Covid-19 World: A Socio-Legal Capsule
Gaurav Mohunta, Advocate
Punjab & Haryana High Court, Chandigarh
Date : 27/04/2020
Covid-19 World: A Socio-Legal Capsule
PROLOGUEEver since the World Health Organisation (WHO) declared COVID-19 as pandemic, it has disrupted not only our primordial socio-legal framework but has also led to severe global economic disturbance. In other words, the analysis of law is directly analogous to the prevailing socio-economic situation. The COVID-19 pandemic has largely impacted Socio-economics, Culture, Politics, Education, Environment and Climate. Now, the important question arises as to how international and domestic law responds to this prevailing social catastrophe which has affected nearly 200 countries. The answer to this lies somewhat in the historically evolved trentino to quarantine law which is known to have been practiced since biblical times and is being applied till date; though not out of context to quote that the "quarantine era has begun".
THE PROTECTIVE SEQUESTRATIONA protective sequestration or sometimes referred to as reverse cordon sanitaire (French for sanitary cordon) is a public health social distancing measure or restriction of movement of people in a defined geographical area, taken to protect the healthy population from getting infected by an epidemic or pandemic before the infection reaches that population. Certainly being de-rigueur, new ways of conducting court proceedings have emerged which are safer and inexpensive and are evolving as Socio-legal distancing. However, this socio-legal distancing has presented major disruptions for global legal market in as much as some have direct consequences on contractual obligations under specific agreements while others have universal overtones.
THE OCCIDENTThe United States became the third largest hotspot after China and Italy in number of COVID-19 cases. New York being the epi-central hotspot of North America. Thousands of people have been subjected to legally enforceable quarantines or are in "self-quarantine." The US government has banned entry of foreign nationals travelling from China, Iran, and most of Europe and is screening passengers returning from heavily affected countries. Each country have had its own laws on isolation and quarantine orders but traditionally quarantine has been practiced more in the United States. Courts have upheld quarantine orders in order to protect public health. Apart, the Unites States Congress enacted the Families First Coronavirus Response Act, 2020 which "provides paid leave, establishes free coronavirus testing, supports strong unemployment benefits, expands food assistance for vulnerable children and families, protects front-line health workers and further provides for additional funding to states to countenance and alleviate the ongoing economic consequences wrecked by the pandemic, among other provisions. The United Kingdom has enacted a law namely Coronavirus Act, 2020 distinctly for coronavirus and incidental purposes. The Act enables the government to have the discretionary power to limit or suspend public gatherings, to detain individuals suspected to be infected by COVID-19 and to intervene or relax regulations in a range of sectors so as to limit transmission of the disease, ease the burden on public health services, to assist healthcare workers and the economically affected. The law also provides measures to deal with economic effects of the pandemic. It enables the government with the power to suspend the eviction of tenants, protect emergency workers from getting unemployed and provides special insurance cover for healthcare workers. However, the effects of this Act have been widely debated as it imposes reasonable restrictions on civil liberties which could remain beyond the end of pandemic. France enacted Law No.2020-290 declaring itself to be in a State of health emergency and as such has taken Emergency measures to monitor the health situation and to try to prevent lay-offs and business bankruptcies; in addition to the rapid spread of the COVID-19. Apart, this law empowered the French government to legislate by means of Orders in its territories. As such, the government adopted two Orders; firstly to preserve the rights of litigants and secondly adapt legal proceedings to the requirements of fighting the spread of COVID-19. Order No.2020-306 of 25th March 2020 deals with deadlines and measures which have expired or were due to expire between 12th March 2020 till the expiry of a period of one month after the end of the state of health emergency. Therefore, the litigant will be able to act within this period without his action being declared time barred. Order No.2020-304 dated 25th March 2020 aims to adopt rules of procedure for curtailing the spread of COVID-19 and furthermore includes a set of rules dealing with the conditions of hearings before civil and commercial courts. Germany enacted the COVID-19 Pandemic Law to extenuate the consequences of the COVID-19 pandemic in civil, criminal and insolvency law. The people will benefit in as much as; the obligation to file for insolvency has in general been suspended until 30th September 2020 with the option of an extension by the German Ministry for Justice and Consumer Protection until no later than 31st March 2021. Apart, it deals with measures regarding the execution of shareholder meetings, passing of resolutions, etc., Moratorium, Protection of tenants against eviction and Loan agreements. Spain declared a State of Emergency by means of Royal Decree 463/2020 declaring COVID-19 as national health crisis which was further amended as Royal Decree 465/2020 and 476/2020. A series of other royal decrees were also passed relating to issues concerning social and economic impact of COVID-19 on health and social workers, food stores and food production, industry, construction, banking, media, energy, water and electricity supplies. The Royal Decree Law 8/2020 specifically addresses the challenges faced by companies who have to comply with their legal obligations under corporate and insolvency regulations.
