COVID 19Hot Off The PressNews

Chief Justice, High Court, Calcutta has extended the period of suspension of judicial and administrative works of High Court, Calcutta till 19th July, 2020 on account of new phase of lockdown in Kolkata and constant increase in the containment zones and rapid increase of COVID-19 patients in the city of Kolkata and its suburbs.

NOTIFICATION


Calcutta High Court

[Notification dt. 13-07-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Naveen Chawla, J. in an order dated 13th July, 2020 has refused to interdict a Delhi government circular which directed reconstitution of School Management Committees through a draw of lots instead of holding elections.The petitioners had challenged the circular dated 1.07.2020 and prayed that the circular be squashed. The petitioners argued that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner argued that it was a better option since members of existing SMCs already had experience of working.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement. The Circular shall continue till elections can be held after normalcy returns. The Counsel for the respondent government also mentioned that the petitioners had concealed that they have applied under the circular. The petitioners submitted that it was a bonafide mistake.

After listening to arguments from both sides, the Court stated that since elections cannot be held because of COVID 19, such extraordinary situations would require certain extraordinary measures to be taken by the respondents. The Court noted that respondents seem to have chosen one of the various alternatives that were available. With online classes for the Government schools having started there is an urgent need for the constitution of the SMCs.  The Court did not deem it fit to interdict the process started by the respondents at the present stage.and listed the matter for October 21st.

The order has recorded the government submitting in court that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, order dated 13-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ., rejected the relief of payment of full wages to the petitioner employees union holding that there case is not covered by the March 29th Order of the Central Government directing all establishments to pay full wages to employees during the period of lockdown due to COVID-19.

Premier Union Employees had approached the Court seeking direction to the State of Maharashtra and Commissioner of labour to ensure that workers of Premier Limited are pid wages for the duration of the lockdown in terms of Ministry of Home Affairs order dated 29th March, 2020, order of Department of Industries, Energy and Labour, Government of Maharashtra dated 31.03.2020; and order dated 20.03.2020 passed by the Industrial Court, Maharashtra at Pune.

Appropriate proceedings to be initiated against Premier Limited under Disaster Management Act for failure to comply with government orders.

On the other hand, Premier Limited assails the legality and correctness of the Order passed by the Industrial Court.

Union has raised grievance of unfair labour practice against the company. Complaint pertaining to the said grievance was registered at the Industrial Court.

Company obtained No Objection Certificate (NOC) from the office of Commissioner of Labour for shifting its plant, NOC was conditional in as much as the company had to give an undertaking that it would make full payment of wages and dues to the workmen and ensure continuity of their employment.

However, the company defaulted and has not paid wages and dues to the workmen since May, 2019.

Thus, Union in view of the above filed a petition before the Court seeking a direction to the State and Commissioner of Labour for cancellation of the NOC, both the matters are pending with no orders passed thereon.

On 3rd March, 2020, company had issued a notice addressed to all the workmen and staff stating that the management had decided to suspend operations with immediate effect. In response to this notice, Union raised the grievance of unfair labour practice and filed a complaint.

Industrial Court directed the company to pay wages to the workmen w.e.f. 01.03.2020 on or before the tenth day of each month.

Despite the above order, no payment has been made to the workmen.

Ministry of Home Affairs order dated 29-03-2020:

“all the employers, be it in industry or in shops and commercial establishments, shall make payment of wages to their workers at their workplaces and on the due date without any deduction for the period their establishments are under closure during the lockdown.”

Government of Maharashtra in the Industries, Energy and Labour Department issued a government resolution dated 31.03.2020 declaring that all the workers / employees including contractual, temporary and daily wagers working in private establishments, shops (except essential services), factories etc., who had to remain indoors due to outbreak of COVID-19 and the lockdown, shall be deemed to be on duty and shall be paid full salary / wages and allowances.

On 2nd June, 2020, this Court had directed the company to comply with the Order of the Industrial Court, to which company filed a petition with regard to the legality and validity of the Industrial Court’s Order.

Company alleged that the union had adopted an obstructionist approach leading to the company losing many precious orders thereby causing substantial loss. This prevented payment of salary / wages to the employees and workers on regular basis post May, 2019.

Due to the stated circumstances, company had to suspend all its operations.

Analysis & Decision

A conjoint reading of the central government order and the Maharashtra government resolution would go to show that those have been issued to meet the situation arising out of the COVID-19 lockdown.

Question to be addressed is:

Could the central government order and the Maharashtra government resolution be invoked in a situation where the management and workmen are engaged in an industrial adjudication relating to non-payment of salary / wages and suspension of work much prior to closure of the establishments due to the lockdown?

Or where the related cause of action arose prior to the lockdown?

In Court’s opinion, the claim of the workmen to wages will not be covered by the central government order and the Maharashtra government resolution.

Adding the reasoning to its’ conclusion, bench stated that measures introduced by the above two would cover a situation where an employee / worker was in employment as on the day the lockdown was declared and had received salary / wages for the previous month i.e., the month immediately preceding the lockdown.

The said  measure was introduced to ensure maintenance of status quo with regard to payment of salary / wages and employment.

Industrial Court’s Order

Industrial Court noted that a prima facie case for interim relief was made out by the union. It was further observed that if the management was not directed to pay wages, members of the union would suffer hardship and inconvenience.

Since according to the Industrial Court, complainant had made out a strong prima facie case, interim direction was issued to the management to pay wages to the workmen from 01.03.2020 onwards till final disposal of the complaint.

In Courts opinion, the above view of Industrial Court was found to be contradictory and therefore, High Court held that, in the interest of justice it would be just and proper if a direction is issued to the management to pay 50% of the full monthly wages to the workmen with effect from 01-03-2020 till disposal of Complaint (ULP) No.32 of 2020.

Industrial Court is directed to complete the adjudication process within a period of six months.

In the above view, petitions were been disposed off. [Premier Employees Union v. State of Maharashtra, WP-ASDB-LD-VC-59 of 20, decided on 13-07-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Jayant Nath, J., while hearing a matter with regard to parents defaulting in payment of tuition fees to schools, held that Schools can decline to provide Online Education facility to the students whose parents fail to explain the reason for the default.

Petition filed sought an appropriate writ to quash the Circular dated 18th April, 2020 and to allow the School to charge the actual expenditure incurred during the lockdown period in the form of fees from the students.

Petitioner submits that the Circular is ultra-vires the Delhi School Education Act.

Contentions

Petitioner’s counsel pointed out from the Circular that no fee except tuition fee would be charged during the lockdown period, another thing that was extracted from the Circular was that in no case, the ID and password shall be denied to getting online access of educational facilities to those students who were unable to pay school fee due to financial crisis.

Due to the above-stated clauses, 40 % of the students defaulted in paying fees which resulted in struggle to pay salaries of the staff and teachers.

Standing Counsel for GNCTD submitted that petitioner was free to take steps including issuing of notice to the parents who defaulted in paying tuition fees.

Decision

Bench held that in view of the above circumstances, if the parents defaulted in payment of tuition fees for more than 2 months, petitioner is free to issue appropriate notice to explain the reason of such default and in case they fail to do so, the petitioner is free to so communicate the same to the parents and decline to provide them ID and Password for online education facility for the students. 

Matter to be listed on 5-08-2020.[Queen Mary School Northend v. Director of Education, WP(C) No. 4011 of 2020, decided on 08-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ pulled up State of Maharashtra for submitting that it did not do the needful for arranging transportation of migrants who were still stranded in the State as it was not informed of the materials.

“The present is not an adversarial litigation and it is the duty of the State to find out shortcomings and lapses wherever found and to do the needful. The State cannot claim that unless the State is informed of the materials, it cannot reply or act.”

The Court was hearing the interim applications filed by Sarva Hara Jan Andolan and Delhi Sharmik Sangathan on 07.07.2020 where details with regard to the State of Maharashtra, migrants who are still awaiting to return and other difficulties faced in the State of Maharashtra were narrated.

The Court asked the State of Maharashtra to file affidavit by July 17, 2020 and give other details with regard to migrants who are still awaiting to return to their home town in the State of Maharashtra.

Earlier, on 09.06.2020, the bench had  directed all the States/Union Territories to take all necessary steps regarding identification of stranded migrant workers in their State which are willing to return to their native places and take steps for their return journey by train/bus which process may be completed within a period of 15 days.

The Court noticed that lapses and short-comings in implementing the schemes and policies have been highlighted by various intervenors in their applications and affidavits.

“The responsibility of the States/Union Territories is not only to referring their policy, measures contemplated, funds allocated but there has to be strict vigilance and supervision as to whether those measures, schemes, benefits reaches to those to whom they are meant.”

The Court had, on 26.05.2020, taken up the issue suo motu based on, newspaper and media reports and several letters and representations it received from different sections of society highlighting the problem of migrant labourers. The Court had directed the Solicitor General Tushar Mehta to assist the Court and by the next date of hearing bring in the notice of the Court all measures and steps taken by the Government of India and to be taken in this regard. After receiving the response from the Government, the Court had issued certain interim directions on May 28, 2020.

[IN RE : PROBLEMS AND MISERIES OF MIGRANT LABOURERS, SUO MOTU WRIT PETITION (CIVIL) No(s). 6/2020, order dated 09.07.2020]


Also read

COVID-19| Transportation of stranded migrant workers must be completed in next 15 days

Op EdsOP. ED.

Background

In what may be diligently called as a political coup d’état , the Kamal Nath Government in the State of Madhya Pradesh was toppled in the early weeks of March, even before his Government could present the financial budget for the State. As a result of this political fiasco, he was replaced by Mr Shivraj Singh Chauhan of the Bhartiya Janta Party, who took the oath of Chief Ministership on 23rd March, 2020. He became the new Chief Minister of the State, overnight with no Council of Ministers in his cabinet. Unfortunately, in a few days of his becoming the Chief Minister, the nationwide lockdown was imposed and coronavirus cases in the State mushrooming incessantly, leading to the termination of the budget session of the legislative assembly. As a result, the State of Madhya Pradesh had no Council of Ministers and no yearly budget to manage the pandemic and its economic effects. This whole event in Madhya Pradesh unleashed new avenues of legal jurisprudence in the country.

