Good
laws are necessary in times of crisis, or even otherwise. The poor management
by state and central authorities of the COVID-19 pandemic lays bare the legal and
infrastructural unpreparedness in India. As if the threat of the disease was
not enough, the country-wide lockdown created more problems regarding the
welfare of the countless million laborers in the casual and informal sectors. There
exist no laws, and no new ones were made that protect such laborers in times of
crises. Consequently, the government’s policies in tackling COVID-19
essentially lacks a strong legal basis.
For
instance, on the question of the wages of workers in various industries during
lockdown, the directive to pay the employee has not worked because the period has
no legal base. A few business organizations in Goa, in a letter
(19 April 2020) to the Chief Minister, questioned the legality of asking
private companies to pay wages to their employees. This letter reported in the
press, and circulating online, was made by Confederation
of Indian Industry (CII), Goa Chamber of Commerce and Industry (GCCI), Goa
Hotel & Restaurant Association (GH&RA), Goa State Industries
Association (GSIA), Goa Technology Association (GTA), Travel & Tourism
Association of Goa (TTAG) and Verna Industries Association (VIA). Lawyers are
also debating
the same question over the interpretation of the laws, a question that the
courts will have to settle.
The letter claims that both the Epidemic Disease Act, 1897, and the
Disaster Management Act, 2005, imposed following the outbreak of the pandemic
in India, does not empower the State to force private companies to bear the
burden of a health crisis or disaster. Instead, the letter claimed that the
onus of providing for lockdowned employees, be it “permanent” or “contractual
workmen,” and “inter-state migrants” lies firmly with the State. The letter
argues, “If for any reason the government decides to extend the
lockdown [further than May 3], it should bear the wage burden and should not
give any advisory for payment of full wages given it lacks the authority to do
so.” Clearly, the workers are left in the lurch.
The
imposition of the Epidemic Disease Act, 1897, has also divided public opinion.
In addition to the fact that this Act failed to enforce norms of social
distancing, some
argue that it had several legal loopholes,
apart from being archaic. These naysayers are proven right. We can see it in
the joint representation by Goan business associations or in the fact that the
original Epidemic Disease Act lists
only ships and ports as areas of inspection, whereas COVID-19 spread largely
through air travelers.
If
history teaches us anything, it is that governments need to do more than enough
to tide over the crises. As far as making useful laws, the government of India
is not rising to the challenge. True, the President issued a recent ordinance
making it punishable to harm healthcare professionals in times of an epidemic.
This ordinance that lays down in such minute detail the kinds of punishment for
such a violation has no place for providing adequate healthcare facilities, for
patients as well as doctors.
We
know that, like in many other places, healthcare professionals and facilities
are facing a severe shortage of essentials, such as testing kits and Personal
Protective Equipment (PPE). But the government does not see it fit to make a
legal provision to guarantee the health and safety of the citizens of India.
Nor did it see fit to make a law to protect workers over their jobs and
salaries due to an unprecedented lockdown. At least, the ordinance could have
added a clause for enforcing ‘social distancing.’
The
transportation of the royalty-paid ore that resumed in May, on the order of the
Supreme Court, in times of the lockdown is further proof of a law and order
problem in Goa. The trucks on the route from Cavrem to Curchorem has made a
mockery of the ‘social distancing’ norms supposedly enforced in Goa. If the
government and the mining companies are unwilling to act lawfully (by
respecting the lockdown norms), at least they could have delayed the
transportation until the COVID-19 situation is no longer a threat to the life
and health of the people of Goa.
The
Goa government’s refusal to intervene, and thereby maintain at least some
semblance of the existence of the rule of law, in the iron ore transportation issue,
is, in the words of Claude Alvares, one of the activists against illegal mining,
“sheer hypocrisy.” Alvares further observes
“COVID-19, the State government should be reminded, is a respiratory illness.
By what yardstick is an activity that is closely associated with respiratory
illness[es] being allowed in the hot summer on State’s roads, with COVID-19
lurking around every corner?”
As
seen in the Goan case, the state’s legal basis for enforcing norms during
COVID-19 leaves much to be desired. One reason the government has not been able
to reduce the chaos following COVID-19, in fact, has added to it, is because it
has not made laws that are relevant to our unprecedented time. The existing
laws that the government is using are also inadequate. Thus, the refrain of our
times, as in all times, has to be that we need both proactive laws and
governments that will be responsive and sensitive to the realities of the
socially and economically marginalized sections of society.
(First published in O Heraldo, dt: 6 May, 2020)
