Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Case BriefsHigh Courts

Manipur High Court: The Division Bench of KH. Nobin Singh and A. Bimol Singh, JJ., issued certain directions in response to a Public Interest Litigation which was filed by a resident of Chalou Maning Leikai, contending that after the said village having been declared as a Containment Zone, no water is available for the reason that the Water Tankers are reluctant to come to the area for supply of water.

It was prayed that the authorities be directed to comply with the interim guidelines issued by the WHO. The scope of this PIL was expanded to cover all the areas and in particular, the Containment Zone areas only in the State of Manipur.

On 28-07-2021 Court while issuing notice to the respondents had passed an interim order directing that the Deputy Commissioner, Imphal East shall be instructed by the State Government to supply water at the expense of the residents.

As regards the other containment zone areas in Manipur, the Court while disposing of this PIL, was of the view that the following directions be issued:

  • The Department of PHED, Government of Manipur is directed to publish the contact numbers of the concerned Executive Engineers, PHED in the local dailies within a week from today;
  • If any person who resides in any containment zone area, is in need of water on account of the fact that the area has been declared as the containment zone area, may contact the Executive Engineer, PHED of the concerned area over the telephone number notified and make a request for supply of water;
  • In the event of such a request being made by any person from any of the containment zone areas, the Executive Engineer, PHED of the concerned area shall supply the water for which the cost is to be borne by the residents of the area.

[Moirangthem Maipak Singh v. State of Manipur, PIL No. 38 of 2021, decided on 02-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Patna High Court: A Division bench of Sanjay Karol, CJ and S. Kumar, J., addressed two crucial issues revolving around the COVID-19 Pandemic.

Issues raised for consideration:

  • Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
  • Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?

Advocate Parul Prasad by way of Public Interest Litigation brought to the Court’s notice the following issue:

“rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.”

Petitioner submitted that due to the sheer size and population of the State of Bihar and continued government efforts, they were unable to reach each and every person in need.

Adding to the above, petitioner stated that in the interest of the rights of persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and were in an excellent position to assist the State Government, be engaged in the relief operations.

Petitioner prayed for the following reliefs:

  • Direction to the State of Bihar to follow directions and guidelines of the NITI Aayog for allowing representatives of the CSOs and NGOs to aid and supplement the efforts of the State in extending help for the needy during the pandemic.
  • Directions to permit the representatives of CSOs and NGOs to accompany State officials to ensure transparency in the distribution of relief materials provided by the CSOs.
  • Directions for the appointment of Nodal Officers at State and District levels to coordinate and regulate the work with CSOs & NGOs.
  • Directions to the State to ensure that arrangement of food and essential articles are made for Orphanages, Old Age Homes and Shelter Homes for the disabled, at the earliest.

NITI Aayog’s Directions: Advisory in nature

Chief Secretary of Bihar maintained that any direction by the NITI Aayog on the involvement of and taking help from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort.

An explainer of Court’s opinion

  • Letter of NITI Aayog for involving CSOs and NGOs and whether it was binding on the State?

NITI Aayog acts as the quintessential platform of the Government of India to bring States to act together in the national interest, and thereby fosters Cooperative Federalism.

Role of NITI Aayog

Role of NITI Aayog is that of think tank limited to giving directions and policy inputs which means that such directions/recommendations can be acceptable to the Central Government or State Government or may not be acceptable to the Central Government or State Government.

Ground Realities of the State

Bench stated that it is inclined to accept the State’s view that has repeatedly asserted that communication or guidelines issued by NITI Aayog are purely advisory in nature and leave in the open to the State to adapt their own policies keeping in view the ground realities of the State.

Nature of NITI Aayog’s letters: Advisory 

Further, the Supreme Court’s decision in Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154 was cited, wherein the Court held that the guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.

The above position was also followed by the Supreme Court in its recent decision of Praneeth K v. UGC, 2020 SCC OnLine SC 592, where the communication at issue was a letter of UGC directing universities to compulsorily conduct final examinations by a fixed date. The advisory nature of the guidelines issued by the UGC was vehemently argued before the Court. However, stating that guidelines/directions become binding when issued in exercise of statutory powers vested in the authority, it was held that the universities were mandated to adopt the guidelines.

In the instant matter, there was nothing in NITI Aayog’s letter that would show that it comes in the exercise of a statutory authority vested in the NITI Aayog.

“…it is the stand of the NITI Aayog itself that the letter to the state government was advisory in nature and not binding on the state government.”

Hence, Bench agreed with the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs.

  • Whether the CSOs and NGOs have an enforceable right against the State to be engaged in relief operations.

