Act of god and Contractual obligation: COVID angle

Reading time: 8-10 minutes.

In an agreement, when two parties gather together to perform certain duties for each other; the agreement becomes a binding contract. The contract gives rise to certain legal responsibilities which the parties need to fulfil, such responsibilities of the parties is a contractual obligation on their part.

When one party fails to perform his part of the contract, the contract is breached. Damages are awarded to the non-breaching party in such a case to make the suffering party stand in the same position as he would have been if the contract was performed. Under each contract, parties exchange goods, services etc. Such conduct of the parties is governed by the terms of the contract and defines how the contractual obligations are to be carried out by the parties.

• Examples of Contractual Obligation-

Contractual obligations vary from contract to contract. In the case of non-performance, it ordinarily is a breach and allows damages to the other party. Some of the basic contractual obligations are-

Quality of goods- If the parties have agreed upon a certain quality of the good or service, then the party must grant the same quality product. In case, the party supplies a lower quality product rather than the one receiving party consented to; the contractual obligation is not fulfilled and the contract is breached.

Payment- Supply of goods and services by one party creates an obligation for the other party to pay for them. If the receiving party denies payment or is unable to pay due to some reason it results in a breach.

Delivery- The seller of the goods and services is supposed to deliver the products. There might be certain terms specifying the method, date of delivery; all such terms are to be complied with to avoid a breach.

The parties can specify and agree to their individual needs in terms of the contract. They also need to follow some general rules and principles. The parties have the power to decide among themselves what will happen in case of a breach, amount of damages etc.

• Remedies for Breach of Contractual Obligation-

When duties are not performed in a contract, it results in a breach. Some remedies are allowed to the suffering party in such cases. The general remedies are-

• Sue for specific performance- The aggrieved party can ask the party to perform the contract after it has been breached if they want to avoid going to court or for any other reason.
• Sue for Damages- The non-breaching party can go to the court and sue the other party for damages. The damages are awarded to get the party back into his original position before the breach. There are no punitive measures. The damages are awarded in proportion to the loss suffered by the party.
• Request release from the contract- If a party has been deceived to enter into the contract, the court may allow the party to not perform the contract.
• Unjust Enrichment- In case the court feels that one party has unjustly benefited from the conduct of another party, it may allow recovering the expenses.

Can Contractual Obligation be transferred to the third party?

Contract delegation is possible. In some cases, when the party transfers the performance to some third party, it is termed as contract delegation. But if the task is of such nature where special skills are required, it cannot be delegated. E.g. If A has agreed to make a portfolio of X and X agreed to pay Rs.20,000 then A cannot delegate the work to someone else as it requires specific skills for which X is paying the money.

What is act of god?

‘Vis major’ a maxim meaning act of god. An act of God is a natural calamity like an earthquake, tsunami, heavy rain etc. over which there is no human control. In certain cases, it can be predicted with the help of science and technology but cannot be avoided. It is an exception to contractual liability under contracts or Insurance laws. In America, tort law may also get affected by acts of God.

In the law of contract, Act of God may imply impracticability or impossibility; where it is no more possible for the parties to fulfil the duty or the performance would require a long time, un-reasonable expenses etc, i.e. The goods to be transferred are no longer in existence. In such cases, the parties are discharged from the contract. Section 32 and 56 of the Indian Contract Act,1872 deals with such cases in India.

Under Insurance law, most cases are protected but the policies are drawn in such a way that they do not cover acts of God. Events like earthquakes, hurricane etc are such incidents where companies deny payment.

In Nichols vs. Marshland, A heavy rainfall occurred such as never witnessed in human history and made the water flow out of artificial lakes at the defendant’s place, ruining four bridges of the Plaintiff. The court held that the heavy rainfall was an act of god and the defendant cannot be held liable.

Examples- a.) Contract law- A agreed to sell his house to B for Rs. 1 lakh, an earthquake occurred and the house was destroyed before it could be transferred. The agreement is impossible to perform and the parties are discharged from the contract.

b.) Insurance law- If a house is set on fire and gets destroyed, it is not an act of god it could have been prevented by someone’s handling or poor construction. A fire caused by lightning strikes or flames taken over by air is considered an act of god.

c.) Tort Law- If an accident is caused due to an earthquake which is an act of god, the driver may escape liability.

Act of god with respect to contractual obligation

‘Force majeure’ is the maxim which covers the act of god. It refers to all the unforeseen acts which are not under the control of human power. Earthquakes, hurricanes, volcanos are covered under force majeure. It also includes acts caused by human acts like strikes, wars etc. When two parties explicitly mention in the contract what will constitute an act of god for the contract, then the parties can escape the obligation arising out of the agreement. Thus, the act of god acts as an exception to liability when the contract is breached by either party due to impossibility arising out of such an event.

To take the excuse of force majeure, the party must show a relation between the event and the inability to perform the duty. It depends upon the contract, whether the party is completely freed from performing the duty or a delay is allowed. Laws on the act of god concerning contractual obligation differ from country to country.

Is COVID-19 act of god in legal terms?

The term act of God is not defined under any statute but appears within Contracts. An act of God may bring up a situation where it is practically impossible for the parties to perform the contract, in such situations they are allowed to escape liability. The pandemic, Covid-19 has got people to think if it is an act of god?

To answer this question, it is essential to know what constitutes an act of God. Three important points need to be taken into consideration-

a.) If the act is a natural calamity or if there is human intervention. If in case humans are involved, it cannot be called natural.

 b.) If the act was unforeseen.

c.) If it could have been foreseen, was it impossible to stop the happening of such an event?

While applying all these aspects to a contract, it is necessary to see if the delay or impossibility is due to act of God or some other reason.

Under the Indian contract Act,1872; section 32 and 56 deals with such instances. Section 32 of the act deals with contingent contracts (based on the happening of a future event) if such a future event becomes impossible then the contract is rendered void. While section 56 relates to the frustration of a contract, it lays down that a contract becomes void if it becomes impossible to perform, because of such an event which was not under the control of parties.

COVID-19 can be called an act of god in legal terms, as it satisfies the necessities of being an act of god. It was neither expected nor prevented. It is no justice to make any party liable when the situation is not under the control of either party. The pandemic has frustrated many contracts due to reason of impossibility arising out of the restrictions put up by the government to protect the spread. When it is a defence for liability in some cases, it cannot be used as an umbrella for all of them. Those, who are covered must prove to the court that the contract is frustrated.

India’s finance ministry has declared COVID-19 an act of god, parties can take it as a defence in case of breach of contract, but not in all the cases. The situation of lockdown has emerged as a result of the pandemic; some might argue that the breach is due to the human act of lockdown, but the knock-on effect cannot be denied.

Critical analysis

The coronavirus pandemic has hit the entire world and given a pause to all the economic and day-to-day activities, while the businesses are at pause; contractual obligations remain un-attended resulting in the breach of contracts. While the act of god acts as an exception to contractual liability, not all events are covered under it. In legal terms, COVID-19 is an act of God, but at the same time human act of lockdown is affecting the contract, which looks like a paradox but the nexus between them cannot be completely severed. The parties while approaching the court must be clear as to the reason for the breach.  i.e. whether the contract was breached due to lockdown or some other factors.

India and several other countries consider lockdown as an act of god. But how far would this apply to the contracts depends upon the nature of the contracts. i.e. If it is impossible to perform the duties or some delay is there. Various courts across the world deal with this exception in different ways, what might happen in one case may not happen in another. Due to non-compliance with the contract terms, the parties will take recourse to this exception to avoid the liability. Force majeure clause agreed by the parties under the contract will play an important role in such agreements. In other cases, where such a clause is absent the relevant laws in the country will apply, like in India section 56 of the Indian contract Act,1872 deals with the frustration of contracts in such cases, likewise, country laws would affect the contracts taking this exception.

Conclusion

COVID-19 is an act of god in legal terms and many countries across the world have acknowledged it. As far as a breach of contracts is concerned, the human act of lockdown has resulted in non-fulfilment of duties. While the act of god acts as an exception to contractual liability, parties across the world would need to prove breach due to coronavirus to avoid liability. The mention of force majeure clause in the contract is a good starting point, the effect of the pandemic on the direct obligation of parties will have to be proven by the party alleging breach due to act of God.

Author: Vaishali Jeswani from Hidayatullah National Law University, Raipur.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

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Open court system in India

Reading time: 8-10 minutes.

The Supreme Court delivered its new-age judgment on the 3rd of May welcoming change in it’s a far stagnant and rigid system of procuring justice. The SC has stated that the new-age virtual courts are not against the principle of the open court system of India. This statement has come under the light in the current Covid-19 Pandemic where the administration of justice was saved from crumbling with the help of modern-day technology.

The SC elaborated, in its 39 paged statement that the traditional open court system and the virtual courts are not in opposition in principle from each other they complement well, are symbiotic to each other and can deliver qualitative justice when taking in consideration, the current situation the world is facing.

The esteemed court has faced some criticism over the new virtual system. However, they believe that this technology has helped in the administration of justice to not fail even during these testing times. The system is being utilized to hear matters of urgent importance. This can be seen through its performance of 22 days (until May 1st, 2020) where it assembled 116 benches with 73 benches for review petition. Besides the hearing of 297 matters that were connected, 538 matters were heard.  

The court also cited references of various other countries where this system has started, also stating India to be ahead of its time considering the output. This includes developed countries like the USA, France, and the UK. The apex court also stated that this system could help in saving time, money and energy and the presence of litigants and counsels. 

The open court system in India

The open court system was first brought upon by The Judicial Plan of 1877 formulated by Warren Hastings in his tenure as the Governor of Bengal.

This was the first initiative when the law was put on solid grounds for the public at large to know what the procedure of the court was. The Miscellaneous provisions of the aforementioned plan enunciated that to promote pure and impartial justice, all cases were to be heard in open court.

The abovementioned provisions were reiterated to find a stronghold in our Constitution of India, in the features of Judiciary – an organ of the Constitution of India.

The Judiciary in India acts as the guardian protector of the Constitution and the fundamental rights of the people. It is bestowed with the features of conducting open trials – freedom given to the courts in India. Such trials could be attended by any rational person. The concept of open courts is practiced to bring transparency in the administration of justice. The parties, being physically present are aware of the developments in the proceedings and it is also beneficial to inculcate discipline and caution in the minds of all those involved in administering justice.

Thus the open court systems are normal court proceedings conducted where every person is allowed to watch the proceedings in the court.

Sometimes, there are instances where it is not practical to accommodate persons other than the party to proceedings, for instance, proceedings in matrimonial matters or proceedings in cases about rape or sexual assault. Such proceedings are known as In-camera proceedings which are held in a closed room where the public will not have access to watch the proceedings. The In-camera proceedings are imperative in criminal cases like Rape, where it is necessary to protect the identity and modesty of the victim.

