The ongoing Novel Coronavirus Pandemic creates several issues in global as well as some specific in India. For India most of the issues are the suffering of the vulnerable sections such as migrant laborers, domestic workers and improper accountability of the government. At a Global level there is a rat race to create a vaccine and patent it, responsibility of China to other states in International Law. In general and specific too the way the law treats such as on-going contracts between various micro, small, medium and large firms or industries.
Here are some compilation of cases which were headed by the Supreme Court during lockdown:
SARFESI Act, 2002 has been amended for deferring payment of taxes. It is Securitization, Asset Reconstruction and Enforcement and Security Interests which allows banks and other financial institutions to act on residential properties of defaulted to recover loans.
On Indians from abroad coming home under Vande Bharat mission and On migrant labour returning to their home during the lockdown which was unethical in terms of equity. Why a person who has left their country for sole purpose of earning was given more importance than the domestic worker mainly of the primary sector which is the backbone of our country?
On releasing prisoners from the jail in the wake of a pandemic judgment given by CJI Sharad Bobde that prisoner those who are charged for 6-7 years can be released on parole for a few weeks to avoid congestion in the prison.
There were various detainees and for them the detainee centres were made. Also, testing cost for Covid 19 was formulated. Till now more than 10 crores tests were done as on 30th October, 2020.
Extension for validity of license of Motor Vehicles till November, 2020 on closure of RTO office.
Under the proposed amendment of Disaster Management Act, 2005 National Executive Committee (NEC) was responsible for drafting Unlock Guidelines.
Other Cases like Factory Act, 1948 which allows Factory workers to legally work 12-hours shifts during Pandemic but there is another thing that this move is not mandated by International Labour Organization (ILO) norms, Industrial Employment (standing orders) Act, 1946 includes model standing order during Pandemic and The Shops and Establishment Act allowed the shopkeepers to open their shops on certain conditions.
There were many ordinances not laws which were made this year as parliament was not in session such as the 2020 Ordinance for the protection of healthcare personnel combatting epidemic diseases. It expands the power of the Central government to prevent the spread of such diseases. Prescribes new and enhances the quantum of punishment or fine. The Epidemic Diseases Act, 1897 was also amended. It was enacted in 1897 to grapple with the bubonic plague in the Presidency of Bombay. Through this amended act special powers for the government of India were given to check the public places like the passengers of trains and sea routes. As per the Ordinance of 2020, only three Legislations: 1- Building and Other Construction Workers Act, 1996. 2- Workmen Compensation Act, 1923 and 3- Bonded Labour System (Abolition) Act, 1976 which is related to right of the employee to receive timely wages have been made applicable on existing and new industries and factories for a period of next three years.
One of the most important and famous clauses during this Pandemic was Force majeure which includes Doctrine of Frustration. Force majeure is in the context of contracts is the clause that essentially frees both parties from liabilities and obligations when an extraordinary circumstance arises which is beyond the control of parties such as epidemic, war, strike etc. There is a similarity between Force majeure and Vis major. The latter means a superior force. It refers to a series of circumstances that cannot be avoided even when the utmost human care is taken. So, here Epidemic/Pandemic is the Act of God which means in which events are not affected by human cause. It is natural.
Analysis of Employment issues in India during Pandemic is a vital issue. The priority here is to properly implement the labour laws. There are three labour laws, Industrial Employment (standing orders) Act, 1946, Industrial Disputes Act, 1947 and the Trade Union Act, 1926 that tries to regulate employer employee relationship in organized sector. But as we know during the Pandemic there are plights of work specially for the unorganized sector and their poor implementation. Migrant workers are still suffering, dying. One question came to my mind after writing this: Why are there more sufferings for poor people or the middle class? Why is the person who produces Food grain in our country is mostly deprived of the basic necessity? Why is the backbone of our economy suffering and facing mental trauma each moment in their life? This is kind of rhetoric and really unfortunate.
Technology and Privacy which is a crucial part of our day to day life. Actually, In this Pandemic we are dependent on work from home, be it of any field either law, science, commerce. As written in my introduction, Law has been very slow to take up technology. Many reasons for that. One reason which I find most inspiring and eye opener is of the Faculty Director of Harvard Law School Centre on the Legal Profession, a very dynamic law expert, great person. Words are less to define him, My inspiration to decide to study LLM after my Law graduation whom I was honored to meet at HLS Centre on the Legal Profession Conference two years ago in New Delhi. So, coming to the sub theme.
Professor David B. Wilkins Sir finds a reason for that law has been very slow to take up technology. He said: “Law is a discipline in some ways that looks forward by looking backward”. He further says “Law is the only different discipline in which you can’t say anything new unless you prove what someone else already said is false and he opined that this is good in a way because the law does not just change because everything else has changed”
According to my opinion; Technology relation with Law is slow in India. In this Pandemic Technology has much adopted law in day to day life like video conferencing of judgment, online seminars and lectures. But coming to the general issue regarding the law with technology in India. Technology is controlled and modified by human beings and their way of using it totally depends on us. Problem is of Coordination of technology in the right way. Second reason, Technology depends on the temper of Human Beings. It is much more different than the traditional and physical way of learning. Third reason, illiteracy in terms of technology in general public. Also, need for the Cyber and IT experts, not for investigation or resolving the problem but teaching how to resolve it. It is a big matter and needs to be put forward and also new laws like cyber law.
