The Legal Process Behind The 21-Day National Lockdown Order

India has taken the extreme measure of enforcing a 21-day lockdown as the number of people infected with the novel coronavirus crossed 600.

Prime Minister Narendra Modi announced the lockdown in his address to the nation at 8 p.m. yesterday. In around 30 minutes after his speech ended, an order was issued, making it the first time a nation was shut under the provisions of the Disaster Management Act, 2005. This is also the first time a central government has issued directions of this magnitude to the states.

The Disaster Management Act provides for a National Disaster Management Authority and section 6 of the legislation deals with powers of the authority—from which the authority has issued these directions to the state and central governments.

Section 6(2)(i) of the Act authorises the NDMA, headed by the prime minister, to take 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”.

The Act also provisions for a national executive authority, which exercises powers to issue guidelines that will be in effect during the lockdown.

The other alternative available to the central government could have been the imposition of emergency which would have given the country a unitary structure, allowing it to override the directions of the states, said Senior Advocate KTS Tulsi. “And this should have been the constitutional provision exercised by the central government.”

• Article 352 of the Indian Constitution allows the President to declare emergency when he is satisfied that the security of India on any part of its territory is threatened by war, external aggression or armed rebellion.
• Article 356 allows for declaration of a state emergency for a specific state when the President is satisfied that the government of a state cannot be carried on in accordance with the provisions of the Constitution.
• Article 360 of the Indian Constitution provides for declaration of a financial emergency when the President is satisfied that “the financial stability or credit of India or of any part of the territory thereof is threatened”.

“There’s complete coordination and cooperation by the states on this issue. So that’s not a problem. The fact that declaration of an emergency would have meant the reconvening of the Parliament may have been the reason why the central government may have decided to derive its powers from the Disaster Management Act.” Tulsi said.

The Disaster Management Act also casts a duty on the states to follow the directions of the NDMA as mandated under Section 38 of the Disaster Management Act.

The declaration of an emergency would have been counterproductive, according to Senior Advocate Siddartha Luthra. It would have meant that all powers would have vested with the Centre whereas this is a situation where the state government’s response is critical, he said.

“Health is under state. Policing is under state governments. It’s only when the state governments aren’t cooperating or a state government has been ineffective, that’s when an emergency should be declared,” Luthra told BloombergQuint over the phone. “An emergency needn’t be declared for the whole country.”