ACT OF GOD AND FRUSTRATION OF CONTRACT AMID COVID-19

Jay Gajbhiye and Ankesh, both 2nd year Law students of National Law University Odisha, describes the concept of Act of God and it’s repercussions on the performance of contractual obligations amid Covid-19 pandemic.

INTRODUCTION

The term Force majeure, which is a common clause mentioned in many contracts nowadays, basically excuses the companies or any other party to the particular contract from meeting the requirements on their part of the contract if certain situations like, “natural disasters, war, unforeseen government actions and sometimes also includes pandemics and epidemics” occurs which is beyond their control and interferes with the party’s part of performance of the contractual terms.[1] If these clauses are invoked, then they can relieve the parties out of the performance of the contractual terms. It can be defined as an occurrence not reasonably predictable or manageable, which occurs from “natural causes” and could not be avoided by immediate precautions.[2]  

This is a “paradox” that we can designate Coronavirus as “Act of God” in legal words. If the agreed provisions (terms of the contract) cannot be carried out, not because of the party’s negligence but because of anything outside its reach, it is not legally and practically appropriate to enforce liabilities.

The recent happenings of the outbreak of the Coronavirus globally have risen a question as to whether we can put this following pandemic under the Act of God as COVID-19 was neither predicted nor could be avoided.

EFFECT ON CONTRACTS OF TRADE AND AGREEMENTS

The term “Act of God” appears regularly within contracts, but it is not a concept defined by statute. Despite this, its significance is relevant, as an Act of God can activate a party’s right to postpone results, cancel obligations, or even terminate a contract. Given the epidemic of COVID-19, several parties wonder that the epidemic itself is a “work of Nature.[3]” Now the virus has been a concern for all segments of the society, and we have seen how the Public healthcare system has failed to contain it. Businesses also seem to be affected by this crisis, the possibility of no physical contacts have adversely affected these businesses. It’s been almost seven months since the virus has been around and the situation doesn’t seem to change. Workers are unable to attend work, shipment delays, or canceling big events, the virus is having significant consequences in many industries.[4] How the force majeure clause would be used is to be seen.

The courts are going to decide what will constitute force majeure depending upon the facts of the particular case, and it should also be noted that there is no need, the clause should be mentioned in the contract. The approach of the court is also going to be interesting to see while deciding a case on these matters. Now, we have seen that the Chinese government issued “force majeure certificates” to Chinese companies[5], but globally what will decided is yet to be seen. As with the majority of situations, the presumption of proof is with the party applying, and thus, if a party is going to have to rely on a force majeure provision, all relevant evidence should be gathered.[6] It seems likely that the outbreak itself will be deemed an Act of God[7] by applying the Court’s advice to the COVID-19 outbreak.[8]

However, considering the proximity of the COVID-19 outbreak itself and the constraints of the government, an alternative view can be taken that the connection between the Act of God and non-performance is not severed. Since this issue is not resolved, if a party wishes to rely on a contractual clause relating to an Act of God in the sense of the COVID-19 outbreak, their stance must be clear as to whether the related non-performance occurred as a result of the pandemic itself or as a reaction to it by humans. The other events mentioned as force majeure could be a hint for clarification in the contract setting: several courts interpreting force majeure clauses will look at concrete examples of force majeure events to justify the definition in broader terms, such as God’s act.[9] Determining whether a pandemic or virus epidemic would be an Act of God may also depend on what other misfortunes the parties thought would justify obligations under the contract.

EFFECT OF CORONAVIRUS ON MEDICAL INSURANCES

Buying a health insurance plan is, from an individual’s point of view, one of some ways he/she can mitigate the consequences of health-related demands. Health-related issues may have various impacts on an individual. Besides getting the individual physically and mentally drained, compensating for medical treatment, hospitalization and medication may be a huge strain on a person and his/her relatives. Right now, a life-care kit arrives at the rescue. Typically, a normal health insurance plan compensates for the diagnosis and hospitalization expenses associated with a medical disease. For a fact, companies do market the regular policy to some individuals, who may incur extra charges involved with severe diseases, insurance in case of significant medical bills, etc. This can be invaluable in the moment of need.[10]

Also, if an expert’s advice is to be taken, if the person who is having existing health insurance is diagnosed with the disease, then the cost which would be incurred in the treatment of the disease is to be included in the policy itself. The main reason given by them is that since the symptoms of Coronavirus are just normal flu-like, hence, be included in the policy itself. But if medical insurance is taken after this global outbreak of the Coronavirus, then the person might not be entitled to the treatment of Coronavirus included in the policy. In regards to the global outbreak of the Coronavirus pandemic, the Insurance Regulatory and Development Authority (IRDA) has given the names of 29 insurers who will be allowed to sell an indemnity health insurance product which will cover the hospitalization costs for the treatment of the Coronavirus.[11] The life care premium would have compensation between INR 1 lakh and INR 5 lakh.[12] The regulator has explained that COVID-19 hospitalization will include all new Mediclaim programs in India. In addition to being concerned about the epidemic, this comes as a consolation. Citizens were still worrying about the financial consequences of the same in a sluggish economic climate.

CONCLUSION

In conclusion, we can say that whether Coronavirus can be regarded as an act of God is not clear. This depends on the language. Contracts containing clauses for force majeure appear to set out eligible incidents, sometimes citing natural hazards, conflict, and unexpected government decisions. These can also contain pandemics, epidemics, and the specific “catch-all” term for incidents outside the reach of a group. Also, we can understand that the act of Coronavirus was started by a person itself, so there is a possible chance that this cannot be regarded as an act of God, but if the clause is not invoked, it could be leading to various uneventful situations regarding the performance of the contractual obligations. Outbreaks and epidemics are often classified as force majeure incidents, though courts have no expertise in determining if a specific disease meets the bill, and when we see it with respect to COVID, the expertise of courts may not be critical. The suspensions and other unforeseen disturbances that followed the spread of the virus carry “all the hallmarks of force majeure” is close to those of a hurricane or other large-scale natural catastrophe, considering the impact of the epidemic on companies.


Jay Gajbhiye and Ankesh are second year Law student from National Law University Odisha.


[1] Ellen Gilmer, Coronavirus as an Act of God: Force Majeure Clauses Explained, BLOOMBERG LAW (Mar 27, 2020), https://news.bloomberglaw.com/environment-and-energy/coronavirus-as-an-act-of-god-force-majeure-clauses-explained

[2] Andrew Schwartz, Breaking contracts over coronavirus: Can you argue it’s an

‘act of God’?, THE CONVERSATION (Mar 31, 2020), https://theconversation.com/breaking-contracts-over-coronavirus-can-you-argue-its-an-act-of-god-134791

[3]Kristen Anderson, The Proximal Origin of SARS Covid- 19, NATURE MEDICINE (March 17, 2020), https://www.nature.com/articles/s41591-020-0820-9

[4] Nick Ashcroft, Coronavirus – an act of God?, ADDLESHAW GODDARD (Feb. 2020), https://www.addleshawgoddard.com/en/insights/insights-briefings/2020/general/coronavirus-an-act-of-god/

[5]Sun Yu, China issues record number of force majeure certificates, FINANCIAL TIMES (Feb. 2020), https://www.ft.com/content/bca84ad8-5860-11ea-a528-dd0f971febbc

[6] Nick Ashcroft, Coronavirus – an act of God?, ADDLESHAW GODDARD (Feb. 2020), https://www.addleshawgoddard.com/en/insights/insights-briefings/2020/general/coronavirus-an-act-of-god/

[7] Gordon Kaufman, On the meaning of act of God, Cambridge University (Apr. 1968), https://www.cambridge.org/core/journals/harvard-theological-review/article/on-the-meaning-of-act-of-god/035E1B248A520B3C6F8698A303942FD0

[8]Isabelle Ord, DLA Piper, When is an outbreak an act of God? Mitigating commercial and operational risks during the COVID-19 crisis, DLA Piper (May 4, 2020), https://www.dlapiper.com/en/uk/insights/publications/2020/02/when-is-an-outbreak-an-act-of-god-mitigating-commercial-and-operational-risks/

[9]FEMA Emergency Management Institute, Introductory Session – Four Theories of Disaster, (Nov. 7, 2002), http://training.fema.gov/EMIWeb/edu/docs/hazdem/Session%205%20–%20The%20Four%20Theories%20of%20Disaster.doc

[10]Moneytips, CBS News, Insurance: What exactly constitutes an “Act of God”? (July 30,2015),

https://www.cbsnews.com/media/insurance-what-exactly-constitutes-an-act-of-god/

[11]Guidelines on introduction of short term health insurance policies providing coverage for COVID-19 disease (June 23, 2020), https://www.irdai.gov.in/ADMINCMS/cms/whatsNew_Layout.aspx?page=PageNo4159&flag=1

[12]Financial Express, Can a health insurance policy protect you from Coronavirus impact?(April 7, 2020), https://www.financialexpress.com/money/insurance/explained-can-a-health-insurance-policy-protect-me-from-coronavirus-impact/1920945/.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

THE IMPACT OF COVID – 19 ON THE COST AND QUALITY OF HIGHER EDUCATION: STRIKING A FINE BALANCE

Nishtha Tripathi and Deepti Shinde, both 4th year students of National Law University, Jodhpur discusses about effects on the cost and quality of higher education due to Covid-19.

Introduction

If you happen to be a student pursuing higher education in the middle of the COVID-19 pandemic, you have been handed a raw deal. UNESCO reports estimate that close to 1.52 billion students have been left bereft of the classroom.[1]

The threat of contagion has shifted classes to the online realm, following lockdown orders[2] issued under sections 6(2)(i) and 10(2)(1) of the Disaster Management Act, 2005[3]

In such a scenario, the prospect of fees has left a sour taste in the mouths of the students. Not only are they raising demands for reduced fees but are also claiming a fee refund for the facilities that they paid for and cannot avail.

Here, the authors present the stance of both the stakeholders and conclude with plausible solutions to arrive at a balance.

Students’ Perspective

What is the hue and cry about?

