December 3, 2021

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Spanish Constitutional Court – constitutionality of the pandemic lockdown and comparing with the Indian perspective

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This article is written by Shruti Yadav, from Jagran Lakecity, Bhopal. This article talks about the constitutional validity of lockdown and pandemic restrictions.

Table of Contents

The Government of Spain announced a state of emergency on 14 March 2020 to curb the first wave of Coronavirus (SARS-CoV-2) infections. At that time, Covid19 rates and mortality in the country were rising, and hospitals quickly became inundated. Since then, more than 81,000 people in Spain have died due to coronavirus. 

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According to Article 116 of the Spanish Constitution, three legal categories for emergencies are state of alarm, state of emergency, and state of siege. They are defined as:

  • An organic law shall regulate the states of alarm, emergency, and siege (martial law) and the complementary competencies and limitations.
  • The government shall declare a state of alarm utilizing a decree decided upon by the Council of Ministers for a maximum period of fifteen days. The Congress of Deputies shall be informed and must meet immediately for this purpose. Without their authorization, the said period may not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply. 
  • A state of emergency shall be declared by the government utilizing a decree decided upon by the Council of Ministers after prior authorization by the Congress of Deputies. The authorization form and declaration of a state of emergency must expressly state the effects thereof, the territorial area to which it is to apply, and its duration, which may not exceed thirty days, subject to extension for a further thirty-day period, with the exact requirements.
  • A state of siege (martial law) shall be declared by an absolute majority of the Congress of Deputies, exclusively at the government’s proposal. Congress shall determine its territorial extension, duration, and terms. 

However, Spain’s government decided to impose a lockdown through a state of emergency. Almost all people in the country were ordered to stay at home and were only permitted to leave for fundamental reasons. All but essential businesses were closed. The laws were in place until June 2020, though some restrictions were reinstated later in the year when the country faced a second wave. 

Spain’s Constitutional Court stated in an assertion that it had voted, by a slender majority of six to five, to affirm that the state of alarm implemented by the Central Government in March 2020 at the outset of the coronavirus pandemic was unconstitutional and the state of emergency was not enough to give the constraints constitutional backing. This is because the commands were equivalent to suppression of fundamental rights, it declared. 

To legally restrain people’s freedoms to the degree they did last year, the court opined, the government would have had to declare a state of an exception rather than a state of emergency. 

In Spain, a state of emergency, also known as a “state of alarm” in Spanish, can be declared by the government and be implemented in the country before it is presented in the parliament. This allows the government to put new rules into force promptly. A state of exception, however, is not directly approved and executed by the government. Instead, the proposal needs to be brought to parliament first, declaring an emergency. The court judgment was in response to a lawsuit filed by the far-right political party Vox. The case was filed on the basis that the Vox party claimed it had proof that the government was willing to break the law and tarnish the constitution.

What is a state of alarm, and what powers does it confer

Under the Spanish Constitution, once a state of alarm has been executed, the government can: 

  • Curb the circulation or presence of people or vehicles at defined times or in determining places, or compel them to comply with specific requirements. 
  • Temporarily requisition all kinds of assets and impose mandatory services. 
  • Temporarily takes over and controls industries, factories, workshops, operations, or commercial premises of any kind, excluding private households, informing the relevant ministry of such actions. 
  • Restrict or ration the use of services or the consumption of essential items. 

Reasons cited by the court and arguments against the state of alarm

The state of alarm allows the central government to eject a region’s devolved authorities. All civil powers, regional and local police forces, and other civil servants are grouped under the orders of the responsible authority as per the decree. The Central Government can order “extraordinary services,” according to the rule. 

The government can execute a state of alarm should there be “serious alterations to normality.” conditions to impose a state of alarm are:

  • Catastrophes, disasters or public misfortunes, such as earthquakes, floods, urban or forest fires and significant accidents. 
  • Health crises, such as epidemics and situations of severe contamination. 
  • Situations of shortages of essential items. 

The judges found that such a lockdown, which saw the people of Spain restricted to their homes apart from the required activities such as buying food, should have been imposed following an emergency and declaring a state of exception under Spanish law. This would have needed the prior approval of the judiciary and Congress. After two judges’ meetings, the Constitutional Court had given the judgment, during which a draft sentence on the state of alarm penned by Magistrate Pedro González Trevijano was discussed. In the draft sentence, the judge debated that the state of alarm imposed by the government last March did not just restrict the fundamental rights of free movement and assembly between private citizens but barred them altogether. 