Apart from the aforementioned case, all the proceedings can be conducted in the open courts to provide access to justice as enunciated in the Constitution of India.

Its salient features

The open court system is an important organ in dispensing access of justice to all irrespective of caste, creed, sex, or economic background. The open court is encompassed with features which are:

Accessibility to all: The open court trials are accessible to all from the general public to journalists to litigants not associated with the said case to observe the proceedings carried out in the court of law.

Transparency: It thereby provides transparency in the administration of Justice, and also proves to be a good measure to invoke discipline and caution in the minds of all those involved in administering Justice.

Public confidence in the administration of justice: The trials held in open courts are subject to open scrutiny, thus every affirmative measure is taken by the court of law in dispensing justice. It creates confidence in the public and reaffirms the belief in the Judiciary.

Why is it needed?

The justice administration system is made for the people and every citizen has the right to access it. Law is ultimately made for the good of the public. In India, due to the open court system, any person is allowed to witness the proceedings of a case. This openness in the judiciary helps in ensuring many things.

To begin with, it helps in ensuring Fairness in trials. It is a fact that when the public keeps a check on the duties of a public servant, there are lower chances of bias. When courts are open, the judiciary has to function under constant surveillance of the people, including the media. This keeps a check on the powers of the judges and magistrates.

This, in turn, helps in keeping the confidence of the public in the law of the land. When people have open access to courts, and they can witness fair trials taking place, they start to develop trust in the law and the system. If people trust the system, their management is easier for the authorities, because they are well aware that if any issue persists, the law of their land will solve and take care of it.

Finally, this helps in promoting and developing democratic ideals in the people. If the people trust the system, they will promote a society that is free and will choose a leader that is suitable for their country. This leader will, in turn, promote the democratic ideal among his people and will further the welfare ideology.

Legal basis

The concept of the open court system, where the trials are held in open – with attendance of the public at large has its legal backing in varied provisions of the Constitution of India.

The open court system is a part of the Judiciary, which has a mention in Article 51 of the Constitution of India providing that the judiciary is free from the executive and the legislature as it is required to be independent.

The matter in the aforementioned Article is reiterated in Article 13 (1)(2) of the Constitution of India making judiciary the responsible organ by providing the power of judicial review thereby checking the executive and the legislative branch from going beyond the limits of the Constitution.

Thus the independence of the Judiciary also provides the power to dispense justice through open courts.

Article 19(1)(a) of the Constitution of India, which provides for the right to freedom of speech and expression included the rights of journalists to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists.

Article 19(1)(d)of the Constitution of India provides a right to attend the proceedings in court.

Article 21 of the Constitution of India provides the right to Access Justice. The strength of the said article could be elaborated by mentioning the judgment of Justice A.M Khanvilkar in case of two petitions filed in two PILs filed by Senior Advocate Indira Jaising and Swapnil Tripathi, which is as follows,

“Indeed, the right of access to justice flowing from Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts and in particular, opportunity to witness live proceedings in respect of matters having an impact on the public at large or section of people. This would educate them about the issues which come up for consideration before the Court on a real-time basis.”

Article 145 (1) of the Constitution of India provides as follows:

“Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court..”

Another paragraph of the aforementioned decision 1 could be quoted, which mentions Article 145 of the Constitution of India, which is as follows :

“Indisputably, open trials and access to the public during the hearing of cases before the Court is an accepted proposition. As regards the pronouncement of judgments by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open court. Indeed, no such express provision is found in the Constitution regarding “open court hearing” before the Supreme Court, but that can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Section 153-B of the Code of Civil Procedure, 1908 (C.P.C.).

Section 327 of the Code of Criminal Procedure, 1973 (Cr.P.C.) provides that ‘The place in which any Criminal Court is held to inquire into or try any offence shall be deemed to be open.’

Section 153-B of the Code of Civil Procedure, 1908 (C.P.C.)provides that,

‘The place in which any Civil Court is held to try any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them :

Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally or any particular person, shall not have access to, or be or remain in, the room or building used by Court.’

Hence the abovementioned Articles, Decisions and Provisions in the court of law provide legal backing and status to the Open court system in India.

Critical analysis

The open court system is a manner through which the socialist values of India have been reflected in the administration of justice. The openness of the administration in the public has resulted in a more open manner of keeping the Judiciary under check. This system has worked well in India. It has also played a strong role in propagating the values of democracy in the justice system. However, in recent times, due to the worldwide ongoing pandemic, the delivery of justice had become difficult. How is the judiciary to function if a crowd of people can not remain in the same room? What about the rules of social distancing? The solution for the same was the same as most of the problems in the present-day- technology.

The judicial system came up with virtual courts. In this system, the judge, the parties and the counsel could argue their case through a video call. This could be the most righteous solution to this present-day situation. Justice would not get more delayed in the current lagging system. However, people raised questions against this.

An issue was formed about this new system where people believed that the cases where heard against the idea of open courts in India. The court negated this mindset. They believed that in the present situations, this was the best option. The court also stated many other countries have adopted this system. This system has earned better results in India. The court also stated that virtual court along with the regular court, after lockdown would make the system more dynamic.

The statement should be examined more closely as it is one of impact. With the number of structural issues, the judicial system faces, the idea of bringing in technology to reduce the load is an excellent idea. If such a system is infused with the current structure of the judiciary, a long amount of structural backlog of courts shall be reduced, and justice could be served, to some extent, faster.

Conclusion

Open court systems are an indispensable part of the Indian Judiciary. It allows the general public to access the court and witness the trial of any party. This helps in a more transparent functioning of the system. The biggest benefit of this system is the knowledge it provides. When the general public has the availability of going and seeing the court functioning, it increases their knowledge as well as creates a deterrent for society.

With the current situation going on in the society, it is very difficult for courts to function more openly; therefore, for the hearing of important cases, the court has started the process of virtual courts. This process has received some criticism; however, the Supreme Court has stated that in the present scenario, this is the most viable option and that serving justice is of supreme importance. Hence, with the entrance of virtual reality in the courts, India might be able to establish a newer manner of serving justice.

Authors: Vidhi S Shrivastav from University of Mumbai and Maitreyi Shishir from Symbiosis Law School, Hyderabad.

Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.

Law regarding inter-state borders

Reading time: 8-10 minutes.

In the wake of the COVID-19 pandemic, the Prime Minister ordered a nation-wide lockdown to protect the people and to facilitate ‘social distancing’. COVID-19 is a special strain of the corona virus that can only be prevented by maintaining ‘no-contact’ amidst humans. With 90% of the country in lockdown, the number of cases has been growing in India at an increasing rate. As of May 1, the number of cases in India rose to 46,663. The increasing rate of cases has caused state governments to formulate and issue orders and take measures to curb the spread of this virus. 

The Chief Minister of Haryana – Manohar Lal, issued a ‘tough decision’ for sealing its Gurugram border with Delhi to prevent the spread of COVID-19. The Gurugram district administration issued an order on May 1 to ban all cross border movements from Delhi to Gurugram with the few exceptions of ambulance and central government officials. The district magistrates of Jhajjar, Sonipat and Faridabad that were facing the same problems of curbing the spread of the virus, also followed suite and imposed restrictions on cross-border movement. This border seal can be termed as a ‘necessary evil’, causing widespread hardship for people who have their workplaces in Delhi. Citizens having to commute to Delhi have been asked to make their living arrangements in Delhi as the border seal will not allow any commuting. At least 48% of the COVID-19 cases detected in Gurugram and other neighbouring cities have been found in the districts attached to the Delhi border. These statistics have caused the Government of Haryana to take drastic measures to prevent such spread. There will be restrictions on the traffic movement as well as the movement of people across the borders. 

Anyone allowed to move across the borders must undertake a three step test in order to cross such borders. Firsty, the Arogya Setu app must be installed and used by the people crossing borders. Secondly, thermal scanning and symptomatic screening will be done of these people and thirdly, rapid testing of symptoms shall also be conducted. This has been designed so as to contain the spread of Coronavirus. There are over 57 cases of COVID-19 in Gurugram, 300 in Haryana and 3 deaths reported till now.

Significance of the decision

The number of cases in India have been increasing at an alarming rate. The death toll due to this pandemic has risen to 1,568 while the total numbers of infections jumped to 46,433, including the 12,726 people who have been treated and recovered so far. During the first lockdown period, the number of cases in India till date of 17^th April were around 27,000 in number. In just two weeks, there has been an increase of 16,000 new cases.

The decision to seal the border has caused serious hardships for people who have to travel to Delhi for essential services such as doctors, IT workers, distributors etc.  40 % of health care workers living in Gurugram have to commute to work to Delhi. This is toppled with the lack of accommodation and travelling facilities. Many passes issued for inter-state travel have been declined by the police officials as per the state rules. This border seal has been a big trouble in the lives of many people who have to rely on daily work for earning their livelihood. Like many rules by the government, this has caused problems and tension in the lives of several people.

However, the state government has to take many difficult decisions to protect its population against the spread of this deadly virus.  Inter-state laws are made to protect the interest of one state. Such laws are for protection of citizens of Haryana against the spread of Corona Virus. Delhi is one of the cities having the most number of cases in the country. In the last 24 hours alone, the number of cases were reported to have been more than 350. This poses a threat for cities like Gurugram, where there is a constant inter-state travel for numerous purposes.

Haryana’s Minister Anil Vij said that if all the borders of the state were sealed for 15 to 20 days, the Covid-19 situation may become manageable. This is one of the most important decisions taken by the Gurugram government as regards Covid-19, in light of the spike of cases at the Gurugram-Delhi border. 

One of the most significant reasons for this decision is the safety of the people in the state of Haryana against the increasing cases in the capital region and the problems of migrant labour formed in Delhi. The onus behind this decision was to seal the state against the increasing cases in Delhi.

Legal basis of the move

Sealing borders within the state limits was carried out in order to protect the masses from the spread of COVID-19. The power to do so has been embedded in our Indian Constitution. Article 21 of the Indian Constitution embodies the right to protect the life and integrity of the citizens of the country. This goes hand-in-hand with the duty of the government to protect such rights. This also includes the state government duties to protect the life of such citizens. Certain laws allow the government to impose restrictions during such health crises, such as-

• The Epidemic Diseases (Amendment) Ordinance, 2020– This ordinance is a further amendment of the Epidemic Act of 1897 which provides for the prevention of spread of epidemic diseases.  This act gives the power to central and state governments to form rules in order to protect the citizens in the wake of epidemic diseases.  This act has a vague language and can accommodate for rules made by the state government in order to protect the masses.  The Act specifies that the central government may regulate: “(i) the inspection of any ship or vessel leaving or arriving at any port, and (ii) the detention of any person intending to travel from the port, during an outbreak”.  The present Ordinance expands the powers of the central government to regulate the inspection of any bus, train, goods vehicle, ship, vessel, or aircraft leaving or arriving at any land port, port or air.  Further, the central government may regulate the detention of any person intending to travel by these means. Under this Act, the state governments have the power to issue guidelines to prevent the spread of epidemic diseases.

• Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 – This act is for the regulation of inter-state migrant workmen and the conditions of their services etc. This law was enacted to regulate the migrant workers that travel inter-state for work. This act was to protect the workers whose services are requisitioned outside their native state in India.

• Disaster Management Act, 2005 – This act was promulgated for guidelines and rules for disaster management by the central government. Any violation of this act in the inter-border seal shall invite criminal proceedings under the relevant provisions of the Act and the Indian Penal Code.

Probable move forward

There are four stages of transmission of epidemic diseases – the first is patient, then the local transmission, then the community transmission and then the fourth stage, where there is an outbreak of the virus. While other countries are showing a gradual decrease in the rising cases, India’s cases seem to be increasing at a slow but steady rate. Every 11 days since the start of the lockdown period, the number of cases doubles. On 5^th May, the country experienced the highest spark in the number of cases.  The following days are crucial for the country as we are heading towards the third stage of transmission, that is, community outbreak.

Despite the hardships faced by many people in the border, this decision was still necessary for the government in order to prevent the spread of COVID-19 cases. Delhi accounts for about 10% of the total number of cases in the country. This decision, albeit challenging for the people, is nonetheless for their own betterment.  However, the state government must also not neglect other incidental problems, for example, the encumbrance caused to the smooth flow of essential goods and services. The state government should take into account the economic fallout that will go hand in hand with the sealing of inter-state borders. Services such as that of medical professionals and other essentials must be run smoothly by the government and the authorities.

There is a strict need to carry out the three step checking and testing of COVID-19 cases at the borders. It is important to ensure the no person infected with the virus escapes and enters the state and the detection of such cases must be as prompt as possible.

Conclusion

Corona Virus has affected the lives of every single person at a drastic level. The true spread of the novel coronavirus can only be determined in the coming days, and such inter-state border seals are becoming more and more important in the wake. The same border-sealing activity has been followed by Kerala, where it has proved successful in reducing the number of cases.

It is necessary to ensure that the virus is curbed and the people are kept safe. Therefore, the responsibilities lie on the state governments to protect their territories by means of such orders.

Author: Tanmay Sinha from Symbiosis Law School, Hyderabad.

Editor: Avani Laad from Symbiosis Law School, Pune.

Explained: Policy of vehicle passe

Reading time: 8-10 minutes.

The world is currently experiencing a pandemic and fighting to curb the spread of COVID-19. The Government announced nation-wide lockdown for 21 days, which later got extended. Further, certain relaxations were introduced, in effect from 20^th April, 2020. People are not allowed to go outside of their home. There were certain restrictions imposed on movement and transportation. The lockdown mainly emphasizes on social distancing by restricting the movement of public from one place to another, in order to prevent community transmission of the virus.

As the entire nation is facing lockdown, all the transportation of non-essential services is being barred. However, the government introduced an e-pass system to serve the citizens who are in need by validating their purpose of travel and emergency. Due to the rapid spread of corona and notable increase in day to day cases, all the policemen and patrolling officers made it mandatory to carry an e-pass during their travel in order to ensure that no one breaks or dis-obey the curfew rules. To regulate the movement of goods and transportation of people, various state governments started issuing the ‘curfew passes’

The vehicle pass is a document issued by the State Government authority with proper identification and authentication. This issuance of vehicle pass is for the public official or the civilians who are involved in essential sectors including health care, police and security etc. To avoid any kind of restriction for the movement of their vehicle within the area, district or state during lockdown.

The need of e-pass emanated because of the lockdown which begin due to spread of nation-wide COVID-19. The people who were participating in supply of goods and were in exempted category for working in essential sectors across the state are provided with e-passes by State Government for their vehicles. E-pass is provided for the vehicle of an individual who is involved in essential services and is the sole mode for the vehicles to move from one territory to another. The absence of this pass restricts the movement of vehicle on any place. Authorities look into all the document provided before granting the e-pass to the people. The person who is approved by the State Government with an e-pass for providing essential services is only allowed for movement of their vehicle.

Criteria for issuing the passes

The world is going through the huge crisis due to which there is more responsibility on the people who work for the nation and its people welfare. The government of different states provides with their helpline number to clear the issues relating to COVID-19 and also help in case of any emergency. During lockdown, the people who provide with essential service to the public are permitted with e-pass. The people who are serving the public and are involved in production and distribution of essential goods during this lockdown are needed to apply with e-pass which after getting approved be used by person without any restriction. The use of these passes will be under the supervision of police.

The e-pass facility can be provided to selective people during this lockdown. If these people belong the essential sector serving the nation, they can be permitted with e-pass. The criteria for issuance of vehicle pass through e-pass are:

1. Vehicles (car, bike, etc. for emergency purpose)
2. Hospitals and other health care services
3. Electricity and water department
4. Government and bank employees
5. Media
6. Ration shops
7. Police forces
8. Fire administration
9. Courier services
10. Food department
11. Communication and internet services
12. Petrol pump

The employees of the above-mentioned categories are permitted to be issued with vehicle passes in order to make it easy for them to provide services essential to the nation.

Legal basis

During this COVID-19 lockdown, the vehicle pass through e-pass is mandatory for movement of vehicle for any emergency purpose or for use by public servants providing essential services. During this lockdown, Section 188 of the Indian Penal Code can be invoked against those who are not following the guidelines in this regard. The violation of any containment measure by any person will be liable be punished under provisions of the Disaster Management Act, 2005 in addition to Section 188 of Indian Penal Code.

The Ministry of Road Transport and Highways has instructed all the states and union territories to consider the driving licenses and other motor vehicle documents that are getting expired on February 01, 2020 and to make it valid till June 30, 2020. This extension is for the lockdown period, so that people should not face any difficulties in renewing the validity of the motor vehicles documents due to closure of the state-run transport offices. The documents under Motor Vehicle rules includes fitness, permits, registration, driving license and other relevant documents.

The efforts been taken by the government to provide hassle free services and transportation of essential goods during this lockdown to curb the spread of COVID-19 in India. The ministry has urged all state to implement the advisory in ‘latter and spirit’ in order to supply hassle free supplies of essential items across the country.

There are certain provisions, which required to be followed by every individual in this lockdown scenario, whether it related to person with vehicle pass or without vehicle pass but these provisions are essential in every aspect. Here, the person under exempted category with vehicle pass must keep these provisions in their list because violation of any of such will encourage punishment or penalty. They are:

1. Article 51A: Article 51A of the Constitution of India is one of the fundamental duties incorporated by the 42^nd Amendment in 1976. Fundamental duties are the duties which must be followed by the citizen to maintain harmony and peace. Along with abiding all the laws and directions issued by the state in public interest. The government has the right to provide us with appropriate direction in time of calamities and being a responsible citizen of the country, we should follow their orders. If citizens are not discharging their obligation towards the state in relation of fundamental duties, the state is entitled to register case against the individual under various provision of Indian Penal Code and more specifically under section 269 and 270 of the Indian Penal Code, 1860.
2. Section 269 of the Indian Penal Code, 1860: The Section 269 of the Indian Penal Code, whoever unlawfully or negligently does any act by which he knows that it will likely to spread infection of any disease dangerous to life shall be punished with the imprisonment of either description for a term of six months or with fine or with both.
3. Section 270 of the Indian Penal Code, 1860: The Section 270 of the Indian Penal Code, whoever malignantly does any act by which he knows and have idea that it likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
4. Epidemic Disease Act, 1897: This Act provides for the prevention of the spread of Dangerous Epidemic Diseases. The Central Government is satisfied that there is threat with an outbreak of any Dangerous Epidemic Disease to spread, they provide with all preventive measures and prescribe regulation for the same. The violation of any such regulation under this act constitutes an offence under Section 188 of the Indian Penal Code, 1860.
5. Section 188 of the Indian Penal Code, 1860: This section provides that any disobedience to the order duly promulgated by public servant shall be punished with imprisonment of either description for a term, which may extend to six months or with fine, which may extend to one thousand rupees or with both.

Vehicle permits during lockdown 3.0

There are several measures imposed regarding movement and vehicle usage and its permit during lockdown during this lockdown 3.0. . They are:

• Interstate movement: Restrictions have been imposed on interstate movement. Interstate movement is allowed only for exempted category like medical emergency, goods transports, police officials, media, etc.
• Red Zone: The movement of individuals and vehicles is allowed only for permitted activities (exempted category). In case of two-wheelers, only one person allowed, while in case of four-wheelers, two people along with the driver are allowed.
• Orange Zone: Taxi and Cabs are permitted to resume their services with the condition that they can have one passenger along with the driver.
• Green Zone: During this 3.0 lockdown, in green zone, buses are also allowed but to operate, the capacity of passenger must be 50 percent i.e., half the actual capacity of a bus to load as per seats.

Critical analysis

The policy of vehicle passes in respect of this vehicle e-pass are issued to the individuals who works under the exempted categories specified by the Central Government during this widespread outbreak of infectious disease COVID-19. The vehicle passes are issued in different state as per the different state rule. Its state authority discretionary power to decide which all categories they want to issue pass and which can work with the department ID card as a proof of exempted category.

• In Delhi, the Chief Minister, Arvind Kejiriwal decided to issue e-passes to ensure smooth movement of people involved in essential services but he also introduced the color code system for ensuring proper monitoring and record keeping.
• In Bengaluru, they have their different list for persons for whom e-pass can be passed or for whom only department ID card as a proof is enough for providing essential services to public.
• In Maharashtra, Police have issued passes for inter-district travel for essential services. Likewise, there are different states with their different guidelines for issuance of passes for movement of the individual in emergency cases and for essential services. The legal basis is concerned that is equal for every individual. Only with the permit from the State Government, some exemptions are provided for movement during the lockdown situation.

Conclusion

India has entered the third phase of nationwide coronavirus lockdown restricted the movement of every individual in the country as per Central Government instruction only exempted category employees who are involved in essential services are allowed for movement will their respective pass issued as a permit. As per the State Government guidelines, vehicle passes are being facilitated online for the individual who are involved in this essential services and emergency conditions. During lockdown Phase 3.0, which has been extended till 17^th May, 2020, there are division of zones as per number of cases found positive.