Every person has a right to receive effective help, which ensures to them a right to life and livelihood guaranteed under Article 21 of the Constitution.

In times of disaster, civil society has always stepped in to provide relief and assistance and has always worked towards ensuring the socio-economic rights of the most vulnerable.

Therefore, it is a matter of significance that a continued relationship of mutual trust exists between the State and these organizations in providing help to the needy.

The role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

Supreme Court in its decision of Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381 acknowledged the above stand.

Further, the guidelines of the WHO in its Covid-19 preparedness strategies, direct all countries to establish national strategies and implement National Action Plans, and one of the core pillars of the plans highlights the need for coordination and planning efforts, which included interventions by NGOs and CSOs.

Good Governance and Salus Populi (Est) Suprema Lex

Good governance directly flows from this concept of governance and consists of ensuring the rule of law, effectiveness and accountability in governance processes.

In the Supreme Court’s decision of Manoj Narula v. Union of India, (2014) 9 SCC 1, the maxim, Salus Populi (est) suprema lex was invoked to stress that in a democracy, it was the public interest that is at the heart of good governance.

In a plethora of cases, the Apex Court has recognized the role of civil society in ensuring good governance in the country. Over the years the Court has directed the State to engage the civil society organizations in their efforts to ensure the utmost welfare of numerous vulnerable groups.

Bench reiterated the Supreme Court’s sentiment in Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381, where the Court was pleased to point out that in many situations, the NGOs had a better position to reach out to the needy than the State itself and therefore the sate ought to leverage such services of the Civil Society.

Role of the Civil Society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however, a coordinated effort of all functionaries is paramount.

Decision

For the State’s consideration, the High Court laid down the following directions for enforcement to the extent possible:

  • Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance.
  • Allow CSOs and NGOs to conduct relief operations. Civil Society forms the fourth institution of democracy.
  •  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.
  • Strive to form policies that allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women’s rights, transgender rights, etc.
  • Accountability of all institutions essential. Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations.
  • Leverage the information and knowledge-bases of CSOs and NGOs.
  • Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts and involve them in relevant projects.
  • Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people.
  • Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.
  • Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

While parting with its decision, Court stated that it hopes and expects that the State itself makes optimum use of all the aid and assistance being extended by all the organizations and by engaging them to ensure that relief reaches the maximum number of persons, including the farthest corners of Bihar.

In view of the above, the petition was disposed of. [Parul Prasad v. State of Bihar, Civil Writ Jurisdiction Case No. 5609 of 2020, decided on 09-09-2020]

Op EdsOP. ED.

When the existence of the novel Coronavirus started featuring in the news space following China’s confirmation of its spread in the month of January, 2020, it was considered a novel, elusive actuality. It did not qualify as sufficient cause for concern and alarm which could have potentially sparked much needed preparations. However, in the past three months, the number of confirmed cases and resultant deaths due to Covid-19 (the disease caused by Coronavirus) has risen exponentially across the globe leading the World Health Organisation (WHO) to officially declare the corona virus outbreak as a “pandemic” on 11-3-2020[1].

In such persisting circumstances, the Government of India, in its endeavour to contain the extraordinary outbreak of the Coronavirus and its staggering effects, declared a nationwide lockdown. In the face of the unprecedented situations which have arisen as a result of the complete lockdown, many facets of our system find themselves temporarily inoperative. The disruption of the supply chain is one such inevitable corollary. Given this context, it is likely that performances under many existing contracts will be interrupted, postponed or cancelled. Such state of affairs then throws open many questions viz: Can the present day situation posed by COVID-19 pandemic qualify as “Force Majeure”, whether or not parties to the contracts/agreements can plead for being excused from performing their part of the contract citing force majeure and how will the contracts/agreements wherein, there is no specific force majeure clause would be governed in situation of supervening impossibility etc. This article would attempt to cover answers to all the afore-mentioned questions in light of the existing statutory provisions and the law laid down by the various courts of law in form of case laws.

Meaning of Force Majeure

The concept of force majeure[2] owes its origin to Roman Law which recognised the principle of “clausula rebus sic stantibus” which provides that obligations under a contract are binding so long as the situation existing at the time the contract was entered into fundamentally remains the same. The term force majeure refers to an event or effect that can be neither anticipated nor controlled. To put it differently, any event or circumstance which is within the reasonable control of the contracting parties does not qualify as force majeure. Legally, it is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled[3]. From a contractual perspective, the concept gains significance in as much as it provides protection to contracting parties in cases of virtual and actual impossibility of performance of contract. Hence, where reference is made to force majeure, the intention is to save the performing party from consequences of anything over which he has no control[4].

