• Tudor Gheorghe Ion


Authored by: Sahil Shrivastav (Associate Editor,Legit)

Shankarrao Chavan Law College, Pune.


With the outburst of a worldwide pandemic, the world saw what it had never witnessed in the last many decades. The effect of pandemic reached India in late February of 2020 and thereby India has till now not been able to make any exemplary progress.

The pandemic has proven to be a test for all the instrumentalities of the State and has thereby tested their capabilities to tackle a pan India issue. Covid-19 brought in cognizance of everyone many extraordinary provisions of law of the land and powers of the State. Besides, the pandemic mandated the Central Government and the State Governments to embark upon their journey of Co-operative Federalism.

With all this, it also created a void in the space of learning, it became important to study the legitimacy of every action and every decision, before deciding who's right and who's wrong on the grounds of morality and visible ethics the curtains of law have to be unveiled to understand what was happening on the stage and what caused it to happen?

"Law is a means of Social Control" is what we have studied while defining Law as a discipline. Through this paper, the author has made an effort to understand the very same means of social control and also to check the validity of these measures in the eyes of Law and the Constitution.


As per the recent timeline issued by the World Health Organisation, the pandemic got their attention for the first time in December 2019. “WHO’s Country Office in the People’s Republic of China picked up a media statement by the Wuhan Municipal Health Commission from their website on cases of ‘viral pneumonia’ in Wuhan, People’s Republic of China.”(WHO.2020) and with this, the birth of Coronavirus took place in the world. While many allege China of being in process of some conspiracy of creating a Bio-weapon, it remains an unanswered question. Nevertheless, this was not the worst thing the world had witnessed, and it was yet to come.

Within 3 months, and as per the assessment of WHO, on 11th March 2020 the disease was declared as a ‘pandemic’; "Deeply concerned both by the alarming levels of spread and severity and by the alarming levels of inaction, WHO assessed that COVID-19 could be characterized as a pandemic.”(WHO.2020). And this was the stage where the world realized that it has a war in front of it to fight and has not been given much time by its enemy to prepare for it.

Along with all other nations, India also was a part of this war and had a very important role to play, being the second largest country with regards to the population, India had to give a very tough fight to the pandemic. The bigger irony was that India had never prepared itself for a war with an invisible enemy, with lakhs of crores being invested in the Defence sector, India was left with only limited resources to fight with the pandemic.

The pressure of limited resources resulted in a series of decisions in India, which neither India nor its citizens had ever seen in the past for a long time. While all this was happening, it became very important to study the situation as and how it was to ensure that the country not ever again found itself in such a dilemma where it had to choose between the less painful means of someone's death (New18, 2020). And therefore it was obvious to analyze the basis of every decision and check the validity of it with due consideration to the legal aspect of it and the Constitutional adherence ignoring the subjective morality and ethics.

Before analyzing the decision, it is very important to know what we mean by Constitutionality and Legality and how it affects the decision-maker and decision-bearer both.

A. Constitutionality - Constitutionality refers to the characteristic of being inline or in conformity with the Constitution.

B. Legality - Legality refers to the characteristic of being inline or in conformity with the law.


With the outburst of Covid-19, the whole world was clueless about the direction to go and the path to take. India was no different and had to take various decisions vicariously to prevent the spread of the virus. Some of the most important and unprecedented decisions have been discussed below.

A. National Lockdown

a. The Decision - To contain the widespread of Coronavirus, the Prime Minister of the Nation declared National Lockdown on 24-03-2020. This was the first time that the whole nation was brought to a pause, all the activities except the essential services were shut down, every individual was ordered to stay at home. This step not only displayed the will of the Executive to make firm decisions but also brought into use a decade-old National Disaster Management Act (NDMA, 2005) to mitigate the loss to humanity.

Before the imposition of national lockdown, most of the states had already declared Covid-19 as an epidemic to bring it under the purview of the Epidemic Diseases Act(TEDA, 1897) & implement its provisions to ensure containment of the virus. The National Disaster Management Authority, chaired by the honourable Prime Minister of India, assessed the situation and issued an order directing the National Executive to take preventive measures to ensure the safety of its citizens.

Under provisions of Sec.6 (2)(i) of the Disaster Management Act (NDMA, 2005), the Ministry of Home Affairs issued an order dated 24-03-2020 (MHA.2020) enlisting the guidelines to be followed by the Departments/ Ministries of Government of India, Union territories and the State Governments. With the furtherance of time and demand of the situation, the lockdown was extended and the Central Government acquired a fair amount of control over the situation.

With all of this happening, a set of questions also arouse as the lockdown was extended created doubts about the legitimacy of decisions; whether the step was taken by the Government of India was legally right? Was the quasi-federal structure replaced by a Unitary structure making the states bound by decisions of Centre? Was the National Lockdown constitutional? To answer the questions, it is important to understand some basic concepts of rule-making and the supremacy of law.