The Ministry of Home Affairs issued detailed guidelines irrespective of zones as red, orange and green zones, which categorized the measures and usage of vehicle usage limit. To avoid any kind of disturbance, the Government issue laws and order with certain punishments and fines. These vehicle passes are issued not only to permit essential services to be provided but guidelines issued also takes proper care of social distancing to avoid any further spread. As, it limit the capacity of bus to hold 50% passengers, cabs with only one passenger etc. The driving license validity period has also been extended till June 30, 2020. Government is taking all safety measures to prevent the nation from the further spread of the virus, while also ensuring that certain exemption are given to the citizens for the smooth functioning of the nation.

Author: Aishwarya Singh from SRM School of Law, SRMIST, kattankulathur, Chennai

Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.

Amendment review: Epidemic Diseases Act

Reading time: 8-10 minutes.

Doctors all around the world are fighting the COVID-19 pandemic, putting their lives at risk just like a soldier does at war for his nation, going against the wishes of their family members to ensure that every infected person recovers. In this fight against the global pandemic, doctors have gained massive respect in society for their commitment and dedication to come out of this health crisis. Medical professionals worldwide are facing the heightened risk of infection, anxiety and are being separated from their families but in India, they have to face a unique set of problems along with the existing ones such as harassment, assault, violence, and social ostracism. In this context, the Union Cabinet in its gathering on 22^nd April 2020 has given a nod for the promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897, to protect healthcare service personnel and property, including their living/working premises, from violence during epidemics. The Ordinance also provides for compensation for injury and damage to or loss of property in such cases. The President of India has approved the Epidemic Diseases (Amendment) Ordinance, 2020.

Significance of this development

In recent times of the COVID-19 health crisis, doctors and other healthcare service personnel in India are being subjected to violence and abuse as they try to contain the virus. Few examples describing the situation are,

(a) A middle-aged man in New Delhi attacked two doctors who had stepped out to buy fruits, after accusing them of spreading the virus.

(b) In Indore, Trupti Katdare along with her team of public health workers visited a slum to track down a person who had come in contact with a confirmed case of Corona virus. At least 100 people surrounded the team, throwing stones and other objects at them, making them run for their lives.

In response to such attacks against the healthcare service personnel, various states had existing special laws to offer protection to them but these state laws did not cover various offenses under its ambit. They do not cover harassment at home and workplace and are focused more on physical violence only. The penal provisions contained in these laws are not stringent enough to deter mischief mongering.

The present Ordinance makes acts of violence against healthcare personnel or damages to property during an epidemic a cognizable and non-bailable offense. Strong legislation will dissuade unruly elements while emboldening healthcare workers and ensuring their protection is given high priority

Provisions that are amended 

The Epidemic Diseases (Amendment) Ordinance, 2020 contains 7 sections while the original act contained only 5 sections.

The ordinance inserts Section 1A in the principal act where it provides a definition clause to reduce the misuse of the act:

1. Healthcare Service Personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease, including :

(i)  Public and clinical healthcare providers such as doctors and nurses, 

(ii) Any person empowered under the Act to take measures to prevent the outbreak of the disease, and

(iii) Other persons designated as such by the state government. 

• An act of violence includes any of the following acts committed against healthcare service personnel:
  • Harassment impacting living or working conditions
  •  Harm, injury, hurt, or danger to life
  •  Obstruction in the discharge of his duties
  •  Loss or damage to the property or documents of the healthcare service personnel.  

• Property is defined to include:
  • Clinical establishment
  • Quarantine facility
  • Mobile medical unit
  • Other property in which a healthcare service personnel has a direct interest, in relation to the epidemic.

Amendment of Section 2A which states that “the Central Government may take such measures, as it deems fit and prescribes regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as may be necessary”. Earlier this section included only ships and vessels as modes of transport and it is correct on part of the government to include other modes of travel since over the past century travelling has grown manifold by air, rail and land allowing the government to inspect and detain any person showing symptoms of such disease while he/she uses any of the above aforementioned modes of transport in the newly amended section 2A. Thus the powers of the central government are increased.

New Section 2B inserted states that no person shall indulge in any act of violence against healthcare service personnel or cause any damage or loss to any property during an epidemic. 

Amendment of Section 3, adding subsection (2) and (3) to the existing subsection (1) where subsection (2) of the Ordinance prescribes punishment of 3 months to 5 years imprisonment, along with a fine of Rs.50,000 to Rs.2 Lakhs, if a person commits/abets violence against a healthcare service personnel or, damage or loss to any property. Subsection (3) prescribes a punishment of 6 months to 7 years imprisonment, along with a fine of Rs.1 Lakh to Rs.5 Lakhs, if grievous hurt is caused to healthcare service personnel during such an act of violence. The purpose of this amendment is to protect healthcare service personnel by providing them a safe society to work in without any fear. 

New Section 3A complements the strict nature of the crimes committed by prohibiting the accused from pleading bail as a matter of right and allowing the police to arrest him without a warrant. Briefly, it talks about cognizance, investigation, and trial of offenses. This section categorizes the offenses committed under sub-section (2) and (3) of Section 3, as introduced by the Ordinance, to be cognizable and non-bailable. Cases registered under the Ordinance will be investigated by a police officer, not below the rank of Inspector.  The investigation must be completed within 30 days from the date of registration of the First Information Report (FIR). The inquiry or trial should be concluded within one year.  If it is not concluded within this time period, the judge must record the reasons for the delay and extend the time period.  

However, the time period may not be extended for more than six months at a time.
When prosecuting a person for causing grievous harm to healthcare service personnel, the court will presume that person is guilty of the offense, unless the contrary is proved. 

The new Section 3B provides for compounding of offenses, with the permission of the court, committed under sub-section (2) of Section 3, as introduced by the Ordinance.

The new Section 3C creates a presumption against the person accused of committing an offense under subsection (3) of section 3, as enacted by the Ordinance unless it has been proven otherwise.

Newly inserted Section 3D presumes against the culpable mental state of the accused, unless the contrary is proved for the offenses committed under sub-section (3) of Section 3. Definition of culpable mental state in the ordinance includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. 

Newly inserted Section 3E is about compensation person convicted of offenses under the Ordinance will also be liable to pay to the healthcare service personnel if convicted for an offense under subsection (2) or (3) of section 3 of the Ordinance. Such compensation will be determined by the court. In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the court. If the convicted person fails to pay the compensation, the amount will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.

Objectives and purpose of the amendment

The main objective of this Ordinance is to give confidence to our healthcare workers who have developed a sense of fear because of repeated instances of attacks by the people of India. The government has shown its commitment to medical professionals through this amendment since through the implementation of this Ordinance, they have intended to ensure that during any situation akin to the current pandemic; there is zero-tolerance to any form of violence against healthcare service personnel and damage to property.

The general public fully cooperated with healthcare personnel and expressed their gratitude in a very organized manner several times during the past month. Nevertheless, some incidents of violence have taken place which has demoralized the medical fraternity.

Thus these stringent provisions become the need of the hour and act as effective deterrents to any such incidents of violence.

Critical analysis

Though the government has tried its level best to provide security and protection to medical professionals with the implementation of this ordinance, however, this attempt will be successful only if there is no misuse of this Ordinance Act. The police personnel should not misuse their authority and position. They should not register FIRs according to their will and the ordinance act should be implemented as it is prescribed by the government. Same rules apply to the government since it has a considerable amount of power to regulate this law. One important analysis is that this ordinance does not mention the rights of people i.e. how they are to be ethically treated if quarantined since at many places, patients are not being provided with basic facilities like food, water, etc. and are being ill-treated by the police and staff which has led to people hiding their symptoms of corona due to fear of ill-treatment away from home. These are some issues that still need to be addressed.

Conclusion

The effort to protect the healthcare community from harassment and violence is commendable. The central government has done exactly what was needed to be done to instil confidence within the healthcare community so that they are able to perform their duties to their optimum best without any fear of social savagery. The ordinance does act as a deterrent to the miscreants and they will think twice before committing any crime against the healthcare community.

The only thing to look out for is the loophole of this ordinance and that the powers at various authoritative levels are not misused. This is a very crucial time the world is going through and to control this health crisis, doctors, governments, citizens, and policemen all have to work in harmony.

Helen Keller once said, “Alone we can do so little; together we can do so much.” Thus it will be the combined efforts of everyone which will help us fight this health crisis. 

Author: Tanusha Tyagi from Vivekananda Institute of Professional Studies

Editor: Arya Mittal from Hidayatullah National Law University, Raipur.

Refund of tickets for cancelled flights: Legal angle

Reading time: 8-10 minutes.

On 20th April 2020, a plea was filed in the Hon’ble Supreme Court of India. It requested the Apex Court to direct the Centre and the Directorate General of Civil Aviation (DGCA) to order all the airlines, with domestic and international operations, to refund in full the amount of the tickets cancelled due to COVID-19.

This plea filed by Pravasi Legal Cell also challenges the April 16 office memorandum of the Ministry of Civil Aviation. This was because the memorandum covered the refund of the tickets booked during the first lockdown period. It overlooked a huge chunk of passengers who had booked their tickets before the imposition of flight ban due to the lockdown.

The memorandum directed the airlines that those passengers who had booked their tickets during the first lockdown to travel within the time frame of lockdown were eligible for a refund. They must be refunded in full without charging any cancellation fee and within 3 weeks from the date of cancellation.

The petition further stated that the airlines have provided the passengers with a mandatory “credit shell” that is valid for a year. This means that the airlines have not refunded the full amount back to the passengers. Instead, they provided them with credit shell which is an account made with the airlines where they have transferred the amount under your name and email id. This amount is non-transferable and is stuck with the airline. It cannot be put to any other use. The passengers would have to use it within one year to book flights with the same airline to utilize this amount. In this manner, the airlines have given away the refunds without actually parting with anything.

Significance of this development

Normally it is not within the domain nor is it the prerogative of the Government of India to interfere when a dispute arises between private entities and its citizens. It is the Judiciary that is empowered to interfere and has the requisite jurisdiction to resolve the dispute between the two. But what seems to be of utmost significance in the present situation is the government’s proactive stepped in.

The official memorandum by the Ministry of Civil Aviation is no solution as it has drawbacks of its own. But it must be acknowledged that the government tried to take a positive step to protect the economic interests of its citizens. By giving a directive to the airlines asking them to refund the money of the passengers in full is a unique step as it will spell economic dooms for the airlines. And yet the government decided to choose the wellbeing of its citizens over the economic downfall.

It is yet another thing altogether that the airlines have disregarded the government directive and found a way around it. Despite being told to refund the tickets, the airlines have refused to do the same. As a result, troubled customers flooded social media and the customer support of the airlines with various queries. To curb this and to work within the government’s directive, the airlines are offering options like credit notes or rescheduling of the dates.

What are the airlines offering?