To manage the financial affairs of the State and with no legislative session in place to pass the Finance Bill, the Government of Madhya Pradesh took an interesting route and the Governor under Article 213 promulgated two Ordinances, namely, the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh (Vote on Account) Ordinance, 2020 on the aid and advice of the Chief Minister[1]. These two Ordinances currently work as the Finance Bill for the State.

Satisfaction of the Governor

It is trite that, under Article 213 of the Indian Constitution[2] when the Governor is satisfied that such circumstances exist which renders him to take immediate action in the absence of legislative assembly in session, he on aid and advice of the Council of Ministers headed by the Chief Minister can promulgate an Ordinance.

In  Samsher Singh v. State of Punjab[3], the Supreme Court affirmed that wherever for the exercise of any power or function, the Constitution calls for the satisfaction of the President or the Governor, as the case may be, the satisfaction required by the Constitution is not the personal satisfaction of the Governor but is the satisfaction of the Council of Ministers on whose aid and advice the Governor  exercises all his powers and functions.

Therefore when the Governor is under Article 213 promulgating an Ordinance, his satisfaction that necessary circumstances exist, must be based on the aid and advice of the Council of Ministers headed by the Chief Minister of the State under Article 163 of the Constitution.

Article 213 of the Constitution, is drafted in a manner that there is no defined contour to the nature of Ordinance that can be promulgated and therefore, if extraordinary circumstances demand even a Finance Bill, it can be enacted in the form of an Ordinance, thus promulgation of the Finance Bill in a way of the Ordinance in the unprecedented times of COVID-19 can be justified.

However, the major legal question that arises out of this event is, can the Governor act solely on the aid and advice of the Chief Minister with no Council of Ministers in the Government? Or in other words, can the cabinet of ministers having only the Chief Minister be called as the Council of Ministers, who can advise the Governor to promulgate any Ordinance?

Analysis

According to Article 163(1)[4], there shall be a ‘Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Additionally, Article 164(1-A)[5] states that the total number of Ministers including the Chief Minister in the Council of Ministers in a  State shall not be less than twelve.

Article 163 is written in an extremely unambiguous manner, and therefore by the literal rule of interpretation, it is axiomatic that the Chief Minister is only a part of the Council of Ministers and functions as a link between the Cabinet and the Governor of the State. This view can also be interpreted from the judgement of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh[6] Legislative Assembly, where the Supreme Court commented that the “Ordinance shall only be issued by the Governor, on the aid and advice of the Council of Ministers with the Chief Minister as the head”. With the Court emphasising on the role of the Council of Ministers itself implies that mere advice of the Chief Minister will not suffice and there must be a full-fledged cabinet to deliberate on the inevitability of the Ordinance and then send it to the Governor for his/her approval.

In another judgment of Pancham Chand v. State of H.P.[7], the Supreme Court went a mile ahead to comment that “…the Constitution does not envisage functioning of the Government through the Chief Minister alone, it speaks of a Council of Ministers…”. This is again suggestive of the fact that the Chief Minister with no cabinet in place, cannot go to an extent to advise the Governor to issue an Ordinance.

Even if for the sake of argument only, it is assumed that the Chief Minister can act on behalf of the Council of Ministers to advise the Governor and the above stated arguments are rejected. This will lead to a nonplussed situation where, the Ordinance is passed only on the advice of the Chief Minister with no recommendation being sought from the minister concerned, even in his presence. This can create dissatisfaction in the government motivating the  minister concerned to even disagree to implement the Ordinance, especially when the coalition government is running the State. Hence, the constitutional provisions themselves does not make it valid for such Ordinances to be passed merely on the advice of the Chief Minister irrespective of the presence or absence of the Council of Ministers.

Conclusion

Conclusively, when Article 213 of the Constitution empowers the Governor to promulgate an Ordinance, based on his satisfaction which will be founded on the aid and advice of the Council of Ministers headed by the Chief Minister. The Chief Minister will also have a limited role to play and even in compelling situations he/she cannot go ahead to act on behalf of the Council of Ministers and advice the Governor to enact the Ordinance. The presence of the Council of Ministers is not only compulsory but a constitutional obligation.

Thus, in the present factual matrix where the Ordinance is enacted by the Governor on sole advice of the Chief Minister of Madhya Pradesh can be legally held void because of the violation of the fundamental principle of Articles 213 and  163 of the Constitution. However, if the Supreme Court or the High Court, where the validity of this Ordinance is challenged takes a contrary stance justifying the Ordinance in light of COVID-19 pandemic, and affirms the discretionary power of the Governor to issue an Ordinance under Article 163(2) read with Article 213, it will be a very wide interpretation of the provisions and to an extent an unreasonable interpretation of the otherwise unequivocal language of the provisions and will set, in the authors’ humble opinion, a bad precedent where even something as vital and elementary as the Finance Budget will be re-routed by way of an Ordinance without consummating the fundamental obligation under the  Constitution.


*Third & Second Year students respectively, Institute of Law Nirma University, Ahmedabad

[1] The Times of India, Sibal, Tankha object to financial Ordinances, urge Prez to withdraw, (April 21, 2020, 04:37 IST) https://timesofindia.indiatimes.com/city/bhopal/sibal-tankha-object-to-financial-ordinances-urge-prez-to-withdraw/articleshow/75259418.cms.

[2] Article 213.

[3] Samsher Singh v. State of Punjab, (1974) 2 SCC 831.

[4] Article 163(1)

[5] Article 164(1-A)

[6] Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1.

[7] Pancham Chand v. State of H.P., (2008) 7 SCC 117 

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar ,CJ and Shaji P. Chaly, J. dismissed a writ petition on account of maintenance expenditure incurred by school even during lockdown.

The petitioners in the present case are students of Sree Buddha Central School who filed the instant petition seeking to direct the State Government to issue directions to the School for providing quality online/virtual class using modern video conferencing techniques along with charging only monthly tuition fees and to ensure that no student is denied the same on the reason of failure to pay fees.

The counsel of the petitioners Manu Ramchandran and Sameer M. Nair submitted while referring to Rule 29 of the Kerala Education Rules, 1959 that respondent school is a recognized school and, therefore, cannot charge fees more than the prescribed as schools can only charge fees to the extent of the expenses for running it and the levy of fees is to be without any profit motive.  He further submitted that during the lockdown from March to May, 2020, schools were closed and online classes commenced only from June 2020. Students have been asked to pay tuition fees for the above said period also wherein such digital classes were in the form of poor quality education as it was given through voice notes on whatsapp instead of proper and quality based online classes.

The counsels for the respondents were Surin George IPE, S. Nirmal, R.T. Pradeep, M. Bindudas and K.C. Harish. It was submitted by the respondent school that the school is only levying the fees charged on the former year without enhancing a single pie. It was further submitted that teaching, non teaching staff and IT professionals who were engaged in training teachers about online classes have to be paid their monthly salary, no matter whether there was lock down or not.

The Court, on hearing both sides observed that no separate annual fee was demanded by the respondent school whereas the fees charged for the previous year and the current year is same and there is no change in the same. Hence, the Court further accepting the argument that monthly salaries for the teaching and non-teaching staff has to be paid, found no irregularity or illegality in the actions of the respondents.

In view of the above facts and arguments, the petition was dismissed. [Sreelekshmi S. v. State of Kerala, 2020 SCC OnLine Ker 2494 , decided on 30-06-2020]

COVID 19OP. ED.

Abstract

India has always followed the path of patriarchal society. This age-long tradition has never died due to the circumstances and upbringing of youth in such an environment which glorifies it. Gender inequality is an extensive issue in communities taking forms of violence against women, and particularly domestic violence, which then forms a vicious cycle that always keeps women subordinated, disempowered and unequal. This gender parity needs to be looked after. In the recent times of the COVID-19 pandemic where economic, social, political, personal, professional positions are at stake and facing huge repercussions. The most hardly hit area is the women community. The crime of domestic abuse suddenly ramped up after the announcement of lockdown not only in India but all over the world. The pandemic has ended up leaving the domestic violence victims helpless and nowhere to go for the enforcement of their rights. Amidst this corona pandemic, a hidden pandemic is emerging out i.e. domestic violence which will not end unlike the lockdown will one day. This paper will go in deep lengths analysing the domestic violence in the pandemic, reasons of surge in cases, measures taken and provisions in the Protection of Women from Domestic Violence Act, 2005[1]. There is an urgent need for this issue not to get ignored this time. We (the government, the society, the individuals) should not wait for such pandemics to erase out one of the gravest menaces in our society. 

Introduction

Liberty, equality, fraternity were the ideals on which the French revolution was based, led by Robespierre, resulted in the establishment of people’s rule commonly known as democracy. Our Constitution upholds these ideals by accommodating them as a fundamental right of every individual. In the past 70 years, the State has successfully ensured the political equality to its citizens but social and economic equality are still a far-reaching dream to ordinary women and especially to women. In the words of the former Chief Justice of India R.C. Lahoti, women, children, tribal and minority communities, victims of militancy, crime, disaster, drought-hit farmers, and sex workers needed urgent attention.[2] “Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women…”[3] The concept of domestic violence is not a new phenomenon nor are its consequences as it is a long-aged menace still existing in our society. The violence perpetrated on women is not only a social issue but also a health, economic, developmental, educational and above all a human rights issue. It is one of the most pervasive of human rights violations globally. The family is often equated with sanctuary – a place where individuals seek love, safety, security, and shelter[4] but research shows evidently that it has also become the place where lives are put in peril and breeds drastic violence against girls and women. In 1992, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee)[5] stated in Article 6 that gender based violence, violence that is directed against a woman because she is a woman or that affects women disproportionately” and that is “is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men” (Article 1)[6].  Certain variations in the existence of violence between and within the communities proves that it is not inevitable and can be rooted out by preventive measures.