Ever since the coronavirus pandemic hit Spain, there has been a dispute among constitutional experts on whether the country necessitated a state of emergency. One of the severe damages  a state of emergency would have inflicted would have been the limitations on fundamental rights. Some speculated that the state of alarm gave sufficient legal authority to limit some of these rights. While for others, the lockdown was such an extreme restriction that it was equivalent to the suppression of fundamental rights, thus needing a state of emergency. Another key difference is that a state of alarm is initially agreed on by the government and subsequently debated in Congress, where it is approved or rejected by deputies. This allows the executive to act with a certain level of speed once a decision has been taken to go down this route. i.e. parliamentary control is exercised after the state of alarm has been implemented. In contrast, a state of emergency is not directly agreed upon by the government. The proposal is first taken to Congress, and it is the parliament that declares the emergency. One of the severe drawbacks to a state of emergency would have been the more severe restrictions on fundamental rights that it would have brought with it. 

Legal specialists have denoted that a state of emergency is subjected to less oversight and allows the police to expand the time they can detain people without any judicial surveillance. Police can also enter homes or establishments using coercion when they believe it necessary without prior sanction from the courts. The authorities can also shut down media outlets under a state of emergency, all in the guise of maintaining public order.

Government justification

The coalition government, led by Socialist Party Prime Minister Pedro Sánchez, reacted sharply to the Constitutional Court ruling. 

The government now intends to analyse the ruling. The case that six judges were in favour and five against is, for the government, a reflection of the immense internal contest that this ruling has incited. 

The government maintains that without this tool, they would not have been successful in curbing the virus. It wouldn’t have been likely to maintain the essential measures to stop its spread. It further stated that it is an unprecedented decision provided that all of our neighbouring countries have resorted to similar methods within their corresponding legislations.

Other aspects of the court’s judgement

By voiding the emergency proclamation, the ruling opens the door to the cancellation of fines for breaching lockdown limitations imposed during the period. The Constitutional Court agreed from the start that any invalidation of the lockdown that was in place between March and June last year should not entail any liability for the State. There was consensus that no claims could be filed by any businesses or private citizens who sustained economic losses due to the state of alarm. There was also an agreement that the ruling against the state of alarm would be harmonious with the possibility of reclaiming fines paid by the people who were penalised for breaking the lockdown rules, like going out for a walk or meeting with friends and family. The government imposed these penalties under an order that has now been affirmed to be unconstitutional. 

COVID-19 is a disease caused by the coronavirus, which originated in China. This novel coronavirus was first distinguished in Wuhan, an area in China’s Hubei province. It was first promulgated to the WHO Country Office in China on December 31, 2019. On January 30, 2020, the World Health Organisation declared the COVID-19 outbreak a pandemic and a global health emergency. 

On March 24, 2020, Prime Minister Narendra Modi called for a total lockdown of the whole nation for 21 days to curb the COVID-19 pandemic. In a televised sermon to the country, the PM asserted that even those nations with the ablest medical facilities could not restrain the virus and that social distancing is the only possibility to mitigate it. He said that this arrangement was taken from the expertise of health sector specialists and practices of other countries and that 21 days is imperative to break the chain of infection. 

The government barred all existing visas, except diplomatic, official, UN/international organisations, employment, and project visas. Incoming travellers, including Indian citizens, were urged to elude non-essential travel and were notified that they could be quarantined for a minimum of 14 days on return. Indian citizens were also instructed to avoid all non-essential travel abroad. The Indian government established social distancing as a non-pharmaceutical disease interception and control arbitration implemented to circumvent/decrease contact between those infected with a disease-causing pathogen and those who are not, to hinder or decrease the rate and range of disease transmission in a community. This ultimately led to a reduction in spread, morbidity and mortality caused by the disease. All activities of essential service must keep a gap of one meter between customers. 

India then entered the third phase of its nationwide lockdown in May as the country witnessed a continuous spike in Covid-19 cases.

Finally, on June 8, India started with its unlock, a Phase of reopening after 74 days of lockdown. 