  • Deprivation of Campus Infrastructure

The education sector has witnessed severe disruption.[4] Students have asserted how unfair it is to be charged for campus infrastructure they have been unable to redeem, for instance, libraries, laboratories, studios for the arts and architecture based courses.[5] The University Grants Commission Act, 1956, specifies that these are activities which students need to necessarily engage in during their courses of study and a university is not entitled to charge under these heads unless it is making provisions for the same.[6]

  • Deprivation of campus life

Virtual education has also not been received warmly because it robs students of many on-campus opportunities like interpersonal engagement and interaction, development of networking skills and participation in a diverse and closely-knit student community.[7]

  • Quality of online classes not up to the mark

Students have balked at the mounting fees because they believe that online classes are not a substitute for the in-person ones. A UK Parliamentary report notes that the vast majority of students express dissatisfaction with the online mode of delivering education.[8] PowerPoint presentations uploaded by faculty members have not been interactive enough to bolster conceptual understanding and faculty feedback has been drastically restricted. In some cases where efforts have been made to conduct live classes, students have reportedly been unable to follow the course of the lectures. 

  • Fall in class hours

Another glaring deficiency has been the fall in teaching hours across courses. This becomes exponentially serious when regulatory bodies, such as the UGC, the Bar Council, and the Medical Council, mandate providing elite education that adheres to standards higher than the minimum in terms of teaching hours.[9] For instance, Bar Council requires that a semester in law school shall be spread over not less than 18 weeks with not less than 30 hours per week dedicated to classes, including moot court exercises and seminars.[10]

Moreover, online classes are unsuitable where practical competence, like undertaking medical residencies and internships, counts.

  • Pass/Fail Assessment System Does not Reflect Learning

The assessment patterns have also made the students feel short-changed. The pandemic made universities cancel exams for the first and second years and resort to the no-detriment or average grading policy for the others.[11] It is reasonably apprehended that qualifications thus secured will generate learning loss.[12] 

  • Access to Disadvantaged Students severely hampered

Advocates for the students’ cause have further pointed out that the distance model has amplified the rampant inequalities in the education system. Students from disadvantaged backgrounds have to slog through connectivity issues like weak Wi-Fi signal, video glitches, audio lags, limited concentration in crowded households, etc.[13]

All these factors have connived together, resulting in a disgruntled student class.

Are there legal remedies?

Aggrieved students have made recourse to civil remedies. In the United States and India, contractual breach claims have been made on account of universities failing to live up to the vibrant promises they made in their brochure/prospectus.[14] Some student class actions have alleged unjust enrichment on part of universities which continue to charge for amenities they no longer provide.[15] It can be argued, for instance, that the case falls squarely under Section 70 of the Indian Contract Act, 1872.[16] Deficiency of service has also been claimed under Section 2(1)(g) of the Consumer Protection Act, 1986[17], because of the unsatisfactory quality of online teaching.[18]

While these might crumble in the face of the contractual defence of force majeure, the authors would argue that there is an overarching relief to be had in the precedent that holds education to be a constitutional objective and a public good, which stands apart from a commercial transaction, and must not be profiteered from.[19] As per this line of reasoning, it follows that if colleges have registered a drop in variable costs incurred, the same should reflect in the fees that they charge. It is not within their rights to demand for full fees if they are unable to deliver all or some of what they offer. 

Moreover, regard must also be had to other sympathetic grounds in the name of complete justice- parents losing means of livelihood, economically backward classes struggling from poor connectivity, the adverse effects of online learning on the students’ mental, emotional and physical health[20], the lack of individualized follow-up that demoralizes students into performing poorly and dropping out[21], etc. 

Universities’ Perspective

University finances are also threatened by the pandemic, thus, making it essential to levy fee. At the school-level, High Courts have understandably been conflicted between allowing for the legitimate management concerns of unaided institutions[22] and maintaining the sanctity of the right to education.[23]

  • Infrastructural Costs

While the resumption of classes remains uncertain, the need for robust virtual platforms strengthens manifold. Such platforms require solid technological support, trained teachers, desired equipment, and other contractual obligations. Making institutions waive off full tuition fees would prevent them from procuring distance learning mechanism.[24] 

  • Salaries to staff

Universities have to pay the working staff, irrespective of the shutdown, which includes retirement benefits, advances and health care. These can only be paid on the receipt of the fee charged. 

  • Health compliance costs

Furthermore, once reopening becomes a possibility, institutions shall have to prepare strong facilities for sanitation, innovative measures for following social distancing, health care amenities, and maintenance of other educational supplements, which naturally requires more expenditure.[25]  

  • Other costs related to maintenance of standards

When it comes to unaided institutions which function without state funds, it is their exceptional services, quality education, and infrastructural benefits, which encourage students to opt for them.[26] These standards draw upon the fee received, thus, denying institutions the levying of fee could jeopardise their viability and the students’ future.

Similarly, even when facilities like hostels, electricity, gyms, library, and buses remain unused, universities have to pay minimal charges[27] and depreciation costs on the fixed assets. 

Thus, exemption of fees becomes unreasonable because it impedes the payment of maintenance costs, current liabilities, loans payable, taxes, investments and other expenses.

Striking a balance

Court recommended dialogue

There arises a need for innovative solutions that can provide balance among the parents and educational institutions. For instance, the Punjab High Court, while upholding the legitimacy of university fee, suggested the establishment of a financial aid committee in institutions, which can help the parents affected most by the pandemic.[28] Such committee shall act as vanguard by providing concession, waiver of fee, or opportunity to submit the fee in installments, on submission of required documents.[29] 

The authors would like to stress that while government policies have allowed full tuition fees in some cases, it falls upon the judiciary in their parens patriae role[30] to help smoothen out access to education, especially, considering that education is an inherent human right, as per Article 26 of the Universal Declaration of Human Rights[31] and Article 13 of the International Covenant on Economic, Social and Cultural Rights.[32]

Detailed breakdown of fees and no late payment penalty

Even if courts dismiss petitions praying for exemption of fees, it becomes imperative for institutions to maintain the trust, faith, and future security of students, and make amenable decisions by not denying ID cards for online classes in cases of non-payment due to financial constraints. They could also decide for non-imposition of penalty for late fee submission.[33] 

It is always feared that universities take undue advantage by charging more than what is incurred under a consolidated head. Therefore, universities must adhere to accounting standards with break-down of detailed heads, leaving no scope for ambiguity. While they can make space for a reasonable surplus, they must abstain from profiteering[34], keeping in mind the sensitive times.

Private sector funding of education 

Lack of central or state funds exerts more pressure on institutions.[35] Therefore, more funds should be sanctioned for education sector, perhaps, by channelling CSR from companies.[36] 

Additionally, now that ESG bonds have gained tremendous momentum[37], they could also be deployed to invest in educational and health care infrastructure[38] to ensure that universities are adept at carrying out screening and quarantining in the post-COVID period. 

This would also be in keeping with World Bank’s advice to countries to prioritize investments in technology so that the low-income students facing digital divide can catch-up.[39]

State Support and Legislative Reforms

Government representatives must also push for further action on UGC guidelines regarding scaling of college fees and put into action the 2019 UGC reform recommendations that had proposed constitution of Fees Committees to analyse the reasonableness of fee levied by private and unaided institutions.[40] 

Undertaking steps to mitigate the negative consequences on education is a State responsibility[41], and a constitutional mandate[42]. As a welfare state in letter and spirit, the legislature must draft and implement measures such as the US Coronavirus Aid, Relief and Economic Security Act which makes available grants for students in both public and private universities[43], and other pipeline bills that aim at helping educational institutions offset compliance costs associated with following public health orders[44], assisting student loan borrowers by way of moratorium and zero interest rates[45], etc. 

India could also follow the stead of Russia which has provided operational support to its universities to transition to the online format, including state portal for admissions[46] and employment portal for students who lost their part-time jobs.[47]

A balance in these trying times can only be reached when educational institutions, parents, and students, work in co-operation, without indulging in any malpractices, or taking advantage of concessions by false claims, in order to protect the best interest of students.  


Nishtha Tripathi and Deepti Shinde are fourth year students from National Law University, Jodhpur.


[1]Coronavirus COVID-19 and Higher Education- Impact and Recommendations, UNESCO International Institute for Higher Education in Latin America and the Caribbean (IESALC), March 9, 2020, available at https://www.iesalc.unesco.org/en/2020/03/09/coronavirus-covid-19-and-higher-education-impact-and-recommendations/

[2]Ministry of Home Affairs Order No. 40-D/2020 D dated March 24, 2020, available at https://www.mohfw.gov.in/pdf/Annexure_MHA.pdf and https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_26032020_0.pdf

[3]The Disaster Management Act, Act No. 53 of 2005, Acts of Parliament, 2005. 

[4]Maike Halterbeck, Dr. Gavin Conlon, Mr. Ohys Williams, Ms. Jocelyn Miller, Impact of COVID-19 pandemic on University Finances, London Economics, April 2020.

[5]Nick Morrison, Students entitled to Tuition Fee Refund over Lockdown Disruption, forbes, July 12, 2020, available at https://www.forbes.com/sites/nickmorrison/2020/07/12/students-entitled-to-tuition-fee-refund-over-lockdown-disruption/#2408cbb072f6

[6]§12A(2)(d) and §12A(3)(a), The University Grants Commission Act, Act No. 70 of 1985, Acts of Parliament, 1956.

[7]Andrew Depietro, Impact of Coronavirus (COVID-19) on College Tuition and Finances, forbes, June 2, 2020, available at https://www.forbes.com/sites/andrewdepietro/2020/06/02/impact-covid-19-tuition-finance/#81af544b8839

[8]The Impact of COVID-19 on University Students, Publications and Records, Petitions Committee, House of Commons, available at https://publications.parliament.uk/pa/cm5801/cmselect/cmpetitions/527/52702.htm

[9]§26(1)(f), The University Grants Commission Act, Act No. 70 of 1985, Acts of Parliament, 1956.

[10]Rule 10 Semester System, Chapter II Standards of Professional Legal Education, Bar Council of India Rules of Legal Education, available at http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartIV.pdf

[11]Supra, note 8.

[12]Shriya Roy, Covid-19: Prestigious universities moving online, but can digital learning compensate for campus experience?, financial express, July 12, 2020, available at https://www.financialexpress.com/education-2/covid-19-prestigious-universities-moving-online-but-can-digital-learning-compensate-for-campus-experience/2020964/

[13]Gilbert, Brittany, Online Learning Revealing the Benefits and Challenges, Education Masters. Paper 303, 2015.

