Case BriefsCOVID 19High Courts

Bombay High Court:  Bharati Dangre, J., addressed a complaint wherein a verbal altercation took place for the reason that applicant was asked to wear a mask.

Complainant alleged that while he was on duty of bandobast for prevention of CoronaVirus, the applicant on being asked to wear the mask entered into a verbal altercation.

The complaint filed referred to the above-stated altercation in detail and alleged that he was instigated in discharge of his official duty by the applicant and as far as the assault was concerned, complaint stated that he placed his hand on his shoulder.

Offence had been registered under Sections 323, 353 and 506 of Penal Code, 1860 against the applicant and relevant provisions of Disaster Management Act, 2005.

Bench observed that on prima facie what emerges is a verbal altercation between complainant and applicant while latter was discharging his duty. No ingredients of Sections 323 and 353 of Penal Code, 1860 are made out.

Thus in view of the above, applicant was granted ad-interim bail. Court also directed the applicant to not directly or indirectly make any inducement, threat or promise to any persons acquainted with facts of the case to dissuade him from disclosing the facts to Court or nay Police Officer.  [Shekhar v. State of Maharashtra, LD VC Anticipatory Bail Application No. 37 of 2020, decided on 05-05-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of N. Kirubakaran and R. Hemalatha, JJ. while hailing and appreciating the round the clock service of Corona warriors asked the authorities concerned to subject the doctors, health workers, sanitisation workers, policemen  to regular testing.

Petitions have been filed pertaining to seeking

  • direction to respondent to provide and ensure medical assistance irrespective of all COVID-19 affected patients at free of cost
  • Direction to respondent 2 to constitute a State Level Executive Committee to assist the State Government/State Disaster Management Authority to perform its functions in preventing & controlling the COVID-19 and constitute a District level Disaster Management Committee to prevent and control the COVID -19 and direct the respondent 2 to notify and approve the ‘COVID-19’ isolated wards in Government & Private Hospitals with free of costs for treatment and testing and handling all suspected persons who arrived from foreign country 01.03.2020 onwards, keep them into special quarantine camps.
  • provide personal protective equipments (PPE) especially for doctors, nurses and hospital staffs in COVID-19 wards
  • to quarantine a section among the workforce of essential services for future catastrophe of COVID-19.

Petitioners counsel submitted that, so far no Community kitchens have been opened. Also sufficient number of masks and PPEs are not available.

Additional Advocate General on behalf of the respondents submitted the number of PPEs and masks along with testing kits available, adding to the said he submitted that supply is regularly coming and numbers are increasing.

With regard to non-supply of food, it was submitted that, Rs 1000 is being given to the people holding ration card and free ration and groceries is also being provided. Thus, nobody is suffering for want of food.

Another point submitted by petitioner’s counsel was that, about 45,000 persons including 100 Doctors and 3500 Para Medical Staffs have registered for voluntary service, their services are not being utilized. In the said regard, AAG submitted that he would verify the same and inform the Court in next hearing.

Court concerned with health condition of Doctors, Health Workers, Sanitary Workers and policemen stated that they should be given break sufficiently.

They should also be subjected to regular testing by the Authorities.

Bench stated that,

Court hails and appreciates the round the clock service rendered by Doctors, Health Workers, Sanitary workers and Policemen in the fight against dangerous pandemic which is threatening the entire humanity.

Thus, Court hopes and expects the respective government would appreciate the warriors and their services with increase in their salaries. Matter to be listed in 2 weeks.[S. Jimraj Milton v. Union of India,  2020 SCC OnLine Mad 916, decided on 09-04-2020]

COVID 19Hot Off The PressNews

In view of the persisting status of the Corona Virus Pandemic, particularly as reported in the State of Tamil Nadu, and the same is likely to continue for some time in future, Hon’ble the Administrative Committee of the High Court of Madras has resolved to continue the functioning of the High Court and the Subordinate Courts as per the Circular dated 24-3-2020, till 30th April, 2020.


Madras High Court

[Circular dt. 12-04-2020]

Hot Off The PressNews

The Chief Secretary of Uttar Pradesh R.K. Tiwari, addressed a letter to Commissioner/District Magistrate/ Police Commissioner/ S.S.P/S.P. of 15 Districts and gave certain directions regarding complete sealing of hotspots in those districts.

Districts to be sealed are:

  • Agra
  • Lucknow
  • Ghaziabad
  • Gautam Buddh Nagar
  • Kanpur Nagar
  • Varanasi
  • Shamli
  • Meerut
  • Bareilly
  • Bulandshahr
  • Basti
  • Firozabad
  • Saharanpur
  • Maharajganj
  • Sitapur

While enforcing the lockdown strictly, complete sealing of affected areas will be done.

Passes handed out to be reviewed and the once which are unnecessarily issue to be cancelled.

Only Home Delivery services will be allowed in the affected areas whereas vegetable markets and shops to be closed in order to maintain the norms of social distancing and lockdown.

Sanitisation to be done of all the houses.

People working for factories/industries who have to essentially commute, for them pool car arrangements to be ensured.

No one other than persons working for Medical Healthcare Services and those working for essential services will be allowed to step out of their houses.

Above directions to be strictly implemented through Patrolling and regular updates to be furnished in accordance with instructions issued by Health Department.

Letter no. 255-PSMS-2020.pdf.pdf


Office of the Chief Secretary of Uttar Pradesh

[Letter dated: 08-04-2020]

Case BriefsCOVID 19High Courts

Rajasthan High Court: A.M. Badar, J. while addressing a regular bail application under Section 439 of Criminal Procedure Code, 1973, held that,

“Entire Law Enforcing Machinery is focusing on implementation of the Lockdown throughout the State by virtually remaining on the field for 24 hours.

This is being done for saving the entire nation from the pandemic.

In such a situation, it is not advisable to insist the State to depute Police Officers for instructing the Prosecutors by undertaking travel to the office of the Public Prosecutor and attending the Court by leaving their territorial jurisdiction where their presence in such a situation is must.”

While hearing an application for bail the Bench made certain observations, that,

Maharashtra is the most affected State of India where there is largest number of patients of COVID-19. Entire Western Maharashtra, which is under territorial jurisdiction of the Principal Seat of this Court, is worstly suffering from this pandemic.

The instant bail application was filed under the extremely urgent category.

For the above, Court stated that,

Unless extremely urgent situation for entertaining regular bail application is pointed out, mere fact that the accused is undergoing either pre-trial or post-trial detention, does not warrant entertainment of the regular bail application on the occasion of Lockdown declared by the State.

Hence with regarding to entertaining the case, Court stated that,

“case in hand is not reflecting any such extremely urgent situation warranting entertainment of the regular bail application.”

Court added that, Law Enforcing Agencies have to frequently deal with the problem of Law and Order, as several individuals or group of individuals are turning violent and disrupting the work of sanitisation as well as providing medical aid to the victims.