Force Majeure and Contract Act, 1872

While the provisions contained in the Contract Act, 1872 neither define the term ‘force majeure’ nor do they typically spell out the specific circumstances and events which would qualify as ‘force majeure events’, nevertheless the references to the same may be gathered from certain specific provisions laid therein.

In cases where the contract entered into between the parties contains an express or implied force majeure clause, defining the type of events, such as war, terrorism, earthquakes, hurricanes, acts of government, plagues or epidemics etc., the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt with under Section 32 of the Contract Act, 1872[5]. A force majeure clause should be construed in each case with a close attention to the words which precede or follow it, and with due regard to the nature and general terms of the contract. The effect of the clause may vary with each instrument[6]. The relevant provision as contained in Section 32 of the Contract Act, 1872 is as follows:

32. Enforcement of Contracts contingent on an event happening.- Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void.

However, when no relevant event is mentioned in a contract, the occurrence of which frustrates the very purpose of the contract, the provision contained in Section 56 of the Act comes into play. Section 56 of the  Contract Act, 1872 embodies the “doctrine of frustration”. Briefly, “frustration” is an English contract law doctrine that acts as a device which serves to dissolve a contract when, as a result of an unforeseen instance, the obligations covered by it are rendered impossible to fulfil or the principal purpose for entering into the contact on the part of either party is fundamentally altered[7]. Generally speaking, the doctrine of frustration as embodied in Section 56 is relied upon for termination of contract. Section 56 of the  Contract Act, 1872 reads as follows:

56. Agreement to do impossible act.- An agreement to do an act impossible in itself is void.

Contract to do act afterwards becoming impossible or unlawful. A contract to do an act which, after the contract made, becomes impossible or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

Compensation for loss through non-performance of act known to be impossible or unlawful. Where one person has promised to do something which he knew or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise.

As is manifest from the perusal of the aforementioned provision, the first paragraph of Section 56 provides that an agreement to do an act impossible in itself is voidwhile the second paragraph of the same lays that a contract to do an act becomes void when such an act becomes: (a) impossible; or (b) unlawful by reason of some event which the promisor could not prevent. Under Section 56, the court can proceed to grant relief on the ground of subsequent impossibility when the very foundation of the contract becomes upset by the happening of an unforeseen event which was not anticipated by the parties at the time when the contract was entered into by them[8]. Such event or change must be so fundamental as to be regarded by law as striking at the root of contract as a whole[9]. Therefore, where performance is rendered invalid by intervention of law, or where the subject-matter assumed by the contracting parties to continue to exist is destroyed or a state of thing assumed to be the foundation of the contract fails, or does not happen, or where the performance is to be rendered personally by a person who dies or is disabled, the contract stands discharged[10]. Thus, in a nutshell, it can be said that where there is clear stipulation in the terms of the contract upon which the performance of the contract is dependant, such contracts would be governed by Section 32 of the Contract Act, 1872 and wherever, there is no such stipulation in the contract, such contracts would be governed by Section 56 of the  Contract Act, 1872 in cases a supervening impossibility arises. The said applicability of Section 32 vis-à-vis Section 56 of the Contract Act, 1872 has recently been delved into by the  Supreme Court of India as an ancillary issue in  National Agricultural Cooperative Marketing Federation of India v. Alimenta S.A.[11]

Whether situation posed by COVID-19 pandemic qualifies as Force Majeure event?

In response to the potential ramifications of the Covid-19 pandemic in the functioning of the economic and industrial machinery, notifications and advisories have been issued by the Government of India in an attempt to bring in some semblance of stability.

For instance, on 19-2-2020, the Ministry of Finance, Government of India issued a notification[12] clarifying that the disruption of supply chains due to the spread of coronavirus should be considered as a case of natural calamity and force majeure clause may be invoked, wherever considered appropriate, following due procedures. The aforementioned notification further stipulates that “coronavirus should be considered as a case of natural calamity and force majeure may be invoked, wherever considered appropriate, following the due procedure…a force majeure clause does not excuse a party’s non performance entirely, but only suspends it for the duration of the force majeure. The firm has to give notice of force majeure as soon as it occurs and it cannot be claimed ex-post facto…If the performance in whole or in part or any obligation under the contract is prevented or delayed by any reason of force majeure for a period exceeding ninety days, either party may at its option terminate the contract without any financial repercussion on either side”. However, the aforesaid Office Memorandum may not necessarily or implicitly serve as binding document for the contracting parties, being more in the form of an advisory or recommendation. 