[14]Molly Moriarty Lane, Scott T. Schutte, Ezra D. Church, Brian M. Ercole and Lily G. Becker, Colleges & Universities Hit With Refund Class Actions While Struggling With COVID-19 Effect, lexology, May 18, 2020, available at https://www.lexology.com/library/detail.aspx?g=214a724a-3667-478e-8beb-e443e3698930

[15]Drew H. Campbell, Unjust enrichment claims in tuition refund class actions: No pain, no gain, no claim, Bricker & Eckler Publications, May 19, 2020.

[16]The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872.

[17]The Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986.

[18]Reepak Kansal v Union of India, Writ Petition dated June 30, 2020, available at https://www.livelaw.in/pdf_upload/pdf_upload-377541.pdf

[19]Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh, A.I.R. 2016 SC 2601.

[20]Mangis, Jessica, Online Learning And The Effects On Functional Health: A Pilot Study, EWU Masters Thesis Collection, 2016.

[21]Eric Bettinger and Susanna Loeb, Promises and pitfalls of online education, Economic Studies at Brookings, Evidence Speaks Reports, Vol 2, June 9, 2017

[22]Naresh Kumar v. Director of Education & Ors., W.P. (C) 2993/2020.

[23]Amandeep Singh & Ors. v. State of Punjab and others 2020 SCC OnLine P&H 945; Sreelekshmi v. The state of Kerala, 2020 SCC OnLine Ker 2494.

[24]Report on Implementation of Accounting Standards in Educational Institutions of Department of Higher Education,

[25]Ministry of Human Resource Development, available at < https://mhrd.gov.in/sites/upload_files/mhrd/files/document-reports/Report_IASEI_0.pdf>

[26]Independent Schools’ Association v. State of Punjab & Ors., 2020 SCC OnLine P&H 626

[27]TMA Pai Foundation vs State of Karnataka (1994) 2 SCC 199.

[28]Supra, note 25.

[29]Supra, note 22.

[30]Supra, note 25; University Grants Commission, Letter regarding Payment of Fees, D.O.No.F. I -l 12020 NGC (Tf -C OVID- I 9/Fee), May 27, 2020; All India Council for Technical Education, Instructions to Institutes/Colleges during Lockdown 2.0, No. F. 7-2lDDlAdmn/lnter corr.(Vol.-ll) Pt., April 15, 2020.

[31]Charan Lal Sahu v Union of India A.I.R. 1990 S.C. 1480

[32]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 16 August 2020]; 

[33]UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed 16 August 2020]

[34]Rajat Vats v. GNCTD, 2020 SCC OnLine Del 568

[35]Supra, note 19.

[36]Supra, note 23.

[37]Pulkit Malhotra, The Dichotomy of School Fees: Balancing the Unbalanced, July 15, 2020, available at https://www.barandbench.com/columns/the-dichotomy-of-school-fees-balancing-the-unbalanced.

[38]Jean-Jacques Barbaeris, Marie Briere, ESG resilience during the COVID crisis: Is green the new gold?, July 09, 2020,available at https://www.ecmi.eu/sites/default/files/ecmi_commentary_no_67_july_2020.pdf.

[39]George Inderst and Fiona Stewart, Incorporating Environmental, Social And Governance (ESG) Factors Into Fixed Income Investment, the world bank group publication, April, 2018, available at http://documents1.worldbank.org/curated/en/913961524150628959/pdf/125442-REPL-PUBLIC-Incorporating-ESG-Factors-into-Fixed-Income-Investment-Final-April26-LowRes.pdf.

[40]Renaud Seligmann, COVID-19 (Coronavirus) Policy Response to Addressing Learning Gaps and Inequalities in Russia, the world bank, May 07, 2020, available at https://www.worldbank.org/en/country/russia/brief/covid-19-response-learning-gaps-inequalities-russia.

[41]The University Grants Commission (Fees in Professional Education Imparted by Private and Unaided Institutions deemed to be Universities) Draft Regulations, 2019, No. F. 1-6/2016(CPP-I/DU), available at https://www.ugc.ac.in/pdfnews/0811937_Draft-Regulation-fees-DU-Public-Notice.pdf.

[42]§22(1)(i) and 38(1)(f), The Disaster Management Act, Act No. 53 of 2005, Acts of Parliament, 2005.

[43]India const. art. 38, 41 and 46.

[44]Coronavirus Aid, Relief and Economic Security Act, 116 U.S.C., CARES Act, §§ 1102-23008 (2020)

[45]Reopen Schools Safely Act, HR, 116TH Cong., H.R. 7692 (2020).

[46]Student Loan Fairness Act, US Senate, 116th Cong. S. 4237 (2020).

[47]Supra, note 39.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

COVID-19 PANDEMIC: WHAT ARE THE RIGHTS OF THE DEAD?

Prerna Mayea a third year law student of Institute of Law, Nirma University, Ahmedabad highlights the rights of a deceased person during the Covid-19 Pandemic.

INTRODUCTION

A person during his life is provided with several rights by various legislations across the globe. For example, in India, Article 21 of the Constitution lays down that “No person shall be deprived of his life and personal liberty except according to a procedure established by law.”[1] However, the definition of the word ‘person’ is not provided in the definition clause (Article 366) of the Constitution. Even the definitions provided in Section 3(42) of the General Clauses Act, 1897, and Section 11 of The Indian Penal Code, 1860, do not provide a clear insight. Therefore, the question arises that whether a person who is declared ‘dead’ be regarded as a ‘person’ under the legal regime. 

Salmond observed that the personality of a human commences with their birth and terminates with their death.[2] Thus, a dead person is not regarded as a person under the law. However, he also remarked that dead persons have certain rights in a macro sense, which will include his body, reputation, and estate.

Since time immemorial, it has been believed that the corpses must be treated with reverence and allowed to rest unmolested and undisturbed. International covenants also provide for honoring the remains of dead[3] And their proper management and disposal.[4] This position has also been upheld in Indian law through various statues and a series of judgments. Section 297 of I.P.C. regards the trespassing on places of performance of funeral rites or depositories for the remains of the dead, with the intent to wound feelings or dignity of any person or a corpse, as an offence.[5] In Parmanand Katara, Advocate v. Union of India & Anr., the Supreme Court observed that the right to dignity and fair treatment under Article 21 is not only available to a living man but also to his body after his death.[6] The Allahabad High Court, in the case of Ramji Singh vs. State of U.P., also ruled that right to live with dignity should have a wider application and is also extended to a dead person whose body must be respected. Therefore, the word ‘person’ in Article 21 includes a dead person in a limited sense, and duty falls upon the state, both under law and as a welfare state to protect these rights and ensure a dignified funeral in accordance with religious beliefs of the person.

RIGHTS GRANTED TO THE DECEASED IN INDIAN LAW

  1. Right to a Decent Funeral

The law seeks to ensure decent burial or cremation of a dead man’s corpse as per their religious beliefs.[7] This was also upheld by the Supreme Court in Ashray Adhikar Abhiyan v. Union of India, where an issue was raised regarding the obligation of the state towards homeless people who died on the road. In a P.I.L. filed in 2013 regarding bodies dumped in rivers and other public places, S.C. had given directions for disposing of the unclaimed dead bodies in a decent manner.[8] The Bihar H.C. in Vikash Chandra v. Union of India has also held that hospital staff and government officials shall dispose of the unclaimed bodies in accordance with law by providing respect to the dead. The last rites should be done in accordance with the religion of the deceased, in cases where it’s identifiable[9] Such a right of a dead person must be considered a part of human dignity. 

In addition to the above scenarios, another major concern that arises is the disposal of dead bodies in times on wars, natural disasters, epidemics and pandemics, where a large number of dead bodies which are not identifiable keep piling up in large number. Common graves or mass cremations have been prevalent to ensure the rapid disposal of the corpses. The right to decent burial is intrinsic to a person’s dignity, and so even during such times, the government is required to ensure the decent burial in accordance with the National Disaster Management Guidelines.[10] 

However, even after the formulation of such guidelines, several problems have surfaced regarding the disposal of dead bodies of people dying due to COVID-19. The infected dead bodies are being mishandled by families who keep it at their homes, do not allow the cremation, or refuse to accept the bodies.[11] Crematoriums are refusing to perform the last rites of the deceased.[12] The burial of such dead bodies is being obstructed by locals on the fear of shedding of infection. The Madras H.C. took suo-moto cognizance of this situation and noted that citizens must abide by the guidelines issued by the ministry and refrain from taking law in their own hands.[13] Several petitions are being filed in courts concerning safe management and cremation of dead bodies. One such petitioner demanded the stay on the burial of infected corpses near densely populated areas as it will lead to the spreading of infection through the soil and underground water. He also contended that the health of the masses should take precedence over the religious rights of the deceased’s family members.[14] It was observed by S.C. that the contentions are not backed by a genuinely scientific claim.    

In the light of unprecedented COVID-19 pandemic, the Ministry of Health & Family Welfare has issued special guidelines for the management of dead bodies, which specify that standard precautions like hand hygiene, social distancing, disinfestation, etc. must be taken to avoid shedding of the virus.[15] The ministry has also allowed particular religious rituals that do not require any contact with the corpse, like reading religious scripts, sprinkling holy water, etc. It has also prohibited large gatherings at crematoriums/burial grounds. The ministry has suggested electric/CNG-run crematoria or usage of airtight coffins in cases of burial. Thus, the government has tried to maintain a balance between the health of its citizens and the religious rights of the deceased’s family members.

  1. Right to Die with Dignity

When the person is not bestowed with a decent cremation/burial, his right to a decent funeral is infringed as a result of which his right to die with dignity is infringed as well. Death with dignity has been acknowledgment as a fundamental right under Article 21 of the Indian Constitution after the celebrated Supreme Court judgment in Common Cause vs. U.O.I. Dealing with the issue of the legal validity of euthanasia. It was remarked by the court that the right to live with dignity and the right to die with dignity are two interwoven concepts that are inseparable.[16] It was observed that while a person lies in a persistent vegetative state, the process of natural death has commenced, and death is certain; he has a right to die with dignity. Right to have a dignified life extends till death, including the ‘dignified procedure of death’.[17] On an interpretation of these words ‘dignified procedure of death,’ it can be concluded that it will also include the dignified and decent funeral. A dignified funeral would mean that the body of the deceased should be buried/ cremated with the due respect, the same respect as would have been accorded to him, had he been alive. It is fundamental not only to the bodily integrity and autonomy of the dead person but also to his kith and kin. 