Incidents of assault on Nurses, Doctors, Para Medical staff and Police staff involved in combating the menace of COVID-19.

In the above view, presence of 100 percent members of Police Force on the field, rather than in the Court, is absolutely essential for a limited period of Lockdown.

In view of the lockdown, so far as Mumbai is concerned, it is reported that several areas are also sealed. As such, even if a prisoner is released on bail, it may not be possible for him to reach to his destination without risking his life due to outbreak of COVID-19.

Thus, in the present situation, the prisoner by remaining inside till completion of lockout period will help and save the life of many others. [Sopan Ramesh Lanjekar v. State of Maharashtra, 2020 SCC OnLine Bom 468, decided on 03-04-2020]

COVID 19Experts CornerSaakshya Law

[A] Introduction:

A few weeks ago, The Economist carried an article entitled “A force to be reckoned with” in which it highlighted – stemming from the lockdown in China, in general, and around Wuhan, in particular, as a result of the “viral outbreak” as it called it – the worry that the trickle of Chinese enterprises using an “obscure legal manoeuvre” of declaring “force majeure”, would soon turn into a “tidal wave”, enabling such firms to “get out of contracts”. The article went on to describe how, as a result primarily of large-scale disruptions in global supply chains stemming from the negative economic impact of the virus in China, “China Inc is panicking”. The Economist continued:

“Firms are starting to invoke [force majeure] to avoid paying non-performance penalties on contracts. On February 17th, the China Council for the Promotion of International Trade (CCIPT), an official body, revealed that it has already issued over 1,600 “force majeure certificates” to firms in 30 sectors covering contracts worth over $15bn. These [certificates] give official support to [force majeure’s] invocation. More are likely to come.” [1]                                                                                                                                                                                                                                                                        (emphasis supplied)

Whether coincidentally or not, just a couple of days after the CCIPT’s revelation, the Government of India (GoI), through its Ministry of Finance’s Procurement Policy Division – limited as regards GoI’s regime governing the public procurement of goods (i.e. the State’s purchase of goods and services, while undertaking the execution of public works) – seemingly hurried to clarify to all its departments as follows (Office Memorandum No.F.18/4/2020-PPD, dated 19-2-2020):

“A doubt has arisen if the disruption of the supply chains due to spread of corona virus in China or any other country will be covered in the Force Majeure Clause (FMC). In this regard it is clarified that it should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following due procedure.”                                                                                                                                                                                                                                   (emphasis supplied)

         Since then, in barely five weeks, that “viral outbreak” has become a global pandemic –  COVID-19  – which, in a breath-taking, blink of an eye, looks set to unleash the generation’s, if not the century’s, principal economic destructive force globally, and for which daresay, the world at large was unprepared. And, all in the backdrop – as the International Association for Contract & Commercial Management (IACCM) notes (in its Research Report on the Impact on World Trade, Corona virus: Business Disruption Escalates, 23-3-2020) – of complete uncertainty, as it appears no one can actually and accurately predict what is going to happen; the extent, range, scale and length of time of the damage, especially to the global economy, as a result of COVID-19. And, those are important factors to be borne in mind while considering the extent of the application of the principles of frustration of contracts, as a result of intervening impossibility.

In the midst of all the mayhem in domestic and cross-border economies and markets around the world, as well as the deleterious impact on businesses and commerce in India, in particular, this article focuses its examination on the key question of whether this “obscure legal manoeuvre” (or as IACCM calls it, “little used”) – force majeure – can indeed in some cases, come to the rescue of enterprises wracked by the pummelling effects of the economic downturn brought about by COVID-19.

The answer, as we shall see in this article to that question, is neither as straight forward as GoI would have us believe (as regards public procurement contracts), despite GoI’s seemingly categoric response above; nor indeed, one that will really and entirely work, on which as The Economist rightly notes, “legal opinion is divided”. This article will seek to untangle some of those divisive knots and attempt to seek clarity on the applicability and consequences, under Indian Law, of the concepts and principles of frustration of contracts by reason of impossibility on the one hand, and force majeure clauses, on the other. The conclusion is, as we shall see, a rather narrow and limited framework within which, in India, both principles of contractual frustration by reason of impossibility and force majeure clauses, operate.

[B] Background, Essential Threshold Differences:

Force majeure literally translates from the French as “superior force”. Immediately apparent is its continental roots within the civil law systems of the world – the foundational basis of the principle is one crystallised in the Napoleonic Code in the 1800s, although its origins can be traced to Roman Law. [2]

This is to be contrasted with the Anglo-Saxon common law systems of the world – of which India, the UK (including the Commonwealth) and the USA amongst others, are a part (the fascinating study of the differences between the two systems of law are for another time and place). Suffice it to say that the common law notion with which we are most concerned is the principle of “frustration of contracts” arising from the impossibility of performance of such contracts.

Two important threshold distinctions arising straight away between frustration of contracts by reason of impossibility, on the one hand; and, force majeure clauses, on the other. Firstly, the civil law systems’ concept of force majeure largely consists in the contractual prescription by the parties of such a clause; it being present specifically in their contracts – whereas in common law jurisdictions, including India, the principle of frustration of contracts by reason of impossibility lies as a matter of law beyond a contractual prescription (although the latter force majeure clause may also exist in the contract in dispute, as we shall examine later). Many common law jurisdictions, more used to the rigidity and narrow applicability of their concept of ‘frustration of contracts’ due to impossibility (a critical point discussed in some detail below), are less friendly to claims based on such force majeure contractual clauses, being as they are for instance, “not overly impressed by force majeure certificates” as in China, as The Economist wryly notes.

The second distinction flowing from the first, is clearly how important the governing law of the contract in question is as regards the treatment of any attempt by the affected party or parties to a contract to disclaim such contract – whether by the principle of frustration for reason of impossibility, or the application of a force majeure exception clause in the contract itself. For instance, local Chinese firms, anyways likely to get a “more sympathetic hearing in mainland courts” (The Economist’s words), are also probably far favourably insulated than their Indian counterparts for instance, in these times of COVID-19, since Chinese courts are likely to rule in favour of the Chinese entities when seeing a force majeure certificate, when foreign counterparts of Chinese parties seek enforcement in China of their overseas judgments or arbitral awards – something as examined below, is likely not to be the case in India against Indian enterprises, given the state of the Indian Law in this regard.

If there ever was an opportune time during contractual negotiations to weigh-up the parties’ proper exercise of their freedom to choose the governing law of a contract, rather than give such discussions the usual short shrift (the lawyer’s job alone, as some may say), this is perhaps that time. That said, in some cases, the choice of governing law may effectively be pre-determined on the basis of applying the principles of the proper law of the contract – such as for example, in shareholders’ agreements involving Indian companies – or, the issue transforms itself into one of bringing overseas judgments or arbitral awards into the jurisdiction of the country of the affected party or parties to that contract; and thereby anyways encountering that jurisdiction’s existing treatment of force majeure clauses or principles of frustration of contracts due to impossibility.