Air India: Air India has announced to offer “One Free Change” to its passengers to postpone any domestic or international bookings made by the respective passenger. This offer would be valid for all the existing bookings with travel date till 30th April and for new bookings made till the end of March.

IndiGo: Being India’s largest airline, IndiGo has reported a 500% increase in the number of queries received through emails and calls in the past few weeks. IndiGo has allowed its customers to change the date & time of travel or even cancel the bookings at no extra costs. The airline has promised that a quick refund process would be initiated for all ticket cancellations.

SpiceJet: SpiceJet has waived of fee for the alteration of date and time of travel but on some conditions. In case of cancellation of domestic flights, there are no special provisions. But in case of cancellation of international bookings, a foreign national coming to India can get a refund for travel between March 13 and April 15.

Vistara: For tickets booked on or before 31st March for travel on/before 30th April, Vistara is allowing the passengers to reschedule their travel till 31st December of this year. It would not be charging any rescheduling fee to alter the time or date of travel but the customers would have to pay for the difference in prices.

GoAir: The rescheduling of flights by passengers is allowed without any fee. For new and existing bookings for travel between 19 March 2020 and 3 May 2020, the passengers can, without any charges, reschedule their travel plans.

Air Asia: This airline has not asked for charges or fare differences from passengers who have booked tickets on 23rd March or before, for travel between 23rd March and 31st May.

It is clear that despite the government’s directive, the airlines are not refunding passengers’ money. Instead, they are giving them the choice of rescheduling cancellation, or receiving of refund amount through credit shell account. This money does not reach the passengers and they will be forced to use it for travel within the given time. If they do not, they will end up losing that amount.

The petition questions this action of the airlines that aims to bypass the government’s directive. As for the memorandum, it covers only a section of passengers while leaving the others outside its ambit. It has directed the airlines to refund in full the bookings made during the first lockdown. This directive leaves out a huge number of passengers as it does not cover those who booked tickets before the lockdown or during the second lockdown. The memorandum is thus “ambiguous and without logic” in the petition.

Aviation law regarding the issue

The plea also raises a point stating that the office memorandum had directed the airlines to issue full refunds. But they have only provided for a credit shell. This is in direct violation of the refund rules of the DGCA. It violates the Requirement of May 2008 issued by the DGCA.

The 2008 order states that the “option of holding the refund amount in credit shell by the airlines shall be the prerogative of the passenger and not a default practice of the airline”. It also stated that the airlines must refund within 7 days from the date of cancellation in case the mode of payment is a credit card. If the mode of payment is cash, then the refund must be done immediately. The airlines must complete their refund process within 30 days in case of bookings through travel agents/portals.

On perusal of the 2008 order of the DGCA, it cannot be understood how the airlines can provide credit shells to passengers without violating the law, and this is what the current plea is also trying to raise.

Constitutional issues

One of the Constitutional issues raised by this plea is that of the violation of Right to Equality enshrined in Article 14 of the Indian Constitution. The petition contends that the question of anyone booking a ticket during the first lockdown does not arise because scheduled passenger flights were cancelled. Thus, the office memorandum of the Ministry of Civil Aviation is ambiguous and devoid of any logic.

By directing the airlines to refund only those bookings that were made during the lockdown, the memorandum stands in a clear violation of the fundamental rights guaranteed by the Indian Constitution. It discriminates against those passengers who had booked their travel tickets before the lockdown was announced or during the second lockdown. It has created a class within a class of passengers and this is impermissible. This act of the Ministry of Civil Aviation, thus, amounts to treating equals unequally.

Probable future of the case

This petition requests the Apex Court to declare the act of the airlines of not refunding the flight tickets as being violative of the Civil Aviation Requirement 2008 issued by the DGCA.

In the present scenario, the Supreme Court can pass a direction to the Ministry of Civil Aviation to direct the airlines for issuing refunds instead of empty credit shell promises. It can call out the office memorandum for being violative of Article 14 and give directions to refund all the passengers whose flights were cancelled due to COVID-19. This would satisfy the passengers as they would finally get their lost money. Though, this would hurt the airline sector and will hamper the Indian economy in the long run as well. This is also one of the reasons why the government has been quiet on the credit shell issue.

The airlines can take a defence of Force Majeure. They have already been asking the government to invoke it. A civil aviation agreement generally involves the Airports Authority of India and the Airline Company. Such an agreement contains the force majeure clause which allows the airline operator to suspend its obligation to perform when it is prevented from performing its obligation by an event of force majeure. This clause can be invoked by the airlines provided the following conditions are satisfied:

• There are material and adverse effects on the performance of an obligation,
• The situation is beyond the reasonable control of the airline,
• The airline could not have prevented or overcome the situation with the exercise of Good Industry Practice or reasonable skill and care,
• The situation has not resulted from the negligence or misconduct of the airline or its failure to perform its obligations.

A force majeure clause in a contract generally includes an exhaustive list of events such as:

• If any airport becomes unusable for flight operations by the airline;
• War, invasion, armed conflict or act of foreign enemy;
• Revolution, riot, insurrection or other civil commotion, an act of terrorism or sabotage;
• Nuclear explosion, radioactive or chemical contamination or ionizing radiation;
• Strikes, working to rule, go-slows and/or lockouts which are in each case widespread, nationwide or political excluding strikes by the employees or personnel of the airline;
• Any effect of the natural elements, including epidemic or plague, lighting, fire, earthquake, heavy rains, tidal wave, flood, storm, cyclone, typhoon or tornado;
• Explosion

The government can invoke the force majeure clause to protect the airlines as COVID-19 falls under the epidemic or plague condition. In such a case, the airlines would become free of their obligations. Then, they won’t be liable to refund the cancellation amount to the passengers.

One act can go against the welfare of the people and another would go against the airlines. It would be interesting to see how the events unfold.

Conclusion

In these unprecedented times, no one has any clue about what to do. The governments of various nations across the globe are facing such a situation for the first time. India as a nation is trying too.

What is to be noted regarding the ticket cancellation and refunds case, that if judgment comes in favour of the airlines even then the passengers would not be entirely at loss. The airlines have provided the passengers with credit shells. Even if they won’t have the money in their hands, they would be able to utilize it. As a saving grace for the passengers, they would have a period of one year to use those credit shells in buying another ticket for another time. Plus, the airlines would also not go into heavy losses, keeping everyone happy.

But the judiciary does not take sides, and neither does it pass judgment based on who gets more piece of the pie. The Apex Court looks at the inconvenience suffered by both the parties and then tries to balance it according to the word of law. This petition might become a trendsetter and act as a precedent for future outbreaks if any.

Author: G. Brahmakrit Rao from Symbiosis Law School, Hyderabad.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Policy analysis: Transport and Market Assistance Scheme

Reading time: 8-10 minutes.

The Commerce Ministry through the Directorate General of Foreign Trade (DGFT) has announced relaxations in the procedure for Transport and Market Assistance (TMA) Scheme for agricultural exports. “Provisions for the submission of a physical copy of the application with the concerned regional authority have been relaxed,” said the DGFT in a public notice. It was stated that the physical copy with the prescribed documents can be filed manually by October 30 of this year.

This step of government came in response to the requests made by exporters. They had expressed their inability to follow the procedure amid the COVID-19 outbreak. The subsequent lockdown has also prevented them from submitting the applications manually as required. It was a “genuine problem” and thus, the Central Government responded. The Center not only gave relaxations but is also open to giving further extensions if the condition prevails.

The TMA scheme for specified agriculture products was introduced on 1st March 2019, to assist with the “international component of freight and marketing of agricultural produce”. It aimed to cut down the transportation costs of exports as well as to promote brand recognition for Indian agricultural products in the specified overseas markets.

Significance of this development

TMA was introduced last year in April 2019 to boost agricultural exports. It aims to provide financial assistance for transportation and marketing of agricultural products to boost exports of such commodities to regions including Europe and North America among others. Through this plan, the government reimburses a certain part of freight and marketing charges. The assistance is provided with cash via Direct Benefit Transfer (DBT).

The other aim of this scheme is to promote brand recognition for Indian farm products in key markets. It mitigates the disadvantage of higher costs of transportation of export and aids in increasing farm exports.

This scheme has been an essential step towards providing much-needed relief to Agri exports. It provides for proper financial incentives, market support, and lowers the cost of doing business. The recent decision of the government to give relaxations in the procedure for availing the scheme is a welcome step. It agrees with the present terrifying times.

The outbreak of COVID-19 has brought the world and its economy to its knees. The Indian economy has been suffering as well. A lockdown has been put in place as a counter-measure across the globe. In such a situation, complying with the deadlines proves to be difficult.  With the shift in the world’s reality, incentives and relaxations have been one of the few measures that the governments can provide.

The Union Government heeded to the requests of the exporters. Many relaxations and extensions have been given in the Foreign Trade Policy. The policy of 2015-2020 has been extended for another year. The exporters now don’t have to worry about submitting their applications manually. They can do so till October 30 of this year. This relaxation applies to the applications filed electronically between 1 February 2020 and 30 September 2020.

These are unprecedented times and any incentives and relaxations by the government can go a long way in helping the citizens as well as the nation’s economy.

Salient features of the scheme

Following are some of the major features of the TMA scheme:

1. Applicability:

It applies to exports for a period that is specified by the government from time to time. It was initially said to available for exports affected from 1 March 2019 to 31 March 2020. But it has been extended to another year owing to the pandemic.

• Coverage:

All exporters of eligible agricultural products who are duly registered with the relevant Export Promotion Council according to the FTP are covered under this scheme.

• Products eligible:

The assistance is provided on the export of all agricultural products that are covered in the HSN chapter 1 to 24. Most farm items are covered under this scheme except a few whose list has been provided within the annexure.

• Assistance:
• Assistance under TMA is provided in cash through DBT as reimbursement of freight paid. It does not apply where no freight is paid.
• The level of assistance varies according to different regions and is notified from time to time.
• It is admissible only in the case where payments for the exports are in the form of Free Foreign Exchange.
• The scheme covers freight and marketing costs of export by air as well as the sea.

• Procedure for availing assistance under the scheme:
• The reimbursements are made according to the procedures laid down under Chapter 7(A) of the Handbook of Procedures (2015-2020).
• It is made through the Regional Authorities of DGFT which also lays down the procedure for scrutiny of the claims, the audit of the payments made, recovery of the ineligible/excess paid assistance, and interest on such recoveries.

• Procedure for claiming TMA:
• An application can be filed by a registered eligible exporter having a valid RCMC from a competent authority.
• It is to be filled online on the DGFT website. A physical copy is to be submitted to the concerned Regional Authority.
• The application fee is Rs. 1000.
• The application should be made quarterly. All claims made in a quarter must be submitted collectively as a single application along with chartered accountant or cost accountant or company secretary certificate.
• The claim should be made within one year.

