Tag Archives: pandemic

Constitution, Health, Human Rights, pandemic, Right to Health

LEGAL ISSUES IN A PANDEMIC

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Abhiremya Raj R B

CSI Institute of Legal Studies, Parassala

INTRODUCTION 

“Health is wealth but wealth stands with the people if people are healthy then public will be wealthy enough” 

 By late 2019,there was an unfamiliar outbreak known by the name “CORONA VIRUS” short named as COVID 19 and abbreviated to ‘CO’ stands for Corona, ‘VI’ stands for virus and as it was occurred in 2019 it is shown 19 . It is a respiratory disease which can even affect the whole body vulnerably and it has the ability to spread from one person to another by physical contact or any way of other contacts so that on January 2020 , World Health Organization had called a Public Health Emergency to control and prevent it’s spread . It was first found in Wuhan, China and said to be a manmade virus better known by the name bioweapon. Weapon is one which can exploit a person or a locality and give pain and fear simultaneously the same effect was carried out by this virus. Then on March 11 2020 World Health Organization called it as ‘Pandemic’. The spread of the virus is controlled by Integrated Disease Surveillance Programme (IDSP) through internationally. Now it came into a huge and most lengthiest predicament of every person in the world. When we think about our past lifestyle, it is now a dream to wake up1. By late February our country was also faced by this crisis and further led to nationwide lockdown and many other strict regulations. As a result of that, upto an extend we can control it’s spread and prevent it’s huge outbreak. 

SCOPE OF THE STUDY 

 The scope and object of this project is to study the challenges faced by the Judiciary during pandemic and also to detail to privacy issues with regard to contact tracing application like Jagrithi ,disha ,arogya setu etc .To examine the effectiveness of biomedical waste management system and to determine curtailment of rights guaranteed under Article 19 and 21 with reference to right to health under Article 21 of the Constitution also to look into the adequacy of Epidemic Disease Act 1897 and Disaster Management Act 2005 and other laws in favor of pandemic control, prevention and regulations. Impacts on various sectors of economy due to the Covid 19 outbreak have to be noted. Role of judiciary and changes in Judicial system over the past year have to be studied in this article. 

OBJECTIVES OF THE STUDY 

  • To go in detail to the present issues on pandemic . 
  • To give an awareness to the public about the available legislations on Pandemic.
  • To know about the impacts and effects of Pandemic on common people. 
  • To maintain the precautions on prevention of spread of virus.

MAJOR ISSUES AROSE 

  • Contact tracing application like Arogya Setu affects right of privacy of individuals.
  • The Epidemic Disease Act and other laws are not sufficient to solve the problems faced by the people during Pandemic. 
  • Article 19 is curtailed event though there is reasonable restriction under article 19(2).
  • Right to life and privacy guaranteed under Article 21 is not at all protected and leads to be misused in certain ways.

FUNDAMENTAL RIGHTS AND THE PANDEMIC 

Constitution being a fundamental Law of land and it is dealt with some of the provisions which can be used at the time of pandemic and provides with one fundamental right also. The lockdown ordered during the covid-19 pandemic-imposed restrictions upon the fundamental rights of individuals. Freedom of movement, freedom to carry out one’s profession, trade or occupation of choice and freedom to reside anywhere in India under Article 19 of Indian constitution was curtailed during the pandemic.2 

Right to Speedy Trial

 Speedy trial confers under Article 21 of part III of the Constitution and Article 39A of part IV of the Constitution is violated by the declaration of lockdown and pandemic. Many lost their justice as ‘justice delayed is justice denied’. 

Right to Education

 Right to education under Article 21A of part III was being violation upto an extend and then switched to online education style which laundered many students of different states in India by the reason of illiteracy and economic backwardness. 

Right to Assembly

 Article 19(1) (b) guaranteed right to assembly and to form association, which was curtailed at the time of lockdown the number of persons assembled reduced to 20 to 50 in public occasions, marriage ceremonies and funeral services etc. 

