COVID 19- A BLACK SWAN


INTRODUCTION

With the pandemic level increasing and the cases rising majorly in some parts of the country specifically Delhi, Madhya Pradesh, Maharashtra and Uttar Pradesh; our livelihood have been greatly affected as we all have been experiencing the same difficulties. The no. of difficulties to different no. of people from various parts of the country are quite enormous and of serious nature. Whether we talk about the declining GDP relating with unemployment and falling economy or whether we talk about the agro-industrial production, every sector is in the worse situation. The daily life of middle class as well as lower class have been hit badly whether we relate it with difficulties in daily goods or the survival. It cannot be concluded yet that the decision of govt on 25th March 2020 is at all a solution to the problem. In a country like India with 3rd largest population, announcing a strict lockdown accompanying a curfew without any prior information is unbearable. The process of delivering justice got hindered to a large amount leading to complete delay in procedure. Mentioned ahead are the various issues being faced in the various sectors of legal system.


PRISION PAROLE DURING COVID19-A PADEMIC

India is going through hard times amidst lockdown due to COVID-19 Crisis. It was observed that there is a high risk of transmission of Covid-19 to jail detainees with prisoners, prison staff, families of prisoners, counselors and lawyers entertaining the entering and leaving of jail frequently. Hence, it was observed that there is a need to take steps to prevent the spread of this pandemic among prisoners and juvenile convicts. In conformance with the measures to be taken, Tihar jail, the nation’s biggest jail announced to discharge on parole or interim bale somewhere around three thousand detainees who are not “Solidified lawbreakers”. Further the Supreme court had issued the directions for the release of prisoners after hearing the case of Suo Moto writ petition ‘contagion of covid-19 in prisons’. Further, the Supreme Court ordered the states to consider the release of some prisoners on parole basis to release overcrowding in prison.

Since the prisons and jail authorities comes under the power of state government, therefore each state government has to frame its own rule and legislations regarding the issues dealing with the no. of prisoners to release on parole and for which particular crime the prisoners will be released and how to keep a track of them after their release. The court had also observed that the state of Bihar has not been found appropriate for the release of prisoners on the parole basis. One of the reasons being the Bihar’s uncrowded jails and moreover the state being marked under the green zone.

Supreme court also added that if the prisoners would be released on parole basis or interim bail, then all states would have to take measures to ensure that those released on Parole must  be constantly tracked to ensure that they do not escape.


LITIGATION THROUGH VIDEO CONFERENCING

The outbreak of covid-19 had forced the courts to adopt measures to reduce the physical presences of legal professionals, court staffs and representatives of the print media in courts across the country and to ensure dispensation of justice virtually. Nowadays, Indian courts are using the video conferencing mode to hear the cases, keeping in mind the idea of social distancing. Only urgent cases are permitted to be heard in this lockdown period.

Saying that only the urgent cases will be heard in the courts seems ambiguous with full of vagueness and providing injustice. The argument for the same is that the word “urgent” is nowhere specified that what does it actually means. Different states have different interpretations for it. For instance, Patna High Court interprets this as to only the Bail matters to be heard. This should be considered as mockery to the legal system as the other severe cases are just getting delayed and justice is not being served. The above has to be reconsidered to maintain law and justice in this time of pandemic.

Further, the counsels can make submission of their cases virtually. Conclusively, the audio and video conferencing being used nowadays in the legal system for the hearings of the cases during the pandemic is facing significant problems regarding the admissibility and authenticity of the evidences which are represented by the prosecution side or from the accused side. Moreover, other obstacle hindering the process of serving justice through virtual mode includes poor internet connections, power cuts, non-availability to get connected at the required time and inability for multiple people to take part especially the witnesses and the victims who are less aware of the technology. In accordance with the future scenario, it is crucial that good infrastructure for virtual hearings and legal proceeding should be arranged especially during the hard time of covid-19 crisis.




PAYMENT OF WAGES DURING LOCKDOWN

In mid-March, covid-19 was declared as ‘notified disaster’ by the Government of India. After the declaration about the pandemic by the central government, several state governments have imposed complete lockdown in their respective states by invoking the 123 years old legislation viz epidemic Disease Act 1987. With the view of prevailing lockdown, the Ministry of Labour and Employment has issued an advisory to all the business associations to not to terminate their employees or cut wages of their worker because of this lockdown .The ministry also stated that all the employers whether they are of  public or private establishment are advised to extend their cooperation by not terminating their employees who were working in their organization especially the contractual labourers. Further, it was stated that wherever the place of work is being non- operational due to covid-19, the employee of such organization is deemed to be on duty.