• Eligible regions and countries include West Africa, EU, Gulf, North America, ASEAN, Russia and CIS, China, and South America among others.

• Excluded products include live animals, meat, whey, butter, cheese, curd, milk, cream, wheat, onion, and rice among others.

Legal basis

The TMA scheme is included within the Foreign Trade Policy of 2015-2020. It empowers the DGFT to notify the procedure which is to be followed by the exporters, importers, as well as the concerned authorities for the implementation of the FTP. Further, section 5 of the Foreign Trade (Development and Regulation) Act, 1992 has empowered the Central Government to formulate and announce an FTP from time to time. It was using these powers that the government has extended the FTP 2015-2020 for another year.

Critical analysis

The government has a long-standing interest in the efficiency of the transportation system as well as the cost of shipping farm products to the market. Today the concerns are growing over serious transportation problems. In our modern agricultural structure, transportation bridges the gap between the producers of agricultural commodities and the market in which these products are sold. It also bridges the gap between the producers and the sources of farm supplies.

Transportation inevitably involves the expenditure of time and effort. The need of the hour is a robust transportation system that functions with a minimum amount of time and cost. One of the focal points of concern is the ability to reach markets.

Trends in freight rates and the freight rate relationships have raised the concerns of farmers and exporters alike during the last decade. Indian farmers face a loss of about Rs. 92,651 corers per year. The primary causes of which are poor storage and transportation facilities. Markets are the primary medium for farmers to exchange their produce for money. Lack of connectivity to ensure that their harvest reaches the desired markets in time leads to the lowering of farmers’ ability to monetize their produce. This becomes even more critical in the case of perishable fruits and vegetables.

As compared to the other major agricultural exposing countries, India’s transportation and marketing costs are relatively high. Exporters have to face further struggles with transportation across nations. The TMA scheme by the Indian government provides financial assistance for the transport and marketing of agriculture produce. It thereby boosts the export of agricultural commodities in specified target markets. In the long run, the establishment of a robust multimodal transportation system to connect India’s hinterlands will go a long way in making agri-exports competitive.

Agriculture products are essential components in domestic as well as international markets. Cost competitiveness becomes necessary in the international market. The high costs of transportation directly impact agricultural exports. TMA thus helps mitigate the hindrance presented by higher costs of transportations for exports of identified agricultural products by providing reimbursement. This incentive will help improve India’s Agri exports scenario.

Conclusion

The Transport and Market assistance scheme (TMA) will surely have a positive impact on the Indian farm produce. It will help make goods more competitive in foreign markets, reduce transportation cost of agricultural products, stimulate Indian farm exports, help meet India’s Agri export potential, enable farmers to get the best possible returns, enable brand recognition of Indian products in the world markets and ensure the expansion of the Agri export.

The government’s move is appreciative in this regard. Moreover, the recent relations and the openness for their continuation in the future have come as a big relief to the exporters amid the terrifying outbreak.

Author: Prajakta Panda from University law college, Bhubaneswar.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Cabinet Committee on Economic Affairs: Powers and Functions

Reading time: 8-10 minutes.

The pandemic COVID-19 has compelled the governments all around the world to keep on toes. Assessing the gravity of situation on daily basis, the Government of India has been taking various steps as mitigation measures.

Recently, in order to ensure the supply of essential goods during the period of lockdown, the government resorted to increase the monthly quota of subsidised food grains by 2 kg to all 80 Crore beneficiaries through Public Distribution Systems (PDS). Under the National Food Security Act (NFSA), the government was distributing 5kg per person already that has now been pegged at 7 kg.

Furthermore, the prices of staple grains have been zeroed to Rs. 2/Kg for wheat (against Rs. 27/Kg) and Rs.S 3/Kg for rice (against Rs. 32/Kg), a major step to provide relief to the poorest section of the population.

Those decisions were taken by Cabinet Committee on Economic Affairs (CCEA) under the leadership of Prime Minister Narendra Modi.

The supply is being distributed from the buffer stock of Food Corporation of India (FCI) that contains the food grains above the buffer stock norms. Buffer stock norms are the stipulated quantity that has to be at least maintained at the beginning of each quarter to ensure supply to PDS and other schemes of the government. These limits are set by CCEA. The Committee fixes the minimum buffer norms on quarterly basis: i.e. as on 1st April, 1st July, 1st October and 1st January of every financial year.

Significance of this development

A household keeps a stock of essential resources untouched in a storage capacity that can be accessible in the situation of an emergency. Similarly, a nation has the obligation to keep some resources aside that can be used at the time of any exigency. The Government of India has given the task of procuring buffer stock of essential commodities to National Agricultural Cooperative Marketing Federation of India Limited (NAFED), Food Corporation of India (FCI) and Small Farmers Agri-business Consortium (SFAC).

 On the outbreak of COVID-19, national lockdown was declared for 21 days which implied that the activities with regards to the production and supply of basic amenities can get ruptured.

Fortunately, the officials from FCI, state government agencies and NAFED have assured that there stays a huge stock of wheat, rice and pulses and that it will further ensure the supply and prices stable.

 FCI and government agencies have 30.97 million tonne rice, 27.5 million tonne wheat and un-milled paddy that stand at 28.70 million metric tons, as on March 1. NAFED currently has 2.5-2.8 million tonne of pulses- chana, tur, urad and moong and another 0.7 million tonne groundnut and mustard. It can be deduced from the figures that the current stock of wheat and rice is higher than the buffer and strategic norms. It was recorded that stocking norm of rice is 13.6 million tonnes while for wheat it is 7.5 million tonnes as on April 1.

Besides increasing the monthly quota of subsidised food grains by 2kg, CCEA has permitted the poor households who are beneficiaries of PDS, to lift the stock of 6 months in one go.

Considering the series of decisions taken by CCEA and other authorities, the question that intrigues is: why are such changes being brought? The primary reason is that there is really an enormous stock of over flowing buffer norms. As on July 1, 2019, grain stocks were almost 81 per cent above the buffer stock and strategic reserve norms. The last time India had more than 70 million tonnes of wheat and rice stocks in July was in 2013. However, it can be considered a boon in the context of present situation. Had this not been under our control, the picture would have been a dismal one.

At the same time, as echoed by FCI Chairman D.V. Prasad, India will have enough food grain stock to feed for the next one and a half year since the stock is being anticipated to bloom after the harvest season this year. It was estimated that the warehouses in India will be filled with 100 million tonnes by the end of April while the annual requirement under welfare schemes is of 50 million to 60 million tonnes. Moreover, it should not be ignored that the storage needs to be emptied for the Kharif crops of the upcoming season, as well.

Amid all this, it is important to discuss about CCEA that has taken the responsibility to ensure sufficient supply of essential commodities in order to obliterate any chances of putting the public in distress. As at present the whole governmental machinery has been working day and night to not to let any other problem rise so as to sabotage the very purpose of lockdown i.e. saving lives of Indians at whatever cost. Therefore, taking measures to provide the food supply to the last person belonging to the marginalised section of the society, becomes the aim of the government. Let no one die of Covid-19 or hunger. 

Salient features of CCEA

The subjects in India are managed by three organs of the government, namely- Legislature, Executive and Judiciary. India having federal features, divides its Executives into State and Union. The executive power of the Union finds its constitutionality from Article 53. Besides that, the Article vests the executive power in the hands of President of India. However, the work is not done by the President in-person but de-facto is done by the Prime Minister and its Council of Ministers. That does not infer that President is a redundant entity. Article 77(3) provides that to make the executive business efficient and convenient, the President is authorized to make the rules. Thus, in 1961, Government of India Transaction of Business Rules, 1961 came into existence for disposal of Government Business, inter-alia and it finds its constitutionality from the said Article.

The rules brought by then President Dr. Rajendra Prasad, specify everything about the Cabinet Committees. They mention about two sorts of committees- standing and ad-hoc. While, former is of permanent nature, latter is temporary. The rules enumerate various Cabinet Committees for different work areas  and  Cabinet Committee on Economic Affairs (CCEA) is one among them.

Constitutional validity

The CCEA is not a constitutional body. It does not find its genesis from the Constitution for there is no mention about it, there. Thus, CCEA is considered as extra-constitutional in nature.

Composition of the committee

The composition of the committee varies from time to time. As per TBR 1961, it can constitute members ranging from 3 to 8. However, the strength of the members entirely relies on the Appointments Committee of the Cabinet. In usual business, the members are from the Cabinet who constitute the committee. They add members from different ministries, apart from whom, non-cabinet members as ‘special invitees’ can be added, too.

The CCEA was reconstituted after the India’s General Elections in 2019. Presently, the members consist of-

1. Prime Minister, Shri Narendra Modi who chairs the committee;
2. Minister of Defence, Shri Rajnath Singh;
3. Minister of Home Affairs, Shri Amit Shah;
4. Minister of Road Transport and Highways; Minister of Micro, Small & Medium Enterprises, Shri Nitin Gadkari;
5. Minister of Chemicals & Fertilizers, Shri DV Sadananda Gowda;
6. Minister of Finance; Minister of Corporate Affairs, Smt. Nirmala Sitharaman;
7. Minister of Agriculture &Farmer Welfare, Minister of Rural Development and Minister of Panchayati Raj, Shri Narendra Singh Tomar;
8. Minister of Communications and Information Technology; and Minister of Law and Justice, Shri Ravi Shankar Prasad;
9. Minister of Food Processing Industries, Smt. Harsimrat Kaur Badal;
10. Minister of External Affairs, Dr. Subrahamanayam Jaishankar;
11. Minister of Railways, Minister of Commerce &Industry, Shri Piyush Goyal;
12. Minister of State (Independent Charge) of the Ministry of Petroleum and Natural Gas and Minister of Steel, Shri Dharmendra Pradhan.

Appointment

The members of not only CCEA but other Cabinet Committees are appointed by Appointments Committee of the Cabinet. At present, Prime Minister Narendra Modi and Minister of Home Affairs Amit Shah hold the positions.

Nature of work handled

The members in CCEA work on all the matters that come under the ambit of economic field. The mandate to formulate, analyse and review the activities concerned with economic policies stretches out in expansive way. The work ranges from as grass-rooted as rural level to foreign investments that require policy making at the highest level.

Aims and objectives

The sound rationale as to why committees like CCEA were made can be rooted back to why the Cabinet Committees were formed, in the first place. They are instrumental in reducing the workload over the cabinet. The Committees frame proposals for the Cabinet and make decisions that can certainly be reviewed by the Cabinet. Likewise, there are a number of factors that can amount to inefficiency in the working of cabinet members. For instance, differences in views, ineffective co-ordination between departments, just to name a few, can bring the machinery at halt. Thus, the Cabinet Committees comes to the rescue and balm the working of the business. Besides how the machinery works, they also guarantee qualitative policies. They provide an in-depth examination of the policies for departments since ministers from varied areas get to evaluate the same situation.