The seventh schedule to the Constitution of India enumerates items on which, either the Centre or the States, severally or jointly are empowered to make laws. As per the provisions of Article 246(Constitution, 1950), the Centre is empowered to make laws in regards to the items enumerated in the Union List; the State is empowered to make laws in regards to the enumerated in the State List; and when the item lies in the Concurrent list both the state and the Centre can make laws in regards to the enumerated items. In addition to that, article 254 of the Constitution states that, whenever a law or provision of a law is inconsistent or repugnant to the provision of law enacted by parliament or any earlier law enacted by parliament, then in such case law made by Parliament shall prevail. Giving effect to this provision the National Disaster Management Act overrides the effect of any other law which is inconsistent with the said law in time of a Disaster. Therefore, even though the states are equally empowered to make laws in regards to the entry 29 of the Concurrent List(Constitution, 1950), the law made by the Parliament prevails.

Hence after understanding the above-stated provisions of the Constitution it can be said that the Quasi-federal structure of Indian Polity has a strong Centre which empowers it to take extra-territorial decisions and bind the states by them.

b. The Effect

National Lockdown was not only challenged based on administrative validity but also on the grounds of being ultra vires to the Constitutional provisions. With the imposition of National Lockdown, the inter and intrastate movement was prohibited, the citizens were confined to the walls of their houses and were not allowed to carry out any other activity. The fundamental rights were never repudiated in such a manner in the history of this nation except in the gloomy days of emergency.

How did the instrumentalities of the state manage to take such a decision and not land into a Judicial review of the decision?

Lockdown restricted the movement of individuals from a town to another & from a state to another, this violated Article 19 (1) (d) of the Constitution by forcing citizens to maintain the status quo. However, the provision of Article 19 (5)(Constitution, 1950) provided immunity to the decision-makers as the decision was taken to safeguard the interest of the general public, and hence the restriction on the movement of the citizens was reasonable.

Furthermore, articles 19 and 21 of the Constitution are not absolute and can only be enjoyed when one performs their fundamental duties. As per the Fundamental Duties listed under Article 51A, every citizen must uphold and protect the sovereignty, unity, and integrity of the nation (Constitution, 1950). Hence, if someone breached the guidelines of the National lockdown, they would deprive themselves of performing their Fundamental duty in addition to becoming an obstruction in the performance of a public servant’s duty.

Therefore, the decision to bring the whole nation under a lockdown did not only exhibit the will of the state but also upheld the Constitutional provisions.

B. The Decongestion of Prisons

Imprisonment is one of the many deterrent punishments for a criminal and is awarded as a punishment for the majority of crimes in India. With an average increase of approximately 16,000 prisoners per year, the overcrowded prisons have always been in discussion. From the past many years the Human Rights activists and the eminent legal personalities have been demanding an increase in the number of barracks or an increase in the size of prison; however, the nation was not able to address the issue within a reasonable amount of time. As per the Prison Statistics of India issued by the National Crime Records Bureau the total number of inmates in the year 2018 was 4,66,084 which is 117.6% of the actual capacity.

The congestion in the prison bought the attention of many jurists, human rights activists, and legal personalities with another issue of Covid-19 spreading throughout the country and the prisons as well. With the first few cases reported in the Uttar Pradesh Prison, the Supreme Court of India took suo moto cognizance of the issue and issued an order directing states to form High Powered Committee and take a decision in regards to who shall be freed? and how? (WritPetition.2020).

To safeguard the health of the inmates, many states released prisoners and thereby created space in the jail. In the state of Maharashtra, the High Powered Committee headed by retired High Court Judge recommended releasing nearly 50% of the prisoners which included the majority of them who were under trial.

In the order issued by the Supreme Court it stated, “Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.” And thereby based on Article 21 of the Constitution, the states were directed to make arrangements and release prisoners as a part of it's a proactive and preventive measure. It is therefore very important to study the nexus of power granted to the Supreme Court to protect the Fundamental Rights envisaged under the Law of the Land.

“No Person shall be deprived of his life or personal liberty except according to the procedure established by law”(Constitution, 1950). To interpret Article 21, the rule of reasonable construction ‘Ut Res Magis Valeat QuamPareat’ has been used and according to the rule, it is important to give sensible and reasonable meaning to the sentence with due regard to the subject matter of the law. Therefore, the word person in the article embodies the prisoners as well, with the rationale that even though a person has been imprisoned he still exists as a human being. And thereby can avail of the benefits of the said provision.

The Prisons Act, 1894, and the positions were taken by the Supreme Court in cases like Sheela Barse vs. State of Maharashtra(AIR.1983); Pramod Kumar Saxena vs. Union of India and Others (SCC.2002) made it mandatory for the State Government and the Central Governments to ensure the safety of every prisoner by taking reasonable measures and liberty to perform the Constitutional and Statutory Rights.