THE ORIENTUndoubtedly COVID-19 pandemic started from China but due to their ambitious, agile and aggressive perseverance and efforts of disease containment, they have achieved something which was considered to be impossible in public health. The first ever substantial measure was the lockdown of Wuhan city alongwith other cities. The lockdown placed over 50 million people under mandatory quarantine since January, 2020. The lockdown effectively curtailed the further spread of the disease in as much as it isolated the infected individuals from the rest of the healthy population. Infact, people from other regions also voluntarily quarantined themselves and were being continuously monitored by the government. The authorities had built dedicated hospitals in Wuhan to truncate the pandemic and health workers were deputed at the outbreak centres. As per the report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), "upon detection of a cluster of pneumonia case of unknown aetiology in Wuhan, the CPC Central Committee and the State Council launched the national emergency response. A Central Leadership Group for Epidemic Response and the Joint Prevention and Control Mechanism of the State Council were established." The Chinese law on Prevention and Treatment of Infectious Diseases categorises diseases into three classes A, B and C. Category A includes only two diseases namely bubonic plague (bubonic derived from an ancient greek word "boubon" meaning groin and a bubo in the groin causes swelling) and Cholera. Category B includes diseases like SARS, anthrax, AIDS, typhoid, and viral hepatitis. Category C includes diseases such as Influenza, leprosy, mumps, and schistosomiasis. However, COVID-19 was included in the category of Class B infectious diseases. The strategy to control the pandemic was divided into three stages of outbreak. Firstly, to prevent and control the source of infection, block transmission and prevent further spread, Secondly, to reduce the intensity of the epidemic and to slow down the escalation of cases and Thirdly, to reduce cluster of cases, thoroughly controlling the epidemic and striking a balance between epidemic prevention and control, sustainable economic and social development, unified command, standardized guidance and scientific evidence-based policy implementation. Thus as such the Chinese authorities launched an unprecedented effort to trace contacts of confirmed cases. The South Korean government passed new medical laws allowing it to prosecute Coronavirus suspected people who refuse to co-operate from getting tested for COVID-19. The amended law also allows the nation to restrict entry to people confirmed or suspected to have contracted the COVID-19. Further, it authorises the government to ban export or transfer masks and other items. As and when the Korean government disseminated the message on social distancing, the people began to embrace it of their own and as such it has been effective with large scale peoples participation. Australia enacted The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 under The Biosecurity Act, 2015 for dealing with COVID-19 pandemic. Apart, The Public Health (COVID-19 Self Isolation) Order 2020 was passed under The Public Health Act, 2010 by the government of New South Wales for protecting the health and wellbeing of the public from getting infected from COVID-19. Furthermore, The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 was also enacted; specifically dealing with the working of court proceedings during pandemic. In this way the Australian government has taken measures in the form of income protection, taxation, financial assistance, personal wellbeing through work from home concept and imparting as much awareness about public health information. India is one of the leading countries who took drastic, efficacious and constructive measures in order to curtail the outbreak of COVID-19 pandemic. A country of 1.3 billion people and a threat of widespread upsurge of the disease, the Union government immediately declared a nationwide lockdown and quarantine measures to be adopted by every citizen; failure of which may result into punitive measures. The law of the land in cases of epidemics has been the 123 years old British colonial era Act i.e. The Epidemic Diseases Act, 1897 which provides for the better prevention of the spread of dangerous epidemic disease. The Act itself empowers the Central and State government to take special measures and prescribe regulations in relation to dangerous epidemic disease. It was enacted to tackle the epidemic of bubonic plague that broke out in the then State of Bombay at that time. In view of the prevalent serious situation having engulfed the nation, a high level Group of Ministers (GOM) was constituted to review, monitor and evaluate the preparedness and measures taken regarding management of COVID-19 in the country. The Ministry of Health and Family Welfare (MoHFW) has been monitoring the steps initiated by the Union Government in order to attenuate the outbreak of the pandemic. The MoHFW engaged all States and Union Territories to invoke Section 2 of the Epidemic Disease Act, 1897, so that all the advisories issued by the MoHFW are enforced by the States and Union Territories. The Union government also invoked the provisions of The Disaster Management Act, 2005 alongwith other advisories. During the nationwide lockdown, some incidents of violence against medical and health workers were reported. Keeping in view their safety and law and order situation, the government promulgated an Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19. The Ordinance is intended to ensure that during any situation akin to the current pandemic, there is "zero tolerance" to any form of violence against healthcare service personnel and damage to property. Singapore did not invoke any emergency laws to deal with the COVID-19 outbreak. The government took initial measures under The Infectious Diseases Act (IDA) which had been previously strengthened during the global SARS (Severe Acute Respiratory Syndrome) outbreak in 2002-2003. Apart, it invoked powers under The Immigration Act, which allowed the government to deny entry to travellers from Wuhan-the original epicentre of the outbreak and progressively to travellers from other countries. The COVID-19 (Temporary Measures) Act 2020 ("CTMA") was urgently passed by the Singapore Parliament sanctioning reliefs during COVID-19 pandemic under certain categories namely relief for inability to perform contracts, financially distressed individuals, firms and other businesses, conduct of meetings, measures for court proceedings, measures concerning remission of property tax and COVID-19 control orders. Section 34(7), CTMA specifies that breaches of control orders will be treated as offences. An article on Singapore' Legislative Approach to COVID-19 suggested that Singapore's response to COVID-19 pandemic was the envy of many nations. Its strategy of early testing, rapid contact tracing, isolating cases and close contacts was praised for its effectiveness. There are plenty of legal implications arising from the pandemic such as the handling of affected employment relationships, insolvency proceedings, commercial contracts, insurance coverage of pandemic-related damages or consequences in the field of travel law. However, given the enormous volumes of business and trade which has so far been achieved, it is of highest relevance how pandemic related disruptions may affect the legal side of existing supply and production-related relationships. Keywords of most relevance in this context are the terms "Acts of God" and "Force Majeure clauses".