Domestic Violence in Current Pandemic

“Confinement is a breeding ground for domestic abuse.”[7] As recently noted by the UN Secretary General, global lockdowns have resulted in a “horrifying surge” in gender-based violence (GBV)[8]. The whole world is witnessing a sharp rise in the violation of rights of women. Not only the developing countries like India became victim to this curse during the pandemic but also highly developed countries like UK, USA, Australia, France, Germany, Hong Kong and many more countries succumbed to it. Imposition of nationwide lockdown has deteriorated the situation in India. India’s National Commission for Women (NCW) said it registered 587 domestic violence complaints between March 23 and April 16 – a significant surge from 396 complaints received in the previous 25 days between February 27 and March 22[9]. It is most likely that the number of domestic violence is much more higher than the real figure as one more factor exists which is liable for exaggerating this problem is that the victim locked in with the abusers might not get access to a mobile phone and time to call for help. Most of the avenues which help them to fight these situations are impaired. And to worsen the situation, opening of liquor shops post lockdown, added fuel to the fire.

Causes of Surge in Cases in Pandemic

There is no single factor responsible for the violence perpetrated against women. Several researches have indicated that there is an interconnectedness of various social, economic and cultural factors which accounts for this worst form of violence. According to Sociologist Marianne Hester, “domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations.”[10] The data shows that amidst this lockdown the complaints of domestic violence have nearly doubled evincing the idea of patriarchy being dominant till today. Stress, the disruption of social and protective networks, and decreased access to services is exacerbating the risk of violence for women.[11] Women’s unpaid care work has long been recognised as a driver of inequality. It has a direct link to wage inequality, lower income, poorer education outcomes, and physical and mental health stressors. The unpaid and invisible labour in this sector has been exacerbated exponentially by the COVID-19 pandemic[12].

Another important aspect responsible for this surge in domestic abuse is domestic labour. Gendered roles all over the world have placed domestic work on women’s shoulders, which is socially and culturally often demarcated as “women’s work”. During this pandemic the work load of women has increased due to all the members being at home. With housekeeping staff being unavailable, the expectation is for women to do all the tasks and that too with full efficiency and productivity, and chances of violence increase if she fails to do so. Economic factor has played a crucial role in surging this violence. A large chunk of women population is suffering from the economic dependence on the male counterpart. According to the Centre for Monitoring Indian Economy, the national lockdown did not just throw 72 million people out of the labour force but it also drove another 85 million to some kind of desperation to look for jobs in the midst of a national lockdown when none were available[13]. This scenario suggests that people are highly vulnerable to a loss of livelihood. Men are not able to prove themselves at the economic front. They are workless doing absolutely nothing and the burden to make a living for the family with the inability to do it has led to frustration of which then women are the victim. The increasing financial burden and the needs of the family especially in poor strata of the society is making the situation worse. Such sorry state of affairs definitely comes under the umbrella of factors which perpetuate this violence.

Domestic violence is in the form of rapes and sexual harassment as well and COVID-19 time sets out the classic example of it. 2 crore babies are to be born in India till December 2020[14]. This is the highest number recorded so far. The question it raises now is that will all these babies be born with the consent of women. India has still not penalised marital rape. It may happen that women during the time of pandemic were subjected to force and since they are always considered to be subordinate and disempowered, they had to give in.

Government Measures

With cases of domestic violence swelling every day, the situation is becoming very grim. And it becomes the duty of the executive and the judiciary to implement the laws and take effective measure in cases of non-compliance. Recently, to tackle the situation better the Delhi High Court has directed the Delhi Government to mull over the appointments of protection officers. The National Commission for Women (NCW) also launched WhatsApp helpline numbers to protect them from harassment and in grave cases Crisis Intervention Centre (CIC) through counsellors accompany the aggrieved person and  make possible the recourse to public authorities. A laudable initiative by the UP Police has also been launched named as “Suppress Corona, not your voice” which encourages them to be vocal against the crime. The Tamil Nadu Government has also made a fruitful decision on protection officers. Clearly, the steps taken are appreciated but they are not sufficient to handle the emerging statistical numbers in cases of domestic violence.

Humane Framework: Necessary to Combat

As a responsible citizen of the country under Article 51-A of the Constitution, we have certain  fundamental duties to perform on our part of which one is  to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”[15]  We need a comprehensive nationwide campaign to bring awareness among the people and make them sensitised towards this issue. These issues must be highlighted through various modes like, radio channels, national news channels. These platforms must be strategically used in the same way as the government has used for washing hands and social distancing to combat COVID-19. Efforts like in France and Spain, where pharmacies are being trained in a way to identify the victim of abuse through code words like “Mask-19” for the people who cannot speak openly on social platforms should be adopted. The non-profit organisations, civil society organisations are a key to unlock the unawareness in the society. A lot of these organisations enable shelter needs, counselling, legal aid, medical assistance and many more.

Provisions Of the Domestic Violence Act, 2005

The effectivity of the legal framework in India is at stake during COVID. We will analyse if the women are protected by the provisions of the Protection of Women from Domestic Violence Act, 2005.

First and foremost, domestic violence leads to abuse of human rights and fundamental rights for example, right to live with dignity (Article 21), right to live in healthy environment and in good health (Article 21) granted by the Indian Constitution is violated. In Francis Coralie Mullin v. The Administration[16], the Supreme Court recognised the right to be free from physical violence. Moreover, in  Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[17], right against emotional and sexual abuse was also protected by the Supreme Court. 

Coming to the Act, Section 11[18] of the Domestic Violence Act describes that the Government is obliged to raise awareness in the society by regular publicity of issues through the use of print and media which has not been adhered to. In addition to this, Sections 8[19] and 9[20] of the Act have not been implemented in its whole as only some of the States are considering doing this. What is even more problematic is the restricted access or recourse to the public authorities. Section 7[21] of the Act which provides for medical facilities is also not acted upon as the list of essential items lacks sanitary napkins which is a necessity.

The Way Forward

There is no doubt in the fact that the judiciary even in these tough times has imparted its services in a very hardworking way by establishing virtual courts and ensured justice to the victims. But still the efficacy of policies and redressal mechanisms needs re-assessment in one way or the other. Not only the physical but also the emotional and psychological health is at stake when an act of domestic violence takes place against her. So, we need to build a safe and secure place for the women by ensuring checks and balances. This menace can be banished completely by way of “community-based network” between the societies/communities and among people which will instil a sense of fear or shame before the commitment of such act by the abuser.

These crimes are committed not only against the women but also against the democracy, humanity, natural laws and most importantly our legal system.  The “Intimate Terrorism” needs to be curbed as soon as possible before the human rights issue especially (women’s right issue) become a joke for the abusers in the time to come. The Government along with the NGOs can protect the vulnerable section and help them to survive the pandemic by the setting up of emergency warning system so that women could reach out to the authorities without alerting the abusers. The issue of women’s sexual and reproductive health should be taken up as this is the need of the hour. It is high time that we, as responsible citizens of this country start taking this issue to as our priority. To sum this up, Swami Vivekanand truly said, “There is no chance for the welfare of the world unless the condition of woman is improved. It is not possible for a bird to fly on only one wing.”


*Students of Rajiv Gandhi National University of Law, Patiala, Punjab

[1] Protection of Women from Domestic Violence Act, 2005 

[2] Financial Express: http://www.financialexpress.com/news/legal-literacy- mission-launched/128689/ 

[3] The United Nations Declaration on the Elimination of Violence against Women, General Assembly Resolution, December 1993, Domestic Violence against Women and Girls, No. 6 – June 2000, Innocent Digest.

[4] Id.

[5] The CEDAW Committee is a body of 23 independent experts on women’s rights around the world; it monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women, 1979, http://www.scconline.com/DocumentLink/9Z9K6X50 which entered into force on 3 September, 1981. As of January 2014, 187 countries have ratified or acceded to the Convention. 

[6] UN, CEDAW Committee (1992), General Recommendation No. 19 on Violence Against Women, adopted at the 11th Session, 1992, A/47/38, 29 January, 1992.

[7] Abueish, Tamara (2020-04-06). “Coronavirus: A Jordanian woman pleads for help as domestic abuse cases rise globally”,  Al Arabiya English, Retrieved 2020-04-14.

[8] https://news.un.org/en/story/2020/04/1061052

[9] https://www.aljazeera.com/news/2020/04/locked-abusers-india-domestic-violence-surge-200415092014621.html

[10] https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

[11] https://apps.who.int/iris/bitsream/handle/10665/331699/WHO-SRH-20.04-eng.pdf

[12] https://www.unwomen.org/-media/headquarters/attachments/sections/liabrary/publications/2020/policy-brief-the-impact-of-covid19-on-women-en.pdf?la=en&vs=1406

[13] https://www.businesstoday.in/current/economy-politics/india-unemployment-rate-falls-to-21-per-cent-lowest-during-coronavirus-lockdown   cmie/story/402240.html?utm_source=recengine&utm_medium=WEB&referral_sourceid=400902&referral_cat=Jobs

[14] https://new.rediff.com/commentary/2020/may/07/2-crore.indian-babies-will-be-corn-amid-covid/129996638a4372c1e9c79399a76

[15] Article 51-A of the Constitution. 

[16] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 .

[17] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121

[18] The Protection of Women from Domestic Violence act, 2005

[19] Ibid

[20] Id.

[21] Id.


Image Credits: The Week

Case BriefsCOVID 19High Courts

Kerala High Court:  Division Bench of S. Manikumar, CJ and Saji P. Chaly, J., while addressing a matter wherein plight of transgender community was placed, Court held that,

“…in order to translate the rights into a reality, and to avoid practical difficulties, Court is of the firm opinion that it is for the members of the community, or NGOs and others who are working with the transgender community to identify the problems faced by the members of the community and point out the same to the officers.”

Present Public Interest Litigation was filed by a transgender person.

Issues

Respondents have not undertaken to ensure the distribution of ration, medicines, access to medical treatment etc. to the transgender community in Kerala.

Transgender persons have been discriminated in the matter of relief measures during lockdown.

Petitioners’ case

Petitioner states that she was recognised a transgender person in the State of Kerala and it was issued an identity card by the Social Justice Department.

Petitioner has also sought benefits as laid down in the Supreme Court decision of National Legal Services Authority v. Union of India, (2014) 5 SCC 438,

all transgender persons have a right to self-determine their gender identity as male, female or transgender and non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.

