Understanding the role of the Constitutionalism in the Nationwide Lockdown
In any Constitution, there is a never-ending tussle between the changing needs of the society and the written text. But, in the Indian context, the spirit of the Constitution and Constitutional text is used as a method to solve conflicting situations that exist in the present, and at the same time meet future challenges.1 The Indian Constitution embodies global constitutional law. It was criticized in the Constituent Assembly, for bearing little resemblance to Indian ways of thinking about law. However, the Indian nationalist/independence movement was about transcending nationalism, the freedom that eventually came about, was not bound by a particular tradition but about the freedom to choose any tradition and making it your own.2
Constitutionalism as a concept or an idea can be attributed to John Locke’s political theories. Locke is regarded as one of the most influential political philosophers of the modern world. His theory of social contract entails that a State comes into existence as a result of a social contract wherein the people consensually transfer some of their rights to the Government to ensure a stable environment, for enjoyment of their rights, as a people. 3 In simple terms, the idea of constitutionalism requires the limitation of the Government’s power, thorugh procedures established by the law of the land.4
The Preamble, the doctrine of separation of powers, rule of law and most importantly, judicial review, all encompassing, certify that constitutionalism exists in the presence of a modern, democratic, written constitution.
In 2018, constitutional morality was upheld over social norms to ensure that the lives of a certain group of people was not pushed into obscurity by an archaic law that took away their basic right to express themselves, their personal liberty and their choice of their sexual identity.5 Here, with the help of judicial review, Section 377 of the Indian Penal Code, 1850, was struck down because it did not hold up to the Constitutional standards.
Ever since the global pandemic hit India, there have been concerns raised over India’s decision to go for a total lockdown. The Ministry of Home Affairs published the Notification for invoking the lockdown, under Section 6 of the Disaster Management Act, 2005 (hereinafter referred to as “DM Act”). The closest meaning of a ‘lockdown’ can be construed from the Epidemic Diseases Act, 1897, (hereinafter referred to as “ED Act”) Sections 2 and 2A.6
Section 2 of the ED Act, is the “Power to take Special Measures and prescribe regulations as to dangerous epidemic disease” which provides as under:
“(1) When at any time the State Government is satisfied that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may 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.
(2) In particular and without prejudice to the generality of the foregoing provisions, the State Government may take measures and prescribe regulations for—
b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation”
Section 2A deals with powers of the Central Government and states that:
“When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.”
These two provisions give a general sense of what a lockdown can mean and for the most part, reality has closely resembled what has been laid down in these provisions. The Ministry also brought COVID-19 within the ambit of “disaster”, the meaning of which is given in S. 2(d) of the DM Act. By combining provisions of these statutes, various State Governments were allowed to use the ‘State Disaster Response Fund’ under DM Act, to combat the spread of the coronavirus.
Nothing that has occurred in this situation is illegal or wrong, as far as the proper interpretation of the law is concerned; to enact measures and provide reliefs to fight this pandemic.
So, the question that arises is, how does Constitutionalism come into the picture and do politics matter? It matters when the broader picture is looked at, not just in terms of resources but also the Central Government’s involvement in a particular state that has already undergone a lockdown for the past one year. Jammu & Kashmir has been stripped off of 4G connectivity that has made communication and dissemination of information hard to follow through. It is a glaring misunderstanding of what constitutionalism means in a democratic society.
Firstly, politics play a very important role insofar as the Government’s law making powers are concerned. If the Government acts beyond its power or exercises them as per its own whims and fancies, then there is a political problem. But more importantly the legal problem that arises is even greater and graver. Secondly, politics is a tool to achieve personal gains or to blow things out of proportion, whereas a legal argument can be made. Apart from that, politics can also be used to sway opinions and not create solutions. An issue like the J&K lockdown can be tackled on various constitutional principles of access to justice, freedom of speech and others depending on individual cases.
Constitutionalism requires that there must be checks and balances. If the government says that the lockdown is necessary and the curbing of certain rights of the citizens is necessary to ensure order and safety of the State of J&K, then it is a sound legal argument as per Article 19 (2).
