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| @ | April 11,2020

BEFORE a tempest wakes us up, let us briefly revisit what was seemingly a midsummer night’s dream. Cut to 22.03.2020 – the day 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. This lockdown was notified by Delhi Government in the exercise of its powers under ED Act and Delhi COVID Regulations.

In Part 1 and in this part, a reference to the phrase ‘Lockdown Order’ connotes the lockdown put in place by Delhi Government and not the containment measures initiated by Central Government which are in place in the entire country with effect from 25.03.2020.

 

[Read Part 1 here: Delhi COVID-19 Regulations, Lockdown Order and Central Government Measures [Part – 1]]

 

It appears that with effect from 25.03.2020 Lockdown Order has lapsed on account of Central Government’s measures under Disaster Management Act, 2005 (“DM Act”). This aspect of the matter could very well be in the realm of subjective debate. Irrespectively, from an objective point of view Lockdown Order has lapsed on 31.03.2020 due to efflux of time and/or non-revival.

Central Government has rolled out many measures starting from 24.03.2020 for containment of COVID-19 epidemic in India. Ever since I have been asked a fair number of queries by business enterprises and individuals. In the process of addressing such queries, I have had the benefit of analysing Delhi COVID Regulations in the context of Central Government’s various measures, with stellar remote assistance from my junior colleague N. Sasank Iyer, Shruti Kumar, a lawyer based out of The Hague and subsequently my online intern Vignesh Ganesh.

Part 1 of this piece deals with Delhi COVID Regulations in the context of ED Act, Lockdown Order in the context of Delhi COVID Regulations and Lockdown Order in the context of ED Act.

This part i.e., Part 2 deals with Delhi COVID Regulations in the context of some measures initiated by Central Government. As a prelude to Part 1, The Leaflet rightly expressed that it is important to build a labour law framework within which issues like payment of wages can be resolved in an epidemic/pandemic situation. In this part, I also illustrate steps taken by the Central Government in this regard.

It would not be out of place to mention that as much as this piece (Parts 1 and 2) is focused on Delhi COVID Regulations, several States and Lakshadweep have issued regulations under the ED Act.

 

NDMA Order dated 24.03.2020

 

National Disaster Management Authority (“NDMA”) vide its Order dated 24.03.2020 (“NDMA Order”), among other things, observes that:

  1. There is a need for consistency in the application and implementation of various measures across India while ensuring maintenance of essential services and supplies, including health infrastructure. Such an observation could be on account of the fact that several states and Union Territories have issued regulations under the ED Act.
  2. Therefore, in the exercise of the powers under Section 6(2)(i) of DM Act NDMA has decided to direct Ministries/Departments of Government of India, State Governments and State Authorities to take measures for ensuring social distancing so as to prevent the spread of COVID-19 in India.
  3. Necessary guidelines in this regard shall be issued immediately under Section 10(2)(l) of DM Act by the National Executive Committee, which shall be in force for a period of 21 days with effect from 25.03.2020.

 

MHA Order dated 24.03.2020

 

Ministry of Home Affairs (“MHA”) vide its Order dated 24.03.2020 (“MHA Order”), takes into account NDMA’s satisfaction among other things that there is a need for consistency in the application and implementation of various measures across India while ensuring maintenance of essential services and supplies, including health infrastructure.

MHA Order also observes that vide NDMA Order Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities have been directed to take effective measures so as to prevent the spread of COVID-19 in India.

The core of the MHA Order is:

  • Under directions of NDMA Order, and in the exercise of the powers, conferred under Section 10(2)(l) of DM Act, guidelines have been issued, with the directions for their strict implementation.
  • Such guidelines have been issued to Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities, with the directions for their strict implementation.
  • MHA Order shall remain in force, in all parts of India for a period of 21 days with effect from 25.03.2020.
  • The guidelines and the directions are contained in an annexure to MHA Order (“Annexure to MHA Order”).

As of 09.03.2020, Annexure to MHA Order has been modified on 25.03.2020, 27.03.2020, 02.04.2020 and 03.04.2020. Annexure to MHA Order incorporating the modifications as of 09.03.2020 (“Consolidated Annexure”) is available here.

Pertinently, Consolidated Annexure does not provide anything in respect of payment for any employee of any private establishment. Clause 4 of Consolidated Annexure unequivocally provides that commercial and private establishments shall be closed down till 14.04.2020. Clause 4(d) of Consolidated Annexure creates an exception in respect of telecommunications, internet services, broadcasting and cable services. It also creates an exception in respect of IT and IT-enabled services only (for essential services) and prescribes working-from-home as far as possible. The closing words of Clause 4 of the Consolidated Annexure are:

“All other establishments may work-from-home only.”

Consolidated Annexure is silent as to whether employees of commercial and private establishments, which shall be closed down till 14.04.2020 and do not find themselves in the exceptions contained in Clause 4(a) to (o), shall be paid in full.

