Interview Of Advocate Meenu Thampi, Kerala On Impact of COVID-19 on Legal System By Megha Sunil

Q1. Is it legally valid for a country to be in lockdown during such a pandemic?

A:The answer is Yes. Lockdown, Quarantine, Social Distancing are the terms which are familiar and commonly used by us nowadays.

The ministry of Home Affairs invoked Section 6 (2) (i)  of the Disaster Management Act, 2005 and issued and order on 24/03/2020 directing the departments or ministries of Govt. of India, State and Union territory governments and other authorities to implement the measures laid down in the central order. Those measures were like restricting the resident’s movement outside their homes and closure of all offices, shops except the essential goods and services. And we know that these impose restrictions and has a primary effect on free movement of the citizens of India and to assemble peacefully in the territory of India guaranteed under Article 19(1) (b) and (d) of the Constitution of India, but these rights also states that reasonable restrictions can be imposed in the interest of general public.

You would get confused as to how the Central Government could give such an order since the public order, public health and sanitization as they are handled by the state governments according to Indian constitution.

So talking about the legality of the lockdown we have to look into the constitutional validity of lockdown. We know that Article 245 is the basis for the division of powers between the Centre and the State and it creates three lists namely Union List, State List and Concurrent List. Entry 1 and 6 of the State List deals with public order and sanitization, however Entry 29 of the Concurrent List empowers both central and state governments to legislate on matters pertaining to the prevention of an infectious or contagious disease spreading from one state to another. There is a possibility of inconsistency between the central and state government regarding any entry in the Concurrent List and Article 254 solves the issue by acknowledging the primacy of parliamentary law over state law in the concurrent list, thereby making the lockdown order issued by the central government legally and constitutionally valid.

Q2: what are the pros in enacting a Covid law in India?

A: we know that the lockdown measures to prevent the spread of Covid-19 are issued by invoking the Disaster Management Act, 2005 and Epidemics Diseases Act,1897. But questions arises that how far these Acts are successful in addressing the threat of a pandemic and whether they are capable enough to regulate the pandemic situation. These two laws however do not specifically lay down any provisions to counter a pandemic like covid-19 and do not provide any safeguards or mechanisms to tackle with the threats posed by it.

We know that India is a country with huge population and it is not possible for the authorities to reach every person, so that having a uniform law for preventing and tackle the covid would do better than having a 123 years old law and DMA law which does not lays specific provisions about the Covid. We know that during this time the backwards sections of the society suffers a lot and such a law shall have provisions that provide financial and social support to the persons in anguish. Hence by having enacted a Covid-19 law, there will be more specific and structured legislations that can be uniformly implemented across the country to regulate the situations during the spread of Covid.

Our laws and provisions on quarantine and its default are mild and lenient when compared to other countries. On the other hand, U.K enacted the Coronavirus Act, 2020 which is a comprehensive legislation dealing with all issues connected with Covid19 including closure of educational institutions, registration of healthcare professionals etc. Also Singapore passed Infectious Diseases Regulations 2020.

 In India, orders passed by the government would be prosecutable under section 188 of IPC which is very ineffective and broad provision dealing with disobedience of an order issued by a public servant and also section 269,270 and 271 of IPC. Also the section 188 can be initiated only by a private complaint and not through FIR, thereby having a feeble basis leading to not fulfilling the objectives of the lockdown.

Thus in my opinion it is necessary to have a uniform law for controlling and regulating the spread of Covid since it is matter of affecting the fundamental rights of every person in India and requires more diligence.

Q3: Is Aarogya Setu App, a violation of Human Rights?

A: Aarogya Setu App is designed to keep track of other app user that a person came in contact with. It then alerts app users if any of the contacts tests positive for Covid-19.

Controversies have been raised by many regarding the privacy of the application. First of all there is no clarity and transparency on how the records or data is shared between two apps. There is no specific legislation on how online privacy of Indians is to be protected. Everybody is downloading and using the app blindly since it is provided by the government. But nobody is aware about the technical side of such apps.

It is to be noted that the Arogya Setu user agreement states that the data can be used in the future for purposes other than epidemic control if there is a legal requirement. The app’s privacy policy says the personal information uploaded in the App will not be shared with third parties but makes clear that this data may be shared with any agency as the govt. sees fit.

This app puts our fundamental rights in risk. It is highly posing a threat to our right of privacy. The app policy states that data will be deleted after 30 days from the phone, but the information collected by the app could exist in perpetuity on the government’s servers, said Jyothi Panday, a sexurity researcher at the Telecom center of Excellence at IIM, Ahmedabad.

Secondly, there is no legislation on data protection in India so that the app makers will not held responsible for privacy violations. And there is ambiguity as to who handles the database data collection of the App. It is inevitable that the government shall provide a transparent information as to who handles and how it is handling the internal working of the App as it contains the personal details of millions of citizens which can be misused by hackers.

It is being said that the app increases the scope of surveillance to which I do not agree. Because it is not necessary that every resident in India has a smartphone and only a small portion of people can be kept under surveillance which weakens the objective of developing such an app. So for me downloading an app which does not assure us protecting our data and forcing us to give all personal information about us is violating right to privacy unless a specific law for protection of data is implemented by the government.

Q4: what are the legal implications of a global pandemic?

A: The Covid has severe impact on everything in the world and the whole world is in facing the threats posed by it.

Covid-19 has a major impact in the business world causing the termination, delay, and interruption in the business contracts. The contractual obligations are avoided by the parties upon the provision of Force Majeure which is incorporated under sections 32 and 56 of Indian Contract Act. It enables a contracting party to avoid his obligation to perform his contractual duty which is not possible due to a force majeure event. The economy is disturbed due to the impossibility of performing the contractual obligations.

Covid-19 has caused high rates of lay off of employees and made the plight of the domestic workers miserable.

Another one is the delaying litigation. The matters are adjourned and only urgent matters are taken for hearing in the court now.

Q5: What are the Regulations that can be brought by the Government during such a Pandemic?

A: The outbreak of the pandemic situation necessitates the restructuring of laws and regulations.

We know that above all of the regulations, the government shall give priority to the human life than to the economy. However there shall be some measures to regulate the situation and help people to regulate their life and ensure availability of basic needs.

First of all there shall be a mechanism to ensure basic goods and services to all of the persons residing in India since people are not able to work and earn livelihood during the pandemic situation.

Secondly a uniform pandemic law can be implemented for regulating the pandemic situation in India overall which is very essential to increase transparency and accountability of the state towards the public. A separate law which deals with the functioning of public offices, hospitals, educational institutions etc, public transportation, sanitization, court proceedings, and businesses shall come into force.

Regulations shall be issued with regard to opening the shops and malls. Separate timings shall be allotted for opening the malls, shops etc . Because the people are frustrated at home for last few months and may run to shops and mall once they are open to public which will create high chance of spreading the pandemic.

Every person who is home quarantine shall strictly observe it failing which he shall be liable for penal action and shall be shifted to government quarantine.

Every business organisations are the key elements of an economy. At this time, all of them are in loss and at high risk. Regulations shall be implemented to form a risk management team to identify and tackle the problems arising out of the pandemic situation.

There shall be regulations for controlling the transportation. Even though the public transportation has not started actively, the number of vehicles are numerous these days. Proper sanitization shall be made compulsory for vehicles and other means of public transportations and there shall be proper charting for the number of passengers board to in a bus or train. Heavy fine shall be levied for its default as well.