CONCLUSION

With the number of deaths due to COVID-19 taking a toll, it is essential that the dead bodies are subjected to a dignified funeral. Citizens must be informed about the guidelines by the Union Health Ministry and should co-operate in such challenging times by following the guidelines. If courts are mandated to fulfill the desires of a deceased person by executing his will, the same courts must also ensure compliance with the appropriate directions issued by the Union Health Ministry for dignified disposal of their bodies after their death, to uphold the right to die with dignity of such individuals.    


Prerna Mayea is a third year law student from Institute of Law, Nirma University, Ahmedabad.


[1]Article 21, The Constitution Of India, 1950.

[2]Fitzgerald, P.J.: Salmond On Jurisprudence, (12th ed.), p.301. 

[3]Australia, Manual on Law of Armed Conflict, Australia Defence Force Publication, §998 (1994).

[4]U.N. Commission on Human Rights, Res. 2005/26, (April 19, 2005). 

[5]Section 297, The Indian Penal code, 1860.

[6]Parmanand Katara, Advocate v. Union of India & Anr., (1995) 3 S.C.C. 248.

[7]R. v. Stewart, (1840) 12 A.D.; R. v. Prince, (1884) 12 QBD 247.  

[8]Unclaimed dead bodies are given decent disposal: Supreme Court, Economic Times, (November 25, 2013, 08:25 PM), https://economictimes.indiatimes.com/news/politics-and-nation/unclaimed-dead-bodies-be-given-decent-disposal-supreme-court/articleshow/26370200.cms.

[9]civil Writ Jurisdiction Case No.23980 of 2019. 

[10]National Disaster Management Authority G.O.I., National Disaster Management Guidelines (2010), https://ndma.gov.in/images/guidelines/management-of-Dead-in-the-Aftermath-of-Disasters.pdf.

[11]Cheena Kapoor, COVID-19 in India: Mishandling infected dead bodies spell anxiety, Anadolu Agency (March 25, 2020), https://www.aa.com.tr/en/asia-pacific/covid-19-in-india-mishandling-infected-dead-bodies-spell-anxiety-/1778602.

[12]Chirag Gothi, Delhi crematorium refused to perform last rites of woman who died of coronavirus, says family, India Today (March 14, 2020, 01:25 PM), https://www.indiatoday.in/india/story/delhi-crematorium-refuses-to-cremate-woman-who-died-of-coronavirus-1655434-2020-03-14.

[13]Meera Emmanuel, “Article 21 includes right to decent burial”, Madras H.C. registers suo motu P.I.L. after mob obstructs burial of Doctor who died from COVID-19, Bar And Bench (April 21, 2020, 08:43 AM), https://www.barandbench.com/news/litigation/article-21-includes-right-to-decent-burial-madras-hc-registers-suo-motu-pil-after-mob-obstructs-burial-of-doctor-who-died-from-covid-19.

[14]Nilashish Chaudhary, ‘Health And Safety Concerns Should Precede over Religious Rights’: Plea In SC To Stop Burial Of Persons who Died of COVID-19, Live Law (May 1, 2020, 06:28 PM), https://www.livelaw.in/top-stories/health-and-safety-concerns-should-precede-over-religious-rights-plea-in-sc-to-stop-burial-of-persons-who-died-of-covid-19-in-3-mumbai-cemeteries-156064.

[15]Ministry Of Health And Family Welfare, Covid-19: Guidelines On Dead Body Management (2020), https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf.

[16]Common Cause (a regd. Society) vs. U.O.I., (2018) 5 S.C.C. 1.

[17]Common Cause (a regd. Society) vs. U.O.I., (2018) 5 S.C.C. 1.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

The Neglected Case of Occupational Safety And Health In India

Pulak, a second year student of Chanakya National Law University, Patna analyzes the neglected aspect of Occupational safety and Health in India.

Occupational Safety and Health (OSH) can be defined as the highest degree of physical and mental well-being of workers in all occupations. The Joint ILO and WHO Committee have given three different objectives regarding occupational health; (i) the maintenance and support of workers’ health and working capacity; (ii) the continuous up-gradation of the working environment and work to be conducive to safety and health and; (iii) development of work organizations and promoting a culture that supports health and safety of workers. OSH also involves occupational hazard management and control. This includes preparedness to combat any occupational hazard and providing the workers with proper medication and insurance if suffering from an occupational disease.[1]

Occupational Safety and Health has been one of the most neglected aspects of public health in India for a long time. There has been an increase in the number of fatalities at work due to accidents.[2] An increase in chemical hazards in factories is also observed. There is not much reliable data about the status of occupational health in India, especially in the unorganized sector.[3] There are statutory provisions to notify the cases of occupational diseases diagnosed and protect the workers’ health, but these are seldom implemented. The majority of the workers in India are in the unorganized sector. Those who work in the organized sector or have access to trade unions are not aware of the provisions. Even if the workers are acquainted with their rights, it is very difficult to get them enforced because of the large labor force available in the Indian market. If any worker registers his protest again the employer for not complying with the labour laws, the employer fires him and hires another person at his place.[4] 

The Directive Principles enshrined in the Constitution provide for securing the health and safety of employees, men, and women. Article 42 talks about just and humane conditions of work and maternity leave to be provided. The National Policy on Safety, Health, and Environment at Workplace (NPSHEW) was adopted in 2009, based on the principles provided by the DPSP regarding the health and safety of employees. The NPSHEW has recognized a safe and healthy working environment as a fundamental human right. 

At present, there are about 16 laws related to the condition of the workplace, working hours, and conditions of service and employment in India. But majorly, there are two acts that contain the main provisions related to health, sanitation and safety of workers, The Factories Act, 1948, and The Mines Act, 1952.[5] The main Act related to providing financial security and helping workers suffering from occupational diseases or injuries is the Employees’ State Insurance Act, 1948.

The 1984 Bhopal Gas Tragedy was an eye-opener for the government in terms of the sheer negligence and disregard for safety and the ill-preparedness of the government to combat any type of hazard in the industries. This led to the amendment in the Factories Act in 1988, after which Chapter 4A was added. It deals with provisions relating to hazardous processes like the Constitution of the site appraisal committee, inquiry committee by the government, warning workers about imminent dangers, etc. The Factories Act, 1948, also provides a list of 116 chemicals and substances in its ‘Second Schedule’ for which a maximum permissible limit has been established. 

The Ministry of Labour and Employment is responsible for OSH in India. There is no separate department or agency, neither at the Centre nor the state level, that exclusively deal with matters related to OSH. At the state level, Directorate of Industrial Safety and Health (DISH) implements and monitors OSH. DISH is also responsible for the employment of factory inspectors, medical staff, and inquiry teams.

Unlike the Factories Act, The Employees’ State Insurance Act applies to non-seasonal factories employing ten or more persons and also applicable to establishments employing 20 or more persons. ESI Act also contains a list of occupational diseases under its Schedule III. These diseases are classified into three parts in the Schedule, based on their types.

Chronic Obstructive Pulmonary Disease (COPD) is one of the major types of occupational diseases in India. COPD includes diseases like silicosis, silico-TB, byssinosis, asbestosis, and broncho-pulmonary diseases caused by hard metals.

Rajasthan, followed by Gujarat, has the highest number of silicosis cases in India. Gujarat also has the 3rd highest number of factories, after Tamil Nadu and Maharastra.[6] Rajasthan has the highest number of mines leases in India. According to the CAG Report of 2018, the number of deaths due to silicosis had increased in Rajasthan from 1 in 2013-14 to 235 in 2016-17.[7] The districts of Sirohi in Rajasthan and Morbi, Surendranagar and Rajkot in Gujarat account for the majority of the cases. Morbi is known for the manufacture of ceramic products, and Surendranagar is the hub of sculpture making and stone-polishing. 13 workers have died due to silicosis between November 2018 and November 2019.[8] The temple building community of Rajasthan and Gujarat are the major victims in these cases. They have been cutting, polishing, and sculpting granite, sandstone, marble, and other types of stones for generations. Many famous Hindu and Jain temples across India are examples of their work. But the government has been negligent in these states, and even the official data related to the number of deaths due to occupational diseases are not published regularly.[9] The data in some states is very scarce and incomplete. 

Occupational Safety and Health needs to be improved in a country, especially where the major portion of the workforce is employed in unorganized and medium and small-scale industries. The majority of these industries fail to comply with various government policies. For example, the Model Factory Rules drafted under the Factories Act, 1948, has mandated provisions of the set up of Occupational Heath Centres (OHC) in hazardous industries.[10] These rules have been adopted by all the states as their respective factory rules. But many hazardous industries do not have full-fledged OHCs. There is a dearth of OSH infrastructure and professionals. Rajasthan, in October 2019[11], became the second state after Haryana to implemented a particular policy for silicosis victims.[12] Gujarat still does not have a special silicosis policy, despite having the second-highest number of silicosis cases. 


Pulak is a second year student from Chanakya National Law University, Patna


[1]Evelyn Kortum-Margot, 5 GOHNET Newsletter, 1 (2003) (June 5, 2020, 4:50 PM) https://www.who.int/occupational_health/publications/newsletter/en/gohnet5e.pdf?ua=1.

[2]Harsharan Bakshi, Workplace Fatalities on the Rise, The Hindu, November 23, 2017

[3]K.R. Shyam Sundar, Steep decline in quality of labor data, Business Line, (June 5, 2020, 7:50 PM) https://www.thehindubusinessline.com/opinion/steep-decline-in-quality-of-labour-data/article25734724.ece#

[4]Rajiv Shah, 84 fatal accidents, 114 deaths in three years in textile units in Surat, Gujarat, Counterview, (June 5, 2020, 08:35 PM) https://www.counterview.net/2018/03/84-fatal-accidents-114-deaths-in-three.html.