Right to Religion

 Religious rights of every individual was curtailed which was conferred by Article 25 to 28 of part III of the Constitution, the temples, churches, mosque, mutt etc. was closed as a result of this pandemic. 

Freedom of Movement

 Article 19(1) (d) provides for freedom of movement but the lockdown and it’s regulations curtailed the right of movement and Prime Minister ordered to stay in the home at the period of lockdown. 

Freedom of Speech and Expression

Part III of the Constitution guarantees six freedoms includes freedom of speech and expression, but this was curtailed upto a great extend in the case of media, social medias and government. In Shreya Singhal v. Union of India3, the Hon’ble Supreme Court held that Article 19(1) (a) would remain the same and it was unaffected by any other provisions other than reasonable restrictions under Article 19(2). 

Right to Equality

 Article 14 guarantees right to equality and equal protection of law, but it was violated and many among us was faced inequalities in different forms, actually it was for the welfare of the nation but it led to various other issues of inequality. 

Freedom of Press

 Article 19 (1) (a) ensures freedom of press but it was curtailed of the reason of privacy and surveillance and more cases were emerged as a result of this. In the case Ramesh Thoppar v. State of Madras4, it was held that right to press includes right to privacy in all means . The same judgement was brought also in the case Brij Bhushan and Virendra v.State of Punjab5. 

Right to Livelihood

 Article 21 confers right to livelihood also and in pandemic times many people were faced poverty and unemployment, the migrant workers were trapped due to the regulations imposed. 

Right to Health

 Article 21 ensures right to health also, it was curtailed due to the lack of hospital services and lack of sufficient health services, which was formulated in different cases by Supreme Court. 

Freedom of Trade and Occupation

 Article 19(1) (g) confers freedom of trade and occupation and it was violated by the full closure of shops and outlets except of necessary grocery and food outlets. 

Right to Privacy

 Article 21 , right to life and personal liberty includes right to privacy, privacy being a foremost element in every individual’s life as it acts as the pillar of liberty. Everyone have their own private space in their life, to break that privacy means his rights are curtailed in a vague manner. During the period of lockdown and pandemic especially the patients affected with Covid 19 and the persons in their contact list suffered the breach of privacy in the areas of their daily life route map and also by the contact tracing applications such as Arogyasetu and disha, these surveillance issues resulted in the growth of legislations on surveillance and in Puttaswamy v. Union of India6, Hon’ble Supreme Court held that right to privacy is included in the fundamental rights under article 21 and data protection by authorities shall follow certain three fold conditions such as : the need of data must be pursuant to law, the data should be kept confidential, the need of data is adequate to the problem.  Later in 2020 Kerala Sprinkler case7, Kerala High Court stressed the term data protection and privacy and ensures the right under Article 21 and enumerated that the data collected from the citizens should be with their consent and confirmation, if the person is not willing to give consent it should not be obtained as it curtailed his personal liberty. This judgement faced a lot of criticisms so that the Government back up from the deal of Sprinkler. Like these in earlier day many cases were found as in A k Gopalan v. Union of India8, Rajagopal and another’s v. State of Tamilnadu9. These cases sought as landmark cases and decisions were quite effective in present era also. 

By this Puttaswamy case in 2017 , there had been a lot f discussions based on the topic data protection but it is most talked at n the time of Pandemic. For that General Data Protection Regulations (GDPR) and Personal Data Protection Bill 2019 (PDP Bill 2019) were passed. There is some difference in these two in GDPR it does not include 

  • Non personal and anomalous information. 
  • Financial data 
  • Critical personal data, ( critical personal data means those data declared as critical by Central Government. 

