“COVID-19 vis a vis Law”

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April 26, 2020
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May 15, 2020

“COVID-19 vis a vis Law”

- DR.SULAKSHANA

ASSISTANT PROFESSOR OF LAW
Ph.D, LL.M(GOLD MEDALIST),LL.B(GOLD MEDALIST)

“I believe that a trusting attitude and a patient attitude go hand in hand. You see, when you let go and learn to trust God, it releases joy in your life. And when you trust God, you're able to be more patient. Patience is not just about waiting for something... it's about how you wait, or your attitude while waiting.” 1 -Joyce Meyer
The world is struggling with an unseen, venomous enemy, trying to comprehend how to live and survive in the midst of threat from a virus named “Corona”. The deathtrap created by the virus in the entire world is beyond someone’s pedagogy to perceive, discover and to fight. From Schools to Universities, from Health Centre’s to Hotels, from Courts to Corporates –places that care and concern a lot of people, have had to change a lot of their operations in order to combat the spreading of this dreadful virus COVID-19. For some writers, the only way presumptuous is to put pen to paper, trying to hypothesize and document what it traces and that to continue living in a non-living manner as countries, are under lockdown and regular life seems to have ground to a pause.
The fatality rate of Covid-19 is both under- and overemphasized and the basic characteristics of this virus is, it’s so fast spreading and can be disseminated in any manner. As a safety measures people have to follow the guidelines framed by World Health Organization which prescribes that apart from wearing face masks, one has to refrain oneself from touching one’s eyes, nose or mouth, and that will provide protection. For example, if someone sneezes, coughs, speaks or laughs with explosive force, they can disgorge droplets so being a careful and conscious person one need to stay more than three feet across to stay beyond risk factor. The virus that comes out stays alive for periods stretching from three hours to nine days.
So as the coronavirus pandemic has stretched around the world, it’s flashed a plethora of questions that probe into that how it has been changing the lifestyle of persevering in all aspects. Scientists, Novelists, Critics, Artists and Journalists all are in a stage of experiencing and experimenting. People are eagerly awaiting for the positive outcome with small ray of hope to contest against corona, the deadly virus, by following lock down, the preventive measure adopted by the honourable Prime minister for the benefit of public at large as it enforce social distancing and isolation.
For the first time in the history of independent India, that the country has come to a complete stoppage of work. As the grave threat posed by the SARS CoV-2, the 43-day lockdown is undoubtedly, the need of the hour. Though many have questioned the Constitutional validity of such an action. The Supreme Court, in State of Punjab v. M.S. Chawla,2 has interpreted Article 21 in a broad manner, stating that "right to health is integral to the right to life. The government has a constitutional obligation to provide health facilities." Thus, the State has a positive obligation under Article 21 of the Constitution 3 to swing into action in the face of a public health emergency such as the present pandemic to protect the lives of its people. Largely, a lock down affects Article 19(1) (d) that is, right to move freely throughout the territory of India and Article 19(1) (g) which provides right to practice any profession, or to carry on any occupation, trade or business. However, Article 19(5) and (6) of the Constitution 4 clearly states to impose ‘reasonable restrictions’ in the interests of the general public provided it is done by a duly enacted law. In Narendra Kumar v. Union of India 5, the Supreme Court held that to determine the reasonableness of a restriction, among other factors, it must consider the background of the circumstances in which the order is issued and "whether the restraint caused by the law is more than necessary in the interest of the general public." In the absence of a vaccine and that too, in such poor health infrastructure it is very much challenging for India to face this unprecedented situation. In this context, the guidelines outlined by the Disaster Management Act, 2005 6 will qualify as a reasonable restriction under Article 19(5) and (6).
As crucial times demand extraordinary measures the Government has implored the Disaster Management Act, 2005 and allowed various Government Authorities to take actions to effectually impose social distancing. The Act defines the term "disaster" broadly and includes within its sphere a "grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life, human suffering." Federalism is one of the fundamental backbone of our polity and is part of the basic structure of the Constitution 7 . Public health falls under Entry 6 of the State List, giving the States the power to legislate on all matters concerning public health within its jurisdiction. Meanwhile, Entry 81 of the Union List allows the Centre to make laws on inter-state quarantine and quarantine of ports and ships. Accordingly, Section 2 of the Epidemic Diseases Act, 1897 provides States with the powers to take all necessary measures to enclose an epidemic. Moreover, the Prime Minister, being the ex officio Chairperson of the National Disaster Management Authority (NDMA) under Section 3(2)(a) of the 2005 Act, has the power under Section 6(2)(i) to take measures for the prevention and alleviation of the disaster. The Guidelines for social distancing have specifically been issued under Section 10(2) (l) of the Act by the National Executive Committee, which is organized under the Act to assist the NDMA to meet the crisis.
Another aspect of legality can be Doctrine of Repugnancy under Article 254 of the Constitution 8 where the Supreme Court in M.Karunanidhi vs Union of India 9 has clearly elucidated that “in case of any inconsistency the Central Act will prevail and the State Act will become void in view of repugnancy”. So the law permits the lock down and it is within the ambit of Constitutional context.
The legal side of existing supply and production-related relationships are very much disrupted due to this epidemic which we term as “Acts of God” and “Force Majeure-clauses”. With respect to agreements being subject to the laws of China, the PRC’s Supreme Court ordered in connection with COVID-19 epidemic that defaults either directly or to the government’s related counter-measures, would be considered as “Force Majeure”-constellations within the understanding of the legal definition of the term “Force Majeure” under Chinese civil law as the outbreak began in Wuhan, China, in December 2019.Also with respect to the current crisis, this legal assessment seems to be applied: It is now possible to obtain, upon application, so-called “Force Majeure-certificates” from CCPIT (China Council for the Promotion of International Trade) 10 which can be utilized as proof in court proceedings vis-à-vis contracting partners. It is also noteworthy to draw attention to Doctrine of Frustration (Section 56 of the Indian Contract Act, 1872 11 relating to Section 32 of the Indian Contract Act, 1872). Though similar in effect with Force Majeure but is bit restrictive in nature. Giving silhouette to time is especially significant now, when the future is so amorphous. It’s really uncertain how long the dreadful effects of this virus will continue whether for weeks or months or, Lord help us, on and off for years. We do not know when we will feel safe again!

“We make a living by what we get, but we make a life by what we give.” – Winston Churchill 12

  1. www.brainyquote.com
  2. Criminal Appeal No. 824 of 2013
  3. M.P. Jain, Indian Constitutional Law 99 (Universal Law Publishing, New Delhi 13th edn.,2013)
  4. M.P. Jain, Indian Constitutional Law 93 (Universal Law Publishing, New Delhi 13th edn.,2013)
  5. (1997) 2 SCC 83
  6. Disaster Management Act, 2005
  7. M.P. Jain, Indian Constitutional Law 10 (Universal Law Publishing, New Delhi 13th edn.,2013)
  8. M.P. Jain, Indian Constitutional Law 219 (Universal Law Publishing, New Delhi 13th edn.,2013)
  9. 1979 AIR 898, 1979 SCR
  10. available at www.livelaw.in.
  11. Indian Contract Act,1872
  12. www.brainyquotes.com