 19 have increased swiftly, on the pretext or ploy of desiring to go back to their native places has also been raised. (The Hindustan Times)

Arguments in the plea

In the case, Kalmakar Ratnakar Shenoy v. Union of India & Others,

The petition was filed by Advocate-on-Record Omprakash Parihar and Advocate Dushyant Tiwari on behalf of Kamlakar R. Shenoy, states that the Central and State authorities have failed to secure the life of the people from corona virus by allowing mass mobilization. The plea concluded with the statement that the incidents of violations should be investigated by the competent authorities NIA/CBI and mere registration of FIR under IPC would not be sufficient and tough steps needs to be taken. (LiveLaw)

The Secretary of the Department of Health and Family Welfare was Respondent No. 1 and Secretary of Ministry of Home Affairs was Respondent No. 2, both of them governed under the Government of India, Secretary of National Disaster Management Authority was Respondent No. 3 and Respondent No. 4 to 12 were the Home Ministries of various states of India.

  • The petitioner expressively claimed that the intent behind the petition was totally bona fide and aimed for public interest at large without the collusion of any kind of personal interest or individual gain where there was infringement of Article 21 of the Constitution of India, Section 144 of the Code of the Criminal Procedure, 1973 and Section 188 and 271 of the IPC, 1860 by the respondents.
  • The PIL was filed under Article 32 of the Constitution of India in the nature of public interest litigation. The inaction of the respondents had been questioned in failing to stop crowd gatherings due to negligence which led to the spread of corona virus all over the nation being antithesis to the Article 21 of the Constitution of India, provisions of the Code of the Criminal Procedure, 1973 and IPC, 1860. The petitioner prayed the court to issue a writ of mandamus or other appropriate writ order or direction that may be deemed to be just and equitable according to the facts and in the interest of justice.
  • Being a citizen of India, an adult inhabitant and socially concerned person, the petitioner’s took lead before the authorities with attentiveness to safeguard the interest of public at large and solving public importance related issues as despite of the measures taken against the attackers, health sector and social workers were still unsafe.
  • To the knowledge of the petitioner, no other persons, body, institutions were to be affected other than the Government of States and Government of India by the orders sought in the petition as they had been prosecuted as Respondents. As per the past incidences of religious meetings if proper armed forces would not be deployed then further upcoming festivals will have the same impact.
  • To put a stop to the spread of corona virus, the cause of action for the writ petition had come to light out of the Respondents inaction to stop gathering of more than 5 people and the attack by the mob to the police officials and health sector people. Therefore, by the deployment of Military and Special Forces in each state of India there would be proper implementation of lockdown and the cause behind the gathering of people without the fear of deadly virus would be found out.
  • The petitioner’s only way to approach the Hon’ble Court was by the petition. There was no other petition filed by the petitioner seeking the same and it was totally bona fide aiming at national interest without any civil, criminal or revenue litigation associated with the petitioner that has any legal relations with the issue involved in the petition.

Reasoning behind the decision

The Supreme Court dismissed the writ petition accordingly which sought for deployment of military forces in each state for purpose of proper implementation of the corona virus induced national lockdown. The Court observed that the issue was prerogative of the Executive. A bench comprising Justice Ashok Bhushan, SK Kaul and BR Gaval was not inclined to hear the issue and entertain the petition under Article 32 of the Constitution of India and directed the petitioner to withdraw the petition, stating that the government may decide where military is required to be deployed.

The petitioner was not directly involved in the case but brought it to the notice of the court to secure public interest at large in the nation. Here, in the petition the question is pertaining to the fundamental rights in proceedings against Article 32. Shedding light on the Court’s observation it seems that the issue raised by the petitioner is although for public interest but is antithesis to the executive. The Executive is responsible for putting decisions or laws into effect wherever required therefore, the decision of letting the government decide for military deployment is just and reasonable. It is quite obvious that the health sector workers and the police officials are working day and night at the stake of their own life to safeguard the country and assuring the best for them is the government’s responsibility. Also, the armed forces are deployed where they are most needed, at the borders. So, it is not be inaccurate to say that the government is concerned about the nation’s security eminently.

Critical analysis

The Petitioner sought the Court to deploy military forces to combat the issue of public gatherings whereas did not make the Ministry of Defense a party to the petition. The deployment of armed forced for regular administration of law and order in a condition wherein US and China have already deployed their drones and submarines and are ready for a war post the pandemic, we already have threats from Pakistan and China for an attack. The regular law and justice administration are covered under the list II of 7th schedule of the Constitution of India which if related to the current scenario of lockdown includes of public order (but does not include the military forces), the police, the local government, public health and sanitation, hospitals and dispensaries. All of these are on their duty to look after the situation’s requirements.

If the deployment of military forces is necessary then the purpose of having paramilitary forces in the country seems inessential. Neither India is facing any internal emergency under Article 352 of the Constitution of India, nor any kind of communal riot or situation such as Mumbai attack on our heads. India isn’t undergoing a revolution against the government. Though, the petition does not refer to Markaz in Nizamuddin (Tablighi incident) but implies that indirectly. So, again if a religious sect performed a religious duty which even if taken into consideration was against the government orders, the State Police and the concerned crime branch is already investigating that and arresting offenders.

Departments like IB (Intelligence Bureau of India) internal intelligence agency and RAW (Research and Analysis Wing of India) external intelligence agency are monitoring the issue with assistance from multi agency centre against counter terrorism. Furthermore, Special Forces like CBI and NIA to probe into the issue of public gatherings is needless because the concerned authorities are already looking into it. Rightly, the Supreme Court dismissed the petition. The cost of ensuring justice cannot be ever realized through the National Security of the country.

Conclusion

The Central Armed Police Forces commonly referred to as Paramilitary forces play a crucial role in the internal security of the nation. They assist the State and Union Territories in police operations to maintain law and order managed by Ministry of Home Affairs. They act as our first line of defense against security threats to India and hence their coordination, functioning and communication are of great importance for which the government should provide them with essential requirements and platforms. The Police Officers are a part of law enforcement to promote public safety and sustain the rule of law to prosper the liberty of individual.

In conclusion, the police officials and paramilitary forces are sufficient enough to handle the crowd of India. Although there have been incidents where the situations went out of control but this does not make them any less competent as the situation for the country is under a lot of stress. During the lockdown, the other side of the India’s police could be seen where they were extremely helpful towards the migrants in providing them with proper care in various states. The police officials are literally on ground anytime to enforce the prohibitory order. Therefore, at the present time the relief sought by the petitioner is uncalled for. 

Author: Shivani Srivastava from ICFAI University, Dehradun.

Editor: Dhawal Srivastava from Rajiv Gandhi National University of Law, Patiala.

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