But in case of PDP Bill 2019 it includes sensitive personal data (sensitive personal data includes financial data, sexually oriented data, sexual life, common livelihood etc.), should be collected only with the consent of the concerned individual. Like that we can avoid many unfair situations today. Data protection includes data privacy also if a person is affected with Covid 19 then by using contact tracing applications we can find the route map of his past weeks, but it will also broke the mental health of that person, so it accelerates the hormones thereby induce many other heath issues to him. This makes corona virus vulnerable. The isolation, panic disorders and all make the person more sensitive to diseases . So data protection needs to be held a vital role during the Pandemic. 

PANDEMIC LAWS IN COMPARISON WITH OTHER LAWS 

As we know there were various Legislations existing in India, and least are pointing to Pandemic Legislations. Some of them relating to pandemic laws are ; 

The Epidemic Diseases Act, 1897(EDA, 1897) 

 This was enacted by the Central Government at the time of spread of ‘bubonic plague’ in erstwhile Bombay, but this Act did not provide much more provisions on epidemic spread and did not mention the definition of ‘dangerous epidemic diseases. So that it came to a bit failure from the part of Legislature. Section of this EDA 1897 deals with the authority to inspect and segregate the patients affected with the disease. There comes the shortcomings of the Act in present situation on ‘isolation’ or ‘quarantine ‘(section 3 of EDA 1897), these terms were not included in the Act, but the punishment for disobedience on regulations and others and is included under section 188 of Indian Penal Code 1908. So, Central Government passed The Epidemic Diseases Amendment Bill 2020 , which is temporarily applicable to the health workers as they have to face an imminent danger in the future. It is also not a suitable remedy to the Pandemic problems in India. The Public Health (Prevention and Management of Epidemic, Bioterrorism and . Disasters) Bill 2017 replaced EDA and some of its discrepancies. 

Disaster Management Act, 2005(DM Act 2005) 

 Central Government by notification in the Official Gazette enacted Disaster Management Act 2005( DMA, 2005), in order to cope with the disasters occurred in India at that time. Now as per section 6(2) (i) of the Act, The National Disaster Management Authority (NDMA) instructed national lockdown and was ordered on 24/03/2020, which ensures social distancing to prevent the spread of Covid 19 and the Tele Medicine Practice Guidelines also prefer to social distancing due to the spread of corona virus. This Act provides the regulations on quarantine and isolation and punishment for disobedience is given under section 269,270 and 271 of Indian Penal Code. This Act have a limited applicability on present issues of Pandemic 

but states certain reliefs and remedies to prevent the spread. Guidelines on Management of Biological Disasters, 2008 confers power to Central Government on making rules on biological disasters. 

Criminal Procedure Code, 1973(Cr.PC 1973) 

During the mid of lockdown section 144 had its essence on people and it avoids overcrowdings and assembling of 3 or 4 persons together, the power was conferred to public by District Collector also. 

Indian Penal Code, 1860

 Code provides the punishment for disobedience of quarantine rules or isolation rules under section 188 . Violation of section 188 shall lead to an imprisonment for a term which may extends to 1 month and a fine of ₹200 or with both. If this violation leads to any danger to the human life, health and safety , then the term of imprisonment may extend to 6 months and a fine of ₹1000 or with both. 

Bankig Regulation Act, 1949 

 During the mid of September 2020,Central Finance Minister had declared certain amendments on the Act on section 3 and section 56,as it includes the improvements of co- operative banks by including them in the category of commercial banks due to their grave increase in Non performing assets from 7.92 to 10 percent. Another amendment included in Banking Regulation (Amendment Bill) 2020,includes moratorium facility given to the banks of all public sectors. 

Biomedical Waste Mangement Rules, 2016 

 The rules regarding the dumbing of biomedical wastes and impacts on environment is clearly stated in the rules. Various amendments were held during the years of 2017,2018,2019 and recently on 2020 , based on the Covid 19 disease. The sanitation, hygiene, medical and pharmaceutical products and their disposal during quarantine and isolation periods of corona patients. The procedures and methods of disposal are clearly stated in the rules. It has a great relevancy during these times10. 

These are the main rules and regulations regarding the pandemic laws and it’s amendment.