Therefore, it can be easily inferred that CCEA was made with an aim of reducing the workload from the departments dealing with economic policies. In addition to that, it is meant to smoothen the functioning and furthermore provide for an in-depth examination of policies.

Powers and responsibility

The CCEA is authorised to work in varied spaces in the field of economics. It keeps a check on prices of agricultural products. The activities related to small and marginal farmers that may give an impetus to the rural development, are looked upon by the said committee, too.

The domain concerned with industrial growth is within the competence of CCEA. In addition to that industrial licensing including licensing for establishment of Joint Sector Undertakings are also within the purview of CCEA.

The work does not end, here. It also evaluates the performance of Public Sector Undertakings (PSU) that may include their structural and functional restructuring. As known, if a PSU underperforms, the task of disinvestment including strategic sale and pricing of PSU, are taken up by none other than, CCEA (except to the extent entrusted to an Empowered Group of Ministers). It is important to note that the CCEA also priorities public sector investment and considers only specific proposals for investment, the limit of which is revised from time to time.

The price behaviour, decisions on supply and exports and imports, inter alia, of essential goods are scrutinised by the committee. The price for distributing essential goods in Public Distribution Systems is monitored by CCEA, as well.

Lastly, review of the factual reports from different Departments, Ministries and Agencies is considered in respect of the business allocated to the CCEA.

Conclusion

India, a big country ready to take a giant leap, to meet its aspiration of being one of the robust economies in the global arena, has been trying hard to emerge winner on home turf as well. In order to meet the basic needs of her vast population CCEA came into its existence within a short duration of time after India became an independent republic.

During the lockdown, it can be witnessed that CCEA not only takes care of purchase, procurement and storage of grain in large quantities, it also keeps a check on prices of the food grains. Secondly, it also puts agencies such as NAFED, FCI under observation and PDS also falls under its ambit.  Present scenario has compelled every Indian to appreciate the measures taken by CCEA i.e. to amass food grain in surplus quantities (in routine for years) which has come in good stead when a large population of poor people, has to be fed by the government, for they have no source of income or food due to Lockdown to combat Corona outbreak.

Newspapers and Electronic media is rampant with news about rotting grain for want of proper storage or poor sleeping without food due to no supply, but the relentless efforts by the workers and officials deserve appreciation for keeping the problem to a minimum in the present unprecedented scenario.

Author: Samriddhi Sanga from Vivekananda Institute of Professional Studies, Pitampura, New Delhi.

Editor: Tamanna Gupta from RGNUL, Patiala.

Explained: Containment plan for large outbreaks

Reading time: 8-10 minutes.

The whole world is now under the Coronavirus pandemic and more than 3 months have already passed since December when its first case was seen. After declaring COVID-19 as a pandemic by WHO on 11th March, 2020 it has advised countries to take a whole-of-government, whole-of-society approach, built around a comprehensive strategy to prevent infections, save lives and minimize impact. While, earlier the focus of spread was centred on China, it has now spread to over 200 countries/territories, with reports of local transmission happening in more than 160 of these countries/territories.

As in India the rate of spreading has increased as it started doubling of cases in 3-4 days. Thus, government realized to take another step for preventing this Pandemic and on 4^TH April the Ministry of Health and Family Welfare (MoHFW) released the plan i.e. Containment Plan for large outbreak. The document discuss the approach and highlights the actions that are required for containment. This plan is a necessary guidance document that have details of the contours of actions to be taken on the health and administrative front in case there is a large outbreak of coronavirus infections.

1. Why is it introduced?

As government has found in India also, clusters have appeared in multiple States, particularly Kerala, Maharashtra, Rajasthan, Uttar Pradesh, Delhi, Punjab, Karnataka, Telangana and UT of Ladakh. 211 districts are now reporting COVID-19 cases and the risk of further spread remains very high. The central government has brought out this plan to stop the chain of transmission and reduce morbidity and deaths.  

According to the document, in alignment with strategic approach, this document provides action that needs to be taken for containing a large outbreak. A large outbreak can be defined as a localised increase in the incidence of coronavirus cases occurring within a defined geographic area and it can happen within a village, town or even a big city. The document characterises it as a progression of a small cluster into bigger, multiple clusters.

Document/plan talks about Strategic approach, scope, objective, action plan, surveillance, clinical management, psychosocial support, pharmaceutical intervention, non- pharmaceutical intervention, material logistics, risk communication, information management, capacity building, financing of containment operation, scaling down of operation. So, the containment plan is detailed measures which need to be taken for different kinds of transmissions and it explains the actions to be taken to curb a large outbreak.

• Salient feature

This ‘Containment Plan for Large Outbreak’ is a guidance document for both health and administrative measures as according to experts such a guidance document is necessary because it puts in place a well-defined strategy. So, it has some salient features as follows: –

1. According to the containment plan, India is following a scenario-based approach, based on five possible situations: (a.) Travel related case reported in India (b.) Local transmission of COVID19 c.) Large outbreaks amenable to containment d.) Wide-spread community transmission of COVID19 disease e.) India becomes endemic for COVID19
2. Early detection, surveillance and contact tracing for those who have travelled from affected countries, early diagnosis, making of PPE stock and risk communication for creating awareness are the Strategic approach for the Scenario: “Travel related cases reported from India”.
3. The strategy for large outbreaks amenable to containment are Geographic quarantine and containment strategy and for these two strategy would run tighter.  As firstly defining geographic area by early detection of cases and then “barrier has to be erected around the focus of infection” which would ultimately help in preventing its spread to new areas.
4. The Cluster Containment Strategy includes geographic quarantine, social distancing measures, enhanced active surveillance, testing all suspected cases, isolation of cases, quarantine of contacts and risk communication to create awareness among public on preventive public health measures.
5. Differential approach to different regions of the country: – the report says that the current geographic distribution of COVID-19 mimics the distribution of H1N1 Pandemic Influenza. As during the H1N1 Influenza pandemic it was observed that well connected big cities with substantive population movement were reporting large number of cases, whereas rural areas and smaller towns with low population densities and relatively poor road/ rail/ airway connectivity were reporting only few cases. Thus, while the spread of COVID-19 in our population could be high, it’s unlikely that it will be uniformly affecting all parts of the country as said in the plan.
6.  Some of the Acts/ Rules for providing legal support to implement the containment plan are (i) Disaster Management Act (2005) (ii) Epidemic Act (1897) (iii) Cr.PC and (iv) State Specific Public Health Act.
7. The plan includes Institutional mechanisms and Inter-Sectoral Co-ordination at Union level, State level and Institutional arrangement at the operational level.
8. On increase in the incidence of a COVID-19 cases, Epidemiological intelligence will be triggered for the action which will be provided by IDSPs early warning and response (EWAR) system. Routine laboratory based surveillance of SARI cases is another trigger for action.
9. Emergency Medical Relief (EMR) division, Ministry of Health and Family Welfare will deploy the Central Rapid Response Team (RRT) to support and advice the State. The State will deploy its own State RRT and District RRT.
10. All suspect/confirmed COVID-19 cases will be hospitalized and kept in isolation in dedicated COVID-19 hospitals/hospital blocks. The identified VRDL network laboratories and designated private laboratories nearest to the affected area, will be further strengthened to test samples
11. The National Institute of Mental Health and Neuro Sciences (NIMHANS) will be the nodal agency to plan and execute psycho-social support. NIHMANS will prepare a Psycho-Social Support plan and implement the same in the COVID affected areas.
12. Hydroxychloroquine has been recommended as chemoprophylaxis drug for use by asymptomatic healthcare workers managing COVID-19 cases and asymptomatic contacts of confirmed COVID-19 cases (however till now there is no approved specific drug or vaccine for cure or prevention of COVID-19).
13. In the absence of proven drug or vaccine, non-pharmaceutical interventions which includes Preventive public health measures, Quarantine and isolation, Social distancing measures be the main stay for containment of COVID-19 cluster.
14. Under the heading of ‘Material Logistics’; Personal Protective Equipment (PPE), Transportation for mobilizing the surveillance and supervisory teams, Stay arrangements for the field staff, Bio-medical waste management would be done.
15. The communication of risk is also necessary and thus the plan includes Risk communication material: (i) posters and pamphlets (ii) audio only material (iii) AV films (prepared by PIB/MoHFW)] for targeted roll out in the entire geographic quarantine zone & Communication channels includes: Interpersonal communication, Mass communication, dedicated helpline, Media Management.
16. Plan also includes tasks of capacity building which comprises of training content, targeting trainee population, replication of training in unaffected districts.
17. The operations will be scaled down if no secondary laboratory confirmed COVID-19 case is reported from the geographic quarantine zone for at least four weeks after the last confirmed test has been isolated and all his contacts have been followed up for 28 days.
18. If the containment plan is not able to contain the outbreak and large numbers of cases start appearing, then a decision will need to be taken by State administration to abandon the containment plan and start on mitigation activities.

• Critical analysis

The spreading of corona virus in India, till now, can be said to be in control as compared to the developed countries. In the large number of population of 130 million people the number is small but still the implementation of the plan have some deficiencies. These deficiencies can be said to be in the timing/ release (even not very late) of this Containment plan as well as not properly implementation of plan. Implementation of such type of plan must requires observation of the status quo of the place, social context in which the plan in implementing.

Firstly on the question why the plan came approx. 10 days late and why it should come up with the lockdown itself. This is because government has not analysed how much people has come from the abroad and it was utmost requirement from the government side as if they have found it earlier then perhaps the Cases like ‘Tablighi Jamaat’ (where they failed to detect the hotspot) could be solved easily. The areas may have option to quarantine (geographic quarantine) earlier and they may have not reached other parts of the country.

Now, it has come out that many foreigners have come to India and they have participated in religious events, however visas was not issued for that purpose. If government have taken into consideration the number of people have visited India from foreign they might have taken the decision to cancel the international commercial flights earlier (22 March). Also it is defect for the administration that they unable to know that larger number of jamaatis were residing at a place. Considering the large number of population and development level of country this plan should have come up with the lockdown for early effectiveness. However, plan able to recover it but that would be a remark for the future as it should be first task of any State that they must know how many people have visited their country which are essential to know to stop spread of viruses in these types of global pandemic.