Transgender policy was evolved for the transgender persons in Kerala during the year 2015.

Petitioner states that, apart from the above mentioned issues, transgender community is being subjected to threats with regard to eviction as they are unable to pay rent.

Authorities have not been extending any financial benefits to the transgender community.

Respondents Contentions

Director of Social Justice contended while refuting the claims of the petitioner that earnest efforts were being made by the State Government to provide the necessary facilities to the public at large including the transgender community.

So far as the general allegations with respect to the failure on the part of the Government to take necessary steps for supplying ration kits and other articles to the members of the community are concerned, it is stated that earnest efforts were made for the supply of the ration, ration kits and other articles, and also for providing shelter for those persons who were in crisis during the period of lock down.

Necessary medicines were provided to all transgender persons who had undergone hormone therapy and arrangements were made through the Transgender Justice Committee and other NGOs.

Civil Supplies Department had provided the facility for transgender community to mark their gender as ‘T’ in the ration card, so that they could also avail the facility to buy ration articles through their ration cards.

It is prominently submitted that the Social Justice Department, the State as well as the District Authority functioning for the transgender community have not received any complaint with respect to non-access to food supply, medicines and threat of eviction. 

Decision of the Bench

Petitioner has not specified ay of the instances whereby the ration articles, ration kit and the ration card was denied to the transgender persons on them approaching appropriate statutory authority.

Wirth regard to rights of the transgender community, Court stated that,

“…when the State Government has taken enough and more steps to provide various facilities and the authorities are appointed for addressing their issues, it is for members of that community or the NGOs or the members representing the transgender community to approach the said authorities and put forth the rights, they are entitled to.”

Court added to its observation that, identification of the transgender community is an issue involving privacy and therefore, unless and until such persons approach the authorities and their identity is so revealed and recognised, the authorities cannot take action for supplying medicines, ration, ration cards and identity cards and that too after thorough medical examination.

“…there are no reasons for denying any basic human right to a member of the transgender community.”

Yet, the Court issued the following directions:

  • Whenever any member of the transgender community approached the statutory authority concerned with medical prescription of the doctor, medicine should be supplied free of cost.
  • When any member of the transgender community approaches the District Authority or Nodal Officer appointed for the purpose of issuing gender identity card and the ration card, necessary steps shall be taken at the earliest to address the issues
  • Any other issues raised by the transgenders in writing shall also be addressed appropriately
  • 5 persons whose names have been mentioned in the statement filed, if approach the District Authority concerned, their issues should be addressed.

With the above observations, Court dismissed the petition.[Kabeer v. State of Kerala, WP(C) No. 9890 of 2020(S), decided on 08-06-2020]

Case BriefsHigh Courts

Kerala High Court: While deciding the instant petitions seeking directions for the Kerala University to postpone the examinations scheduled on 1-7-2020, C.S. Dias, J.,  declined to pass an ad-interim order to stay the examinations whilst stating that scope of judicial review in the scheduling examinations is very limited.

The present petitions were filed by various students who contended that the University, regardless of UGC (Minimum Standards of instructions for the Grant of the Master’s Degree through Formal Education) Regulations, 2003, has notified the examinations. The students via their counsel George Poonthottam further argued that their study materials are left in their colleges and hostels, which have now been converted to quarantine centres; they cannot continue the research under their Guide, in view of the travel restrictions. Another petition filed by a sixth semester law student of Kerala Law Academy, submitted that a sudden call for examination would result in a large gathering of students in a single room, which will increase the chances of Covid-19 spread manifold. Furthermore the students, who have gone to their homes in other States and abroad, would have to undergo 14 days of compulsory quarantine, when they return to the State. Therefore, the call for the examination infracts the fundamental rights under Articles 14 and 21 of the Constitution. However the standing counsel for the University, Thomas Abraham submitted that the University successfully conducted the examinations for undergraduate courses and that they received no adverse report on this. The students in fact responded positively to the arrangements made, particularly in view of the fact that they got accommodated to their nearby places to write the examinations. The counsel argued that a few students, forming a microscopic minority want to postpone the examinations indefinitely with an intention to thwart the examination schedule. It was argued that postponement of the examinations any further would result in a ‘situation with unimaginable ramifications’.      

Perusing the facts and contentions and referring to a plethora of Supreme Court decisions on the similar matters, the Bench observed that there should be extreme reluctance on the part of the Courts to interfere into the academic matters formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions. Referring to Maghi Devi v. Union of India, 2020 SCC OnLine SC 546 the Bench pointed out that the Courts should not substitute the wisdom of specialists in the field of academics. Noting that the Covid-19 pandemic is an unprecedented humanitarian crisis, and it created situations that led to an All India Lockdown and closure of schools and colleges. The Court further observed that the Central and the State Governments have issued protocols to avert community transmission of the virus, and the same protocols are being implemented and followed strictly.

Thus declining to issue any stay order for cancellation, the Court clarified that if the exams are held as per the schedule and the petitioners appear and write the examinations, it would be without prejudice to their rights and contentions raised in the instant writ petitions. [Megha Sarkar v. State of Kerala, 2020 SCC OnLine Ker 2492 , decided on 29-06-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ. while observing the matter in regard to quashing of FIR against Republic TV’s Editor-in-Chief, Arnab Goswami, Court held that,

“Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets.”

Present petition was filed to seek stay on all the proceedings in FIR filed against Arnab Goswami/ petitioner and no coercive action/steps to be taken by respondents 1, 5 and 6.

Background

Following the broadcasts on Republic TV dated 16-4-2020 and on R Bharat dated 21-4-2020, multiple FIR’s and criminal complaints were lodged against the petitioner — Arnab Goswami, Editor-in-Chief of Republic TV and the Managing Director of ARG Outlier Media Asia net News Private Limited which owns and operates R Bharat.

The broadcasts were in regard to an incident that occurred in Palghar District of Maharashtra wherein 3 persons including 2 sadhus were brutally killed by mob, allegedly in the presence of police and forest guard personnel. In the said broadcasts, petitioner had raised issues with regard to the tardy investigation of the incident.

Petitioner claimed that the Indian National Congress had after the said broadcast launched a “well coordinated, widespread, vindictive and malicious campaign” against him.

The said campaign by the INC was carried out through various news reports, tweets and multiple complaints against the petitioner seeking investigation into offences alleged to have been committed by him under Sections 153, 153-A, 153-B, 295-A, 500, 504, 506 and 120-B of the Penal Code, 1860. Campaign on social media using the hashtag — #ArrestAntiIndiaArnab was also doing rounds.

To affirm his claim, the petitioner also stated that the FIRs and complaints were lodged in the State where the Governments were formed owing allegiance to the INC.

Petitioner refused any propagation of communal views being broadcasted by him on the news channel that gave rise to the numerous complaints. Asserting his fundamental right to the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India, the petitioner approached the Court seeking protection.

Another petition was filed which was occasioned by registration of an FIR against the petitioner on 2nd May 2020 wherein it was stated that the petitioner had on 29th April 2020 made certain statements on his broadcast on R Bharat that “people belonging to Muslim religion are responsible for COVID-19 spread.”

Petitioner had moved the Supreme Court under Article 32 of the Constitution of India for quashing the FIR.

Supreme Court had issued the following directions in it’s Order:

  • Prayer to transfer the investigation to CBI is rejected.
  • Protection against coercive action granted to Arnab Goswami to continue for a period of 3 weeks to enable him to pursue remedies available in law.
  • FIR which has now been numbered as 164 of 2020 shall be investigated by the NM Joshi Marg Police Station in Mumbai.
  • Prayer for quashing FIR No. 164 of 2020 under Article 32 rejected.
  • The FIR does not cover the offence of defamation under Section 499 IPC, hence will not form subject matter of the investigation.
  • All FIRs except FIR No. 164 of 2020 at NM Joshi Police Station are quashed.
  • No other FIR or, as the case may be, complaint shall be initiated or pursued in any other forum in respect of the same cause of action emanating from the broadcast on 21 April 2020 by the petitioner on R Bharat.
  • Based on the threat perception, CP (Mumbai) may provide police protection to Arnab Goswami if it is considered appropriate and for the period during which the threat perception continues.
  • Nothing in the present judgment to be considered as an expression on merits of the allegations in the FIRs.

Thereafter the present petition has been filed seeking certain reliefs.

Decision and Analysis

Bench firstly adverted to the Supreme Court’s decision in the present matter on 19th may, 2020, wherein the core issue was the lodging of multiple FIRs and complaints against the petitioner in various states arising from the same cause of action.

Supreme Court had stated that the manner in which the petitioner was subjected to numerous FIRs in several states besides the UT of J&K on the basis of identical allegations arising out of the same television show would leave no manner of doubt that its intervention was necessary to protect the rights of the petitioner as a citizen and as a journalist to a fair treatment.

In such a situation to require the petitioner to approach the jurisdictional High Courts for quashing of the FIRs would result in a multiplicity of proceedings and unnecessary harassment to the petitioner.

It was categorically held that all other FIRs in respect of the same incident constitute a clear abuse of the process and must be quashed.

Accordingly, all the other FIRs numbering 14 were quashed, further making it clear that no other FIR or complaint shall be initiated or pursued in any other forum in respect of the same cause of action.

Supreme Court did not express any opinion on the two impugned FIRs and that is how the challenge to the 2 FIRs has been placed before the High Court.

In the Supreme Court decision of State of Karnataka v. Muniswamy, (1977) 2 SCC 699, following was observed:

“…saving of the High Court’s inherent powers is designed to achieve a salutary public purpose; in a criminal case the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.”

Complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.

Common thread alluded to the Sections that have been mentioned in the FIRs are with regard to promoting or attempting to promote disharmony or feelings of enmity, hatred or ill-will between different religious groups or communities etc.

Decoding the FIRs

According to the informant, petitioner had made a statement like two Hindu Sadhus were killed and asked whether in a country where 80% of the population are Hindus, is it a sin to be a Hindu or to wear saffron.

In contradistinction he asked whether Sonia Gandhi and the Congress party would have kept quiet if a Maulvi or Padri was killed. Then petitioner launched an attack on the foreign origin of Sonia Gandhi; asking whether “these people” thought that Hindus will keep quiet.