One thing though is certain: parties (especially in China given its favourable regime) are using the viral outbreak to try to renegotiate terms under the threat of seeking sanctuary in force majeure exemption clauses – a tactic The Economist describes as “price majeure”. Interestingly, the GoI’s public procurement manual for 2017 (which is the current version applicable) states that “price variation clauses” may be allowed beyond the original scheduled delivery date, by specific alteration of that date through amendments to the contract as a result of force majeure – the GoI’s above mentioned Office Memorandum triggering force majeure in the face of COVID-19 is a step in that direction of re-negotiation, clearly. It appears that the GoI as regards its public procurement regime at least, also wishes to adopt the rather rigid approach of the Chinese in these cases – and, given the expected severity of the impact of COVID-19, one perhaps cannot begrudge GoI in these circumstances. The same approach may be true of, or adopted by, private parties in India.

[C] Essential/Key Principles of Indian Law – Frustration:

Indian Law in this regard, has a quirk of our colonial legal history – an approach arising from the British Colonial State’s eagerness to use India as a testing ground to crystallise in statutory law, principles of common law and thereby the hope of cementing or freezing its contours (crucially, seeking to remove anomalies or grey areas). Unlike in England where the principles relating to what constitutes frustration of contracts as a result of the impossibility of their performance, are subject to the vagaries of judicial pronouncements (and, as a result, can often be notoriously difficult to apply in any given fact situation), Indian law stands crystallised in Section 56 of the Contract Act, 1872 (“the 1872 Act”) – and to that extent ought to be easier of interpretation and application (or at least, capable of crisper definition). However, that said, the one thing common though to both legal systems is that these principles can in their interpretation and application, vary significantly given the facts and circumstances of each matter. As a result, extrapolating the key strands of the applicable principles is essential, as follows:

1. Section 56; first paragraph: An agreement to do an act impossible in itself is void – in other words, if the event or action forming part of the contract is incapable intrinsically of performance at the time of entry into the contract, then that contract is void from the very inception. The 1872 Act itself provides an illustration of this first principle: A agrees with B to discover treasure by magic; the agreement is void.

2. Section 56; second paragraph: A contract to do an act which, after the contract is made: (i) becomes impossible; or (ii) by reason of some event which the promissor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful – in other words, where events have occurred after the making of the contract which constitute an intrusion or occurrence of an unexpected event or change of circumstances which was beyond the control of the parties, the contract may be discharged on the ground of frustration (or, as the 1872 Act says, ‘becomes void when the act becomes impossible or unlawful’). A contract which has become impossible of performance is said to be frustrated.                                                                                                                                                                                                     (emphasis supplied)

A strict reading or interpretation of the wording of this second paragraph of Section 56 of the 1872 Act would seem to suggest that the inability of the party in question to prevent such intervening frustrating circumstance or event would only arise for determination in cases where such intervention has resulted in the act or contract itself becoming unlawful, not when it becomes impossible – the second illustration to the provision is illuminating in this behalf: A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract becomes void.

However, the Indian Supreme Court (principally, in Mugneeram Bangur case [3], and several other judgments, such as Raja Dhruv Dev Chand [4], Naihati Jute Mills [5] and Ganga Saran [6]) has construed this provision to include three critical aspects:

(a) Section 56 is a complete or exhaustive code to the extent that the 1872 Act deals with this subject, laying down a positive rule of law; an aspect of what constitutes a permissible discharge of, or an acceptable exception to, the subsequent performance of the contract – as a result, it is not permissible to import the principles of English Law without reference to the statutory provisions in Indian Law, and the Indian courts cannot travel outside the terms of Section 56, including as regards bringing in the concept of whether or not the event under consideration was or was not within the contemplation of the parties at the time of execution of the contract. That said, to the extent of similarities in treatment of these subject-matters between English and Indian Law, the former’s authorities can indeed be very persuasive and relevant guides.

(b) The doctrine in Indian Law is that of “supervening impossibility or illegality”, with the word “impossible” to be taken in its practical, and not in its literal, sense and does not leave the matter to be determined in accordance with the intention of the parties.

(c) The Supreme Court has expounded on a third principle (see also, Pollock & Mulla’s Indian Contract and Specific Relief Acts): when an event of change in circumstances occurs, which is so fundamental as to be regarded by law as striking at the root of the contract, it is the Indian court which can pronounce the contract to be frustrated and at an end. In that regard, the court has to examine the contract; the circumstances under which it was made; and the belief, knowledge and intention of the parties, being evidence of whether the changed circumstances destroyed altogether the basis of the contract and its underlying object – while reaching its conclusion on the basis of the facts and circumstances of each and every such contract, whether the contractual bargain was indeed at an end as a result of the significantly altered conditions.

[D] Application of Principles of Frustration:

The foregoing analysis leads us to the crux of the matter in India: Indian courts a la their English counterparts are reluctant to invoke the doctrine of frustration because they do not want to allow the doctrine to act as an escape route for a party for whom the contract has simply become a bad bargain (a point stressed by the leading English authority on this subject, Prof. Ewan McKendrick, QC, Professor of English Private Law, Oxford University). Courts are anxious to preserve intact the sanctity of the contract, only providing relief when the harshness of the situation becomes so fundamental and apparent in that the performance becomes impossible by causes which could not have been foreseen and which are beyond the control of the parties – establishing such “impossibility” is therefore in most cases, a tall order. The threshold is undeniably high, in the words of the Indian Supreme Court itself (Mugneeram Bangur case [3], AIR 1954 SC 44 at p. 46):

“This much is clear that the word “impossible” has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purposes which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do.”

                                                                                                                                                                                                         (emphasis supplied)

Indeed, in none of the Indian cases referred to above, even while drawing out the key principles mentioned above, did the Supreme Court actually permit the contract in question to be regarded as having been or become frustrated by impossibility – in Mugneeram Bangur case [3], for instance, after re-iterating that the test depends or turns on the “effect of what has actually happened on the possibility of performing the contract”, the Supreme Court regarded the total absence of any definite period of time agreed to by the parties within which the work was to be completed (the case involved admittedly, temporary requisition orders passed during war time intervening against the contract), as justifying the ultimate holding that the supervening events did not vitally affect the contract or make its performance impossible.

Further, in Naihati Jute Mills case [5], for instance, the Supreme Court emphasised that a contract is not frustrated merely because the circumstances in which it is made are altered – the courts having no general power to absolve a party from the performance of his or her part of the contract, merely because its performance has become more onerous on account of an unforeseen turn of events. The question in that case was whether the contract which the party claiming frustration had entered into provided that such party would make their best endeavours to get the licence in question; or, whether the contract was that they would indeed obtain such license or else be liable for the breach of that stipulation. The Court on facts found in favour of the latter proposition, and denied frustration, indeed holding that party liable for breach in accordance with the terms of the contract.