 

Regulation 15 of Delhi COVID Regulations

 

Regulation 15 of Delhi COVID Regulations is worded as:

“All advisories issued/to be issued by the Government of India on COVID-19 will ipso-facto be treated as directions under this Act in NCT of Delhi.”

Such a provision is not unique to Delhi COVID Regulations. In fact, in respect of the following States, we came across an identical provision:

  1. Madhya Pradesh
  2. Assam
  3. Bihar
  4. Meghalaya
  5. Uttarakhand

In respect of Lakshadweep as well we came across an identical provision.

However, this piece shall confine itself to Regulation 15 of Delhi COVID Regulations.

It goes without saying that Regulation 15 of Delhi COVID Regulations is sweeping and overarching. Section 2A of ED Act enlists Central Government’s powers. These powers extend to only ships or vessels.

Regulation 15 of Delhi COVID Regulations does have the benefit of being presumed to be intra vires ED Act. However, with this presumption, it could lose the presumption of being constitutional, as the parent statute i.e., ED Act being a pre-constitutional statute does not enjoy that presumption.

This aspect of the matter could very well be in the realm of subjective debate as to whether a post-constitutional delegated legislation enjoys the presumption of constitutionality when the parent statute being pre-constitutional does not enjoy such a presumption.  Irrespectively, from an objective point of view ipso facto treating all advisories issued/to be issued by Central Government as directions under ED Act in NCT of Delhi is not tenable, as it stretches the scope of ED Act. It appears that Regulation 15 of Delhi COVID Regulations is ultra vires ED Act.

In any case, it appears that Regulation 15 of Delhi COVID Regulations is severable from Delhi COVID Regulations i.e., even if Regulation 15 of Delhi COVID Regulations were to be struck down or read down to the extent of issues beyond Section 2A of ED Act, Delhi COVID Regulations appear to be sustainable.

As on date Regulation, 15 of Delhi COVID Regulations is very much in place, hence, it is important to bear this provision in mind while examining Central Government’s measures. Interestingly, the phrase used in this provision is ‘All advisories issued/to be issued by the Government of India on COVID-19…’.

Adopting a literal approach, by virtue of Regulation 15 of Delhi COVID Regulations, for a Central Government measure to ipso facto be treated as a direction under ED Act in NCT of Delhi, the measure has to meet both these conditions:

  1. It must be an ‘advisory’
  2. It must be on COVID-19

The word ‘advisory’ is preceded by the word ‘all’ which amplifies the scope of the word ‘advisory’. Adopting a literal approach would render that notwithstanding the amplification Regulation 15 of Delhi COVID Regulations only refers to advisories. That said implementing Central Government’s measures without taking recourse to taxonomy seems to be a prudent course of action, in view of the situation at hand.

Undoubtedly MHA Order is an order and not an advisory. It follows as a logical corollary that Annexure to MHA Order (original and modified) is also an order, as it is a constituent of MHA Order.

At this juncture, it is important to examine the following, in the context of dead bodies of COVID-19 affected persons.

i. COVID-19: Guidelines on Dead Body Management dated 15.03.2020 issued by Central Government

ii. Delhi Government’s letter dated 19.03.2020

iii. Delhi Government’s Order dated 25.03.2020

iv. Delhi Government’s Order dated 03.04.2020

The documents from (i) to (iii) are available here.

Central Government’s guidelines at (i) are limited in scope to hospital deaths.

Delhi Government requested all concerned to adhere to these guidelines vide its letter at (ii).

Delhi Government issued the order at (iii) in the exercise of the power conferred by Delhi COVID Regulations and in continuation to the guidelines at (i) circulated vide its letter at (ii).

Vide the order at (iii) Delhi Government directed that the Standard Operating Procedure contained in this order will be followed for disposal of the dead bodies of COVID-19 affected persons. Notably, the Standard Operating Procedure contained in this order is for deaths occurred at hospitals and for deaths occurred outside healthcare facilities. Thus, it is one step ahead of Central Government’s guidelines at (i) and rightly so, on account of the passage of time. This order mandates that in view of the Standard Operating Procedure contained in this order, all concerned are directed to follow it to ensure protection from COVID-19 infection.

Delhi Government issued the order at (iv) in the exercise of the power conferred by Delhi COVID Regulations and in continuation to the guidelines at (i) circulated vide its letter at (ii). Vide the order at (iv), Delhi Government directed that the Standard Operating procedure contained in this order will be followed for disposal of the dead bodies of COVID-19 affected persons.

The Standard Operating Procedure contained in this order also is for deaths occurred at hospitals and for deaths occurred outside healthcare facilities. However, Delhi Government’s Order 25.03.2020 and Delhi Government’s Order dated 03.04.2020 differ to the following extent:

 

The manner in which the Delhi Government has dealt with the subject of disposal of the dead bodies of COVID-19 affected persons could demonstrate the Delhi Government’s approach to Regulation 15 of Delhi COVID Regulations.