It is quite clear from the above stated that the target of the petitioner’s attack was primarily Sonia Gandhi and the Congress Party.

There was no mentioning of either the Muslim community or the Christian community. It would be too far- fetched to say that two religious communities were involved in the debate. As a matter of fact, there was no reference to the Muslim community or to the Christian community.

In Court’s opinion, if the transcript together with the first information are read as a whole, it was not found that any statement made by the petitioner which can be construed to be against the Muslim community or Christian community.

In such circumstances, it cannot be said that any offence has been committed by the petitioner of provoking rioting or promoting or attempting to promote, on the grounds of religion, disharmony or feelings of enmity, hatred or ill-will between different religious groups which is prejudicial to the maintenance of harmony between different religious groups or which disturbs or is likely to disturb public tranquility, thus prejudicial to national integrity.

Neither any statement nor the conduct of the petitioner can be said to have been made deliberately and with malicious intention to outrage the religious feelings of any class of citizens of India or insulting any religion or religious beliefs of that class of citizens.

On an overall consideration, Court’s prima facie view was that the FIR No. 164 of 2020 did not make out commission of any criminal offence by the petitioner.

FIR No. 137 of 2020

Contents of this FIR were made by the officer in charge of Pydhonie Police Station, that petitioner had hatched criminal conspiracy in the programme of R. Bharat connecting Jama Masjid, Bandra with the crowd gathered near Bandra railway station thus making objectionable statements and hurting the religious feelings of the Muslim community; petitioner created religious hatred between two communities and increased enmity between them by insulting Muslim religion and their religious feelings; with the objective of committing communal atrocity, petitioner defamed the Muslim community.

According to the informant, petitioner had stated that at a little distance there was Jama Masjid in Bandra; near this Jama Masjid suddenly thousands of people had gathered. Then petitioner posed the question as to who had gathered the crowd near the masjid in Bandra and why every crowd gathering during the lockdown was near a masjid.

Petitioner tried to create the impression that Muslim community is violent and is not following any kind of law. Thus it was alleged that petitioner had hatched a conspiracy with the objective of creating hatred amongst Hindu and Muslim communities.

Court in the above-mentioned regard stated that it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. The tenor of the programme was petitioner trying to find out as to who were the people or which were the forces trying to derail or defeat the lockdown and encouraging violation of social distancing norms.

Bench referred to the Supreme Court’ observations that,

India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal; free citizens cannot exist when the news media is chained to adhere to one position.

We cannot have the spectacle of a Damocles’ sword hanging over the head of a journalist while conducting a public debate.

Beyond the above observations and analysis, Court did not comment further on the matter and passed the following orders:

  • Petition is admitted for hearing;
  • Issuance of notice stands obviated. However, office of the Attorney General for India be notified as regards challenge to vires of Sections 153A and 153B(1) IPC.
  • All further proceedings in FIR No.164 of 2020 before the N. M. Joshi Marg Police Station, Mumbai and FIR No.137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended
  • Interim order passed on 9th June, 2020 to the effect that no coercive steps shall be taken against the petitioner vis-a-vis the above 2 FIRs shall continue till disposal of the petition. [Arnab Ranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 732  , decided on 30-06-2020]

Also Read:

SC | FIR against Arnab Goswami not to cover offence of defamation (S. 499 IPC); Investigation to continue at NM Joshi Marg Police Station under Mumbai Police

COVID 19Hot Off The PressNews

Ministry of Home Affairs has issued new guidelines for phased re-opening of areas outside Containment Zones. The following guidelines shall remain in force till July 31, 2020.

Here’s all you need to know about Unlock 2

  • In Phase 2 of the phased reopening of the Lockdown, all activities will be permitted in areas outside Containment Zones, except the following:
    • Schools, Colleges, educational and coaching institutes; Training institutions of the Central and State Governments will be allowed to function with effect from July 15, 2020.  SOP in this regard will be issued by the Department of Personnel and Training, Government of India.
    • International air travel of passengers, except as  permitted by MHA
    • Metro Rail
    • Cinema halls, gymnasiums, swimming pools, entertainment parks, theatres, bars, auditoriums, assembly halls and similar places.
    • Social/ political/ sports/ entertainment/ academic/ cultural/ religious functions and other large congregations.

Dates of opening these activities will be decided separately after assessing the situation.

  • Domestic flights and passenger trains have already been allowed in a limited manner. Their operations will be further expanded in a calibrated manner.
  • Night Curfew shall continue to remain in force, between 10.00 pm and 5 am, except for essential activities.
  • Lockdown to continue to remain in force in Containment Zones till July 31, 2020.
    • Containment Zones will be demarcated by District Authorities after taking into consideration the guidelines of MoHFW.
    • Only essential activities shall be allowed in Containment Zones. Strict perimeter control to ensure that there is no movement of people in or out of these zones, except for medical emergencies and for maintaining supply of essential goods and services.
    • States/UTs may also identify Buffer Zones outside the Containment Zones, where news cases more likely to occur.
    • Within buffer zones, restrictions as considered necessary may be put in place by District authorities.
  • No restriction on inter-State and intra-State movement of persons and goods. No separate permission/approval/e-permit will be required for such movements.
  • Movement by passenger trains and Shramik special trains; domestic passenger air travel; movement of Indian Nationals Starnded outside the country and of specified persons to travel abroad; evacuation of foreign nations; and sign-on and sign-off-of Indian seafarers will continue to regulated as per SOPs issued.

To read the guidelines in a detailed manner, please follow the link below:

GUIDELINES

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and Vishwajith Shetty, J., laid down the guidelines to be followed for payment of dues to the claimants in Motor Vehicle Accident Claim cases, Workmen’s Compensation Act, 1923 Matrimonial Cases and Land Acquisition Compensation cases etc.

Due to the partial functioning of the district and trial Courts in the State in view of the COVID-19 Pandemic, entry of litigants in the Courts premises has not been permitted.

The above has resulted in large number of litigants and especially the claimants and victims in Motor Vehicle Accident Claim cases, claimants under the Workmen’s Compensation Act, 1923 and claimants in Land Acquisition Compensation cases etc., to not being able to receive the amounts to which they are legitimately entitled, though the amounts payable to them are lying deposited in the judicial accounts of Khajane-2 (for short ‘K-2’).

Thus, in view of the above it is necessary to evolve a procedure to securely release payments to the litigants.

Additional Advocate General submitted that recipients of payments from K-2 are required to file certain documents for recipients registration like UIDAI, PAN or authentic photo identity.

They must also disclose their bank account particulars. AAG further pointed that it would be ideal if the mandate form generated by K-2, which is prescribed by the Reserve Bank of India, is signed by the recipients, as the said mandate form contains all the account particulars of the recipients. 

Court stated that AAG was right in his submission that it is necessary to ensure that the amount should go to the real recipients.

After implementation of K-2, the payments from judicial deposits are done only by way of electronic clearing by transferring the amounts directly to the accounts of the claimants and the cheques are not being issued. In case of current deposits (deposits which have not lapsed), the payment is authorized by the Court by generating the bills on K-2.

As far as the mode of payment through judicial accounts in K-2 is concerned, there are no specific Rules in Chapter XXVII of the Karnataka Rules of Civil Practice, 1967. The only provision is that when an amount exceeding Rs 5,000 is payable to a party, it shall be paid by drawing an account payee cheque only. Thus, the embargo is on paying a sum exceeding Rs 5000 by cash.

At present, all the payments to litigants are being made by direct transfer to their bank accounts from K-2 and the earlier practice of issuing account payee cheques has been stopped.

Thus in the present COVID-19 times, following guidelines shall be adopted by the Courts for making payments:

  • litigant who is entitled to receive the amount shall file an application giving all the details including the details of the decree/order of the Court under which he/she is entitled to withdraw the amount;
  • Along with the application, he/she must furnish the copies of several documents such as first page of the bank passbook containing the details of the bank account, such as the name of the bank, account number, name of the account holder and IFSC code of the bank. If the first page of pass book does not contain photograph of the account holder, a certificate of the Manager of the concerned Bank bearing photograph of the account holder and containing account details shall be produced
  • account must be in the name of the person who is entitled to withdraw the amount as per the Court order;
  • applicant is also required to furnish copies of PAN card/form 16, address proof and photo copies of the authentic identification documents such as Aadhar or election/ voter identity card or driving licence. The photo copies of the documents shall be self-attested as well as attested as true copies by his/her Advocate, if the applicant is represented by an Advocate
  • an affidavit in support shall be filed by the applicant containing all the account details, which are necessary for transfer of money. latest photograph of the applicant shall be affixed near the signature on the affidavit. The affidavit must affirm the correctness of the documents produced along with the application. Along with the application and affidavit, the applicant shall submit a blank voucher for payment of judicial deposit duly signed by him. If there are more than one applicant, affidavits of all of them are necessary. The signature on the voucher shall be identified by an Advocate by affixing his/her signature below the words “signature of the claimant” or below the place for affixing the revenue stamp. Below the Advocate’s signature for identification, he/she shall mention the Bar Council enrolment number. Few copies of the blank vouchers shall be made available by the Principal District Judge to the Bar Associations so that the members of the Bar can take photo copies of the same. The affidavit in support of the application must contain the statement that the blank voucher is signed by the applicant;
  • applications shall be placed before the concerned Court for passing necessary orders
  • If the Court is satisfied on perusal of the application and the documents furnished, the Court will pass an order directing transfer of the amount to the specific account of the applicant through K-2 process;
  • Thereafter, the Court office/accounts section, after logging on K-2 portal, will generate bank mandate form. Print out of the bank mandate form shall be handed over to the Advocate for the applicant for obtaining the signature of the party and the Advocate concerned shall countersign the same by verifying the signature of the party. He/she shall mention his/her Bar Council enrolment number below his/her signature. Physical presence of the party in the Court for signing the mandate form is not required. The mandate form must be returned with the maximum period of three days. Thereafter, the mandate form shall be signed by DDO. Further steps shall be taken by the Court office for generation of miscellaneous bill. As the mandate form containing all the account details is signed by the applicant, his/her signature on the miscellaneous bill is not required. Subsequently, all the procedure required by K-2 shall be followed and the requisite amount will be transferred directly from the judicial account in K-2 to the bank account of the concerned party.
  • Courts cannot insist on the person receiving the money affixing his/her signature on any register.