The question of constitutionalism also matters if the recent foray into ‘online justice’ is considered. In, ‘In Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic’7, a bench consisting of CJI Bobde and Justices DY Chandrachud and L. Nagaswara Rao issued guidelines to be taken by courts to reduce the physical presence of all litigants by adapting social distancing guidelines. These guidelines invoked under Article 142 of the Constitution, directed District Courts to adopt virtual court hearing through modes prescribed by the respective High Courts and to provide video conferencing facilities for litigants who lack resources. Some of the cases have highlighted that virtual courts can be used in the future where appearing in person may not always be a preferred choice, or the right choice to provide justice. As of now, Courts have emphasized that only ‘urgent’ matters are being heard whereas other matters will also be heard through video conferencing in the coming months.8
It is pertinent to mention that in a State like Jammu and Kashmir, individuals who now have access to internet, but only at 2G speed, will face issues if they want to approach the Court. If the judiciary wants to make e- court services available to all, how does it ensure that in a State like J&K, it is effective or made sure, that the services are functioning properly?
The Government also faces issues of lack of hospitals and also affordable health care. The German Embassy in New Delhi stated, “There is currently little or no chance of admission to hospitals for people with COVID- 19, but also for people with other intensive care needs”.9 Meanwhile, there was or still is the problem of the millions of displaced migrant workers across the country, released from their jobs and with no public transport seemingly put to work, they have to walk miles and miles back to their homes.10 What about their rights?
India is undoubtedly in a unique position right now. Up until now, the government has tried to handle the situation in its own way, but it does not seem to be working seamlessly. Cracks are showing. People are questioning the motives and systems implemented by the Government. It is obvious that the Government does not intend to derail anyone’s life over the coronavirus situation. But as lawyers, judges, and also as students of law, we must question, “You ought to have known better”. Constitutionalism matters because the Government, or more accurately the lawmakers and the executive bodies have a duty to honour the rights of their citizens. It should not be discretionary but legally binding, and only then can individual rights be honoured.11 It is not always possible to succeed, but when the system fails to follow its Constitutionally binding obligations, failure must be acknowledged and remedied.
1 Supra 2, at page 6.
2 Sujit Choudhry, Madhav Khosla & Pratap Bhanu Mehta, ‘Chapter 1 Locating Indian Constitutionalism’, The Oxford Handbook of the Indian Constitution, Page 5.
3 Tuckness, Alex, ‘Locke’s Political Philosophy’, The Stanford Encyclopedia of Philosophy (Spring 2020 Edition), Edward N. Zalta (ed.), <https://plato.stanford.edu/archives/spr2020/entries/locke-political/>.
4 Waluchow, Wil, ‘Constitutionalism’, The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), Edward N. Zalta (ed.),
5 Navtej Singh Johar v. Union of India AIR 2018 SC 4321.
6 Tanay Goyal, ‘COVID-19: The Law of the Lockdown’, JURIST, published on 25th April, 2020, last accessed on 10th July, 2020, available at < https://www.jurist.org/commentary/2020/04/tanay-goyal-india-lockdown/>.
7 Suo Moto Writ Petition (Civil) No. 5/2020.
8 Rajat Mohan, ‘Justice Goes Online: Coronavirus lockdown shows why courts must go digital to resolve issues’, Financial Express, published on June 2nd, 2020, last accessed on July 11th, 2020, availabale at <https://www.financialexpress.com ->
9 Jeffrey Gettleman & Suhasini Raj, ‘8 Hospitals in 15 Hours: A Pregnant Woman’s crisis in the Pandemic’, The New York Times, published on June 21st, 2020, last accessed on July 11th, 2020.
10 Ruchir Sharma, ‘The Rich Love India’s Lockdown: For the poor it’s Another story’, The New York Times, published on May 30th, 2020, last accessed on July 11, 2020, available at <https://www.nytimes.com/>
11 Alon Harel, ‘Why Constitutionalism Matters’.