IMPACTS ON ECONOMY AND VARIOUS SECTORS 

This pandemic created various impacts on different sectors of economy. Some of the impacts are:

Impact on judiciary 

Judicial system had changed to some extend and the number of pending cases arose. In order to avoid such increasing numbers, Judiciary heard the cases by online platforms, and it relieved the

parties and judicial officers to get down their overburden. Some landmark decisions had pointed out during these times and those decisions paved way to the concept of equality and secularism in the Nation itself. 

Impact on economic growth 

Economic growth during the past 2020 financial year was a decline. As it is due to the lockdown, many were faced unemployed, the share market tends to a lower graph, money supply had reduced, foreign exchange and investments get surrendered, money market were faced great decline, interest rates in banks both public and private sector had reduced due to Banking Amendment Bill 2020.The consequence of all these was the decline of Gross Domestic Product, GDP decreased in a low magnitude during the past year.

Impact on taxing sector 

Taxing sector had faced discrepancies due to the delay dates of filing returns. The tax is one of the important source of income for Government and a retardation of such income created more problems in money circulation. ITCR had temporarily stopped their proceedings from February 2021 and passed the pending cases to interim commissions due to the decline in growth due to pandemic. 

Impact on workers on public and private sectors, agriculture and labors. 

Unemployment and reduction in wages and salaries created poverty in many families. Central Government and State Governments had implemented various programs on poverty eradication by offering free food kits to all families and all, but still unemployment is a major problem. Government employees were somewhat safe by getting their half proportion of salary during the period of pandemic, but labors and private employees were suffering al lot. In the case of agriculture itself as there was not much imports and exports their income and livelihood also ceased. 

Impact on foreign trade and investment 

Foreign trade had retarded it’s growth due to the unavailability of flights and lockdown which restricts the international trade and commerce which was guaranteed under article 301 of the Constitution. Due to such restrictions there caused a decline in foreign investment also. 

CONCLUSION 

 From the above stated words and incidents it is clear that this pandemic had taught each and every individual some lessons, even in the case food, shelter, occupation, trade and mainly on health itself. Many lost their lives due to pandemic and more were affected by it in whole of world. The impacts on economy and other sectors indicates the crucial effects of Pandemic period. Various rules and regulations were passed by Parliament and State Legislatures for the welfare of the Nation and States. Pandemic created many problems and hardships and in the midst of that the truth is that ‘we shall overcome, this will also pass’. Let’s pray for the whole world as it sparks light on the world soon. 

CITATIONS

1 THE RIFE OF VIRUS 2020,YASH TIWARI, notion publishers, 30th May 2020 ,page number 5 to 8.↩
2 Law of Disaster and Pandemic Management in India , SUBBANARASIMHAIAH(SR), Thomson Reuters publishers, 1st January 2021,page number 27 to 46.↩
3( 2013), 12 SCC 73.↩
4 1950 AIR 123.↩
5 1950 SCR 594.↩
6 2017 10 SCC 1.↩
7 2020 April.↩
8 AIR 1950,SC 27.↩
9 1994 SCC (6) 632.↩
10 BIOMEDICAL WASTE MANAGEMENT RULES, SIMPLIFIED, TANMAY MEHTHA, August 2019.↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Constitution, pandemic, Right to Health

Right to Health v. Right to Religion during COVID-19 Pandemic

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Lekshmi Shibu

Research Scholar
Department of Law, Central University of Kerala

Introduction

The concept of the right to religion was carefully taken into consideration by the constitution-makers due to India’s pluralistic nature. They found that it is better for the State to not interfere in the matters of religion and it is essential to draw the limits of religious freedom. Thus, Article 25 of the Indian Constitution provides that subject to public health, morality and other provisions of Part III all persons are entitled to profess, practice and propagate religion. During the recent COVID-19 pandemic it can be observed that the concept of right to religion often comes in conflict with the right to public health and safety.