In the event the applicants are not represented by an Advocate, the payments cannot be made unless the applicants personally appear in the Court.

In case of orders pertaining to payment of maintenance in matrimonial matters, it will be appropriate if the Courts concerned issue directions for payment of maintenance by way of RTGS or in any other mode of direct transfer by the person who is liable to pay the maintenance to the account of the person who is entitled to receive the maintenance.

Bench directed to all the Courts that they shall make an endeavor to dispose of the applications made for payment at the earliest and see that the eligible litigants can get the amounts at the earliest. The Courts cannot restrict the payments per day to a particular number of cases.

State Government is directed to ensure that quick access to K-2 is facilitated to enable the Courts to release the payment

Thus, the issue of making payment out of the judicial deposit during the limited functioning of the Courts during the pandemic of COVID-19 is answered in terms of this order. [High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 762 , decided on 24-06-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Harsh Tandon and Soumen Sen, JJ., addressed the matter in regard to the child marriages in the garb of child trafficking and called for detailed status reports for the same.

Additional Chief Secretary, Home Affairs Department and Home Secretary district-wise details of the cases in relation to violation of child rights of all forms till 15th June, 2020 has been disclosed.

The above-mentioned report details out the nature of the violation of child rights and the steps taken by the police authorities in connection with such cases.

Alarming rise of child marriages during the lockdown has given a strong impression that these child marriages may be in the garb of child trafficking.

In view of the above Court directed Superintendent of Police of every district to investigate into the cases regarding child marriage and to find out if child marriages are for economic consideration or under the garb of child trafficking.

With regard to North-24 Parganas report, Court directed the Home Secretary to file a report disclosing such “other violation of child rights” and the steps taken by the police against the violators.

Further the Court also directed the Superintendent of Police of all the districts to ensure that the victims are produced immediately and not later than 48 hours before the Magistrates for recording of statement under Section 164 of the CrPC.

Most of the Juvenile Justice Boards have been functioning under tremendous stress and infrastructure is extremely inadequate.

Court noted the following deficiencies:

  1. No chamber for the Principal Magistrate and other members of the committee,
  2. Lack of office space,
  3. No separate room for vulnerable child witnesses,
  4. No separate entrance for the C.C.L. and vulnerable witnesses,
  5. No official vehicle is assigned to the Principal Magistrate,
  6. Lack of broad-band connection and inconsistent bandwidth,
  7. Lack of hardware and software infrastructure required for audio- video linkage,
  8. Inadequate and/or no support staff like bench clerk, lower division clerk-cum-typist, counsellor etc.,
  9. No separate provision of wash-room for female staff/members/lady officers,
  10. No separate room for counselling for the C.C.L.s and for sitting of social worker members,
  11. Lack of maintenance of public toilets and wash-room of Principal Magistrates

Advocate General assured the Court that he would immediately take the the above issues with the Home Secretary and would apprise the steps taken to remove such deficiencies.

Report filed by the Secretary, Department of Health and Family Welfare shows that 75 children of the migratory workers have been found to be Covid-19 positive and subsequently they were referred to designated COVID hospitals, samples were collected from asymptomatic children of migratory workers and 43 of such samples were reported as positive.

Considering the safety of the children bench would like to know if any random test was carried out of the children of the migratory workers and if so, disclose the result of such random test with specific comment as to whether anyone of them tested positive, save and except the particulars already disclosed.

Report to be filed with regard to investigation in child trafficking case

Court has also asked the Advocate General to file a report with regard to a newspaper report wherein it appeared that one female minor girl had been recovered by Maharashtra Police.

Court adjourned the matter till 2nd July, 2020. [Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066   , decided on 25-06-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and K.K. Tated, J., dismissed a PIL filed seeking direction to schools not to charge more than 50% fees and related reliefs.

  • the direction be issued to the schools, not to charge more than 50% of the fees in this academic year taking into consideration the pandemic and its effects;
  • direction to waive off the school fees during pandemic lockdown to be given starting from 23rd March 2020;
  • directions to waive off the online sessions for pre-primary and primary section schools from Nursery to 4th std;
  • the schools to less make projects where sometimes unnecessary expenses are done for this academic year;

the state government be directed to take due care and see that the schools not to violate if found guilty strict actions to be taken and no schools to reopen till the innovation of vaccine for COVID-19 virus.”

It is to be noted that not a single school has been impleaded as a respondent by the PIL petitioner. Thus granting the prayers of PIL petition in absence of the schools would amount to breach of principles of natural justice.

Court in view of the above stated that Court may add schools as respondents but no explanation has been furnished why the PIL petitioner did not implead at least some of them as respondents.

Another reason for non-interference is that, if at all the statement wherein it has been stated that parents of children are in financial distress, is correct — nothing prevents such parents to approach the government in a group and seek framing of guidelines for reducing the quantum of tuition fees as well as other relief during lockdown period.

In matters relating to academic policy, Courts ought to stay at a distance.

Thus, in view of the above, petition was dismissed of. [Dr Binu Varghese v. State of Maharashtra, 2020 SCC OnLine Bom 721 , decided on 19-06-2020]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing a petition with regard to release of Tablighis, stated that,

Covid-19 should teach us to care for each other rather than use the arsenal of law.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions.

They defied COVID-19 lockdown norms as were imposed by the Government.

In the norms, religious places were ordered for closure, yet the petitioners stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

There are accusations that its puritanical and revivalist project prepares the ground for islamic radicalization.

Court’s opinion on “Tablighis”

[Categorization can have serious pitfalls]

Bench recorded,

Prof. Upendra Baxi’s remark in his recent essay on “Exodus Constitutionalism” published by The India Forum that “there is, also, no such thing as ‘migrants’ but only persons and groups with distinctively (and often disturbingly) different needs and abilities…”

The above stated helped the Court to see the petitioners as “30 individuals” instead of collectively thingifying them as “Tablighis”.

Justicing has to be an individualized exercise.

Further the Court added that, there are scores of foreign Tablighis who are presently in detention. They hail from different countries. Some of them are women. Quite a few are senior citizens. They are normal human beings. They are now stuck in alien surroundings.

The petitioners came to India propelled by a sense of religious idealism. But their mission went awry.

The stated petitioners are eager to return back to their families and are also willing to admit through affidavits that they had violated the visa conditions and were willing to undertake that they will not enter India for the next ten years.

Entitled to bail?

Offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail.

The Bench states that there cannot be any objection for granting bail to the petitioners.

Continued incarceration of the petitioners will not serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties.

Thus, petitioners shall be released on their own bond.

Right to return to native country

Bench stated that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.

Court feeling sensitive to the petitioners’ misery in the present COVID-19 times, posed a question, whether it is acting beyond jurisdiction?

To the above, bench stated,

The Hon’ble Chief Justice has allotted the subject of Criminal Original Petition-Bail, Anticipatory Bail Petitions, Criminal Appeal and Criminal Revision Petitions to be dealt with by me. But, in view of my being a Judge of the High Court, I certainly have the inherent power to make such orders as may be necessary to secure the ends of justice.

Failure to respond to the petitioners’ existential horror would amount to judicial abdication.

Of course, the petitioners having violated the visa conditions cannot demand that they must be allowed to return as a matter of right. But then, the authorities cannot arbitrarily deny the said request.

Unjust, Unreasonable and Unfair

Petitioners are willing to bear the cost of transportation. They will coordinate with their embassies and consulates and arrange their return. All that the respondents need to do is to play a facilitatory role. Instead of doing so, if the respondents insist on detaining the petitioners and prosecuting them, it can only be characterized as unreasonable, unjust and unfair.

Thus, in view of the above, Court issues following directions:

  • Petitioners are granted bail.
  • After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946.
  • If the petitioners execute appropriate affidavits expressing their regret for having violated the visa conditions, proceedings against them shall be concluded by filing final reports recording the same.
  • It is for the petitioners to coordinate with their respective embassies/consulates and arrange their return to their respective nations. Government of Tamil Nadu or the Government of India will only play a facilitatory role.

[Md Kameual Islam v. State, 2020 SCC OnLine Mad 1171 , decided on 12-06-2020]

COVID 19Op EdsOP. ED.

COVID -19 dropped itself like a bomb on industries, consumers and economies. The world is still putting itself together from this crisis. The business fraternity however, has never really anticipated any sort of complication or even for that matter, viewed their ‘force majeure’ clauses seriously. Now, that many contracts hinge on ‘force majeure’, a series of questions arise on its invocation. This article looks to condense available material on ‘force majeure’ and looks at the steps ahead.

Force Majeure and general clause:

The term ‘force majeure’ originates from the Code Napoléon of France, that translates to mean ‘superior force’ or ‘greater force’. Ordinarily, this means a drastic or a fundamental change to the substance of the contract that is brought about by an event that was neither anticipated by the parties nor under their control, resulting in non-performance of their contractual obligations. 

In India, since the concept of force majeure is not codified into law, it would be necessary to coin this as part of the contract. Scores of precedents have held that the contract overrides the law and therefore ‘force majeure’ clauses are now part of the standard clauses in any contract along with confidentiality and dispute clauses.

Several examples of force majeure clauses exist. One such instance is as under:

a. The event of ‘force majeure’ such as an act of God, fire, earthquake, flood, accident, an act of governmental authority, lockout or any event beyond the reasonable control of any of the parties that hinder the performance or render it impossible;

b. The duration of force majeure event – typically between 15-60 days;

c. The manner in which this clause needs to be invoked including notices etc.;

d. Suspension or termination of agreement in case the event continues beyond the stipulated period.

Most often, drafting a ‘force majeure’ clause lacks inclusion of details. For instance, majority of the ‘force majeure’ clauses, do not specifically mention ‘pandemic’ or even ‘epidemic’ for that matter, as an event.