By analyzing the situation of country due to this black swan, the central government invoked its power under Sec.10(2)(1) of the Disaster Management Act, 2005 (DM Act) and declared a nationwide lockdown. While the country implemented a complete lockdown, a huge evacuation of migrant labourers trying all their efforts to reach their hometown was witnessed in different parts of the country. Mobilization of such mass efflux of labourers is continuously increasing the risk of spreading this virus. In the response, the central government through the MHA (Ministry of home affairs) issued an order in exercise of the power under Sec.10(2)(a) of Disaster Management Act 2005, which directed the state and the union territories to ensure adequate arrangements of shelter and food for the migrant workers who unfortunately got  packed in such state and union territory.


LEGALITY OF PAYMENT OF WAGES

Under Sec.8 of the Disaster Management Act, the National executive committee has the power to give direction to any ministry department of the government of India, any state or union territory regarding the measures to be taken by them in the response to any disaster.

Sec. 8 of DM Act 2005 does not the give power to national executive committee to issue a direction to any industry, shop, commercial establishment, and private enterprises. But in mid-March 2020, the order was issued stating- the state and Union territory government has to take all necessary measures to ensure that the private employers be it in industry or commercial establishment have to give timely  wages to their employees without any deduction in wages during lockdown. The issue raised here is whether this exercise of power by the central government legal or not under the DM act,2005.

Under Art 19(1)(g) of COI, employers and employee both have the fundamental rights to carry out any occupation, trade or business, but this fundamental right is suspended during this lockdown period. However, the measures adopted by the government have overlooked the rights of employer to ‘measures to economic hardship’. Besides, being the ultra vires power of National Executive Committee or Central Government regarding the payment of wages by employer to employee under DM Act, it appears to be in denigration to article 14 of Constitution of India, which protects person rights(equal protection).


CONCLUSION

The coronavirus will leave an enormous impact on how we consume, how we learn, how we work, and how we socialize and communicate. Above these statistics lie the human costs of the pandemic, from the deaths of friends and family to the physical effects of infection, the mental trauma and fear faced by almost everyone. Not knowing how this pandemic will play out effects on our economic, physical, and mental well-being against a backdrop of a world that, for many, is increasingly anxious, unhappy and lonely.

Further relating the situation with current scenario, Domestic violence cases are increasing, and cases has been filed to great level in recent weeks. No action was taken by the government yet and these cases are ignored by the police at present due to severe Co-vid cases. Sexual harassment cases leading to medical aid are not getting any importance. Accordingly, there is a need to amend some concerned provisions of Domestic Violence Act after the end of this lockdown.

Moreover, the safety norms implanting the idea of social distancing will be followed in the future as well leading to a situation where one car will be seen only with single passenger leading the carpooling idea to failure.

Our Mother Earth is healing. for instance, the largest ozone hole above Antarctica got healed up completely. In contra, the above idea of diminishing carpooling would lead to an environment degradation again. Therefore, Vehicle Emission Norms must be regulated as well as amended to save the environment from depleting.

 A positive change evidenced is that the legal system is changing according to the pandemic situation. It is expected that soon the system of justice delivery will be highly efficient via virtual technology.   

“THE SAFETY OF THE PEOPLE SHOULD BE THE HIGHEST LAW”



References

https://www.un.org/development/desa/dspd/everyone-included-covid-19.html

https://www.ijrrjournal.com/IJRR_Vol.7_Issue.3_March2020/IJRR0058.html

https://www.business-standard.com/article/companies/life-insurers-will-not-invoke-force-majeure-clause-for-covid-19-claims-120040601452_1.html

https://www.lexology.com/library/detail.aspx?g=d63bbf8d-64ec-4595-ab87-633934115ab0

‘Online Shopping Survey Report July 2014 – A Study of Current Trends in Online Shopping in Nigeria’ A survey report carried out by Philips Consulting. <www.philipsconsulting.net>


Authored by

Naman Jain

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