[5]R. K. Saha, Occupational Health in India, Annals of Global Health (2008) (June 6, 2020, 10:29 AM) http://doi.org/10.29024/aogh.2302

[6]Handbook of Statistics on the Indian States, Reserve Bank of India Report 2018-19, Table No. 84

[7]Chinmayi Shalya, Rajasthan to create pneumoconiosis fund with DMF money, Down To Earth, (June 6, 2020, 12:24 PM) https://www.downtoearth.org.in/news/mining/rajasthan-to-create-pneumoconiosis-fund-with-dmf-money-67086

[8]13 workers died of silicosis in Gujarat in 16 months, The Indian Express, (June 6, 2020, 01:24 PM) https://indianexpress.com/article/cities/ahmedabad/13-workers-died-of-silicosis-in-gujarat-in-16-months-6383661/

[9]G.K. Kulkarni, Prevention and control of silicosis: A national challenge, Indian Journal of Occupational & Environmental Medicine, (June 6, 2020, 03:40 PM) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3168170/

[10]Model Factory Rules 1987, Rule 82O. 

[11]Rajesh Asnani, Rajasthan makes a particular policy to tackle the Silicosis crisis, The New Indian Express (June 6, 2020, 04:27 PM) https://www.newindianexpress.com/nation/2019/oct/05/rajasthan-makes-special-policy-to-tackle-silicosis-crisis-2043699.html

[12]Chetna Choudhry, the Haryana government, notifies Silicosis rehabilitation policy, The Times of India, (June 6, 2020, 04:27 PM) https://timesofindia.indiatimes.com/city/gurgaon/haryana-government-notifies-silicosis-rehabilitation-policy/articleshow/58733817.cms

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

LEGAL COMPETENCE TO COMBAT THE CONTAGION

Srishti Baniyal, a third year law student of University of Allahabad analyzes the legal competency of India to combat the Epidemic situations and exigency to introduce reforms.

History reveals that devastations don’t happen twice, and if they do, they will occur a third time again. Whether it be Bubonic plague of Justinian in 541 AD with about 25 to 100 million deaths, Black death fever of Europe, Asia, and Africa in 1346-1356 AD, Spanish flu of 1918-20 or COVID 19 in the present; nature has tested human endeavor time and again. Being known for our robust enthusiasm and most evolving nature, we are now able to fight such havocs more efficiently with the advancement in medical science and stringent laws.

Global concerns:

It was after the Second World War when global concerns were raised to combat natural havocs while keeping pace with human rights. World Health Organization (WHO) was established in 1946 to attain the standard of health as a fundamental right of every human being. In 1948, the Universal Declaration of Human Rights (UDHR) came into force with an attempt to create legal obligations on the member states to attain public health standards by the formation of the domestic laws.

Pre-independence efforts:

In the Indian context, Epidemic Disease Act,1897 was enacted by the colonial government seeing the upward trajectory of deaths due to bubonic plague scourge in Bombay in 19th century with 1.3 million deaths in a single year because of community tenements and chawl system of dwellings in Bombay defying the quarantine rules.[1] Section 2 and 2A of the above Act grants power to state and central governments to empower any person to take measures and prescribe regulations for the time being by means of a public notice during the outbreak of any dangerous epidemic to prevent the same from the spread. Under section 3, disobedience by any person was made punishable as per section 188 of I.P.C. 1860, with the imprisonment of either description from one month to six months. Moreover, persons acting in good faith were exempted from the legal proceedings under section 4 of the Act.

Post-independence efforts:

Constitution of India, with its enforcement in 1950 enforced public health provisions in fundamental rights and directive principles. Taking it as the basis, Supreme Court in Consumer Education & Resource Centre v.UOI[2] was of the view that the right to health is inherent in Article 21 of the Constitution, guaranteeing the right to life and personal liberty. Ascertaining the public health risk, the 7th schedule of the Indian Constitution featured a ‘public health’ in-state list giving more discretionary powers to state governments and advisory powers to the government of India.

Health emergency and strict laws:

Health emergency is a concept to be implemented for the first time in India after the WHO on 30th March 2020 declared COVID outbreak as a public health emergency. With no mention of the same in Indian Constitution, the states preferred earlier to rely on penal provisions than on any stringent law and therefore, whether it was Cholera epidemic of Kolkata, Surat’s plague or Swine flu outbreak, states used section 144 CrPC,1973 to restrict public gathering, section 269 IPC,1860 to penalize negligent patients with minimum six months imprisonment or fine or both and section 270 IPC,1860 to punish disobedience of quarantine laws. Covid outbreak invoked health emergency in India not on the grounds of any emergency provision but by relying on the term ‘internal disturbance’ subsisting in Article 355 of Indian Constitution empowering the Central government to protect states and union territories from any internal disturbance caused by natural calamity including pandemic by taking all measures necessary.

Stringent laws and humanitarian crisis:

Confronting COVID 19 catastrophe triggers a widespread humanitarian crisis. Restricting freedom of movement, depriving migrant workers their right to shelter, right to food on-ground reality, rupturing right to assemble, freedom of expression, right to a speedy trial are few legal fundamental rights suspension amidst the pandemic. This is not the first time when humanitarian rights fight against the attempt to prevent the spread of infectious disease. With the H.I.V./AIDs epidemic in the 1990s, solitary confinement was measure resorted to but was termed as a serious infringement of basic human rights of personal liberty. The Apex court established that liberty and public health are not in conflict rather in accord with each other. However, in order to combat exceptional circumstances, isolated detentions are justifiable grounds on which public health can be given importance over individual rights.

The legal scope of improvement:

India is being applauded by the global community for timely recognizing the havoc and being able to clutch the crisis to some extent for such a long span of time because of effective leadership, diligent administration and devoted medical staff and health workers. However, the pandemic is gone nowhere, and ample scope of improvement lies. Presence of The Disaster Management Act, 2005 to combat man-made and natural disasters and National Disaster Management guidelines, 2008 are not sufficient. Moreover, the archaic Epidemic Act shows ample lacunae as it has no interpretation clause to define terms like ‘dangerous,’ ‘infectious,’ ‘contagious disease.’ Neither states when to call a crisis as an epidemic. With the aim of protecting government officials acting under Act, it forgets to mention measures for dissemination of drugs, quarantine steps, equal healthcare services to all safety and security of healthcare professionals and other workers, etc. The need to adapt existing laws to contemporary requirements was felt in 2017 with the proposal of Public Health (Prevention, Control, and Management of the epidemic, bioterrorism, and disasters) Bill, but it lapsed in Parliamentary session, and the need to fill the exposed glaring gaps remained unfulfilled.

Analyzing foreign strategy:

The need of the hour is to learn from countries which have succeeded in controlling the pathogen. New Zealand tops the list as it records zero cases of COVID now. Timely closing of schools, bars, churches, public transport showed the best response to the pandemic. South Korea tops in screening maximum people than any other country with about ten thousand screenings per day. With the vigilant approach, borders were sealed, the local government strengthened. Singapore government made direct contact with masses and removed unwarranted middlemen services by making Ministry of Transport responsible for providing all sorts of medical supplies; Ministry of Communication for rapidly sharing authentic information regarding the epidemic and Ministry of Education ready with online study material for students. Likewise, Japan, Vietnam, Taiwan are also among countries to move towards the goal of flattening the curve where even the non-mandatory guidelines were also performed by the citizens and showed how general masses are directly responsible for fighting the exigency. 

Labour laws amidst crisis:

On the other front, with the upcoming recession amidst the pandemic, it is equally pertinent to balance the wheels of strategically planned economic development. A financial aid to MSMEs is being given in tranches, constant meetings are being held with FICCI, CII, ASSOCHAM to catalyze economy and four labor laws have been given exemption in various states by means of ordinances. However, it is to be kept in mind that such blatant suspension of labor laws do not hamper crucial humanitarian principles. 

The conclusion can be drawn that no matter what pros and cons shine from the template of laws invoked in times of this pandemic, it is necessary to abide by the precautionary measures and isolation procedures. Being productive while being constrained to our homes is the best way to combat the tough times.


Srishti Baniyal is a third year law student from University of Allahabad.


[1]Section 269, 270 and 271 of Indian Penal Code, 1860

[2]1995 S.C.C. (3)

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

GENDER-BASED VIOLENCE: AN EMERGING PANDEMIC

Naina Bora and Devika Bansal, both 3rd year law students of Gujarat National Law University, Gandhinagar discusses the surge in Gender based violence amidst the COVID-19 pandemic along with the directions given by the High Courts of J&K and Delhi on this issue.

Introduction

Battling the pandemic outside and inside the house, domestic violence has seen a grave surge in the number of reported cases all over the world. Falling under the umbrella term of “Gender-based violence,” it’s been defined as “any act that is perpetrated against a person’s will and is based on gender norms and unequal power relationships” by the UN.[1] 

India ranked 125th by the UN Gender Inequality Index, has seen a consistent rise in the number of reported domestic violence cases due to the COVID-19 pandemic and the recent lockdown.[2] This could be attributed to the tense situation created in domestic households due to the economic and social consequences of the pandemic. This includes loss of jobs and financial instability.  It is pertinent to note that the recorded statistics might not reflect actual numbers given the lack of accessibility to reach the concerned authorities due to poverty.  

During the second week of April 1612 cases of domestic violence were reported to the Delhi Police. National Legal Services Authority (NALSA) which aims to provide free legal aid and advice reported[3] 727 cases of domestic violence. This article attempts to analyse the orders of the High Courts of Jammu and Kashmir and Delhi, which have addressed and given directions on this issue.

High Court of Jammu and Kashmir 

On April 18, the High Court of Jammu & Kashmir took suo moto cognizance[4] of domestic violence during the lockdown and passed an order suggesting a set of directions to be followed by the Government.

The Court noted the plight of women as a consequence of the lockdown due to the inaccessibility to online platforms by women coming from weaker economic sections of the society. It further laid down guidelines for government agencies in adherence to Section 11(a) of the Protection of Women from Domestic Violence Act, 2005[5] which accords a statutory mechanism to ensure the rights of women against domestic violence by ensuring the Government’s duty in publicising it’s provisions through public media.

The Court suggested the creation of a special dedicated fund to deal with the issue, increased legal and counselling service, designated informal spaces such as educational institutions to serve as accessible shelters for such victims. Furthermore, there may be certain designated spaces such as grocery stores and pharmacies where they could report such abuse without alerting the perpetrators. Due regard was given to an increase in awareness campaigns and for all the courts in the UTs of J&K and Ladakh to treat the cases of domestic abuse as urgent.

