Explainer: As India shuts down, what is the difference between lockdown and curfew?

With the rapid spread of the coronavirus across India, governments across India have put in place significant civil restrictions.

Officials are using the word “lockdown” to describe the situation, though this isn’t a legal term. All non-essential travel has been prohibited, business has been restricted except for those that provide essential goods and services, factories and offices have been shut, staff in government offices have been reduced to a minimum and prohibitory orders have been invoked to stop crowding and ensure social distancing.

However, confusion still prevails about some of the terms being employed. For example, in its statement on Monday, the Delhi Police said that people providing essential services in the private sector have to procure a “curfew pass” if they need to travel. This is also necessary for people travelling from Delhi to the districts around it, such as Gurugram and Noida.

In some places, the police are enforcing the ban violently. Social media was filled with videos of the police in some states using lathis against people who have ventured into the streets. On Monday night, for instance, a journalist in Hyderabad was beaten up. These actions have created fear.

Though the term “curfew pass” was used, the governments have not declared a “curfew” as understood in the usual sense. This article will explain the legal basis of the “lockdown” orders and what people can and cannot do when these measures are in place.

Lockdown

Let us first deal with the term “lockdown”.

Experts across the globe have asserted that restricting movements and social distancing are the key to slowing the transmission of the disease Therefore, several governments have put in place restrictions that will create the circumstances necessary to ensure social distancing.

In India, the restrictions on movement and services have been enforced by state government, after advisories from the Centre. These restrictions derive their legal basis from the Epidemic Diseases Act, 1897.

When an epidemic rages, state governments under Section 2 of the Act have “power to take special measures and prescribe regulations as to dangerous epidemic disease”. The law was enacted because the provision in general laws like the Indian Penal Code were not sufficient to tackle the spread of dangerous infection This section gives state governments sweeping discretionary powers to mould restrictions as per the need.

Under a lockdown, people are required to stay indoors except if they are accessing essential services and commodities such as visiting the hospital or buying groceries. The notification issued by Tamil Nadu on Monday said: “People are required to stay at home and come out only for accessing basic and essential services and strictly follow social distancing norms detailed in this order and maintain a distance of 1 meter or 3 feet norms.”

However, in order to ensure that there is no crowding, the states have also invoked prohibitory orders under Section 144 of the Code of Criminal Procedure.

Curfew

Under Section 144, an executive magistrate can issue any order restricting any individual or group of individuals from committing certain acts. The order has to be set in writing with clear reasons. Usually, prohibitory orders state that people cannot gather in a group of more than five.

How is this different from a curfew?

According to former Madras High Court judge K Chandru, curfew is imposed by the administration using inherent executive powers vested in the state government. That is, a state government has the power to issue executive orders under any subject it is competent to make laws. In the case of curfew, this would be public order. “Curfew is much more than an usual prohibitory order,” Chandru said.

However, lawyers aren’t certain from where these executive powers flow. Delhi-based lawyer Abhik Chimni cited a 2009 Delhi High Court judgement which referred to curfew being imposed by the police commissioner using Section 144. “You can look at total curfew as an escalation of usual prohibitory orders under Section 144,” he said.

Usually under curfew, people are forced to stay indoors and no one can venture out even individually. Prior notice will be issued whenever the curfew is relaxed for people to access essential goods.

Thus, the term curfew used in some media reports for the “lockdown” orders in the context of Covid-19 is misleading. What the state governments have done is that they have used a combination of the Epidemic Diseases Act and Section 144 of the Criminal Procedure Code to impose restrictions.

On March 22, the country witnessed a “janata curfew”, by which people to stay indoors voluntarily. But when the administration imposes official curfew, this is no longer voluntary. Depending on the situation, the police could also be empowered to shoot violators.

States have not enforced such a curfew for fighting Covid-19, simply because this will affect essential services and supplies, which at the moment is not restricted.

This is a list of restrictions imposed on some states:

• Maharashtra: The state has shut its borders and has imposed intense restrictions on travel within. Groups of five or more persons have been prohibited from gathering. Prohibitory orders under Section 144 have been imposed across state. All commercial establishments, except those providing essential goods and services, have been asked to shut. Government offices will run on skeletal staff only for essential services. 
• Tamil Nadu: Prohibitory orders under Section 144 to come into force from 6 pm on Tuesday to March 31. State borders are shutAll non-essential travel within restricted. Private establishments, except those providing essential services, closed. Government offices, except essential services, will not function. 
• Delhi: Section 144 in place in the entire city. City borders are shut. All non-essential travel is prohibited. All non-essential services and establishments, both private and public, have been closed. 
• Kerala: Section 144 orders is in place in five districts of Kasaragod, Kozhikode, Wayanad, Malappuram and Ernakulam. Restrictions under the Epidemic Diseases Act across state include ban on non-essential travel and services. The borders are shut.  

Dos and Don’ts

So what can you do and not do when there is a lockdown in place?

Given that Section 144 orders are in place, gathering as a group of more than five could attract penal provisions. For example, Section 188 of the code punishes disobedience to order that is duly promulgated by the lawful authority.

Further, if people endanger the health of others, other provisions of the law could be invoked. Section 269 punishes those negligently spread infection and Section 270 will be invoked if people malignantly fail to act during an epidemic.

Going out alone to buy essential commodities or access essential services will not attract these provisions. People can freely walk to the grocery store nearby to buy milk or eggs. This is allowed.

But in case the state government decides curfew is warranted in an area, a special order will be promulgated expressly stating that people cannot venture out.

Of course, given the spread of the virus, it is imperative that government directives on the restrictions are followed and people stay indoors as much as they could.