India’s response to Covid 19 as written previously about the section of Law which plays a vital part in our practical life. It is limited to the writing that is our Constitution and various relief acts in this Covid era. I remember one important phrase which I created by myself: “It is not the Law which is wrong but the operator is” One more phrase which is said by Dr. B.R. Ambedkar said that However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good. This notion really inspires me and strives to read and understand our Constitution more. And more than that implement it at the ground level.
An executive aggrandizement is the big concept about the failure of our fragile democracy. In the wake of Pandemic, the common right of the individual was taken away like freedom. I’ll talk more about this in the conclusion part. India’s late and inefficient response had troubled the common people a most. Most people were not able to access the vegetable markets and groceries initially during the lockdown. This shows the unpreparedness of the government. Also, the basic awareness about the Health is not structured in such a way to have preconceived notions about the upcoming loss. Further, more about the expansion of the sector and their implementation. I personally think that various autonomous groups must be organized and trained for this purpose or add more to the existing departments. Secondly, one of the most important and unfortunate parts is that: Investment in the Healthcare sector is highly neglected in India. According to the Organization for Economic Cooperation and development (OECD-India) only 3.6 percent of Gross Domestic Product (GDP) is invested in the healthcare sector. It is highly disappointing data. I hope that if this percentage was high (same in the case of Education) then the current situation would be totally different. Covid 19 is the evidence in terms of the lack of healthcare facilities in this extraordinary situation. As written in Introduction before this Current Pandemic five times the declaration of PHEIC has been done then also India has been not concerned about the healthcare facility and infrastructure. This Covid era gives a strong message to realize our mistakes and improve it. But why not done before? Invested before?
Before Pandemic there was Citizenship Amendment Act (CAA) Protest and during Pandemic there is fight and protest for daily needs. Either it be Man-made or Natural, the most deprived person is the middle and bottom section of our society. Be it of any crisis Political, Economic, Psychological or Social. The tragedy before CAA Protest and after the current situation has been immediate, real and epic.
Question is raised whether Right to Privacy as delineated in K.S. Puttaswamy judgement of the Honorable Supreme Court has been violated during Pandemic. But Right to Privacy is not absolute. Right to personal liberty and live with dignity is a part of the provision as in Article 21 of the Indian Constitution. If this right is violated then any other Fundamental Right free exercise becomes redundant and hollow. For example: Tamil Nadu state affixed a home-quarantined stamp on the outside door those who have recently travelled to any location which is highly threatened for the Virus. Some states have also published the information of the infected people on the Internet.
Coming to the exaggerated use of section 144 CRPC. This order is passed by Magistrate to prevent danger to human life or destruction, affray. This order is justified during Lockdown to prevent people from gathering. In the normal circumstance this is passed during Rallies or assemblies and prevents more gathering of five persons or more. But during Lockdown there are many video records where police are misusing their powers over common people who are even out for any legitimate reason. This is very unusual for those who even not intended or acted to violate any law.
Conclusion to this topic is not easy as the topic is broad and endless. But also a few points which I find to be concluded in the specified manner. Effect on the Fundamental Rights of the Citizens (Part III) has not been legitimate. Section 2(1) and 2(A) of the Epidemic diseases Act, 1897 provides regulations which are deemed to be necessary during epidemics and measures to inspect any ship, vessel, train etc. Reasonable restrictions have not been proportional to rights during pandemic and tests of evaluation have been bizarre. Fundamental Rights is classified in two specific rights that are vertical and horizontal. Vertical Rights include Article 14, 15,16,19,21 etc. and Horizontal Rights include 17, 23 and 24. Vertical deals with individual interaction with state and horizontal deals with individual interaction with their peers. Some rights of the former have been violated and the latter has been followed. I am concluding this right now in these two broad categories of rights because it is a basic structure and any Emergency Provisions either is National, State and Financial included in Part XVIII has not been invoked. This ensures that the conditions of the Emergency do not apply here during Lockdown and further most important part Fundamental Rights are not suspended in the current scenario. As written before about the excess of the 144 CRPC which is not justiciable. During Lockdown the most important Fundamental Right is of Article 21 which is Right to Life. But things need to be understood that in order to maintain this right other rights cannot be curtailed; Right to Equality mostly I will call Equity in this condition, Right to freedom of speech and expression, trade etc. Because it is also equally important, a simple answer is: It is also Fundamental that’s why included in six Fundamental Rights. Evaluation of reasonable apprehension is must for which here in this extraordinary situation has been taken granted or neglected.
Author: Pragyanshu Gautam, Hidayatullah National Law University, Naya Raipur, Chattisgarh