The High Court of J&K has taken a positive step by providing well-rounded directions which encapsulate solutions for various scenarios while keeping in mind their economic background and access to online platforms.

Delhi High Court 

On April 24, 2020 the Delhi HC delivered a final judgment[6] in a petition filed by the All India Council of Human Rights, Liberties, and Social Justice. Considering the rising number of cases, the inadequacy of having 17 protection officers for the entire state was pointed out. Moreover, the helpline number had been published in two English newspapers, highlighting its limited outreach and the inadequate efforts of the Government to spread awareness via other forms of media. Further, the High Court failed to address the concern regarding the inadequate number of protection officers.

The Government informed the Court that all the directions issued earlier[7] By the High Court, have been complied with, and shelters for such victims will remain functional. Moreover, other help lines, including 181, will remain operational for emergency rescue and support that includes psychological support. National Commission for Women has also introduced a complaints portal on its website along with a WhatsApp number. The Ministry of Information and Broadcasting has issued directions to all private satellite TV channels and FM Radio channels to broadcast the helpline numbers and the different ways a victim can ask for help. The Delhi Government has also recognized 14 NGO run women shelter homes. Delhi State Legal Services Authority (DSLSA), has established a toll-free helpline number and a WhatsApp number through which the victims can get relevant legal advice and aid. Further, both these numbers have been brought to the attention of the public via radio jingles, advertisements in the newspapers, and distribution of pamphlets in mother dairy booths and chemist shops.[8]

The Court failed to take note of the fact that women in India[9] are 28% less likely than men to own a mobile phone and 56% less likely to use mobile internet compared to their male counterparts. This renders the multiple help lines redundant to such victims. France, for example, has set up pop up counselling centres in places like grocery stores, where the victim can ask for Mask 19[10], a code word used by women to notify the authorities if the abuser is accompanying the victim. No such direction has been issued by the Delhi HC, unlike the J&K HC. Due to the close proximity between the victim and abuser, it might lead to the victim being unable to report the abuse; hence there need to be other measures to address this issue.

Conclusion

Most people are still not aware of the help lines due to the limited reach. The Government must also focus on victim rehabilitation centres and other facilities. Despite the special measures taken by some states, they have still failed to take into account problems of inaccessibility to online resources and the minimal measures taken to increase awareness. Although the problem of domestic violence is all-pervasive, other states have failed to take up such proposals.  The Government must take cognizance of the fact that uniform measures are required to provide consistency in areas that lack solutions. 

There should be a notable emphasis on measures beyond help lines while considering the socio-economic status of women in society. The increasing number of domestic violence cases is an indication that government agencies need to rise to the occasion and combat gender-based violence during and after the pandemic.


Naina Bora and Devika Bansal are 3rd year law students from Gujarat National Law University, Gandhinagar


[1]United Nations, SEXUAL AND GENDER-BASED VIOLENCE, UNHCR, https://www.unhcr.org/sexual-and-gender-based-violence.html (last visited May 26, 2020).

[2]Dhamini Ratnam, Domestic violence during Covid-19 lockdown emerges as a serious concern, HINDUSTAN TIMES (May 25, 2020, 8:30pm), https://www.hindustantimes.com/india-news/domestic-violence-during-covid-19-lockdown-emerges-as-serious-concern/story-mMRq3NnnFvOehgLOOPpe8J.html

[3]Most domestic violence cases in lockdown from Uttarakhand, Haryana: NALSA, THE INDIAN EXPRESS (May 25, 2020, 10:05pm), https://indianexpress.com/article/india/most-domestic-violence-cases-in-lockdown-from-Uttarakhand-Haryana-nalsa-6412084/.

[4]Court on its own Motion v. UTs of J&K and Ladakh, (J.&K. High Court: 2020). 

[5]Protection of Women from Domestic Violence Act, 2005, §11, No. 43, Acts of Parliament, 2006.

[6]India Council of Human Rights Liberties and Social Justice v. Union of India, (2020), SCC OnLine Del 537.

[7]Unnati Sharma &amp; Zainab Sikander, Sufficient measures taken to defend domestic violence victims amid lockdown, AAP tells Delhi HC , THE PRINT (May 26, 2020, 9:30pm), https://theprint.in/india/sufficient-measures-taken-to-defend-domestic-violence-victims-amid-lockdown-aap-tells-delhi-hc/404290/.

[8]All India Council of Human Rights Liberties and Social Justice v. Union of India, (2020), SCC OnLine Del 537.  

[9]MOBILE GENDER GAP REPORT 2019, https://www.gsma.com/mobilefordevelopment/wp-content/uploads/2019/03/GSMA-Connected-Women-The-Mobile-Gender-Gap-Report-2019.pdf (last visited May 24, 2020).

[10]Ivana Kottasová; women are using code words at pharmacies to escape domestic violence CNN(2020), https://edition.cnn.com/2020/04/02/europe/domestic-violence-coronavirus-lockdown-intl/index.html (last visited June 16, 2020).  

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

FEDERALISM IN TIMES OF PANDEMIC

Rishi Raj Mukherjee, 1st year student of National University of Study and Research in Law, Ranchi analyzes the manifold challenges associated with the Indian federalism at the time of pandemic.

The outbreak of the global pandemic has thwarted the equilibrium in nations across the world and triggered a ‘litmus test’ moment for Indian Federalism. The article outlines the opportunities it has presented, the manifold challenges associated with the same, and how far has the Indian State successfully transformed ‘challenge into opportunity.’ Undoubtedly, a curious paradox of a ‘Globalised World and Federalised Politics’ is undeniable. The pandemic has derailed globalised development and connectivity and urges for increased cooperation between the Centre and the States.

Politics is a perennial, overflowing river changing its course and dynamics subject to time, space, and conditionalites. So, it is crucial not only to look at the structure of the constitution but also at the practice of it to attempt a comprehensive understanding of the Indian polity and federalism in current times. Scholars including Subrata.K.Mitra have envisaged Federalism as reconciliation between ‘self-rule’ and ‘shared rule’ where there is not only division of powers but eventually a trickledown effect to empower the last person in the line within the folds of democratic governance. 

Changing Centre-State Equations

The shift towards centralization was evident since 2014, with states ruled by Opposition parties alleging discrimination and authoritarianism on part in the Centre. The nationwide lockdown never seemed a ‘consensual decision’ in the initial stages, with only a couple of states like implementing strict curfew restrictions. Delhi was the first to close educational institutions in the first week of March, followed by Karnataka, which had imposed restrictions on public gatherings even before a nationwide lockdown was declared. Public health is a subject in the State List, but given the Global Pandemic, a national approach was much desired. Invoking the Epidemic Diseases Act, 1897 and the National Disaster Management Act, 2005, which provides the Centre with magnanimous powers to arrest the spread of the disease, the decision seemed unilateral on the part of the centre. Later a number of states joined the bandwagon, as the situation worsened.

The Centre and the States finally decided to bury the hatchet for a common cause triggered by the outbreak of the pandemic. Indian federalism seemed to take a conciliatory approach manifested in the video conferences hosted by the Prime Minister with the Chief Ministers. A plethora of Inter-Governmental and Inter-Departmental meetings were witnessed at different levels of the Government. ‘Minimisation of political differences’ is a landmark development achieved only sparingly in the Indian political landscape characterized by stiff electoral competition. Working in a collective and coordinated manner has yielded results, and India’s response mechanism has been widely praised, including by the World Health Organisation (WHO). 

The Federal Tensions

When the entire country was being mapped into red, orange, and green zones, disagreements were bound to surface with every state calling for considerable autonomy in the handling of the pandemic and deciding the parameters for zone demarcation. Past experiences have demonstrated how guidelines and directives issued by the Centre have ‘irked’ state leadership in some opposition ruled states who have conceived such actions as a blow to the ‘federal structure.’ Disputes over data sharing have further contributed to a tug of war with the Governor’s ‘apolitical office’ has recently stirred fresh controversy in the states of Maharashtra and West Bengal. The chaotic inter-state movements of migrant labourers have certainly reflected the failure to chart out a joint plan by the governance. The onus is to effectively mitigate the sufferings of the migrants through proper coordination and develop the areas where the scope lies to transform the ‘challenge into an opportunity.’ 

At the district level, Bhilwara in Rajasthan, Agra, and Kushinagar in Uttar Pradesh and several districts in Kerela have done a commendable job in conducting large scale testing and door to door campaigns. A ‘PM-CM-DM’ equation is clearly playing an instrumental role in all three levels of governance. From the right to life, liberty, and property, the Government moved to secure second and third generation of rights for its citizens, but the crisis has pushed it back to the pavilion. As the unlocking begins after a prolonged shutdown, it needs to be taken care of that ‘A one size fits all policy’ wouldn’t yield the best results.

Dynamics of Fiscal Federalism 

In such times, the significance of ‘Fiscal Federalism’ is only ascendant. The States see the Centre as a ‘repository for financial aid.’ The Centre also continues to play a critical redistributive role in such matters. The Indian Constitution certainly provides us Articles 268 – 293 under Part XI dealing with center-state relations with respect to fiscal provisions shows that the States has exclusive jurisdiction over the collection of State GST, duty on liquor, tax from agriculture etc, depends on aid provided by the Centre. A Micro-Analysis would definitely point to the harsh realities where the States are in a dire financial crunch to meet their immediate expenditures. The nationwide lockdown implied a stop to the sale of liquor, thereby depriving the States of a major source of revenue along with significant relaxations in the collection of land revenues and repayment of farmer loans. Justice KM Joseph had hailed the introduction of the GST Regime as a ‘revolutionary chapter in the history of Indian federalism’, yet states look forward to a GST compensation, which the Centre is yet to release. 

With the BJP at the Centre and a number of opposition parties ruling at the state level, the decision to suspend the MPLAD Funds for a period of 2 years has been slammed by the Opposition as a unilateral stand to ‘Centralise Funds’. Such unilateral steps of the centre without consulting the State governments can worsen the situation. Always ‘demonising the centre as Shylock’ is not the solution to our present woes. Every Government has fiscal constraints, and besides aiding the States, the Centre has its own schemes and packages to fund. 