In addition to the above, the question as to whether COVID-19 outbreak along with its consequential restrictions including the quarantines, travel restrictions or other related limitations on normal business imposed by government would qualify as force majeure, would depend on the language of the clause and the rules of legal interpretation of force majeure clauses[13]. Hence, the wordings used in different clauses of the contract assume salience in order to find out as to whether or not parties to the contracts/agreements can plead for being excused from performing their part of the contract citing force majeure given the situation posed by the COVID-19 pandemic. For the aforesaid purpose, further discussion in this article is broadly categorised into two headings — (i) Firstly, cases where force majeure clause is enshrined in the contract itself, and (ii) Secondly, cases where force majeure clause is not enshrined in the contract.

1. If Force Majeure Clause is enshrined in the Contract

Pertinently, if the force majeure clause in the contract refers to a pandemic or an epidemic, the same may be pleaded and urged by contracting parties where performance of the contract entered between them has become practically and commercially impracticable on account of COVID-19 outbreak. Where a contracting party seeks to claim relief under the force majeure clause, the occurrence of one of the events set out in the force majeure clause is needed to be proved and the burden of proof lies on the party which invokes the force majeure clause.

Now, in contracts where the force majeure clause explicitly covers pandemics and epidemics or situations arisen by responses to the pandemic or epidemic, the discharge of the aforementioned burden remains fairly uncomplicated. However, complications arise in a scenario where a force majeure clause simply uses the phrase ‘event beyond the reasonable control of parties’. Here, to facilitate swift and favourable discernment of disputes, it becomes vitally important for the party invoking the force majeure clause to maintain any and all documents related to the event in question which may prove to be consequential in the ascertaining process. In regard to this discussion, the said documents may include (i) any notification and/or guideline issued by the national and/or state governments imposing restrictions on trade, (ii) definite forms of information from reliable media sources related to COVID-19 outbreak, restrictions on public movement and/or mandatory shutdown of modes of travel (iii) documents revealing any cancellations disrupting travel itinerary, such as cancelled/rejected visa et al.

2. If Force Majeure Clause is not enshrined in the Contract

As has been discussed earlier, when an event which is not mentioned in the contract takes place which frustrates the very purpose thereof, the provision contained in Section 56 of the Contract Act, 1872 shall come into play. The  Supreme Court of India, while explaining the concept of frustration in contract law in Satyabrata Ghosh v. Mugneeram Bangur & Amp; Co.[14] has held that the word “impossible” has not been used with respect to physical or literal impossibility. Where an unexpected occurrence or change in circumstances decimates the very objective of the contract the same may be considered as “impossibility” to do as agreed.

A study of the landmark judgments rendered by the  Supreme Court of India over the course of time showcases a very high threshold to apply the concept of force majeure which requires the entire foundation of the contract to be shown to be obliterated. An existing contract shall cease to bind the contracting parties only when consideration of the terms of the contract, in light of the circumstances existing when it was entered into, shows that there was no agreement to be bound in a fundamentally different and unexpected situation. The performance of a contract is never discharged merely on the ground that the same may become onerous to one of the parties[15]. In order elucidate and highlight the threshold defined by the Indian courts for citing force majeure by contracting parties, certain celebrated judgments rendered by the Supreme Court are discussed below:

In Satyabhrata Ghose case (supra), it was held by the Supreme Court of India that the contract of sale for a chunk of land was not frustrated and performance thereunder could not be said to be rendered impossible under Section 56 of the Contract Act, 1872 merely because the said land had been requisitioned by the Government for military purposes during the Second World War. The Supreme Court even went ahead to observe that during the war, the parties could naturally anticipate restrictions of various kinds which would make performance under contracts more difficult than in times of peace and therefore, the requisitioning of the land which formed the subject matter of the contract of sale could not be said to affect the fundamental basis upon which the agreement rested or strike at the roots of the adventure.

Likewise, in Alopi Parshad & Sons Ltd. v. Union of India[16], the claim of the appellant for enhanced prices for supply of ghee for Army personnel during the second world war was rejected by the Supreme Court despite enormous scarcity and enhanced procurement expenses owing to conditions of war and it was categorically held by the court that the parties to an executory contract are often faced with a turn of events which they did not at all anticipate, such as, an abnormal rise or fall in prices, a sudden depreciation of currency etc. However, the same does not per se affect the bargain they have made.

In Naihati Jute Mills Ltd v. Hyaliram Jagannath[17] while observing that it is not hardship or inconvenience or material loss which brings about the principle of frustration into play, the Supreme Court held that rejection of an import licence to a jute supplier sourcing Pakistani jute could not be said to have rendered performance under the contract entered into between the parties as impossible.

