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| @ | April 4,2020

 The regulatory framework for pandemics and epidemics has been found to be inadequate to deal with an unprecedented situation that has arisen worldwide and in India. The Epidemic Diseases Act, 1897 is of ancient vintage and does not take care of the right to life and livelihood of those who are necessarily required to stay home in order to prevent the spread of the infection.

In this article, the author points to the inadequacy in the matter of payment of wages to those who are compulsorily required to stay home and takes the view that Delhi Government’s Lockdown Order could be beyond the scope of Epidemic Diseases Act, 1897 to the extent of payment of wages. It is important to build a labour law framework within which such issues can be resolved.

 

IN the life and times of quarantine, a sizeable proportion of my work has been surrounding that statute which looks very old in every sense of the term – Epidemic Diseases Act, 1897 and that statute which begins with the word ‘disaster’ – Disaster Management Act, 2005.

I have had the benefit of stellar remote assistance from my junior colleague N. Sasank Iyer and Shruti Kumar, a lawyer based out of The Hague. Remotely we work on an antique statute and a statute that begins with the word ‘disaster’.

It is the best of times; it is the worst of times.

 

Background

 

In exercise of the powers conferred under Sections 2, 3 and 4 of Epidemic Diseases Act, 1897 (“ED Act”), on 12.03.2020 The Delhi Epidemic Diseases, COVID-19 Regulations, 2020 (“Delhi COVID Regulations”) were issued.

Delhi COVID Regulations came into force immediately. In exercise of its powers under the ED Act and Delhi COVID Regulations, vide Order dated 22.03.2020 (“Lockdown Order”) a lockdown was notified in the whole of territorial jurisdiction of NCT of Delhi from 06:00 hours on 23.03.2020 to midnight of 31.03.2020, stipulating various restrictions.

The scope of this piece is to examine the following:

  1. Delhi COVID Regulations in the context of the ED Act.
  2. Lockdown Order in the context of Delhi COVID Regulations.
  3. Lockdown Order in the context of the ED Act.
  4. Delhi COVID Regulations in the context of Central Government’s measures.

The first 3 aspects are being dealt with in Part-1.

 

Delhi COVID Regulations in the context of ED Act

 

ED Act is a statute to provide for the better prevention of the spread of Dangerous Epidemic Diseases. Section 2 of the ED Act creates the power to take special measures and prescribe regulations as to dangerous epidemic diseases. If we were to slice and dice Section 2 of the ED Act, it transpires that under this provision, the State Government is empowered to:

  1. Take suitable measures
  2. By public notice prescribe suitable temporary regulations
  3. To determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

It appears that such a reading of Section 2 of the ED Act is countenanced by Section 3 of the ED Act, which punishes disobeying any regulation made under the ED Act as well as any order made under the ED Act.

It is clear that Delhi COVID Regulations are temporary. (See Regulation 20 of Delhi COVID Regulations, which provides that they shall come into force on 12.02.2020 and shall remain valid for a period of 1 year from the date of publication).

Delhi COVID Regulations do not determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

 

Lockdown Order in the context of Delhi COVID Regulations

 

Observing that it is imperative to adopt strict social distancing and isolation measures to contain the spread of COVID-19 in NCT of Delhi, Lockdown Order notifies a lockdown in the whole of territorial jurisdiction of NCT of Delhi from 06:00 hours on 23.03.2020 to midnight of 31.03.2020, stipulating various restrictions. These restrictions are undoubtedly within the purview of the Delhi COVID Regulations. Point No. 5 of Lockdown Order is worded as under:

“5. The employees of private establishments (including temporary/contractual/outsourced etc.) required to stay at home in view of this order shall be treated as “on duty” and be paid in full.”

One way of looking at this provision is that private employees required to stay at home in view of Lockdown Order are deemed to be “on duty” and be paid in full. However, the phrase which has been used is ‘shall be treated as “on duty” and be paid in full’, as opposed to, ‘shall be deemed to be “on duty” and be paid in full.’

Having regard to the language of Point No. 5 of Lockdown Order, it appears that private employees required to stay at home in view of Lockdown Order shall be treated as “on duty” and be paid in full i.e., they shall be made to work from home and they shall be paid in full, provided they work from home to the satisfaction of the private employer.

Irrespectively, it does not appear as though there is anything, even remotely, in Delhi COVID Regulations to support Point No. 5 of Lockdown Order.

It is arguable in favor of Point No. 5 of Lockdown Oder that:

  • When Delhi COVID Regulations were issued on 12.03.2020, there was no occasion to require private employees to stay at home en bloc.
  • It follows as a logical corollary that there was no occasion to provide for treating them as “on duty” during such period and “be paid in full”.
  • Therefore, the anvil to test the vires of Point No. 5 of Lockdown Order is not Delhi COVID Regulations.

 

Lockdown Order in the context of ED Act

 

The restrictions contained in Lockdown Order are undoubtedly within the purview of the ED Act. As discussed above, under Section 2 of the ED Act the State Government is also empowered to determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed. It does not appear that Section 2 of the ED Act comes to the aid of Point No. 5 of Lockdown Order, as such payment cannot be treated as a “defrayment”.

It appears that Point No. 5 of Lockdown Order is ultra vires ED Act.

 

Conclusion

 

It appears that Point No. 5 of Lockdown Order is ultra vires ED Act. That apart, Regulation 15 of Delhi COVID Regulations interestingly provides that all advisories issued/to be issued by the Central Government on COVID-19 will ipso facto be treated as directions under ED Act. This gives rise to some interesting issues on Delhi COVID Regulations in the context of Central Government’s measures, including vires of Regulation 15 of Delhi COVID Regulations. Part 2 shall deal with Delhi COVID Regulations in the context of the Central Government’s measures.

 

Arjun Natarajan is a Delhi-based advocate. The views expressed in this piece are personal.

 

Also read: Laws in the time of Corona

 

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