Where then does this leave us on the key issue of frustration of contracts by subsequent impossibility? The Indian Law and its principles are undeniably rigid (some would say at a much higher threshold) in terms of its interpretation; and narrow or limited in its applicability. Outcomes in favour of reaching a conclusion of frustration by reason of impossibility need to satisfy a very high threshold in most cases – and turn on a plethora of factors, two of which are relevant for our current purposes. First, the issue of the length of time impacting the reaching of a conclusion of “impossibility” and the second, the extent or range/scope – in other words, the severity – of the intervening “impossibility”. What may in some cases be only a temporary or incomplete bar (for instance, in Mugneeram Bangur case [3]), but which in other instances tend towards either a delay in decision making or an unambiguous conclusion of the impossibility of performance (especially where the parties could not and did not have that supervening circumstance in mind), can result in the finding of “impossibility” within the meaning of Section 56 and the consequent discharge of the parties from that contract. This was the position reached for instance, in DDA v. Kenneth Builders case [7].

Whether COVID-19 is such an intervening event beyond parties’ control that extends to “impossibility” of performance in such circumstances is a moot question, turning largely on facts and circumstances of each case where the deleterious effects of COVID-19 is to be considered on the subject-matter of the contract; but also importantly, on the length of time and the extent or range of its deleterious consequences – all to be viewed from the prism of the legal system’s undeniable preference to hold parties to their bargain.

There is at least one area where such “impossibility” would almost always be a given – and that is in executory contracts, namely, contingent contracts whose performance is dependent on the happening or otherwise of an uncertain future event, which then gets so frustrated. One example is share purchase or subscription agreements, where the completion of the share sale or issuance rests on certain contractually stipulated conditions precedent; the contract being capable potentially of being avoided, if such conditions precedent are not met typically to the satisfaction of the buyer or subscriber as the case may be. A contractually stipulated clause that such “material adverse effects” arising from a COVID-19 like situation can derail such completion, may stand up to the higher threshold of “impossibility” on the basis at least, of a complete vitiation of the very foundation of the contractual bargain.

On the other hand, contracts with a company’s promoters that their non-satisfaction of certain contractually prescribed metrics would result in “significant non-performance” enabling investors to eject them from the executive management of the company in question, may need to satisfy the higher threshold tests of impossibility before being genuinely capable of being triggered in a COVID-19 like situation. This is especially true where the affected party (in such cases the company promoter) may legitimately claim that his or her ability to satisfy the metrics are now materially prejudiced as a result of factors beyond his or her control; although whether those metrics can be said to be unambiguously impossible of achievement (in situations where the severity of the impact can be obviated; or, the length of time of its negative impacts subject to a determinate period visible, or capable of being perceived, on the horizon) are moot questions that may frustrate the very finding of frustration due to “impossibility”.

Another twist in the tale is the legal system’s principle stipulating a duty of mitigation – a non-affected party is under a duty to take all reasonable steps to mitigate any loss consequent upon a breach by the other party. Of course, in order to apply the duty of mitigation, it must first be concluded that the act claimed to be one of frustration is actually “impossibility” masquerading as a breach – which goes back to the fundamental determination: whether the supervening acts constitute an “impossibility” of performance within the three-pronged test described above.

[E] Indian Law & Force Majeure Clauses:

Force majeure clauses come in all shapes and sizes – of what constitutes such force majeure; as well as the contractual consequences thereof. Typically, such a clause defines a set of events that are supervening ones from beyond the contractual sphere of control – for example: acts of God, strikes, lock-outs, fires, war, terrorist attacks (the list can be endless and one can never hope to be exhaustive – in one English case, Channel Island Ferries [8], it covered “disease”), and is typically concluded by generic language seeking to include by reference, any incident or event beyond the control of the relevant affected party or parties.

While such clauses bring about a degree of certainty (as Prof. McKendrick notes), the touchstone remains under Indian Law, the meeting of the test of frustration by “impossibility” as earlier described. Importantly, since the general principle of frustration by reason of “impossibility” operates within very narrow limits (both in terms of the events which constitute frustrating events and the rigour with which discharge from contractual liability arises as a result of such impossibility), force majeure clauses enable parties to contractually provide a wider class of events on which to hang a hook for frustration as a result of such “impossibility” – as Prof. McKendrick notes, while in Davis Contractors case [9], an unexpected increase in prices did not constitute a frustrating event, a commercial contract may state that an “abnormal increase in prices and wages” shall constitute a force majeure event and thereby bring it expressly within the concept of frustration at the threshold at the very least – whether such an event would meet the concept of “impossibility” as legally defined, is of course another matter.

Two important, and sometimes alternative, considerations may be borne in mind, arising from the foregoing discussion – firstly, it is important to bear in mind that the generic language included in a force majeure clause to capture such other incidents or events beyond the control of the relevant affected party, will be limited by the rule of interpretation that stipulates that the subsequent generic words are confined in their scope to the same or similar genus of items as earlier listed (namely, the rule of ejusdem generis – of or as the same kind). The proper drafting of such force majeure clauses is therefore vital – for instance, the use of the generic word “similar” may destroy a more extensive coverage sought to be placed on a force majeure clause. Secondly, and naturally flowing from the first, the approach to be adopted while drafting the language of such force majeure clauses, materially depends on whether the party will be the one most affected by the other party avoiding the contract under principles of frustration by reason of impossibility – in that case, one would want the force majeure clause to be naturally limiting in its definition.

Finally, by providing a force majeure clause the parties have the advantage themselves to make provision for the consequences of the occurrence of such force majeure events leading to contractually defined frustration of the contract. As Prof. McKendrick notes, frustration operates too drastically because it terminates the contract, irrespective of the wishes of the parties – very often the parties may want to continue their relationship but to adapt the terms to meet the new situation (adverted to somewhat earlier as above, while describing ‘price majeure’). As Prof. McKendrick succinctly puts it:

“The remedial rigidity of the doctrine of frustration contrasts unfavourable with the flexibility which can be obtained by drafting an appropriate force majeure clause.”

Oftentimes, the contractually mandated consequences of force majeure clauses are a “stand-still” obligation for a defined period of time, where parties attempt to remedy the deleterious effects of the supervening events, coupled with a subsequent non-recourse, no-liability termination of the contract for convenience – importantly in that latter case, though another principle of Indian contract law appears to be applicable, namely, that where one person has promised to do something which he knew or with reasonable diligence might have known, and which the other party did not know to be impossible, such promissor must compensate that other for any loss which that other sustains as a result of the non-performance of the promise (even in cases of frustration).

In conclusion on this subject, Prof. McKendrick mentions an English case (Super Servant Two [10]) as an interesting and important one because it provides us with an excellent example both of the narrow confines within which the doctrine of frustration operates and of the advantages which can be obtained by the incorporation of a suitably drafted force majeure clause in a contract – a contracting party who wishes to be released from his or her obligations to perform in a wider range of circumstances that may constitute frustrating events, must bargain for the inclusion of a force majeure clause if he or she seeks to benefit from the “narrow confines” of frustration as generally defined.