More recently, in Energy Watchdog v. Central Electricity Regulatory Commission[18] the rise in price of coal consequent to change in Indonesian Law, which though admittedly rendered the contract commercially impossible, was not treated as a force majeure event by the Supreme Court as neither was the fundamental basis of the contract, which in this case was to generate and supply energy from coal, was shown to be dislodged nor was any frustrating event, except for a rise in the price of coal, pointed out. On the contrary, the Court observed that where alternative modes of performance of obligations under the contract were available, albeit at a higher price, the same could not be treated to have been frustrated.

Conclusion

There is no gainsaying that the behemoth of COVID-19 has inter alia virtually brought economic activity to a halt and has disturbed the chain of production, supply and distribution. However, it would be extremely difficult, if not impossible; to prove beyond reasonable doubt that disruptions qua unprecedented outbreak of COVID-19 pandemic have radically and irreversibly dislodged the very bargain contemplated in a contract, particularly in view of the temporariness of such disruptions or for that matter the full probability of resumption of the “pre-Corona” times. Mere inconveniences, difficulty, pause or delay in performance of obligations under a contract owing to COVID-19 pandemic and its consequential restrictions would not hold ground to treat the same as a force majeure event given the little judicial importance offered by the courts of law to such parameters while defining the high benchmark for force majeure to apply. However, given that the Courts would assess the application of concept of force majeure in light of the facts and circumstances of each case presented before them, by either resorting to principle of equity or by adopting a more technical approach, it would be imperative for the contracting parties be thorough with the terms and clauses incorporated in the contract as well as their contractual rights and obligations thereunder.


*Author is a graduate of University of Cambridge (United Kingdom) with a specialisation in Commercial Laws. Currently practicing law before the Lucknow Bench of Allahabad High Court.

**Co-Author is a gold medallist in law from Unity Post Graduate and Law College Lucknow (affiliated to Lucknow University, Lucknow). Currently practicing law before the Lucknow Bench of  Allahabad High Court.

The authors deeply acknowledge the guidance of Mr. Gaurav Mehrotra, Advocate

[1] See World Health Organisation Virtual Press Conference on Covid-19, 11th March 2020 available at https://www.who.int/docs/default-source/coronaviruse/transcripts/who-audio-emergencies-coronavirus-press-conference-full-and-final-11mar2020.pdf?sfvrsn=cb432bb3_2

[2] The term force majeure has been borrowed from French, the literal translation whereof is “superior force” in English.

[3] Black’s Law Dictionary, 11th Edition, at page 788.

[4] Dhanrajamal Gobindram v. Shamji Kalidas & Co., (1961) 3 SCR 1020

[5] Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310

[6] Lebeeaupin v. Crispin, (1920) 2 K.B. 714 

[7] Taylor v. Caldwell , (1863) 3 B & S 826

[8] Naihati Jute Mills Ltd. v. Khyaliram, (1968) 1 SCR 821 

[9] Satyabhrata Ghose v. Mugneeram Bangur, 1954 SCR 310

[10] Raja Dhruv Dev Chand v. Harmohinder Singh, (1968) 3 SCR 339 

[11] 2020 SCC OnLine SC 381  

[12] Office Memorandum No.F. 18/4/2020-PPD titled ‘Force Majeure Clause’, issued by Department of    Expenditure, Procurement Policy Division, Ministry of Finance, Government of India

[13] Mulla & Pollock on Indian Contract Act, 1872 & Specific Relief Act, 1967, page 1181.

[14] 1954 SCR 310 (12) 

[15] Alopi Parshad & Sons Ltd. v. Union of India, 1960 (2) SCR 793

[16] 1960 (2) SCR 793

[17] (1968) 1 SCR 821

[18] (2017) 14 SCC 80

COVID 19Op EdsOP. ED.

nCOVID19 was declared a pandemic by the World Health Organization (WHO) Director-General, Dr Tedros Adhanom Ghebreyesus on 11-3-2020 noting a 13-fold increase in the number of cases over the preceding two weeks [1] . Since then steps are being taken by Governments across the world to address the issue. Countries are under lockdown, the Unites States of America, Italy, Germany and India are few examples [2] . When Governments start adopting strict measures, this leads to curtailment of rights and they are always questioned, irrespective of their political wisdom. In the following paragraphs, I aim to adopt a communitarian approach to explain the moral precision of steps taken by the Governments across the globe.