Indian Contract Act & Force Majeure:

Although the term ‘force majeure’ finds no presence under the Contract Act, 1872 (“the Act”), its doctrine can be found embodied under Section 32[1] of the Act which renders a contract void when an event upon which performance of contract is contingent becomes impossible.

Essentially, COVID-19 will find a mention in contracts in the form of epidemic, pandemic, or even natural calamity. However, it is noteworthy that where the failure to perform an obligation is primarily due to lockdown implemented by the Government, the force majeure clause must also contain term ‘lockdown’, for it to be invoked. One can also argue that since the lockdown is a result of COVID- 19 and the pandemic, reliance can be placed on the term pandemic in a ‘force majeure’ clause.

The COVID-19 pandemic or the resultant lockdown, will not be treated as ‘force majeure’, if there are other methods of performing the terms of the contract. Having said that, performance of the contract may be suspended during the operation of ‘force majeure’ event and performance may be suitably extended. Parties have the option of renegotiating and modifying the contractual terms, termination is the last step if the force majeure event continues beyond the time prescribed under the contract.

Therefore, construing COVID-19 lockdown a ‘force majeure’ event will depend on the contractual obligations binding the parties and the manner of its performance. 

Several questions have been raised on the fact that some contracts do not stress on ‘pandemic’, ‘epidemic’, ‘disease’ etc. While some parties may rely on the general phrase ‘any other unforeseeable event, not under the control of either of the parties’, a reference may be drawn to some Government notifications and departmental circulars across board, which have declared COVID- 19 and the lockdown as a natural calamity/disaster.

The Ministry of Finance has for instance, by way of an office memorandum dated February 19, 2020[2] with respect to ‘Manual for Procurement of Goods, 2017’, clarified and declared the disruption in supply chains which is a result of COVID-19 from China or any other country, such a disruption will be covered as ‘force majeure’.

The Ministry of New & Renewable Energy with respect to solar project developers, vide office memorandum dated March 20, 2020[3] has declared that parties can invoke the force majeure clause to avoid financial penalties if they miss the contractual obligations on account of COVID-19.

The Karnataka RERA Authority, through its Circular dated April 06, 2020 extended the registration of all real estate projects by a period of three months, in cases where registration is expiring after March 15, 2020 and has also extended the timelines for compliance of the RERA Act by a period of three months.

The Ministry of Electronics and Information Technology[4] has decided to provide rental waiver to small housed in STPI premises (MSMEs, Start-ups) in the country from March 1, 2020 till June 30, 2020 i.e. for 4 months period as of now.

While these notifications, memorandums and circulars do not have a binding effect for all contracts, these will have some persuasive value to bring COVID- 19 and the lockdown under the ambit of force majeure, if there are specific terms in the clause.

Doctrine of Frustration under Indian Law

Where a contract does not feature a ‘force majeure’ clause, Section 56[5] of the Act in the context of doctrine of frustration will be examined. Section 56 creates 2 kinds of impossibilities: (1) Impossibility existing at the time of the making of the contract, and (2) A contract, which is possible and lawful when made, but becomes impossible and unlawful thereafter due to some supervening event. Para 2 of Section 56 above, will have a relevance given the pandemic and lockdown.

For such a clause to be invoked, the following are the requirements:

a. a valid and subsisting contract between the parties;

b. there must be some part of the contract yet to be performed; and

c. the contract becomes impossible of perform.

The consequences of the ‘force majeure’ event will have to be assessed to determine whether it renders the contract impossible, unlawful, or impractical to perform and thereby frustrate its performance. Where it is established that the conditions have materially affected the parties and their obligations and where there is no way to perform the contract during the existence of such conditions, the contract is annulled and both contracting parties are discharged of their subsequent obligations. Under these circumstances, neither party has the right to sue the other party for breach of such contract.

The Supreme Court had interpreted the concept of ‘force majeure’, in Satyabrata Ghose v. Mugneeram Bangur & Co.[6], under Section 56 of the Contract Act. The Supreme Court in this case held that the word “impossible” ‘has not been used here in the sense of physical or literal impossibility’[7]. The determination of whether a ‘force majeure’ event has actually occurred, does not centre around its impossibility alone – a mere ‘impracticality of performance’ (given the subject-matter of the contract), will also suffice. When an ‘untoward event’ or ‘unanticipated change of circumstance’ changes the very foundation of the contract between the parties, this event will be considered a ‘force majeure’ and the contract therefore impossible to perform.

While there have been many judgments on this issue and scores of articles on this topic, we look at one recent decision of the Supreme Court in  Energy Watch Dog v. CERC[8] to buttress the fact that “economic hardship” cannot be considered a ‘force majeure’ event. The judgment also has various other aspects, which are extracted as under:

“37. It has also been held that applying the doctrine of frustration must always be within narrow limits. In an instructive English judgment namely, Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH[9], despite the closure of the Suez canal, and despite the fact that the customary route for shipping the goods was only through the Suez canal, it was held that the contract of sale of groundnuts in that case was not frustrated, even though it would have to be performed by an alternative mode of performance which was much more expensive, namely, that the ship would now have to go around the Cape of Good Hope, which is three times the distance from Hamburg to Port Sudan. The freight for such journey was also double. Despite this, the House of Lords held that even though the contract had become more onerous to perform, it was not fundamentally altered. Where performance is otherwise possible, it is clear that a mere rise in freight price would not allow one of the parties to say that the contract was discharged by impossibility of performance.

38. This view of the law has been echoed in ‘Chitty on Contracts’, 31st Edition. In paragraph 14-151 a rise in cost or expense has been stated not to frustrate a contract. Similarly, in ‘Treitel on Frustration and Force Majeure’, 3rd Edition, the learned author has opined, at paragraph 12-034, that the cases provide many illustrations of the principle that a ‘force majeure’ clause will not normally be construed to apply where the contract provides for an alternative mode of performance. A more onerous method of performance by itself would not amount to a frustrating event. The same learned author also states that a mere rise in price rendering the contract more expensive to perform does not constitute frustration.”

The term impossibility and frustration are often used interchangeably. In a situation where there is no force majeure clause, Section 56 and doctrine of frustration comes to rescue. Frustration is a common law doctrine. It is concerned with the change in circumstances that can wholly destroy the object or foundation of the contract or make performance fundamentally different from what the parties contemplated in the beginning. Hence under English Law, one needs to establish functions by the English Code and under Indian Law, impossibility or frustration has been statutorily covered under Section 56 of the Act. If a party can prove that an unforeseen event has destroyed the object of the contract, or fundamentally changed the nature of performance, then the contract would be said to be frustrated and it would automatically come to an end. 

Evidence of force majeure:

It should be noted that the Courts in India follow the contract strictly in terms of force majeure clauses. In a case where the contract must be rescinded on account of a force majeure event, the burden to prove is on the party claiming force majeure. Unless there is compelling evidence that a contract cannot be performed under any circumstance, the Courts do not favour parties resorting to frustration of contract and termination.

The following may form as evidence for invoking force majeure:

  1. National and State Government notice and guideline imposing restriction of trade,
  2. News articles related to COVID-19 outbreak, quarantines, restricted travel and mandatory shutdown of airports, trains stations and seaports,
  3. Cargo booking and freight agency agreement,
  4. Cancelled flight or train ticket or anything other documents relating to travel itinerary, and
  5. Cancelled visa or rejected visa application.

Judicial Precedents during Lockdown

Bombay High Court – Pledge of Shares: Rural Fairprice Wholesale Ltd.  v. IDBI[10], March 30, 2020

Rural Fairprice Wholesale Limited (RFWL) has raised INR 670 crores in debt via insurance of NCDs – secured by shares held by Future Corporation Resources Private Limited (FCRPL)  in future retail limited (pledged shares):

  • Due to COVID-19 pandemic and the subsequent fall in the stock market, the value of the pledged shares fell – debenture trustees accelerated payments and invoked the pledged shares;
  • RFWL approached the Court seeking restraint of sale of pledged shares – contented fall in value of the pledged shares caused by COVID-19 pandemic and fall in stock market;
  • Bombay High Court granted interim relief restraining action in furtherance of the sale notice issued by debenture trustee.

Delhi High Court – Classification of NPA: Anant Raj Ltd v. Yes Bank[11], April 6, 2020

  • Borrower approached the court seeking restraint against lender from downgrading its asset classifications from SM A – 2 to NPA, on the basis of RBI’s COVID-19 regulator package;
  • Defaulting instalment fell due January 01, 2020;
  • Delhi High Court held statement of development and regulatory policies issued by RBI on March 27, 2020 along with regulatory package intended to maintain status quo as on March 01, 2020;
  • Asset classifications can be altered – status code to be maintained;
  • Time granted for payment of January instalment.

Bombay High Court – Invocation of LC’s: STANDARD RETAIL PVT. LTD. V. G.S. GLOBAL CORP[12]. , APRIL 8, 2020

  • Steel importers approached Court seeking restraint of encashment of letters of credit provided to Korean based exporters – claimed lock down hand rendered performance of contract impossible;
  • Bombay High Court refused the injunction:
  1. letters of credit are independent contracts with the bank;
  2. distribution of steel was recognised by government advisories as an essential service no restriction on movement;
  3. the lockdown was for from limited period;
  • The force majeure clause was only to aid exporters and not importers.

Bombay High Court — Transcon Iconica Pvt Ltd.  v. ICICI Bank[13] , April 11, 2020

  • Writ petitions filed by Transcon Sky City and Trancscon Iconica which had availed financing facilities from ICICI Bank defaulted on payments due on January 15, 2020 and February 15, 2020;
  • Determination of whether the moratorium is excluded for NPA classification;
  • Bombay High Court held (i) the period from March 01, 2020 to May 31, 2020 during which there is a lockdown will stand excluded until the lockdown is lifted, (ii) the reprieve is predicated on the lock down and not RBI moratorium, (iii) the borrower was put to terms as a consequences for non-compliance.