Religious Gatherings During Corona Outbreak

According to World Health Organisation, as of May 1st, India has accounted for nearly 50 percent of fresh COVID-19 cases and 25 percent of deaths reported across the world.1 Religious practices, festivals, and gathering are the major reasons for the spread of COVID-19 in India. From the events of Rath Yatra in the year 2020 to the CSI Munnar retreat in the year 2021, religious practices have been materialistic for the super spread of COVID-19. While it is evident that religion contributed to the massive spread of COVID-19, it can be seen that certain religious communities are alleged to be the carriers of corona virus and are been targeted over others.

According to the report of Ministry of Health, as of April 18, 2020, nearly 4300 confirmed cases of COVID-19 across the country was linked with religious events of Tablighi Jamaat which occurred in Delhi, due to this there was stigmatization and harassment of Muslims all over the nation.2 When the country was experiencing the first wave of COVID-19, the Supreme Court lifted the ban on the Rath Yatra, stating that the parties involved that the procession of chariots, the Rath Yatra itself, could be allowed to proceed without the general congregation of devotees by following the directives issued by the constitutional bench.3 By lifting its stay on the Rath Yatra, the Supreme Court appeared to test its commitment to secularism and Article 25 of the constitution. Following the logic of the apex court there exist no convincing reasons as to why similar religious festivals cannot be allowed, if the organizers and the state governments concerned agree to follow the conditions and the norms imposed by the court. 

The mayhem created by Maha Kumbh Mela in the middle of the second wave of COVID-19, where millions of devotees participated added to the super spread of infection with devotees returning to their home cities. This situation was avoidable if there was proper adherence and fulfillment of the Standing Operational Procedure (SOP) and guidelines issued by the Union Health Ministry and Uttarakhand High Court.4 When it comes to Thrissur Pooram, unlike the previous years, the pooram was conducted as a ritual following COVID-19 protocol and guidelines issued by the High Court and the State Government.

In the holy month of Ramzan, people approached the Bombay and Delhi High Courts seeking permission to carry out their religious practices within the mosques,5 but both the courts took a different approach to address this issue. The Bombay high court rejected the petition, stating that the demands “cannot be considered in view of the ongoing critical COVID situation which is serious in nature.” On the other hand, in the Nizamuddin Markaz case,6 the Delhi High Court permitted a limited number of people to offer prayers during Ramzan, as there was no direction from the part of the Disaster Management Authority to close down the place of worship.

Conclusion

When the constitution itself makes it clear that public health should be preferred over the right to religion, it is seen some of the Courts face a dilemma to resolve this issue. Therefore, it is high time for the Supreme Court to issue necessary directions to the High Courts to avoid such confusions. The right to life and health of people cannot be sacrificed at the altar of the right to celebrate festivals. When the country is going through the havoc caused by the second wave of COVID-19 which have been more dreadful and lethal compared to the first wave, it is important to strictly adhere to the reasonable restrictions provided by Article 25 of the Indian constitution. Thus the political executive and judiciary must make all efforts to curb religious propaganda that is found inconsistent with the public order, health and morality. 

End Notes

1. WHO Says India Accounts for Nearly 50% of World’s New Covid-19 Cases, 25 % of Deaths, INDIA TODAY, https://www.indiatoday.in/coronavirus-outbreak/story/who-india-accounts-for-nearly-50-percent-world-s-new-covid19-cases-1799163-2021-05-05. (May 5,2021, 4:41 PM)↩
2. ARJUN PHILIP GEORGE & NABEELA SIDDIQUI, LIBERTY; NEW FACETS& CHANGING DIMENSIONS 358 (Dr. Anil R Nair, Centre for Parliamentary Studies and Law Reforms, NUALS 2020).↩
3. Odisha Vikas Parisad v. UOI & Ors. W.P.(C)No.571/2020.↩
4. Sachidanand Darbal v. UOI W.P.(PIL) No 58 of 2021. ↩
5. Juma Masjid of Bombay Trust v. State of Maharashtra and Ors. W.P.(L) No 10152 of 2021, Delhi Waqf Board v. Government of NCT Delhi and Anr. W.P. (CRL)42/2021.↩
6. Delhi Waqf Board v. Government of NCT Delhi and Anr. W.P. (CRL)42/2021.↩
7. Juma Masjid of Bombay Trust v. State of Maharashtra and Ors. W.P.(L) No 10152 of 2021, MANU/MH/1066/2021.↩