Communitarianism works on the premises that one’s place in the economy, standing in the political order, reputation among fellows and holdings: all of these come from other men and women [3] . The emphasis is laid on importance of the society rather than centrality of the individual [4]. It strives to weigh particularism against universalism and argues that the search for a common point of unity for everyone leads to misunderstanding and misleading distributive justice [5].

Lockdowns are given two communitarian interpretation viz. authoritarian and liberal. Some authors like John Authers claim that when China asked people in its Wuhan province to stay inside their houses for the good of the community, it was authoritarian communitarianism [6]. Whereas some like Xavier Symons claim it to be liberal communitarianism as, in essence, the step was taken to protect the most vulnerable group of people in the community i.e. to protect elders [7].

Recently talking about the concerns regarding the pandemic, Michael Sandel expressed his idea of common good as [8]

“The common good is about how we live together in community. It’s about the ethical ideals we strive for together, the benefits and burdens we share, the sacrifices we make for one another. It’s about the lessons we learn from one another about how to live a good and decent life.”                          

(emphasis supplied)

Consideration was given to the proposal of ‘herd immunity’. It is an epidemiological concept where it is believed that the majority of the people are sufficiently immune to the disease and if is it allowed to run enough people can’t get the disease [9]. Michael Sandel argues that in a modern society when we consider such options, we lack solidarity [10]. From Sandel’s perspective this is similar to the state of nature or Social Darwinism – which demands the survival of the fittest [11].

If we start considering economy over health, we do a cost-benefit analysis, which leads back to Jeremy Bentham’s idea of Utilitarianism. A cost-benefit analysis in times of pandemic if not worse is similar to the cost-benefit analysis done by Philip Morris & Co. for the Czech Republic to balance out the tax revenues and cost incurred in the treatment of lung cancer [12]. Similarly, sending people back to work for the sake of the economy is a Utilitarian approach.

The Rawlsian idea could also be a rescue in this situation. It rests on the principle ‘do to others what you expect others to do to you’. The idea of the veil of ignorance in the original position and acting as a rational individual are means to achieve this fundamental principle in a hope to achieve a just society [13]. In addition to that, the difference principle in Rawls’ ‘A Theory of Justice’ asks everyone in society to work for the betterment of the most vulnerable ones [14]. In nCOVID19 scenario, the most vulnerable ones are the elderly and every individual in the society must consider their betterment and adhere to ‘social distancing’ and ‘lockdown regulations’.

Communitarians argue that freedom of choice, even under fair conditions can be a basis for a just society and rights cannot be prioritised over the common good [15]. There are some obligations we owe to the society and these obligations do not require our consent [16]. Everyone has an obligation towards each other and hence the libertarian argument ‘If I get Corona, I get Corona’ [17] is morally flawed. Even the escape route of the doctrine of double effect cannot save people who support this line of thought. The doctrine of double effect discusses the permissibility of an action which might cause harm [18]. According to the doctrine, if there is some harm as a side-effect of action, it is permissible if the harm was not intended. However, the 22-year-old chanting ‘I get Corona, I get Corona’ will be ethically liable for spreading the virus. The individualistic approach which claims responsibility for the choices/actions that an individual makes knocks down the basic idea of society, where people have an obligation towards each other.

Having addressed these questions, I will briefly discuss the communitarian approach in the institutional nCOVID19 war. Any institutionalised body engaged in the war against nCOVID19 with a broad representation of the stakeholders (doctors, nurses, practitioners, administrators, patients and people in general) when functions well, like South Korea, it provides a typical as well as a beautiful example of communitarian democracy [19]. They work together to constitute an optimum society (safe environment, proper functioning hospitals, maintained supply of essential services, etc.) visioned by the members of the particular community [20]. When viewed through a communitarian lens, any conflict resolution with respect to solutions for any infectious disease can be best arrived by envisaging the betterment of the community [21]. Thus, virtue-based communitarianism can be an option for States to adopt to fight an epidemic like nCOVID19. However, this should be achieved by considering the established rules and procedure (deontological approach) and results (consequentialism).


*Candidature 2023, National Law University, Jodhpur. The author can be reached at prakhar2602@gmail.com

[1] D. Cucinotta, “WHO Declares COVID-19 a Pandemic”, NCBI available at: https://www.ncbi.nlm.nih.gov/pubmed/32191675 last seen on 27/04/2020

[2] Coronavirus: US records 2,000 dead in a day as Italy and India extend lockdowns, The Guardian, available at: https://www.theguardian.com/world/2020/apr/11/coronavirus-us-records-2000-dead-in-a-day-as-italy-and-india-extend-lockdowns last seen on 27/04/2020.

[3] M. Walzer, Spheres of Justice, 3-4 (1st Edn. 1983).