FORCE MAJEUREThe term force majeure is of French origin which means a superior or irresistible force or any unforeseeable event or circumstances which preclude someone from fulfilling a contract. Since it being a contractual term, the fundamental law of force majeure is incorporated under Section 32 and 56 of The Indian Contract Act, 1872. Traditionally, force majeure events may include an act of god or natural disasters, war or war like emergencies, labour unrest or strikes and epidemics etc. Interestingly, the scope of force majeure is restricted to something which cannot be prevented or causes you cannot prevent but considering this ongoing pandemic it is yet to be ascertained whether its gamut should be enlarged or not. A force majeure clause saves the party from performing its obligations beyond its control and as such operates as an exception to a breach of contract. The law regarding force majeure has been dealt extensively by the Hon'ble Supreme Court of India in the case of "Energy Watchdog & Others v. Central Electricity Regularity Commission & Others; (2017) 14 SCC 80." Apart, if a contract does not include the force majeure clause, then the parties may resort to Section 56 of the Indian Contract Act, 1872 which underlines the principle of "Doctrine of frustration". In view of the current situation, the respective governments have taken steps to safeguard the rights and interest of parties in commercial contracts and have resorted to certain safeguards. For example, as per media reports the China Council for the Promotion of International Trade (CCPIT) issued over 1,615 Force Majeure certificates to firms in 30 sectors covering contracts worth over $15.7 billion. Thus, keeping in view the circumstances emerged due to COVID-19, global legal market has effectively included this pandemic under the force majeure clause being an evolving process under the contractual jurisprudence.
VIRTUAL LITIGATIONThe traditional way of litigation has always been an in-person proceedings, however this pandemic has changed the course to virtual courts. Though the transition is critical for protecting public health; yet it will bring transparency and accountability in the judicial system in as much as it has flung the gates wide open for open court proceedings around the globe. The courts are exploring technological methods by setting up virtual courts to ensure that justice delivery system is not impacted and crippled by COVID-19. One of such method is virtual litigation where the proceedings of court are conducted from home court room. The system of virtual court operations is in vogue and being adopted by each and every country focused on dispensation of essential and emergency matters. The courts have shifted criminal arraignments, bail applications, orders of protection and other essential civil, criminal and family matters to a virtual environment. The courts are also hearing pending non-essential matters virtually through video or phone conferencing. The administrative and court staff are assisting judges in using the various digital platforms to conduct the hearings and access records and to do so provision for filing fresh cases is already in practice through e-filing.
EPILOGUEThe world is talking of disrupted supply chains and collapsed economic activity but what this Socio-legal distancing has achieved is worth noting. The law of Self-quarantine has effectively evolved during this ongoing pandemic and as such benefits the society at large. The global market is transforming during this pandemic as we see invocation of robust social distancing measures; and mandatory quarantines has resulted into creation of new and effective legal tools. With COVID-19 in our communities, we have witnessed effective implementation of public health laws but the sine-qua non at this time will be new laws on bio-terrorism. COVID-19 pandemic has compelled the world to re-examine the laws and regulations governing the control of contagious diseases more so from any potential biological attack. Apart, most importantly during this pandemic the world has witnessed emerging trends in work culture. The newest of these is Virtual Communication or in legal market it is termed as Virtual litigation and Virtual Courts. The occident and orient both have adopted such measures to ensure that this pandemic does not adversely impact timely delivery of justice. The Courts hold virtual courts through videoconferencing to hear urgent matters. The most important socio-legal impact of such measures is that virtual court proceedings ensures safety of litigants as well as are cost effective. These measures in quintessence justify socio-legal distancing. Furthermore, there were unexpected environmental consequences due to COVID-19 such as global reduction in economic activity, reduced industrial and transport emissions and effluents. In India, a Janta Curfew' or Peoples Curfew was imposed and the results were similar too; following which, a significant dip in air pollution levels were witnessed across the country. Metropolitan cities like New Delhi, Bengaluru, Kolkata and Lucknow saw their average Air Quality Index (AQI) staying within two digits. Consequently, the world of public health might have termed this pandemic as a catastrophe but the world of media and environmentalists have referred to it as a beautiful fortune.
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