Delhi High Court: Invocation of Bank Guarantees: Halliburton Offshore Services Inc. v. Vedanta Ltd.[14] , April 20, 2020:

On an application filed by Halliburton Offshore Services Inc., which sought to restrain Vedanta Ltd. from encashing 8 bank guarantees issued in its favour to secure performance of obligations under a contract to drill petroleum wells, the Delhi High Court granted interim relief observing that the petitioner is not engaged in, stricto sensu, in the production of petroleum, but is, rather, engaged in drilling of wells, which activity is substantially impeded by the imposition of the lockdown and thereby an ad interim injunction, restraining  invocation or encashment of the bank guarantees, till the expiry of exactly one week from May 3, 2020 was granted.

Delhi High Court: Ramanand  v. Dr. Girish Soni[15], May 21, 2020

Application made by the petitioner (tenant), seeking suspension of rent on account of ’force majeure’ due to COVID-19 lockdown, the Single Judge observed that:

  • There is no rent agreement or lease deed between the parties, Section 32 of the Contract Act has no applicability.
  • The subject premises is governed by the provisions of the Delhi Rent Control Act, 1958 hence, Section 56 of the Contract Act does not apply to tenancies.
  • The petitioners have not urged that the tenancy is void under Section 108 (B)(e) of the TPA.
  • Considering factors such as nature of the property, financial and social status of the parties, amount of rent, any contractual condition(s) (relating to non-payment or suspension of rent), protection under any executive order(s) by the MHA, the application of the petitioners was rejected while granting postponement or relaxation in the schedule of payment of rent. However, it was clarified by the court that doctrine of frustration of contract or impossibility of performance does not apply to lease agreements.

**Authors are Founder and Senior Associate respectively with Shivadass & Shivadass (Law Chambers). The contents and comments of this document do not necessarily reflect the views/position of  Shivadass and Shivadass (Law Chambers) but remain solely of the author(s). For any further queries or follow up, please contact admin@sdlaw.co.in.

[1] Section 32, Contract Act, 1872  

[2] Noti. No. F.18/4/2020-PPD

[3] Noti. No. 283A8/2020-GRID SOLAR 

[4] Months’ Rental Waiver to the IT Companies Operating from (STPI) dt. 16-4-2020 

[5] Section 56, Contract Act, 1872  

[6] 1954 SCR 310

[7] See, para 9 of Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310

[8] (2017) 14 SCC 80

[9] [1961] 2 WLR 633 : 1961 (2) All ER 179 

[10].Rural Fairprice Wholesale Ltd.  v. IDBI, 2020 SCC OnLine Bom 518

[11] Anant Raj Limited v. Yes Bank Limited, 2020 SCC OnLine Del 543

[12] Commercial Arbitration Petitions Nos. 404 to 408 of 2020, judgment dated 08.04.2020

[13] 2020 SCC OnLine Bom 626

[14] 2020 SCCOnLine Del 542

[15] RC. REV447/2017, order dated 21-5-2020

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ., addressed a petition wherein writ of mandamus was sought to direct the respondent to issue a Standard Operating Procedure to be followed while re-opening all religious places of worship in physical function.

Bench dismissed the above stated issue on not finding any merit as the government did not take any decision as to when the temples are to be reopened.

Thus, Court in view of the above, cannot issue any direction to the Government to issue a Standard Operating Procedure. [M. Jayabharathi v. State of T.N., 2020 SCC OnLine Mad 1137 , decided on 08-06-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: In the batch of petitions challenging clause (iii) of the Ministry of Home Affairs order dated March 29, 2020 directing the industries, shops and commercial establishments to pay full salary/wages to all its staff, workers, contract workers, casual workers during the period of lockdown, the 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that

“efforts should be made to sort out the differences and disputes between the workers and the employers regarding payment of wages of above 50 days and if any settlement or negotiation can be entered into between them without regard to the order dated 29.03.2020, the said steps may restore congenial work atmosphere.”

MHA Order dated 29.03.2020

The said order issued after a large number of migrant workers had started marching towards their hometowns amidst Coronavirus Lockdown. It lays down directions for adequate arrangements of food and shelter for migrant workers. It also directs the landlords to not demand the payment of rent from migrant workers.

However, only Clause (iii) of the impugned MHA order is under challenge in the present batch of petitions. The said clause reads:

“All the employers, be it in the industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during lockdown period.”

Ground for challenge

The petitioner’s case is that notifications are arbitrary, illegal, irrational and unreasonable and contrary to the provisions of law including Article 14, Article 19(1)(g). Notifications are unreasonable and arbitrary interference with the rights of petitioner Employers under Article 19(1)(g). Notifications are also contrary to the principles of Equal work Equal Pay and also No work No pay, for it does not differentiate between the workers who are working during the lockdown period in establishment such as the petitioner who have been permitted to operate during the lockdown period and the workers who had not worked at all.

The Home Secretary, Ministry of Home Affairs, Government of India, cannot invoke Section 10(2)(l) or any other provisions of Disaster Management Act, 2005, to impose financial obligations on the private sector such as payment of wages.

“The Central Government has the power to allocate funds for 6 emergency response, relief, rehabilitation, mitigation of disasters under Disaster Management Act. The ultimate onus for any compensation towards workers shall ultimately be of Government and the said liability cannot be shifted upon the employers in the Private establishment.”

Order of the Court

The Court noticed that all industries/establishments are of different nature and of different capacity, including financial capacity. Some of the industries and establishments may bear the financial burden of payment of wages or substantial wages during the lockdown period to its workers and employees. Some of them may not be able to bear the entire burden. Hence, a balance has to be struck between these two competitive claims.

i. The private establishment, industries, employers who are willing to enter into negotiation and settlement with the workers/employees regarding payment of wages for 50 days or for any other period as applicable in any particular State during which their industrial establishment was closed down due to lockdown, may initiate a process of negotiation with their employees organization and enter into a settlement with them and if they are unable to settle by themselves submit a request to concerned labour authorities who are entrusted with the obligation under the different statute to conciliate the dispute between the parties who on receiving such request, may call the concerned Employees Trade Union/workers Association/ workers to appear on a date for negotiation, conciliation and settlement. In event a settlement is arrived at, that may be acted upon by the employers and workers irrespective of the order dated 29.03.2020 issued by the Government of India, Ministry of Home Affairs.

ii. Those employers’ establishments, industries, factories which were working during the lockdown period although not to their capacity can also take steps as indicated in direction No.(i).

iii. The private establishments, industries, factories shall permit the workers/employees to work in their establishment who are willing to work which may be without prejudice to rights of the workers/employees regarding unpaid wages of above 50 days. The private establishments, factories who proceed to take steps as per directions (i) and (ii) shall publicise and communicate about their such steps to workers and employees for their response/participation. The settlement, if any, as indicated above shall be without prejudice to the rights of employers and employees which is pending adjudication in these writ petitions.

iv. The Central Government, all the States/UTs through their Ministry of Labour shall circulate and publicise this order for the benefit of all private establishment, employers, factories and workers/employees.

Union of India may file a detail counter affidavit for which the leave they have already prayed for in the common counter affidavit, within a period of four weeks. Rejoinder to which to be filed within a period of one week and all the matter to be listed again in last week of July,2020.

Continuation of order dated 04.06.2020

In our order dated 04.06.2020, the Court had directed,

 “In the meantime, no coercive action, against the employers shall be taken pursuant to notification dated 29.03.2020.”

The Court, in the present order, made it clear that the said order shall continue in all the matters.

[Ficus Pax Private Limited v. Union of India, 2020 SCC OnLine SC 503 , order dated 12.06.2020]


Also read:

MHA order dated 29.03.2020

No coercive action till June 12 against employers for non-payment of full wages

Order dated 15.05.2020 granting interim relief in Hand Tools Manufacturers Association’s case

Fact Check: Did the Supreme Court pass any order staying MHA Order dated 29-03-2020 directing private companies to make full payments to their employees?

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Hima Kohli and Subramonium Prasad, JJ. while dismissing a petition that challenged the MHA Notification of phased reopening of the country after nationwide lockdown, imposed a cost of Rs 20,000 due to wasting judicial time.

Petitioner’s Challenge; Unlock-1

Petitioner while challenging the MHA Guidelines on phased reopening of the country, he states that it would result into rampant spread of COVID-19.

The impugned notification will deprive citizens of their basic fundamental rights such as life and it ignores the health of its citizens by exposing them to the threat of COVID-19.

He adds to his contentions that, it Government has driven only by economic considerations at the cost of people’s lives.

Judicial Notice

Bench states that it can take judicial notice of the fact that the lockdown resulted into loss of jobs, forced people to walk for considerable distance and stand in long queues at food distribution centres to have two square meals a day.

Economic situation of the country took a terrible hit. Economists have also forecasted that Indian economy will shrink as a result of the steps taken to contain Corona virus pandemic.

Series of orders were passed by the Government to tackle the situation and ensure minimum hardship to the people.

Court can also take judicial notice of the fact that world over, the trend is now to reduce the restrictions which were imposed due to lockdown and to return to normal life.

In order to ensure a proper balance between containing the spread of COVID-19 pandemic and at the same time make certain that people are not forced to starvation the Government has issued the impugned order.

Re-opening has been directed in a phased manner and is not a decision that appears to have been taken in haste.

Government if finds that the rate of infections is going up, they can always review their decision and impose curbs accordingly.

Courts cannot interfere with the policy either on the ground that it is erroneous or on the ground that a better or a wiser alternative is available.

Petitioner has failed to show how the impugned order is arbitrary or is based on such irrelevant consideration that it deserves to be struck down.

In Court’s opinion, the present petition has only been filed to gain publicity.

Dictum of guidelines as laid down in the Supreme Court’s Judgment of State of Uttaranchal v. Balwant Singh Chauful, (2010) 3 SCC 402, has also not been followed in the present matter.

Bench further stated that during the course of hearing, petitioner was given warning that if he presses the petition, costs will be imposed, despite which the petitioners’ counsel continued addressing the arguments and wasting the judicial time.

Thus, cost of Rs 20,000 have been imposed on the petitioner with the dismissal of his petition.[Arjun Aggarwal v. UOI, 2020 SCC OnLine Del 642 , decided on 12-06-2020]


Also Read:

Breaking | Lockdown to continue in Containment Zones till 30th June, 2020; Phased reopening of areas outside Containment Zones | Places of worship, Malls, Hotels to re-open?

MHA Guidelines