[4] A. Etzioni, “Communitarianism”, The Encyclopedia of Political Thought, (1st Edn.) Institute for Communitarian Policy Studies, 1 available at  https://icps.gwu.edu/sites/g/files/zaxdzs1736/f/downloads/Communitarianism.Etzioni.pdf last seen on 27/04/2020.

[5] Ibid, at 4

[6] X. Symons, “Three political philosophies, and how they apply to the coronavirus pandemic”, BioEdge available at: https://www.bioedge.org/bioethics/three-political-philosophies-and-how-they-apply-to-the-coronavirus-pandemic/13387 last seen on 27/04/2020.

[7] Ibid

[8] J. Authers, “How Coronavirus is Shaking up the Moral Universe”, Bloomberg Opinion available at: https://www.bloomberg.com/opinion/articles/2020-03-29/coronavirus-pandemic-puts-moral-philosophy-to-the-test last seen on 27/04/2020.

[9] G. Meyerowitz – Katz,Here’s Why Herd Immunity Won’t Save Us From The COVID-19 Pandemic”, Science Alert available at: https://www.sciencealert.com/why-herd-immunity-will-not-save-us-from-the-covid-19-pandemic last seen on 20/04/2020.

[10] Supra 8

[11] T. L. Friedman, “Finding the ‘Common Good’ in a Pandemic”, N. Y. Times available at: https://www.nytimes.com/2020/03/24/opinion/covid-ethics-politics.html?searchResultPosition=6 last seen on 20/04/2020.

[12] M. Sandel, “Justice: What’s the Right Thing to Do?”, 42 (1st Edn. 2009)

[13] L. Wenar, “John Rawls”, Stanford Encyclopedia of Philosophy available at: https://plato.stanford.edu/entries/rawls/ last seen on 20/04/2020.

[14] Ibid

[15] Supra 12, at 22-=21

[16] Ibid at 225

[17] If I get corona, I get corona: the Americans who wish they’d taken Covid-19 seriously”, The Guardian available at: https://www.theguardian.com/lifeandstyle/2020/mar/28/americans-who-dont-take-coronavirus-seriously last seen on 20/04/2020.

[18] A. Mcintyre, “Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy, available at: https://plato.stanford.edu/entries/double-effect/ last seen on 20/04/2020.

[19] C.S. Bryan, “The Ethics of Infection Control: Philosophical Frameworks. Infection Control and Hospital Epidemiology”, 28 (9) Cambridge University Press, 1077, 1080 (2007) JSTOR, www.jstor.org/stable/10.1086/519863 last seen on 20/04/2020.

[20] Ibid

[21] Ibid

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J.noted the following while addressing the present petition,

“…push forward the efforts taken by this nation including the State of West Bengal in fighting the pandemic COVID­19 which is a matter of grave concern for all stakeholders and the entire citizenry of this nation.”

Petitioner sought direction to the respondent authorities to make widespread and rapid testing among the population of West Bengal for COVID 19 for early detection and prevention of further spread.

Further direction on the respondent authorities is sought for taking immediate step to convert Calcutta Medical College for use only to house COVID­19 patients and also for improving health infrastructure by arranging sufficient test kit and/or protection measures for doctors to make it compatible to combat the present pandemic situation.

Adding to the above, petitioner also sought direction to ensure supply of food materials to all sections of marginalized people including migrated workers, pregnant women, young mothers and children.  

Petitioner sought an order from the Court directing the State to prepare and submit before the Court a plan for rapid testing and/or increasing the amount of testing for COVID­ 19 among the population in West Bengal

Bench stated that while the Government has issued advisory to the Health Authorities in the State regarding testing of samples as per ICMR’s latest testing protocol, it tends to indicate that more than 300 samples are tested daily.  

“…it is necessary that the official respondents give a deeper look to the requirement of more number of samples being collected and subjected to tests on war­ footing.”

Court also stated that, having regard to the fact that the ICMR testing protocol and WHO guidelines require adherence to effective screening on war ­footing, Bench needs to be told by the State as to the acceleration of the rate of sample collection and testing which is being obtained on the aforesaid basis.

State Government is expected to place a report on the following:

quarantine, managing the COVID­19 cases, that is to say the doctors, nurses, para­medical persons and the other health service oriented persons as well as those coming into regular close contact with such situation, there is deficit in facilities for their protection and safety from the point of view of health.

WHO and ICMR being expert authorities in the field, their guidelines and advisories are required to be followed by all stake­holders.