Empowering local self-governance is imperative to the success of Fiscal Federalism in India. The informal and agricultural sectors which hold the key to economic recovery have been apparently one of the focal points of the ‘Atmanirbhar Bharat’ package announced by the Centre. The package could well emerge as a source of tension with time concerning provisions for loans over grants from the centre. But, it is time for the leadership to realise that the Centre and States ought not to ‘scramble’ for funds but rather, effective and coordinated fund transfer to the needy should be the sole objective. Municipalities and Panchayats will inevitably have a decisive role to play in providing relief at the grassroots for the successful implementation of the package. 

Roadmap for the Future

The framers of the Constituent Assembly had envisioned Indian federalism as a ‘Strong Centre but not Weak States.’ In an era of ‘cooperative federalism,’ states are the partners in nation-building. Leadership and well as policy implementation is the foundation of federal dynamics during any crisis of such massive proportion. Though separation of powers is a tenet of ‘India’s Living Constitution,’ their territories of operation and the interests of the electorate overlap. Any remedial strategy in response to the crisis ought to be people-centric. The reality is that federalism is not just a normative doctrine; it is a ‘procedural necessity’ for achieving ‘larger substantive goals.’ 

“No train runs without an engine. Moreover, the real job is to lay the tracks”. In the context of Cooperative Federalism, the Double Engine, which comprises both the Centre and the States, ought to run in synchronisation to make things happen. ‘Saving Lives and Restarting Economic Growth in a phased manner’ poses a dual challenge in the current scenario. The writing on the wall is bold, clear, and unambiguous. ‘A proactive role for the Centre coupled with constructive partnership from the states’ seems to have emerged as the ‘mantra for nation-building’ in the new evolving India of the 21st century.


Rishi Raj Mukherjee is a first law student from National University of Study and Research in Law, Ranchi


IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Image Source – The Statesman

DOMESTIC VIOLENCE: A SUPPLEMENTARY PROBLEM WITH COVID-19

Kapil Devnani, a first year student of Hidayatullah National Law University, Raipur discusses the issue of domestic violence in the light of the COVID -19.

ABSTRACT

The main focus of this article is on the rise of the cases of domestic violence in the period of lockdown. Domestic violence is one of the biggest social evil that is ignored by the majority of people in our country, but there is an urgent need to cope up with this problem. It is like one of the pillars on which the progress and development of a nation depend. So, this article provides a decent overview of all the aspects related to the Domestic Violence and also provides some suggestions to curb this rise in the cases of Domestic Violence.

INTRODUCTION

This lockdown to combat the present situation of COVID-19 is a crucial step taken by the Government of India. But as we know, every action has an equal and opposite reaction. This lockdown has brought many challenges in front of our nation, one of which is domestic violence. During this period of the lockdown, the cases of domestic violence have been increased rapidly. The National Commission for Women (NCW) has recorded more than twofold rise in the cases of Domestic Violence during this period. The total number of complaints filed for domestic violence in the month of April 2020 was 315, which was highest since last August. The unavailability of alcohol for addicts and the pressure of meeting necessities were the key factors because of which this rise in cases was witnessed.

DIFFERENT FORMS OF DOMESTIC VIOLENCE

Domestic violence is not only limited to physical abuse, but it also takes various forms in different situations. Some of these forms are:

  • Physical abuse – Threatening or physical assault, including choking, hitting,punching and shoving, smashing objects, throwing objects, and assaulting children. 
  • Sexual abuse – Any unwanted sexual contact, it also includes rape.
  • Social abuse – Isolating partner from society (friends and family), controlling the partner’s movements when going out, denying partner access to the telephone. 
  • Psychological abuse – Verbal and emotional abuse such as humiliation, insults, threats, swearing, harassment, and put-downs. 
  • Economic abuse – Exerting control over household income by prevention the other person’s access to financial independence.
  • Spiritual abuse – Denying religious beliefs or practices to justify other forms of abuse or to force victims into subordinate roles.

LEGAL ASPECT OF DOMESTIC VIOLENCE IN INDIA 

There is a separate Act that governs the cases related to Domestic Violence in India, and it is known as “The Protection of Women from Domestic Violence Act, 2005“. This Act deals with all the provisions related to Domestic Violence broadly and aims to protect females from the brutality by any of her household man and his relatives. 

Apart from this, Section 498-A of IPC also protects the women from being subjected to cruelty by the husband or his relatives. This Section also stipulates a punishment extending to 3 years and fine as may be decided by the court.

ROOT OF THIS PROBLEM

The main hurdle that comes in front of this nation to eliminate this crime is that most of the cases of domestic violence are not even reported because it is very hard for a victim even in the most supportive conditions to report such abuses and this can be proved by taking the stats of National Family Health Survey-III, published in the year 2005. According to this survey, about 37.2 percent of married women faced spousal abuse, but out of this only, 2% approached police stations to sought help. In rural India, this situation is worst because most of the woman in rural India are illiterate and are very much dependent on their husbands who discourage them from filing the complaints. The NGOs which were spreading awareness and acting as a mediator between victim and authorities, making it easier for women to come out of their house and report such abuses are also not able to work because of this lockdown.

LOCKDOWN AND THE CASES OF DOMESTIC VIOLENCE IN FOREIGN NATIONS

Apart from India, many other countries are also facing this surge in the cases of Domestic Violence. Katrin Goring-Eckardt (Germany’s parliamentary leader) in her speech mentioned this issue and said that she is concerned for those women who are trapped with violent partners in this lockdown. In the UK, Mandu Reid (leader of women’s Equality Party) has called for the policy or legal changes to reflect the increased risk to women and children in quarantine. UN Secretary-General, Antonio Guterres also appealed to the governments to pay attention to this horrifying global surge in domestic violence which shows that it’s a “Global Problem” and there emerges an urgent need to protect the victims of Domestic Violence globally.

STEPS TAKEN BY THE GOVERNMENT AND ITS RESULT

To combat this problem, the National Commission for Women (NCW) launched a helpline number – 0721-7735372, which enables the victim to report the crime of domestic violence through a message on WhatsApp. The reason behind using WhatsApp was that it is easier for most of the women to connect on WhatsApp in comparison to E-Mail and this can also be proved by the fact that a total of 40 messages were received in the first two days after the launch of this helpline number. But, in our country, a good percentage of women do not possess smartphones and there is also a lack of availability of internet facilities in remote areas which makes this initiative unavailable for most of the women.

SUGGESTIONS

The Government must implement far-reaching reforms that are inclusive of all women in the country, whether in an urban or rural area. An immediate step should also be taken to spread awareness about all the aspects of Domestic Violence and awareness about the helpline number should also be spread by using various mass media platforms. The Government can also change the legal policies to cope up with this rise in cases of Domestic Violence and can also take steps which other countries have decided to combat with this problem like, in Spain, the Government has proclaimed that the women will not be fined if they leave their house to report abuse and in France, the Government announced to put victims of domestic violence in hotel rooms and it also announced a fund of EUR 1 million to relief organizations working against domestic abuse, to help them to cater the increased number of victims. 

CONCLUSION

The only place where we are safe in this present epidemic is our home but, we can’t even imagine the condition of those women who are not safe in their homes as well. The Government alone is not responsible for solving this problem, but we as a citizen of this nation also have some moral duty to save those women and help them in getting legal aid. Our society generally ignores this problem and pays no attention to this issue, but this issue is like a slow poison which will affect the development of the nation in a long-run, and because of this there emerges an urgent need to protect the victims of Domestic Violence otherwise, the marks of these domestic violence cases will remain for a longer period.


Kapil Devnani is a first year student of Hidayatullah National Law University, Raipur


IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

THE LOCKDOWN: LAW STUDENTS & EDUCATION

Aashi Sharma, a 4th year student of Vivekananda Institute of Professional Studies, Guru Gobind Singh Indraprastha University, New Delhi analyzes the impact of the pandemic on education sector.

Introduction

The new normal is living with Coronavirus. It is transforming every sector from the food industry to agriculture to education, etc., hardly any industry is left untouched by the impact of the pandemic. It is wisely said that to cope up with the change, one should learn to adapt as fast as possible. The current situation is asking every sector to transmute at a faster pace.

Highlighting specifically the education sector, it has changed drastically after mid-March affecting it at every level, from kindergarten education to higher education. The education system in India has taken a sudden halt and is moving towards an unprecedented path. Soon after the detection of Coronavirus cases in India, the Law colleges/institutes around the country were shut down. Despite the given circumstances, many students got an opportunity to step out and lean against the conventional ways. Unsurprisingly, some students were unable to avail the opportunities due to varied reasons. The change has proved to be transformative as the whole education system found space on various online portals. 

Transformation

In India, people in the legal fraternity have been deprived of technology whether we talk about the functioning of courts or teaching methods in the classroom. Some are not comfortable; some are unable to use it, and many are unaware of the new technologies. The traditional ways were in the mainstream. Despite all this, technology eventually engulfed the education system making everyone equipped with gadget rapidly after the advent of Coronavirus, which paves a path towards e-learning. Between all this, the condition of students in the rural areas and from poor sections worsened after the lockdown. Lack of proper access to the internet and not possessing required devices adversely impacted their studies.

The Laws in our country are mostly archaic, and so are the ways of acquiring knowledge. Still, the lockdown period turned out to be an opportunity to bridge the gaps in knowledge as the interactions between students and teachers adopted online mediums like Zoom, Google Meet, Webex Meet, Google Classroom etcetera. The education from a particular institute was not just limited to the students of that institute but was available nationwide. Apart from this, the lockdown period also brought an opportunity for the students to grab some valuable information from eminent personalities like Judges of Supreme Court & High Courts, retired Judges, Senior Advocates, CEO of top law firms’ etcetera. Various webinars, MOOCs, etc. were conducted by many colleges, organizations, law firms, etc. which immensely benefited the students. Also, research has majorly moved from the library to online platforms. 