I must add that Central Government in Status Report dated 31.03.2020 filed in Hon’ble Supreme Court in Alakh Alok Srivastava v. Union of India (Diary No. 10789 of 2020/W.P.(s) (C) No(s). 468/2020) (“Status Report”) has taken the following stand:

“54. It is in the larger public interest, in the general interest of the public and in the interest of public health that all State Governments and Union Territories strictly comply with all the directives of the Central Government whether termed as directive, order or advisories.

It is respectfully submitted that irrespective of the nomenclature given, all these instructions are in the nature of binding directives and failure to comply with any one of these, either fully or partially, invite action in accordance with the law.

  1. It is in the larger interest of the nation that this Hon’ble Court, as a constitutional court of the country directs that all State Governments and Union Territories must implement all directives issued by the Central Government [irrespective of the nomenclature used] in letter and spirit.”

Annexures to Status Report are available here.

Vide its order dated 31.03.2020, Hon’ble Supreme Court has, among other things, observed that:

“Having considered the submissions made by the petitioners-in-person and the learned Solicitor General of India and upon perusal of the Status Report filed on behalf of the respondent – Union of India, we are satisfied with the steps taken by the Union of India for preventing the spread of Corona Virus [COVID 19] at this stage.”

“We trust and expect that all concerned viz., State Governments, Public Authorities and Citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety.

In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.”

 

A Labour law approach

 

As a prelude to Part 1, The Leaflet rightly expressed that it is important to build a labour law framework within which issues like payment of wages can be resolved in an epidemic/pandemic situation. In this part I also illustrate steps taken by Central Government in this regard, which are as under:

1. MHA vide its Order dated 29.03.2020, has provided for migrant workers that all the employers of migrant workers, be it in the industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their workplaces, on the due date, without any deduction for the period their establishments are under closure during the lockdown.

2. Status Report indicates among other things, the following:

i. Page 12, para. 37 of Status Report: A separate financial support is made to low-wage earners in organised sectors. Such persons who earn below Rs. 15,000/- per month and working in businesses having less than 100 workers are provided with 24% of their monthly wages into their Provident Fund accounts for the next 3 months.

ii. Page 12, para. 38 of Status Report: Construction workers (mostly migrant workers) will be provided financial assistance through “Welfare Fund for Building and Other Construction Workers”. This would cover 3.5 crore registered workers.

iii. Page 12, para. 39 of Status Report: All State Governments have been required to utilise District Mineral Fund for medical and other needs arising out of COVID-19. Healthcare workers i.e., safai karamcharis, ward-boys, nurses, Accredited Social Health Activist workers, paramedics, technicians, doctors and specialists and other health workers would be covered by a special insurance scheme. Under which scheme, while treating COVID-19 patients if any health professional meets with some accident, she would be compensated with Rs. 50,00,000/-. This scheme is especially for healthcare workers who are working on the frontline.

iv. Page 26, para. (XV) of Status Report: Central Government is sensitive to the need for providing food and shelter to homeless people including migrant labourers, who are stranded due to lockdown measures. Accordingly, on 28.03.2020 Central Government allowed State Governments to use Disaster Response Fund for this purpose.

v. Page 36, para. IX of Status Report: Central Government has announced Rs. 1.70 lakh crore relief package under Pradhan Mantri Garib Kalyan Yojana for the poor people to help them fight the battle against Corona Virus. In this para., the salient features of this package have been stated.

3. MHA vide its letter dated 29.03.2020 has clarified that ‘Pension’ under exemptions to Clause 2(g) of Consolidated Annexure includes pension and provident fund services provided by Employees Provident Fund Organisation.

Rather commendably, Delhi Government has, vide its Order dated 07.04.2020, mandated that if any person attending COVID-19 patients including doctors, nurses, paramedical staff, sweeper or any other staff expires by contracting the disease during discharge of her duty, her family shall be compensated with ex gratia amount of Rs. 1,00,00,000/-, posthumously. Considerations like whether such a person is a temporary or permanent employee or in Government service or with the private sector, are immaterial.

The manner in which the Delhi Government has dealt with this aspect of compensation could demonstrate the Delhi Government’s approach to Regulation 15 of Delhi COVID Regulations.

 

Conclusion

 

There are many issues surrounding the life and times of a pandemic, which are solely, wholly and squarely in the realm of law. A lot is to be done collectively in the direction of healthcare, healthcare law, and balancing rights in a manner that resonates with not just economic and public aspects of health, but also ethical aspects of health. The country as whole gazes at the mountains of successes shivering with the chills of defeats. While working for the successes of tomorrow, we will have the company of the defeats of yesterday and the endeavours of today.

It is not about waiting for the next pandemic. It is about equipping for the next pandemic.

 

 

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

[Full Disclosure: Arjun Natarajan has been advising and representing Telecom Regulatory Authority of India, since January 2018]

 

Also read: Surviving COVID-19 and Hunger: The double-edged sword over India’s poor and vulnerable

 

Image courtesy: India Today

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