Interestingly, The Economist asked whether the “viral outbreak” would be covered in typical force majeure clauses; especially, as regards the term “acts of God” – it kept the question open: “does [‘act of God’] really apply to an epidemic probably caused by humans eating exotic animals and to the heavy-handed government response to it?”. The jury we believe is still out on that question as regards whether COVID-19 can be treated as a “natural calamity” or an “act of God” – but greater visibility in India is at hand: seek force majeure clauses properly drafted as to its scope and extent of its applicability, and the consequences that would stem upon it being triggered, especially as regards those matters beyond the control of the parties and which may have a fundamental contract altering effect, so as to have greater certainty that such contracts in such circumstances, may well be regarded as being discharged on the ground of frustration due to impossibility, via the operation of such force majeure clauses.

[E] Conclusion:

Ultimately, the general guiding points in a court deciding on whether to trigger frustration by reason of “impossibility” of performance, whether with or without a force majeure clause, rests on a few important factors (as succinctly described and summarised by the English jurist, P.S. Atiyah, in his An Introduction to the Law of Contract, and worth quoting here in full as there is nothing in Indian Law to show that its provisions run counter to these principles):

(i) a party takes the risk of any changes in circumstances, which affect not the common object of both the parties, but only his or her own purposes in contracting;

(ii) a change in circumstances, which only affects the manner in which one of the parties is to carry out the obligations does not normally frustrate the contract;

(iii) an abnormally large remuneration may indicate that the party receiving it has received it to cover the special risks, for instance, special insurance premiums;

(iv) a party to a contract undertakes the risk that performance of his or her promise may prove more difficult or onerous than expected; or even impossible because of normal changes in circumstances – but he or she may not take that risk of performance proving impossible due to abnormal or extra-ordinary occurrences;

(v) even where a party does not normally take the risk of non-performance, in situations where it is rendered impossible due to abnormal or extra-ordinary circumstances, he or she can be considered to have taken the risk of non-performance if the result of the impossibility is to give him a remedy over or against some other person; and

(vi) as a rough general rule, if the parties make a contract which is only to be performed at some distant future date, one or the other of them will be held to have assumed the risk of performance, whatever the future may bring; the object of such contract may be to eliminate the dangers of later events.

COVID-19 is a game changer in many respects – whether it will upend the prevailing principles of force majeure and frustration of contracts due to “impossibility” remains to be seen. The existing legal provisions and the Indian legal jurisprudence surrounding the same appear robust enough to address the large and wide-ranging legal consequences of the viral pandemic. Whether in particular cases, such consequences will actually lead to parties being able to successfully avoid their obligations, still continues to depend on the time-tested benchmarks of each case – namely, whether the changed circumstances destroyed altogether the basis of the contract and its underlying object, and whether the contractual bargain was indeed at an end as a result of the significantly altered conditions.

That is until the fullness of the COVID-19 disaster unfolds.


*Siddharth Raja, Partner, Saakshya Law. Saakshya Law is a premier, full-service Indian Law Firm headquartered in Bangalore, India (www.saakshyalaw.com). The author can be reached at siddharth@saakshyalaw.com.

[1]. The Economist, “A force to be reckoned with: Chinese firms use obscure legal tactics to stem virus losses”, dated 22-2-2020.

[2]. See Laurence Lieberman & Abhimanyu Bhandari, “The forgotten Force Majeure clause and its relevance today under Indian and English Law”, Bar & Bench, dated 27-3-2020.

[3]. Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310 : AIR 1954 SC 44.

[4]. Raja Dhruv Dev Chand v. Raja Harmohinder Singh, (1968) 3 SCR 339 : AIR 1968 SC 1024.

[5]. Naihati Jute Mills Ltd. v. Khyaliram Jagannath, (1968) 1 SCR 821 : AIR 1968 SC 522.

[6]. Ganga Saran v. Firm Ram Charan Ram Gopal, 1952 SCR 36 : AIR 1952 SC 9.

[7]. DDA v. Kenneth Builders & Developers (P) Ltd., (2016) 13 SCC 561 : AIR 2016 SC 3026.

[8]. Channel Island Ferries Ltd. v. Sealink UK Ltd. [1988] 1 Lloyd’s Rep. 323.

[9]. Davis Contractors Ltd. v. Fareham Urban District Council, [1955] 1 QB 302 : [1955] 2 WLR 388 : [1956] A.C. 696 : [1956] 3 WLR 37.

[10]. J. Lauritzen A.S. v. Wijsmüller B.V., [1990] 1 Lloyd’s Rep. 1.

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Sanjeev Sachdeva and Navin Chawla, JJ. while addressing the present petition and the status report of ministry of External Affairs, noted that,

“in the present lockdown situation it is not possible for Ministry to organise any evacuation of Indian National from any country.”

Petitioner sought direction to respondent, Government of India to evacuate petitioner’s son who is a student in Edinburgh, Scotland to India and to ensure that he is provided with all medical facilities.

Earlier, when the petition was listed, Counsel for the petitioner had submitted that students in Edinburgh who were stranded were facing great difficulty as no officer had contacted them also were not given any emergency number.

On 30-03-2020, petitioner’s son had received an email from Consulate General but no physical help on the ground reached to him.

Ministry of External Affairs stated that a 24×7 helpline was established to address the queries of Indian Students and Indian Community abroad.

Adding to above, it was stated that ,Government of India along with the Government of United Kingdom have actively disseminated, through website and social media platforms, necessary information to all citizens of India.

Further it has been submitted that an officer of Consulate General of India, Edinburgh personally contacted the petitioner’s son with all the necessary information.

“overseas visitors to Scotland, regardless of their residency status are exempt from NHS charges for both diagnosis and treatment of COVID-19 (Coronavirus).”

Further, MEA’s status reported informed that petitioner’s son informed that he wasn’t facing any health issues and was primarily concerned with regard to coming back to India.

He has also been advised to register with High Commission of India at London so that necessary updates and travel advisories could be shared with him.

Further he informed that there is shortage of sanitizers and masks and he has been unable to acquire the same.

Central Government Standing Counsel submitted that efforts are being made by the Consulate General of India to procure and provide the same as soon as possible.

Status report of MEA also stated that,

“Indian National Students Association (UK) and the High Commission of India are working closely to address the specific issues of Indian students across UK during COVID crisis.”

With regard to evacuation of petitioner’s son, in the present lockdown situation it is not possible for Ministry to organise any evacuation of Indian National from any country at the present stage.

Thus in view of the assurance given with all possible necessary help to provided to the Indian Students who are stranded abroad, petition is accordingly disposed. [Ramesh Chander Goyal v. Union of India,  2020 SCC OnLine Del 496, decided on 03-04-2020]

COVID 19Hot Off The PressNews

Ministry of Home Affairs (MHA) has issued an addendum to the guidelines, and subsequent addendums, to all Ministries/Departments (https://pib.gov.in/PressReleseDetail.aspx?PRID=1607997), regarding the Nationwide lockdown to fight COVID-19.