Ministry of Human Resource Development (MHRD) had already taken many steps to digitize the education system through the introduction of various portals (mentioning particularly for law students) like Swayam, e-Pathshala, National Digital Library.[1] Soon after the lockdown, the ministry worked towards its improvisation.[2] Students unaware of such platforms were brought an opportunity to learn through unconventional ways. Not just this but various other free courses provided by MOOC platforms like Edx and Coursera enabled students to nurture their legal knowledge. Institutions like Harvard, Yale, Australia University, etc. are providing valuable study material for the law students on these platforms. It, however, is not sufficient to achieve the desired goal of digital learning across the nation. Now, the question arises concerning the students who were unable to access the e-study material and other e-learning facilities. The National Sample Survey Office (NSSO) of the Ministry of Statistics and Programme Implementation, Government of India, surveyed from July 2017 -June 2018. The data says that the percentage of households that possess computer (Computer included devices like, desktop computer, laptop computer, notebook, netbook, palmtop, tablet (or similar handheld devices) excluding smartphones) is only 10.7%. Only 23.8% of households have access to the internet (Internet accessed via devices like desktop, laptop, palmtop, notebook, netbook, smartphone, tablets, etc.). Only 16.5% and 20.1% of people aged 5 and above were able to operate the computer and use internet respectively.[3] 

“Reconstruction of study material is required by the higher education institutions. It should be done in a way, which is compatible with e-learning and to achieve the desired objectives”, says Dr Shakila Shamsu (Former Officer on Special Duty (New Education Policy), Department of Higher Education, Ministry of Human Resources Development, GOI).[4]

Apart from all this, there had been a negative impact. Students were affected mentally, psychologically and even physically. One such example is, due to industrial shutdown and economic slowdown, it has been seen that the students in their final year of higher education are adversely affected. The job offers were withdrawn in this sector, and many even lost their jobs. On the other hand, internship opportunities have grown tremendously as people are looking for cheaper labour to circumvent the situation.

Conclusion

Perhaps an opportunity lies in the crisis which may be availed by taking various effective steps in the right direction. Crisis is expected to set the advent of a blended education system in the coming future. The students will be able to have physical interaction combined with the virtual interaction and will not be deprived of digital learning. The continual practise of such digital interactions in future will avail students to bridge the gaps in their knowledge.

If online learning works well in the coming future, then colleges can offer more than just classroom knowledge. Individuals can learn through online platforms. The elite institutions and faculties in the country can accommodate more students through digital platforms, and hence, an increased number of students will be able to enrich their knowledge in the guidance of such experienced people. 

Privatization leading to educational inequality due to which education had taken the form of business where education is being traded, and the students were just the consumers. This destructive factor might gradually deplete with the upcoming digital learning and could let the students avail best of knowledge across the globe at a lesser cost. 

The opportunity is on the plate to promote collaboration through e-conferencing and various other modes at a lower cost. The isolated study culture and closed teaching community in India can open up to collaborative study and research through digitization. 

The stepping stone is needed for the required change, albeit it is not an overnight process. The future is unknown, and we don’t know till when we will have to stay with it. This is the time to avail the opportunity and transmute the system. The changes made today will be seen giving results after a decade or so, but things will change for the better. Let’s get equipped to leave the conventional and to train and adapt to the new normal. 


Aashi Sharma is a fourth year student from Vivekananda Institute of Professional Studies, GGSIPU, New Delhi.


Press Information Bureau, Government Of India, Variousinitiativeshavebeentakentopromotedigitallearningunder‘Nationalmissiononeducationthroughinformationandcommunicationtechnology’ (05.06.2019), https://mhrd.gov.in/sites/upload_files/mhrd/files/ru1470.pdf.

Ministry of Human Resource Department, Government of India, Indian National Commission For Cooperation With UNESCO response To COVID 19 (06.06.2020), https://mhrd.gov.in/sites/upload_files/mhrd/files/inccu_0.pdf.

National Sample Survey Office of Ministry of Statistics and Programme Implementation, Key Indicators of Household Social Consumption on Education in India (July 2017-June 2018), http://mospi.gov.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf.

Ananya Koppikar Murthy, Online Higher Education in India during the COVID-19 pandemic (26.05.2020), https://www.orfonline.org/research/online-higher-education-in-india-during-the-covid-19-pandemic-66768/.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

MIGRANT CRISIS: THE HARSH REALITY OF OUR BROKEN SYSTEM

Manasvi Bhatt, a fourth year student of University of Petroleum and Energy Studies, Dehradun analyses the sufferings of the migrant labourers and the responsibility of the government for their safe return and rehabilitation.

INTRODUCTION

In December 2019, the first case of Covid-19 was registered in China. Soon the outbreak of virus spread across the world. India, to fight the virus, was under lockdown from March 25, 2020. When all the citizens of our country were locked in their houses and enjoying the quality time with their families. Doctors, police officers and all the essential services were working day and night to fight against the deadly virus. But in the midst of this, the government failed to consider a large section of the society who suffered the most: migrant workers. For decades people have moved to different cities, states and countries in search of better life opportunities. People coming from villages and small towns migrated to metro cities. We see them everywhere, yet we failed miserably to acknowledge them.

THE BEGINNING OF THE CRISIS

The Prime Minister announced the first lockdown from March 25, 2020, closing all the factories, industries, hotels and restaurants. Thousands of people lost their jobs and were left with no money. According to the 2011 census, 455 million Indians, or one-third of the population could be classified as migrants.[1] The improperly planned lockdown forced these workers to go to their native village either on foot or bicycle. Hunger and no jobs led to the exodus of these migrant workers from various parts of the country. As their source of income ended abruptly, they were left with little savings their hand. But these savings were not sufficient for them to reach their native villages. They had to sell their valuables to reach their destination. Deprived of jobs and transportation, these workers started walking their way with either no money or little money and no food. For them it was like walking on a two-sided sword, on the one hand, they could stay at their rented houses in the city and depend on government and citizens for their survival, or they could walk to home suffering atrocities and policemen in their way. To avoid police interrogations, they chose to walk on dangerous paths, and some have even lost their lives. On May 8, 2020, 16 migrant workers were killed when goods carrying train passed over them. They were walking towards home and slept on or near the tracks. Many reports have come regarding the desperate measures taken by migrant workers trying to reach home and how their life ended in this dangerous journey. According to reports, 14 migrant workers were killed in Madhya Pradesh and Uttar Pradesh on May 13, 2020. The police said six migrant workers were killed in Uttar Pradesh when a state transport bus ran over them, and PTI reported that eight were killed when the bus in which they were travelling collided with a truck in Madhya Pradesh.[2] On May 15 morning, NDTV reported that six migrant workers were killed in 3 separate incidents in Uttar Pradesh.  According to data from Save Life Foundation phase, 3 of lockdown contributed to 60% deaths of migrants’ workers. Around 198 migrant workers died in road accidents during lockdown according to reports of Save Life Foundations. The workers lost their lives in road accidents, due to hunger and dehydration and they even died in Shramik trains.  After 80 days, these workers can still be seen walking on the highways.  

THE ROLE OF JUDICIARY AND GOVERNMENT

On May 26, 2020, a three-bench judge led by Justice Ashok Bhushan decide to take Suo moto action on the miseries of stranded migrant workers and ordered the central and state government to immediately provide with transportation, food and shelter free of cost to migrant workers. The CourtCourt previously failed to protect the rights of migrant workers in March and made some bizarre statements by saying “How can stop migrants from walking”.[3] The Solicitor General also made a funny statement in Supreme Court in March by saying “there is no person walking on the roads in an attempt to reach his/her home towns/villages.”[4] Time and again, the Supreme Court has abdicated its duty to protect the fundamental rights of the migrant workers. The three-bench judge comprising of Justice Ashok Bhushan, SK Kaul and MR Shah said that 15 days are enough for the central and state government to bring all the stranded migrant workers to their native homes.  

The central government started Shramik Special Trains from May 1 to carry migrant workers. The special trains only added to the plight of these workers. The central and state governments again failed miserably. Indian Railways reported that 256 trains were cancelled by various state governments. The lack of coordination between the state government and central government led to such cancellation of trains. There are reports of people dying on shramik trains and trains not reaching the destination. According to the data from Railway Protection Force, almost 80 persons have died on Shramik Special trains. According to a few reports, the special trains initially were not providing any food or water. The trains were running without any pantry services. The railways and government faced severe criticisms. Only after such criticism, they started pantry services.[5] The railways and government subtly blamed the extraordinary times and the health issues of the workers who died on the train. The Solicitor General said to the Supreme Court denying all the allegations related to the deaths of workers on special trains. He said that no death of migrant worker happened due to lack of food or water or medication. They died because of their poor health. The government did not publish any official data relating to the deaths of migrant workers during the lockdown. There is no official report on the reasons behind the death of migrant workers. 

CONCLUSION 

The Central Government, State Governments and Supreme Court all three of them added to the plight of migrant workers. Instead of helping these people, they turned their eye and blamed these poor people for their miseries. The lack of coordination and the inventiveness of both governments lead to the cancellation of trains and trains losing their route. The central government ill-planned lockdown forced these workers to walk on the road to reach their native places. Some walked barefoot, some walked with small children, and some pregnant ladies walked carrying all their belongings. The government refused to acknowledge their problems and left them on their own. The CourtCourt did not take action on time and made some bizarre statements acting like they can’t help in such a crisis. While the government and CourtCourt failed, the media and citizens reached out to these people. There are several interviews and reports on how citizens helped these people by providing food and shelter. Few celebrities also came forward to help these workers. The Covid-19 did not only lead to economic and health crisis but also a humanitarian crisis. It exposed our broken system. It made us think for the most neglected group of our society and forced us to imagine how our big cities will survive without them?  


Manasvi Bhatt is a fourth year student from University of Petroleum and Energy Studies, Dehradun .


[1]Rukmini S, Why India’s’ Migrant’ Walked Backed Home(May 28, 2020, 5:21 AM)  ,https://www.livemint.com/news/india-why-migrants-walked-back-home-11590564390171.html

[2]Rohini Chatterjee, Migrant Workers Have Died Almost Every Day Since May 8 Aurangabad Tragedy(May 5, 2020, 1:21 PM), https://www.huffingtonpost.in/entry/migrant-workers-killed-lockdown_in_5ebcfdfbc5b63dbb671141d8

[3]Jagdeep S. Chhokar, Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility(May 19, 2020), https://thewire.in/law/supreme-court-migrant-workers-crisis-abdicate-responsibility.

[4]Ibid.

[5]The Wire Staff, Almost 80 Persons Have Died on Board Shramik Special Trains( May 30, 2020), https://thewire.in/government/almost-80-persons-have-died-on-board-shramik-special-trains.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.