aviation law

Impact Of The Pandemic In India’s Aviation Sector; A Brief Analysis

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Sivadath Madhu Menon

Government Law College, Thrissur

N. Arun Vaidyanath

School of Law, Sastra University

The Novel Coronavirus COVID 19, which was declared a pandemic by the World Health Organisation (WHO) in March 2020 has caused huge damage to human health and the global economy. It has caused a great depression to the World Economy and affected all kinds of people from rags to riches without sparing anybody. Strict quarantine protocol and travel ban have been imposed by the government to check the phenomenal growth of the global pandemic. On 24th March 2020, The Government of India headed by the Prime Minister Mr Narendra Modi ordered a 21 days nationwide lockdown which restricted the movement of 1.3 billion people of the country and almost all economic activities in the country, which resulted in a loss of 7-8 lakh crore for the economy1.

The imposition of a travel ban resulted in the suspension of non-essential public and private transport. India, which is considered the fastest-growing aviation market in the world according to the International Air Transport Association (IATA), is suffering from huge economic loss due to the lockdown. According to reports2The Aviation sector in India has suffered a loss of 3.3 to 3.6 billion USD in the first quarter of this financial year and the average loss per day stands at 75 to 90 crores per day. India is the world’s third-largest civil aviation market in terms of passengers, domestic and international combined. The depth of the economic crisis caused by the COVID 19 is massive all over the globe and India is no exception. Thousands of people get laid off everyday and many others are working without remuneration. In this difficult time, the approach of the airline companies towards their customers whom they claim to treat as their kings is very disappointing. The impact of the pandemic is not limited to the aviation industry alone, but to the entire industrial world. Other industries do not enjoy the privilege of holding on to the money rightfully due to the customers. but the Airline companies do enjoy the right and privilege of keeping their refund deductions with themselves. This does not mean that in such situations or circumstances they have the right to keep the money which is fully entitled to the customer as a credit shell for the time frame fixed by the airline companies themselves. In the present scenario, many people who have booked their Air tickets before the lockdown and during the lockdown are expressing their anxieties about the refund policies of their airline tickets by the companies. The Airline companies are transferring the amount which is due to the customers into their credit shell3 account which should be used within the time specified by airline companies.

The office memorandum4 dated 16 April 2020, directs the airlines to make a full refund to the customers who have booked their tickets during the initial lockdown. Further to this, the Central Government extended the lockdown from 15th April 2020 to 3rd of May 2020, and another order was issued by the Directorate General of Civil Aviation (DGCA) to all the Airlines to fully refund the money to those who have booked their tickets during the 2nd phase of lockdown. Even though passengers are the ones who have to decide on the transfer of money to the credit shell, the Airlines are transferring the money to the credit shell account of the customers without their consent. Airline companies are using this as an advantage and are transferring the amount to the customers’ credit account thereby ensuring that they do not lose any income from a ticket booked for a journey during the lockdown. Pursuant to the impugned notification issued by the DGCA, only the passengers falling in the first and second phase are entitled to a full refund of air ticket amount upon cancellation and the passengers in the third and fourth phase are arbitrarily excluded from availing the refund of air ticket amount from their respective airline companies. Moreover, on cancellation of the ticket by passengers falling in the third group contrary to the full refund, the full ticket amount goes into the credit shell of the passenger which he/she can avail within a period of 1 year. It is worth mentioning that the credit shell accounts are not transferable, i.e. only the same passenger can use it and further, the credit shell would elapse within a period of one year.