Now, on the second question why this plan was not properly implemented. Plan which came after 10 days of lockdown could be said to properly implement if it has taken into consideration of the social context as well development level of India. After the lockdown it has come into news that hundreds of thousands of migrant laborers have begun long journeys on foot to get home, having been rendered homeless and jobless, and then it was necessary that there must be some plan before the news spread for giving them proper shelter and basic needs. Only announcement of plan doesn’t itself solve the problem. Government later have taken the decision to provide the necessary things but it was requirement from their side much earlier. When one people starts travelling other after seeing him encourage and this continues and the idea to erect the barrier hit.

Further government was aware that the number of tests that happened in country till then were very less and that might be causes of less number of corona patients, but still they have not came with this plan earlier. The transmission at local level have not developed despite many places social gathering has taken place, from now or from next time it is very important to take in consideration the social context at different level. It also requires analysis by bifurcation of the different occupations of people like how much people earning depend on daily wages because they may not die from Corona but they may die from Hunger.

• Conclusion

The rate of Corona virus patient is still rising but we are fortunate that India has not reached the third stages of this pandemic but realising the population level it is important to take one step early every time. Taking decision one step early is not about proper planning rather necessity in context of India where there is lack of awareness. Secondly, there are large number of people working on daily basis wages and any decision of lockdown or this type of plan affects them the maximum and thus it is important to analyse for future that if such stages comes how their lives can be saved.

Further it is also time to take steps for the future that people must understands the terms like quarantine, lockdown, social distancing etc. so that they may not panic. Still a long way to go for fighting with this Corona Virus but we need to be cautious, and take decisive actions. The best thing to do is to properly implement this plan with the maximum support of people by giving them confidence, with a long vision to tackle the circumstances, Patience and control over oneself we can and we will win over Corona.

Author: Shashank Shekhar from Central University of South Bihar.

Editor: Tamanna Gupta from RGNUL, Patiala.

Explained: Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994

Reading time: 8-10 minutes.

The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, enacted in 1994, aimed to end female foeticide by forbidding techniques of sex determination before or after conception. This Act provides for various rules that keep a check on female foeticides. It mandates the maintenance of detailed records of foetal scans which is a key feature of this Act.

It is these records that form the basis of inspection of medial service providers and medical facilities. The Act, as a measure of preventing sex determination, also prohibits advertisements related to pre-natal sex determination and sets punishments for those who infringe these laws.

This act has played a crucial role in improving the sex ratio across the country through stringent methods of deterrence. Sex ratios have improved immensely in many States. However, the act has not been successful to completely end female foeticide from India. This social vice continues to prevail in the country due to the regressive mindset of people and the existence of loopholes in the execution of the law. Despite its imperfections, the Act stands as a great example of the power held by legislation to bring changes in society.

On 4th April 2020, the Ministry of Healthcare and Family Welfare issued a notification suspending the implementation of certain rules under the PCPNDT Act till June 30, 2020. These rules pertain to administrative tasks and procedures such as report submissions and registration renewals. This suspension sparked anger and disapproval from different groups of people. It was urged that this suspension diluted the law and created room for its misuse. In their defence, the ministry elaborated that the law is not suspended and the changes brought relate to relaxation in certain submission rules. The Health Ministry further reiterated the need for maintaining the necessary records daily.

COVID-19 has created a sense of emergency across the world. India is observing a nationwide lockdown since 24 March 2020. The suspension of these rules was thus announced keeping in view the measures taken during this lockdown. While some see this suspension as a need in the times of the crisis arising due to COVID-19, others see this as an act that would further deepen the existing loopholes.

What are the suspended provisions?

The notification by the Ministry of Health and Family Welfare stated that due to the COVID-19 epidemic rules 8, 9(8) and 18A(6) of the PCPNDT act will remain suspended. This suspension will remain till 30 June 2020.

The suspended provisions of the Act deal with administrative procedures and norms. This suspension thus delays the formal requirements within the Act and does not dilute the law. It bears no direct consequences on the spirit of this Act. However, it is pertinent to mention that these rules form one of the major pillars on which this Act stands. Thus, the suspension of such rules might have an indirect effect on the spirit of application of the law.

Rule 8 of the PCPNDT Act deals with the renewal of registration of ultrasound clinics, genetic laboratories, genetic clinics, and imaging centres. Such renewal is valid for five years and must be done 30 days before the date of the expiry of registration. This rule is one of the most essential requirements of this Act. Registration marks the beginning of organization and control. It keeps a check on the activity of the clinics seeking renewal. But, with the recent notification issued by the Ministry, all license renewals face a delay till June 30.

Rule 9(8) of the PCPNDT Act mandates all genetic counseling centers, genetic laboratory, genetic clinic, ultrasound clinic, and imaging center to submit a detailed report of pre-conception or pregnancy-related procedures and tests carried out by them. These reports are sent to the Appropriate Authorities monthly. This is yet another crucial rule under this Act. It is one of the most effective precautionary methods against malpractices.

Rule 18A (6) of the act deals with the code of conduct to be followed by the Appropriate Authority. This rule mandates all Appropriate Authorities to submit a quarterly report to the government. They are also required to maintain records of licensed practitioners under law. This rule is in furtherance of rule 9(8) of the Act.

These regulations help to keep clinics and medical centers in check. They help in keeping the actions of such clinics and facilities in line with the regulations of the Act. These three rules have played a significant role in improving the sex ratio in India.

The notification revoking the above-stated rules under the Act led to a debate. Activists argued that such a suspension would weaken the scope and effect of the law. The Ministry had to jump in to clarify that the revocation does not eliminate the need for maintaining records.

Why are they suspended?

The COVID-19 pandemic is the main reason behind the suspension of the three rules under the PCPNDT Act.

The coronavirus outbreak has affected all spheres of life today. It has brought the world to a standstill. India has been in a nationwide lockdown. No movement is allowed except that of essential services. Ultrasound clinics, genetic laboratories, genetic clinics, and imaging centers are also considered to be essential and continue to function amid the lockdown.

With the suspension of rules, the medical service providers are no longer under the mandate to submit monthly reports to Appropriate Authorities at least till 30th June. As there is no need to submit the time-consuming and bulky reports, they are relieved of some of the pressure they were facing. Some people, however, argue that this creates room for the evil of female foeticide. The Ministry defends its decision by explaining that this suspension does not change the maintenance of daily records to be done by the concerned labs or centers. It is only the submissions to appropriate authorities that have been delayed until 30 June.

These rules have also been suspended to ensure less physical movement and thus curtail the possibility of the spread of the virus. Despite all the technological advancements and digitalization, the medical sector continues to use traditional ways of storing and sharing data. Activities like report compilations, license renewal, report submission would have been easier through online mode. However, a lack of such a facility has made compliance with submission rules difficult in the present scenario.

The rules have thus been suspended to prevent any possibility of the spread of the deadly virus.

Problems associated with such suspension

The PCPNDT Act has been successful in reducing female foeticides to a great extent by prohibiting pre-natal sex determination. But, it has not completely eradicated this issue. Despite the strict punishments stated in the Act, female foeticide is still practiced in our society. It is a sensitive issue as it not only deals with the place of women in our society but also their bodily autonomy. Thus, any relaxation that can deepen the existing loopholes in the law would lead to damaging consequences.

The relaxation of the three rules under the PCPNDT Act creates a possibility of misuse. Sex selection and determination tests could be done freely in the absence of checks. Thus it would dilute the entire purpose of the Act.

Various activists have argued against the suspension. They have requested the immediate reinstitution of these rules. However, the Health Ministry has argued that the remaining provisions of the Act are not suspended and would remain in practice. These provisions will continue to stand against any practice of prenatal sex determination.

The clinics and laboratories are still restricted from taking part in any sex determination activity. The Ministry also argues that the revocation of a few rules does not imply that the mandate to maintain records ceases to exist. It rather means that there has been a delay in the date of submission.

The mere presence of laws and respective punishments is not fully effective in deterring the lawbreakers. Thus, a system of check upon the actions is also essential. By providing clinics and laboratories with a longer time for submission of reports, the Ministry has opened a window for possible pre-natal sex determination. This can further lead to an increase in female foeticide cases.

As the laboratories and clinics don’t have to submit reports for the next three months, it would be easier for them to be a part of sex selection rackets. Earlier, the norm to submit monthly reports ensured a fast check on the actions of clinics, labs or centers. With the relaxation in rule 9(8), this check has been removed. Hence, suspension of the rules under this Act would weaken the only scrutiny provided by the Act. It would pose a great problem to the society by giving rise to the possibility of a dwindling sex ratio amid the corona pandemic.

Critical analysis

The debate arising due to the suspension of three rules under the PCPNDT Act points out the worrisome scenario presented by sex ratios in India. India has improved its sex ratio from 927 per 1000 men before the Act, in 1991 to 943 in 2011. India has worked very hard to make progress in this field. Thus, it cannot take decisions that can pose harm to this progress. With the decision of the Ministry of Health and Family Welfare, there comes a possibility of a rise in the number of female foeticides. The suspended rules acted as a check and their absence can lead us back by many years. Thus, this suspension has triggered a debate in society.

This suspension has deepened the existing loopholes in the law. They can now be exploited by various sections of the society and thus defeat the purpose of the Act. While the Health Ministry continues to focus upon the need for the suspension in the present times, it ignores how the sole mode of inspection has been uprooted.

The debate on the suspension of a few rules of the PCPNDT Act further highlights the importance and the benefits of digitalization. The current situation could have been avoided if the process of renewal of registration and submission of reports was done digitally. In such a case, the rules would not have been suspended.

Even though the Act will remain in practice, without its essential rules its implementation won’t be the same. COVID-19 has brought challenging times upon us but there was no urgency that demanded such a suspension. Additional guidelines could have helped. But now this suspension of rules has put many unborn lives in danger.

Conclusion

The unbalanced sex ratios continue to form a prominent feature of Indian societies. It points to society’s bias against women that makes killing an innocent child prevalent practice. With the help of various legislations, the sex ratio in India has seen an improvement. The ratio has experienced a mere improvement. The main reason behind female foeticides is the regressive ideology that still prevails in the society. No law can eradicate it but can only curb it. The regular submission of reports highlighting the prenatal tests and procedures conducted by a clinic, it was easy to keep a check.

The Ministry of Healthcare and Family Welfare has suspended the rules 8, 9(8) and 18A (6) of the PCPNDT Act till June 30, 2020, due to the lockdown in place amid COVID-19. Although this suspension was notified as a measure to help the society fight a serious outbreak, it comes with the possibility of a rise in cases of female foeticide. Dealing with one terrifying situation must not mean giving birth to another terrifying scenario. Thus, the possibility of an increase in female foeticides must be considered. Suitable stepsmust be taken to ensure that measures taken due to COVID-19 do not further harm the societal balance.

Author: Yashika Gupta  from Rajiv Gandhi National University of Law, Patiala.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.