In the scenario of curtailing a pandemic, the clash of fundamental rights arises as a notable obstacle for governments and healthcare management due to decision making concerning the requirement to delimit the extension of the sufficient exercise of freedom rights in times of a pandemic. They also need to recognise the urgent need for fundamental human rights protection and the implications of pandemic measures on limiting people’s rights to liberty of movement, liberty of travel, liberty of work, and reopening schools. One would have expected that when the Government of India, under the Disaster Management Act 2005, announced a countrywide lockdown to halt the spread of COVID-19, they would have felt compelled, under the settled law of Olga Tellis, to compensate those whose livelihood would be stirred by this lockdown. 

However, without notice, choice, or warning, lakhs of people were stripped of their livelihood nearly overnight. Many who earned daily wages were rendered desolate and starving and started walking home to their village. Others anxious about month-end wages joined this long march to salvation. This journey of workers to their villages summoned the State governments to render them food and shelter. However, no conviction of any compensation was given. The Supreme Court, when petitioned, decided to drop the petition with an overbearing statement that “if provided food, what need did people have for a wage?” 

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The COVID-19 lockdown does not obscure personal liberty and the fundamental right to life, the Supreme Court said in the judgment. 

Prominently, these guidelines do not put a literal restriction on the freedom of movement. The movement of citizens is restricted through a network of administrative orders enacted under Section 144 of the Code of Criminal Procedure, 1973, linked with the addendum issued by the Home Ministry and recited with the colonial era Epidemic Diseases Act, 1897. 

It is essential, at this juncture, to perceive that the nature of lockdown differs from jurisdiction to jurisdiction, depending chiefly on the understanding of the government regarding the elements of life in the country. 

For instance, during the lockdown, Italy enables citizens to exercise solely near the house; France permits outdoor exercise, walking within 1 km, and taking the dog out for a walk; the UK concedes any one form of exercise (walking or bicycling). 

The fact whether India should grant such concessions is primarily driven by the civic response and multiple other determinants. 

In a nation with substantial socio-economic diversity, absolute limitations of a pervasive view could provide highly unjust effects upon execution. The whole nation was a spectator to the exhibition of migrant workers being identified as enemies of lockdown. We neglected to see that beneath the display was the involuntary change of a class of citizens into a group of culprits due to the legal provisions of severe nature inflicted indefinitely upon them. 

Restrictions having such massive economic repercussions on the citizens ought to recognise their socio-economic standing. Their social stature regulates their response in the face of confinement. In times like these, even abiding by the law becomes a luxury not everyone can sustain. 

The migrant workers compose yet another class of citizens facing discriminatory outcomes of the lockdown. The principle of proportionality of prohibitive measures is based upon an inherent understanding that one uniform formula does not apply to all situations and upon all the citizens every time. 

Even though a lockdown was the need of the time, and the pandemic is just rationale to restrict fundamental rights of the citizen, the government should have concessions and better rules and regulation of the lockdown for the marginalised communities. It is legal and valid for governments to embrace drastic measures by pondering and weighing constitutional principles to approve stipulations on the exercise of the fundamental right that conflicts with the fundamental rights to health in circumstances of a pandemic, on the level of the Constitution. It is indispensable to protect the rights to life, dignity, and health of all. The prioritization of them in the light of freedom rights separated from solidarity, self-protection, care, and honour of autonomy, values that are essential to societies, must be reflected in health decisions.

To withstand the impact of rights on the level of constitutional beliefs, a law must not have explicitly legislated facts, or the specific rules are imprecise or fragmentary, or if the rules clash with other fundamental principles based on the Constitution. For that reason, these situations need the constitutional principles that address fundamental human rights to complement or define the legal significance of the government intervention to be applied. Pandemic occurrences must require this particular legislation, rules and precedent judgments of courts to determine the legal confirmation of rights restriction criteria for decision-making.

If a nation intends to achieve a position of social justice during a pandemic at the same time. In that case, the government must first shield the most vulnerable. It is vital to protect all people’s rights to health and liberty with solidarity, otherwise health equality will not be possible, mainly in poverty-stricken communities, prisons, and external regions.

Restrictive laws and legislatures must abide by the legal and constitutional policies. The social conditions must be in accordance with the sentiment of the interconnection of fundamental rights. There exists a sort of convenience that health related laws must take precedence over general freedom rights to the extent of a pandemic. 


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