The addendum exempts from lockdown restrictions the shops of agricultural machinery, its spare parts (including its supply chain) and repair; truck repair shops on highways, preferably at fuel pumps; and Tea industry, including plantations with maximum of 50% workers.

Addendum Document 


Ministry of Home Affairs

[Source: PIB]

[Press Release dt. 03-04-2020]

COVID 19Hot Off The PressNews

The Union Ministry for Home Affairs (MHA) had sent an advisory to all States regarding granting of exception to Agricultural operations from lockdown restrictions to fight COVID-19, keeping in mind the harvesting and sowing season. (https://pib.gov.in/PressReleseDetail.aspx?PRID=1608644).

With this advisory, exceptions have been allowed for farming operations by farmers and farm workers, procurement of agricultural productions, operation of Mandis, movement of harvesting and sowing related machinery etc.

In order to re-emphasize the exceptions, Union Home Secretary Shri Ajay Kumar Bhalla has written to all State Chief Secretaries to ensure that exceptions w.r.t. farming operations, allowed under 21-day lockdown, be communicated to all field agencies. Smooth harvesting and sowing operations, while maintaining Social Distancing, need to be ensured, the advisory states.

Click here to see Communication to States


Ministry of Home Affairs

[Press Release dt. 03-04-2020]

[Source: PIB]

Fact ChecksNews

A social media message has been doing the rounds which reads as follows:

“Mandate To All. Tonight 12 (midnight) onwards Disaster Management Act has been implemented across the country. According to this update, apart from the Govt department no other citizen is allowed to post any update or share any forward related to Coronavirus and it being a punishable offence. Group Admins are requested to post the above update and inform the groups.”

This message has led many Whatsapp admins and other social media group admins to ban members from posting any news or information about COVID-19, even information that can be categorised as helpful or authentic.

Let us test the veracity of these claims. In an order dated 24th March, 2020[1], the National Disaster Management Authority under Section 6 (2)(i) of the Disaster Management Act, 2005 (DMA) gave instructions to departments of Central Government, State Government and State Authorities to take measures to control spread of the disease. The order also directed the National Executive Committee to issue necessary guidelines under Section 10 (2)(l) to that effect. Therefore, we are aware that sections of DMA were invoked to mitigate the risks of the pandemic.

If we look at provisions of DMA, specifically Section 54 which deals with punishment for false claims. This section states that whoever makes or circulates a false alarm or warning as to a disaster or its severity or magnitude which leads to panic, will be punishable with imprisonment of upto one year, upon conviction.

This section clearly states that information that is false and what leads to panic is punishable, not all information from verifiable sources.

Another Act to deal with a pandemic of this nature is the Epidemic Act, 1897. Under Section 2 of this Act, state governments and union territories can take special measures and formulate regulations to contain the disease. Section 3 provides that disobedience of any regulations can invite penal provisions under Section 188, Penal Code, 1860. Post this, many state governments have invoked the Epidemic Act including Delhi [2] , Karnataka [3] , Gujarat [4] etc. Under Section 188, Penal Code, 1860  one can be punished only if one disobeys the rules of a public servant (i.e. rules prescribed by various state governments in this case). Nowhere does it mention that one can be punished for a mere discussion on the pandemic.

Similarly, under Section 505 (1)(b), Penal Code, 1860 any person who makes, publishes or circulates information that is likely to cause alarm to the public or is against public tranquility, etc is punishable with imprisonment. Again under the ambit of this section, only that speech is punishable that leads to panic or false alarm and not “all speech”.

Even the Supreme Court in an order dated as recent as 31st March, 2020 [5] , told the media to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated however the Court also stated that it does not intend to interfere with the free discussion about the pandemic but directed the media refer to and publish the official version about the developments.” [6]

The Government has far-reaching powers under the Epidemic Act, 1897 and the Disaster Management Act, 2005 however these powers are not meant to intrude upon freedom of speech as long as they are used to disseminate genuine information and not to cause alarm or spread panic among the public.

In conclusion, the message quoted above which has made it’s way in multitude WhatsApp groups is fake. There is no need to worry if genuine and verifiable information, which is the need of the hour, is being shared with the members of a WhatsApp group.


[1]https://ndma.gov.in/images/covid/ndmaorder240320.pdf

[2] https://main.sci.goc.in/pdf/cir/covid19_14032020.pdf (page 3 onwards)

[3] https://www.simpliance.in/files/news/Karnataka%20Epidemic%20Diseases,%20COVID-19%20Regulations,%202020.pdf

[4] https://nrhm.gujarat.gov.in/Portal/News/218_1_Notification-14-03-2020.pdf

[5] Alakh Alok Srivastava v. Union of India, WP(s) (Civil) No(s). 468/2020, order dated 31-03-2020

[6] https://www.scconline.com/blog/post/2020/3/31/coronavirus-covid-19-food-is-being-provided-to-over-22-lakh-migrant-workers-centre-tells-sc/

COVID 19Hot Off The PressNews

Chief Justice of the Chhattisgarh High Court expressed his desire to give some contribution on behalf of Judiciary of the State of Chhattisgarh to the noble cause of dealing with any kind of emergency or distress situation, therefore, all the Judges, Registry Officers and employees of High Court and all the Judicial officers and employees of Sub-ordinate Judiciary of the State of Chhattisgarh are requested to donate one day’s salary to the CM’s Relief Fund for Corona.

Contribution will, however, be on voluntary basis, therefore, those Officers/Officials of High Court who do not wish to contribute may intimate Accounts Officer, High Court of Chhattisgarh.

To read the Circular, please click here:

CIRCULAR


Chhattisgarh High Court

Case BriefsCOVID 19High Courts

Rajasthan High Court: Pankaj Bhandari, J. while addressing the present petition, held that,

“…at the time of complete lockdown the bail applications, Appeals under SC/ST Act, applications for suspension of sentence cannot be considered to be of extreme urgency.”

Bail applications, Appeals under SC/ST Act, Revisions and Appeals with applications for suspension of sentence were listed in the category of urgent matters.

When the entire country except essential services is under closure, whether the above would fall within the category of extremely urned matters is the question raised.

Rajasthan High Court had issued notification with regard to listing of only urgent matters dated 24-03-2020.

Criminal Appeals under SC/ST Act pertaining to bails effecting service on the complainant before passing any order in favor of the accused is the mandate of the SC/ST Act.

In the present lockdown condition even sending notice through Police personnel may pose risk of spreading COVID-19 as even police personnels have been quarantined.

There is complete closure of public transport hence it cannot and should not be expected from the police personnel that they would leave the emergent task given under the “the Act” to effect service on the complaint.

Bench also observed, that any order passed in favour of petitioner or appellant would be an order adverse to Complainant/State and presently when Lawyers are abstaining from work on account of call given by Bar Council of Rajasthan, Complainant would be deprived of his right to engage a Lawyer and oppose the bail application/ application for suspension of sentence.