Responding to the petitions filed by Pravasi Legal Cell and others5 which sited that the approach of making credit shell mandatory by refusing the refund is in clear violation of the Civil Aviation Requirements Act, 2008 issued by the Directorate General of Civil Aviation (DGCA) which states that “The option of holding the refund amount in credit shell by the airlines shall be prerogative of the passenger and not a default practice of the airline”. The DGCA came up with a few proposals6 which were later accepted by the Supreme Court which mandates that the passengers who had made their booking during the lockdown for a travel between 24th March 2020 and 24th May were entitled to a full refund within three weeks if the airline has received the payment in the aforementioned time frame, if the tickets were booked through a travel agent in such cases the full refund was to be credited to the travel agent’s account which must be immediately transferred to the passenger’s account and for the tickets booked for a journey after 24th May 2020, the refund will be made according to the guidelines mentioned in the Civil Aviation Requirement Act, 2008. The Supreme Court bench comprising Justices Ashok Bhushan, Subhash Reddy and M R Shah further stated that airlines which are facing financial constraints may offer a credit shell which is valid up to 31st March 2021 and must refund the same to the passengers if it remains unused.

Conclusion

The above-mentioned approach of the airline companies towards their7 passengers is unfair and the  method of classifying passengers based on their date of booking and  date of travel vide office memorandum dated 16th April by the DGCA violates the basic fundamental right of equality available in the  Indian Constitution.  Article 14  of the constitution states “Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Every person has the  right to equality which means that  the state has to treat “equals equally”, This, sadly, is not the case when Airlines are treating the customers  unequally. The recent proposal of the DGCA has indeed provided relief for the passengers and the Airlines which are facing financial constraints during these uncertain times.

Citations

1. World’s Biggest Lockdown May Have Cost Rs 7-8 Lakh Crore to Indian Economy, Economic Times (Apr. 13, 2020, 09.00 PM), https://economictimes.indiatimes.com/news/economy/finance/worlds-biggest-lockdown-may-have-cost-rs-7-8-lakh-crore-to-indian-economy/articleshow/75123004.cms. ↩
2. Effect of Novel Coronavirus (COVID 19) on Civil Aviation: Economic Impact analysis, ICAO (Oct. 10, 2020, 9.30 PM), https://www.icao.int/sustainability/Documents/COVID-19/ICAO_Coronavirus_Econ_Impact.pdf ↩
3. GoIndigo, Know Your Credit Shell, Indigo Airlines (Oct. 9 , 2020, 11.00 PM), https://www.goindigo.in/information/credit-shell.html#:~:text=1.What%20is%20a%20credit,by%20us%20against%20your%20PNR. ↩
4. Usha Padhee, Office Memorandum, Directorate General of Civil Aviation (Oct. 9, 2020, 11.15 PM), https://dgca.gov.in/digigov-portal/jsp/dgca/homePage/viewPDF.jsp?page=topHeader/COVID/Circular%2016.4.2020.pdf ↩
5. Pravasi Legal Cell V. Union of India ICL 2020 (10) SC 457. ↩
6. Arpan Chaturvedi, Supreme Court Accepts DGCA Proposal for Flight Ticket Refunds, Bloomberg Quint (Oct. 9, 2020, 11.50 PM), https://www.bloombergquint.com/law-and-policy/supreme-court-accepts-dgca-proposal-for-flight-ticket-refunds. ↩
7. INDIA CONST. Art 14. ↩

References

  1. Constitution of India.
  2. Directorate General of Civil Aviation, Government of India (https://dgca.gov.in/digigov-portal/).
  3. International Civil Aviation Organization (https://www.icao.int/Pages/default.aspx).

Uncategorized

DOUBLE PANDEMIC: INCREASING DOMESTIC VIOLENCE DURING LOCK DOWN

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Pooja Jose

Student, Government Law College, Kozhikode.