Matter to be posted on 23-04-2020. [Dr Faud Halim v. State of W.B., 2020 SCC OnLine Cal 738 , decided on 17-04-2020]

COVID 19Hot Off The PressNews

India’s response to COVID-19 has been pre-emptive, pro-active and graded. India had already put in place a comprehensive response system at its borders much before WHO declared it as a public health emergency of international concern (30th January).

Screening of incoming air passengers followed by suspension of visas and and ban on international flights was done much ahead of any other country.

Thermal screening of incoming international passengers from China and Hong Kong was started on 18th January, much before the first case of Coronavirus was detected in India on 30th January, 2020,.

A look at the global scenario would highlight that Italy and Spain, which are devastated by COVID-19, had started screening of travellers 25 days and 39 days respectively after first reported case.

Central Government took a number of proactive measures, such as travel restrictions, adding more countries and airports for screening, suspension of visas and self quarantine measures to effectively contain, prevent and manage the spread of the disease. A chronology of the decisions taken so far is as follows:

  • 17th jan- Advisory issued to avoid travel to china
  • 18th Jan – thermal screening of passengers from China and Hong Kong
  • 30th Jan – strong advisory issued to avoid travel to China.
  •  3rd Feb – E- visa facility suspended for Chinese citizens.
  • 22nd Feb -Advisory issued to avoid travel to Singapore; Universal screening for flights from Kathmandu, Indonesia, Vietnam and Malaysia.
  • 26th Feb – Advisory issued to avoid travel to Iran, Italy and Republic of Korea. Passengers coming from these countries to be screened , and may be quarantined based on screening and risk assessment.
  • 3rd March: Suspension of all visas for Italy, Iran, South Korea, Japan and China; Compulsory health screening for passengers arriving directly or indirectly from China, South Korea, Japan, Iran, Italy, Hong Kong, Macau, Vietnam, Malaysia, Indonesia, Nepal, Thailand, Singapore and Taiwan.
  • 4th March: Universal screening of all International Flights. Quarantine or isolation at home or sent to hospital based on screening and risk profile
  • 5th March: Passengers from Italy or Republic of Korea need to get medical certificate before entry
  • 10th March, Home isolation: incoming international passengers should self-monitor health and follow govt. Dos and Don’ts: passengers with travel history to China, Hong Kong, Republic of Korea, Japan, Italy, Thailand, Singapore, Iran, Malaysia, France, Spain and Germany to undergo home quarantine for a period of 14 days from the date of their arrival
  • 11th March: Compulsory Quarantine- Incoming travellers (including Indians) arriving from or having visited China, Italy, Iran, Republic of Korea, France, Spain and Germany after 15th February, 2020 shall be quarantined for a minimum period of 14 days.
  • 16, 17, 19 March– Comprehensive advisory:

16 March

Expanded compulsory quarantine for travellers from or through UAE, Qatar, Oman, and Kuwait for a minimum of 14 days.

Travel of passengers from member countries of the European Union, the European Free Trade Association, Turkey and United Kingdom to India totally prohibited

17 March

Travel of passengers from Afghanistan, Philippines, Malaysia  prohibited

19 March

All Incoming international flights suspended, with effect from 22nd March

  • 25th March: extension of suspension of all incoming International Flights to India extended till 14th April 2020

With evolving global spread of disease, not only travel advisories were revised, but airport screening was also expanded to all airports.

After being screened by health authorities at the airports, passengers were quarantined or sent to hospitals, based on risk assessment by health authorities. Details of even those who were cleared by health authorities were shared with the state government authorities so that they can be kept under the surveillance of their respective state/UT governments for the required number of days.

Screening of passengers took place at 30 airports, 12 major and 65 minor pots and at land borders. Over 36 lakh passengers have been screened.

The statement that ‘prosperous Indians’ were allowed to return without screening, is preposterous. The government took swift action to put in a place a comprehensive and robust system of screening, quarantine and surveillance are part of its robust response to the public health crisis right from the beginning. This covered every traveller, Indians returning after business, or tourism, students as well as foreigners.

State governments have been regularly requested to maintain and further improve upon this surveillance so that the coverage is complete and there are no gaps. A meticulous system has enabled states to track down individuals who tried to avoid surveillance or who did not follow quarantine measures.us

As many as 20 Video Conferences by Union Health Secretary with State Governments and 6 by the Cabinet Secretary with the State Chief Secretaries have been held to review the and step up the preparedness to deal with the Corona issue. Integrated disease surveillance system, which includes monitoring of international travellers, is one of the many issues discussed in these Video Conferences.


Ministry of Information & Broadcasting

Press Release dt. 28-03-2020

[Source: PIB]