Despite the Constitutional Validity of the said decision, it should be also taken into consideration that by releasing the prisoners or the accused the state has transferred the responsibility to the society to ensure safety. After the release of the prisoners during the pandemic, there have been many instances where the released prisoners have committed crimes and were again taken in custody by the police. (HindustanTimes, 2020) Hence, the decision given by both the Judiciary and Executive seems arbitrary to the provisions of Article 38 clause 1 (Constitution, 1950) where the state bears the onus to secure the social order for the promotion of welfare. The question here is, whether the state will be able to maintain social order with numerous criminals or accused released? Or is there a need to upgrade the fundamentals of the Prison system in India?


It has been four months since the first lockdown was imposed and since then the efforts for containment of the virus have been countless. Looking beyond the boundaries of India it is very evident that a single mistake or lethargic behavior of the society and the administration can land us into unforgettable situations. Many countries who are badly hit by the virus have relied largely on lockdown as an effective tool to fight the virus, India is one of them. China, who was alleged for outspread of the virus, had strictly observed the guidelines of lockdown and hence attained normalcy within 5 months.

No one can deny the fact the population per square meter in India is huge and hence it becomes difficult to maintain desirable distance, however, it is not something unachievable.


With the passing time, the patience of everyone is being tested. Though many have observed the guidelines by the Government, it is impossible for those who rely on daily wages for their survival. The decisions taken by the Government not only display their concern for the citizens but also have at their foundation the intricate provisions of the law.

While analyzing a decision’s constitutionality and its legality it is very important to take into consideration the spirit of the decision and the spirit of law jointly.

As per the rule of reasonable construction of the interpretation of statutes, it becomes necessary to have regard to the subject matter of the statute and the object which is intended to achieve. As we are aware that the Constitution of India aims at public welfare and justice. Therefore, when the law says that the fundamental rights of its citizens shall not be breached and repudiated in any case, it still provides for an exception of reasonable restriction. This means that whenever a restriction is imposed onthe observance of Fundamental rights it has to be reasoned properly, any absurd reasoning can manifest the decision as unconstitutional.

In case of the decisions induced by the outspread of Covid-19, the object was safeguarding the interest of the general public and ensuring their safety. These objects collate with the object of the Constitution and are also justified by the same. Also, in the case of Haridas v. Usha Rani Banik (AIR.2007), the supreme court reiterated that “In Article 19 the expression "reasonable restrictions" is used which is almost at par with the American phraseology "inherent tendency" or "reasonable tendency" citing the case of Bridges v California (LawEd.1911) heard by the Supreme Court of America.

Even though the decision possesses constitutional and legal validity, the question which shall be asked is why did the State take such intricate decisions? The answer lies in the present infrastructure of the country which makes it difficult to fight such situations. If the medical infrastructure was strong, there would not have been any need to be in lockdown for so long. Also, if the issue of overcrowding of prison would have been addressed in time by the authorities responsible there would have been no need to release prisoners, who in turn may disturb the social order. Hence, all we need to do is to ask appropriate questions at the appropriate time and be persuasive about the answer.


Ø AIR.1983. Sheela Barse v. State of Maharashtra. AIR 1983 SC 378.

Ø AIR.2007. Haridas v. Usha Rani Banik. AIR 2007 SC 2688.

Ø Constitution. 1950. The Constitution of India. 1950.

Ø HindustanTimes. 2020. Hindustan Times. [Online] June 11, 2020. [Cited: July 16, 2020.] https://www.hindustantimes.com/india-news/prisoners-freed-to-decongest-tihar-return-to-crime/story-KuyfNbrmi9f9J2wx9eW75N.html.

Ø LawEd.1911. Bridges v. California. (1911) 86 Law Ed. 192.

Ø MHA.2020. Order No. 40-3/2020-DM-I(A).

Ø NDMA. 2005. National Disaster Management Act. 2005.

Ø —. 2005. National Disaster Management Act. Sec. 6(2) (i). 2005.

Ø New18. 2020. New18 India. [Online] May 20, 2020. [Cited: July 16, 2020.] https://www.news18.com/news/india/mapping-accidents-that-killed-over-100-migrant-workers-on-their-way-to-home-during-nationwide-lockdown-2627947.html.

Ø SCC.2002. Pramod Kumar Saxena vs. Union of India and Others. (2002) 2 SCC 210.

Ø TEDA. 1897. The Epidemic Diseases Act . 1897.

Ø WHO.2020.Timeline of WHO’s response to COVID-19.

Ø WritPetition.2020. Suo Moto Writ Petition. WRIT PETITION (C) NO. 1/2020.

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