Further, the bench stated that, Release of an accused or convict at the cost of breaching order of lockdown and at the cost of risking lives of many cannot be considered to fall within the category of “extremely urgent matter.”

It was also noted from the report of DG Prisons that there is no overcrowding of prisons and regular checkups of the inmates is being done.

Thus, in view of the above, Registrar Judicial is directed not to list Bails, appeals applications for suspension of sentence in Appeals and Revisions in the category of “extreme urgent matters”.[Shahrukh v. State of Rajasthan,  2020 SCC OnLine Raj 400, decided on 31-03-2020]

COVID 19Hot Off The PressNews

MHA issues an addendum to lay down SOPs for transit of foreigners stranded in India and release of quarantined persons after being tested COVID-19 negative

Ministry of Home Affairs (MHA) has issued an addendum to the guidelines, and subsequent addendums, to all Ministries/Departments (https://pib.gov.in/PressReleseDetail.aspx?PRID=1607997), regarding the Nationwide lockdown to fight Corona Virus.

The addendum lays down SOPs for transit of foreigners stranded in India and release of quarantined persons after being tested COVID-19 negative.

Addendum Document 


Ministry of Home Affairs

[Press Release dt. 02-04-2020]

[Source: PIB]

Case BriefsCOVID 19High Courts

Andhra Pradesh High Court, Amaravati: A Division Bench of Jitendra Kumar Maheshwari, CJ and M. Satyanarayana Murthy, J. addressed a Public Interest Litigation with regard to non-cooperation of staff at ASRAM Medical College, Eluru due to non-availability of WHO-approved Personal Protection Equipment.

In the present matter, it was reported that for about 34 patients were brought to ASRAM Medical College, Eluru. Out of those patients, 6 were found to be positive for Corona Virus – COVID 19 and the remaining are suspected to have contracted the virus as per the news item.

On perusal of the above, Court’s concern is that the availability of WHO-approved Personal Protection Equipment for doctors, Para-medical staff in the hospital on duty and treatment facility to the citizens.

The stated news item depicts the staff went on leave or was non-cooperative due to non-availability of PPE.

Court further observed that, directions sought against Union of India to ensure availability of PPE and Hazardous Material Suits as per the recommendations of WHO.

Government Pleader, C. Sumon stated that during the hearing 16 PPEs have been provided to the hospital and staff, however allegation made in the news item as stated above is not correct and patients who have been brought to the hospital are being treated in a rightful manner.

Assistant Solicitor General is also requested to intervene in the present issue.

Court asked the Additional District and Sessions Judge, Eluru and Advocate YMSRN Surya Teja to visit the said hospital and supply the following information:

  • How many patients admitted in the hospital by this time
  • Details of the ward where such patients have been admitted and whether isolation facility is available
  • Who are the Doctors and Para-medical staff on duty to provide medical and other necessary item
  • Whether the patients have been duly treated specifying the prescription and other precaution
  • Whether the Government and the Dean in-charge is providing due care to those Doctors and Para-medical staff as specified in the WHO guidelines by changing their duties and providing them isolation
  • Whether the Corona-positive patients are maintaining distance
  • While submitting the aforesaid information, it be also clarified as to who are the Doctors and the Para-medical staff who were on duty at the time of admission of Corona-positive patients and suspect patients and also the who are the Doctors and Para-medical staff now on duty and treating them

Bench parting with its decision stated that government response in the present matter is also required with regard to the place from where the patients are hailing from and their medical, traveling history. [In Re. Corona Virus-COVID-19 PANDEMIC, 2020 SCC OnLine AP 37, decided on 01-04-2020]

Case BriefsCOVID 19High Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and Ashutosh J. Shastri, J. addressed a suo motu public interest litigation in view of incident of mass congregation in Delhi.

At least 200 members of the said congregation have been reported to traveled to the State of Gujarat who may be infected with COVID-19. News reports have further confirmed death of one person in Gujarat out of a total of 8 deaths all over the country who had participated in the congregation at Delhi.

Further the Court noted that no one knows where all these 200 or more members of the congregation are now based in Gujarat.

Advocate General, Kamal B. Trivedi appearing for State of Gujarat submitted that Government is already in the process of identifying and tracing not only the members of the said congregation having travelled to Gujarat but also the details of other persons coming in close contact with the said members.

Devan Vyas, Assistant Solicitor General, on behalf of union of India, assured the Court that Central Government after collecting necessary data from State of Delhi with regard to the above would share the same with respective states including Gujarat.

High Court in its earlier order had directed the State Government to ensure that no gathering takes place in all the places of worship in the State but that would not mean that daily puja/aarti/service/offering of prayer(namaaz) in these places of worship is to be stopped bu that the same would carried out by the respective managements without making such places open to public.

Advocate General during the present hearing assured that the above would be strictly followed.

In the present hearing, Court issued that Union of India will provide complete information to the State of Gujarat and to the Court in a sealed cover of all those persons irrespective of their nationality who were party to the Tablighi Jamaat and have entered to the State of Gujarat.

Further the State Government shall provide following details:

  • Details provided by Union of India; Steps taken by State of Gujarat.
  • Quarantine, testing and other steps taken by the State in regard to such persons
  • State shall also provide details of those people who have been untraceable
  • Steps taken for the implementation of the restrictions that may have been imposed by the State with respect to gatherings at all worship places such as Temples, Churches, Gurudwaras, Mosques and strict compliance thereof.

Thus in view of the above the Court held that if satisfactory reports will not be submitted then the court will have to issue necessary directions and may take coercive measures.

Matter is to be listed on 03-04-2020.[Suo Motu v. State of Gujarat,  2020 SCC OnLine Guj 385, decided on 01-04-2020]


Also Read:

Government committed to — identify, isolate and quarantine COVID-19 positive Tabligh Jamaat workers in India post their congregation in Nizamuddin, Delhi

COVID 19Hot Off The PressNews

Homemade masks to overcome shortage

Office of the Principal Scientific Advisor to the Government of India has come up with an innovative solution for you: homemade face mask. “This is primarily mend for the people who want to wear mask but do not have access to it. They can make these washable and reusable masks home” says Dr Shailja Vaidya Gupta, Senior Adviser, Office of the Principal Scientific Adviser to the Government.

Shortage of face mask and hand sanitizers is a stark reality. With the outbreak of the Covid-19 pandemic, as anxious public frantically shopped hygiene products, in particular mask and hand sanitizers, the sudden increased supply could not be met by the burgeoning demand.

The Office of the Principal Scientific Advisor to the Government of India issued the manual on homemade masks: “Masks for Curbing the Spread of SARS-CoV-2 Coronavirus” for home fabrication. The key criteria for proposed designs are Ease of Access to Materials, Easy of Making at Home, Ease of Use and Reuse.

