BETTER LAWS AND GOVERNMENTS IN TIMES OF CRISES

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)

COPS AND SENTINELS

The ‘Traffic Sentinel’ initiative by the Goa Police has divided public opinion. While both sides, that is, those who support and those who oppose the initiative, have their reasons, most miss the forest for a few trees. Many do not seem to notice the larger issue at stake, which is, public law and order, due process, and the efficient functioning of the state. While there is no doubt that traffic violations need to be curbed, it appears that the authorities have abdicated their role in the maintenance of law and order. And yet, it should also be highlighted that the citizens cannot be expected to fulfill the duty of the state and its agents.

The ‘Traffic Sentinel’ initiative has been in operation since November 2017. According to news reports, in 2018 alone, over 700,000 challans were issued for various traffic violations. Initially, citizens who registered as sentinels reported these violations through Whatsapp and social media. The premise of the system is that these citizen-sentinels will accumulate points for reporting violations, and, having accumulated a certain number of points, will be rewarded with cash and prizes. In November 2018, the Goa Police launched a mobile app and the launch of this app, together with a hasty cabinet approval in January this year, created some controversy. The controversy erupted because these citizens-sentinels have been increasingly facing anger and even mob violence for clicking pictures or recording videos of traffic violations. While the police establishment was extremely confident about this initiative despite the mob violence, the government seems to be backtracking on its support for the initiative.

To cut to the chase, the ‘Traffic Sentinel’ initiative is a bad idea. Not because the logistics are impossible to work out, but it appears that there is no legal basis for the citizen-sentinel to exist. Take, for instance, the fact that any person reported by such a citizen-sentinel can challenge the charge in court. If so, the citizen-sentinel needs to appear in court to testify. So, it seems that the citizen-sentinel is just a witness, as in so many other situations where laws are violated. Moreover, the ‘evidence’ of the alleged violation is not absolute as it can be challenged in a court of law.

This arguably places the citizen-sentinel in a legally ambiguous space since the citizen-sentinel is not only reporting a violation but in that specific situation is also – in a way – ‘enforcing’ it. The person who reports the violation ends up in a confrontation with the alleged violator of the traffic law. What one observed in the mob violence in Vasco, for instance, was precisely the legal gray areas of the initiative, creating chaos. The citizen-sentinel is not protected by any special law as a ‘Traffic Sentinel’, and neither are the already understaffed police able to guarantee a citizen-sentinel’s safety as seen in Vasco.

While the issue of the police being understaffed is serious and may have led to the formulation of such an initiative of citizen partnership, a bigger issue that needs to be tackled is the police’s loss of authority in enforcing some of the simplest and most important laws in our society. This is not to say that authority needs to be enforced through violence, as often happens through police brutality, or by imposing hefty fines. Rather, the police establishment needs to inform the people of Goa how they will enforce just authority without harassing or abusing the citizens of Goa. The widespread prevalence of police corruption through bribes when it comes to traffic law enforcement only adds to the deficit of trust. The fact is that a police officer does not inspire trust, be it in the case of enforcing just authority or upholding the rule of law.

It takes two to tango, as they say. Just as the state needs to enforce laws in an unbiased manner, the citizens too need to obey laws to promote a healthy society. One could argue that the reason so many citizens registered for the ‘Traffic Sentinel’ initiative was because they wanted to bring change. However, in the context of traffic violations, it seems that the inability of the state in enforcing these laws is only matched by the disregard that citizens have for some of the simplest and basic laws. For instance, traffic laws ensure an orderly flow of vehicles and pedestrians and minimize the risk of life and limb. It appears that people in Goa are more concerned about the small fines than their lives (and the lives of their loved ones and fellow citizens). For what else can explain the utter disregard for basic norms of safety and, not to mention, the prevalence of rash and negligent driving, when so many lose their lives in traffic accidents every day? To an extent, even those who are ‘Traffic Sentinels’ are part of a culture that does not privilege the safety of all.

In other words, the issues before us are the role of the police as a law-enforcing authority and the role of the citizens as a law-abiding entity. While both have an important part to play, it is important to recognize that the state and the citizens need to promote due process and the rule of law in the long term. The ‘Traffic Sentinel’ initiative appears to be a shortcut – the police fine violators to show the numbers on paper, while in reality everyone does as they please. The solution lies not in allowing people to take the law in their own hands but in following due process and the rule of law. Responsible behavior by citizens and the efficient, accountable functioning of state bodies can make a difference.

(First published in O Heraldo, dt: 6 February, 2019)