For almost a month now, the Central and State Governments have issued extraordinary orders to battle COVID-19: travel has been banned, national and state borders have been sealed, businesses have been closed down.

The Centre has invoked the Disaster Management Act, 2005 to enforce the nation-wide lockdown. Police departments across India are enforcing lockdown and social distancing measures. Some have argued that it has resorted to the ‘routine, excessive and zealous use of a colonial weapon of crowd control’ – lathi charges. Also, police personnel are reported to have meted out absurd punishments that include sit-ups. This Economic Times article lists what punishment one might attract for violating lockdowns.

Punjab Police making the violators of the lockdown do sit-ups. | Screenshot from a video tweeted by Gurpreet Singh Dhillon.

Do these measures constitute a reasonable restriction on liberty? How did the Constitution framers view personal liberty vis a vis state control?

The framers drafted Article 21 of the Constitution of India, 1950 to guarantee every person the right to personal liberty (and life). The Constitution Assembly members did not view this as an absolute right – they certainly wanted to subject personal liberty to limitations. However, they disagreed on which state organ could impose restrictions. Ultimately, they primarily rested the power to limit liberty with the legislature – Article 21 may only be restricted via procedure established by law.

Members such as KM Munshi and Das Bhargava had attempted to subject laws passed by Parliament that curtailed liberty to wider judicial review. They belonged to a group of members who wanted to replace the phrase ‘procedure established by law’ with ‘due process of law’. 'Procedure established by law'  would require the courts to test restrictions purely on procedural grounds. Whereas 'due process of law' would allow the courts to employ a wider review and test the restrictions on substantive standards of fundamental rights. 

KM Munshi had observed that ‘the majority in a legislature is more anxious to establish social control than to serve individual liberty’. Therefore, these members wanted to assign the Court a larger role, to ensure the legislature didn’t tip the balance in favour of state control.

ZH Lari shared a similar view but took it a step further. Lari argued that regulating personal liberty should be entirely out of the ambit of the legislature and executive. Instead, he said that the Supreme Court must balance the needs of personal liberty with those of the State. He emphasised that in performing this balancing, the Supreme Court must ensure the ‘individual liberty of a man’.

Alladi Krishnaswamy Ayyar was not convinced by Lari’s argument of entrusting the courts with the role of restricting personal liberty. Citing examples from the American Supreme Court, he argued that under Lari’s framework, the contours of personal liberty would be shaped by the individual biases of judges, rather than objective standards. He held that the outcomes of cases would be shaped by judges’ political predispositions.

Ultimately, the Constituent Assembly sided with Ayyar’s position. While many members shared Munshi and Lari’s distrust towards the legislature, they did not want to leave the responsibility of deciding restrictions on personal liberty to the subjective and case-by-case analysis of the courts. Hence, they concluded that Parliament should decide how to limit personal liberty.

If the Constituent Assembly members had the opportunity to live through the COVID-19 crisis, would they have reached a different conclusion?

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