 Shops and services are demanding that the customers use face mask. In some shops the patrons are denied services for not using the face mask.  The homemade mask would help people. Many health experts are also suggesting use of face mask in public spaces could reduce the spread of infection. The proposed guide is meant to provide a simple outline to make, use and reuse masks. This manual could be used by NGOs and individuals to self-create such masks and accelerate widespread adoption of use of masks across India.

Protective masks lower the chances of coronavirus entering our respiratory system through droplets that are present in the air. According to a report published in Pub Med analyses show that if 50% of the population were to wear masks, only 50% of the population would be infected by the virus. Once 80% of the population wears a mask, the outbreak can be stopped substantially. Wearing of masks is especially recommended for people living in densely populated areas.

India has pockets of dense population: its mind boggling the density; the North East district of Delhi has a population density of 36,155 per square km, the models and control points for India are out of scale! Masks and washing hands will help and easy to make at home”. said Dr Gupta while speaking with India Science Wire.

The Science and Technology Empowered Committee was constituted on 19th March 2020. The committee is jointly chaired by Prof. Vinod Paul, Member, NITI Aayog and Prof. K Vijay Raghavan, Principal Scientific Adviser to the Government of India, and is responsible for coordination amongst science agencies, scientists, industries and regulatory bodies, and to take speedy decisions on research and development to implementation related to the Sars-Cov-2 virus and the COVID-19 disease.

Download the detailed manual on using and making homemade masks http://bit.ly/DIYMasksCorona


Ministry of Science & Technology

[Press Release dt. 02-04-2020]

[Source: PIB]

 

COVID 19Hot Off The PressNews

Union Human Resource Development Minister Ramesh Pokhriyal ‘Nishank’ has advised CBSE to promote ALL students studying in classes I-VIII to the next class/grade.

In view of the current situation due to COVID-19. He also advised the board students studying in classes IX & XI will be promoted to next class/grade based on the school-based assessments including projects, periodic tests, term exams, etc. conducted so far. The Minister also recommended to conduct board examinations only for 29 main subjects that are required for promotion and maybe crucial for admissions in HEIs, and for rest of the subjects, the Board will not hold examinations; the instructions for marking/assessment in all such cases shall be separately issued by the Board.

As a precautionary measure and in compliance of the instructions received from Ministry of HRD, Government of India, dated 18th March, 2020, CBSE had postponed all the board examinations that were to be held between 19.03.2020 to 31.03.2020. It was informed in the Board’s press release dated 18.3.20 that “date sheets for the rescheduled board examinations shall be communicated by the board through its website and press release after re-assessment of the situation.”

To read the detailed press release, please click the link below:

PRESS RELEASE


Ministry of Human Resource Development

[Press Release dt. 01-04-2020]

COVID 19Hot Off The PressNews

Supreme Court of India while disposing the Writ petitions No. 468/2020 & 469/2020 in public interest for redressal of grievances of migrant labourers in different parts of country has given the following directions –

i) The migrant workers in Relief camps /shelter homes should be provided adequate medical facilities besides proper arrangements for food, clean drinking water and sanitation.

ii) The trained counsellor and/or community group leaders belonging to all faiths will visit the relief camps/shelter homes and deal with any consternation that the migrants might be going through. This shall be done in all the relief camps/shelter homes wherever migrants are located in the country’ A detailed guidelines to deal with psychosocial issues among migrants has been placed on the website of the Ministry at the link https:/ /www.mohfw.gov.in/pdf/RevisedPsychosocialissuesofmigrantsCovt D19.pdf

iii) The anxiety and fear of the migrants should be understood by the police and other authorities and they should deal with the migrants in a humane manner.

iv) The state Governments/union Territories should endeavour to engage volunteers along with the police to supervise the welfare activities of the migrants and all concerned to appreciate the trepidation of the poor men, women and children and treat them with kindness.

2. All states are accordingly requested to take necessary action and submit a compliance report to the directions of the Supreme Court.


Government of India

Department of Health and Family Welfare

Ministry of Health and Family Welfare

[Dated: 01-04-2020]

Legislation UpdatesNotifications

1. Extension of realisation period of export proceeds

Presently value of the goods or software exports made by the exporters is required to be realized fully and repatriated to the country within a period of 9 months from the date of exports. In view of the disruption caused by the COVID-19 pandemic, the time period for realization and repatriation of export proceeds for exports made up to or on July 31, 2020, has been extended to 15 months from the date of export. The measure will enable the exporters to realise their receipts, especially from COVID-19 affected countries within the extended period and also provide greater flexibility to the exporters to negotiate future export contracts with buyers abroad.

2. Review of Limits of Way and Means Advances of States/UTs

Reserve Bank had constituted an Advisory Committee (Chairman: Shri Sudhir Shrivastava) to review the Ways and Means limits for State Governments and Union Territories (UTs). Pending submission of the final recommendations by the Committee, it has been decided to increase WMA limit by 30 percent from the existing limit for all States/UTs to enable the State Governments to tide over the situation arising from the outbreak of the COVID-19 pandemic. The revised limits will come into force with effect from April 1, 2020 and will be valid till September 30, 2020.

3. Implementation of countercyclical capital buffer

The framework on countercyclical capital buffer (CCyB) was put in place by the Reserve Bank in terms of guidelines issued on February 5, 2015 wherein it was advised that the CCyB would be activated as and when the circumstances warranted, and that the decision would normally be pre-announced. The framework envisages the credit-to-GDP gap as the main indicator, which is used in conjunction with other supplementary indicators. Based on the review and empirical analysis of CCyB indicators, it has been decided that it is not necessary to activate CCyB for a period of one year or earlier, as may be necessary.


Reserve Bank of India

[Press Release dt. 01-04-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of Dr Vineet Kothari and R. Suresh Kumar, JJ. addressed the present petition with regard to direction being sought to State Government to constitute a committee to allow aphorized medical practitioners to provide relief and help to the people affected by Coronavirus along with preventive measures or treatment in the form of Alternative Medicines.

In the present petition a writ of mandamus was sought directing respondent 1 to 3 to issue appropriate direction to respondent 4 in order to test Indian Traditional Medicine Herbal Mixture (Siddha) for curing COVID-19.

Additional Advocate General Arvind Pandian submitted that a Technical Committee of experts in various fields has already been constituted for the said purpose.

Bench on perusal of the above directed the said Committee to consider all the representations concerned for prevention and treatment of COVID-19 and also for other measures like Alcoholic and Non-Alcoholic hand sanitizers and other types of Sanitizers, Soaps and Mask of various types which can be provided or supplied to the people at large for meeting the said emergency of COVID-19.

“We hope and expect that the said Committee and State government shall take appropriate decision in the matter as quickly as possible, so that public at large can avail the benefit of the same, immediately”

The matter may be posted after 4 weeks, once the Courts resume after the lockdown. [K. Muthu Kumar Nayakar v. Ministry of Health and Family Welfare,  2020 SCC OnLine Mad 898, decided on 30-03-2020]