INTRODUCTION

The Covid19 pandemic has affected the whole world. It has left us with diverse economic, financial, social, and mental anguish. Due to the obstinate spread of the virus, many countries were compelled to impose restrictions and lock downs. The mental stress and agony that people around the world faced due to home quarantine and restricted movement were quite high, due to this the world is witnessing the highest number of domestic violence ever reported. Countries like UK, Australia, Brazil, China, France, the USA also reported an alarming increase in domestic violence[1] and intimate partner violence as well as an increase in divorce petitions. India is one of the countries which has implemented mass and restrictive quarantine in the world. India, the second most populous country in the world, is forced to do so for the effective control of the spread of the Corona Virus. The lock down that started in March 2020 created a lot of hardships for the Indian population that led to the loss of jobs, starvation, and serious financial breakdowns. These were the major issues that the government knew that was likely to occur during the lock down, but one of the areas that the government failed to address was the possible increase in domestic violence. 

DEFINITION

According to the United Nations, the term domestic violence can be defined as “a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner”.[2] Abuse can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. Domestic violence as stated in the above definition not only covers women but children too. The increase in domestic violence is in no doubt detrimental to the emotional and behavioural development of the child. In many cases, the mental distress that is caused by domestic violence is irreparable mental trauma. The issue of domestic violence was a reality that existed before the corona virus and could be termed as one of the greatest human rights violations in history. In an attempt to flatten the curve of the pandemic, Indian households have suffered collateral damage. United Nations called increasing domestic violence as a shadow pandemic.[3]

INDIA’S STATUS BEFORE THE PANDEMIC

According to the Crime in India Report 2018, published by the National Crimes Research Bureau (NCRB) [1 NCRB, Crime in India 2018 Statistics (Ministry of Home Affairs, GoI, 2020).], every 1.7 minutes a crime was recorded against women in India; every 16 minutes a rape was committed and every 4.4 minutes a girl was subjected to domestic violence. Smt. M C Josephine, chairperson of the Women’s Commission, Kerala said that there was a marked increase in the instances of domestic violence during this time.[4]

DURING PANDEMIC

India was once the most dangerous country for women [5] and still proves that there is no major change other than the unnerving increase in the violence against women every day. The National Commission for Women says that the restrictions and lock down due to the pandemic have increased the rate of domestic violence.[6] In 2020, between March 25 and May 31, 1477 complaints of domestic violence were made by women.[7] Most of the complaints were received online (WhatsApp). The complaints filed fall under these categories – dowry harassment, molestation, rape and attempt to rape, domestic violence, sexual assault, and harassment, etc. 60% of domestic violence plaints filed before the commission are from the northern parts of India. The states like Bihar, Uttar Pradesh, Haryana, New Delhi, Assam, and Arunachal Pradesh reported an increase in domestic violence,[8] and the same was addressed by the National Women’s Commission chairman Rekha Sharma. Complaints were received through both online and offline channels before the pandemic. Due to the lock down women are having lesser access to these places in person and now the complaints are mainly online.

The current circumstances make reporting even harder as there are a lot of limitations for women and girls to access phones and helplines and to approach public services like police and social services. The main reason for this is social distancing, isolation, and home quarantine that have been imposed, which give women fewer avenues to bring their grievances to the commission. This is also one of the reasons why online complaints were so high during the lock down. The women in rural areas do not have access to quality education, internet and mobile phones. These sections of women have lesser options to approach the authorities. This impaired situation of women needs a robust plan. In most situations, children in the households are mentally abused and due to the lock down, they do not get a chance to share these with the teachers and their friends which makes the situation even worse. The isolation of women and children without access to mobile phones, family, and friends is unimaginable when they have to deal with an abusive and violent partner. In most cases, domestic violence goes unreported because of the fear of shame in the society that women will have to face. The early bail given to the accused will also pose a threat to the life of the women due to which most of the women tend to stay quiet. The tendency of the inmate partner to vent his/her anger on the other partner needs to be addressed very seriously as during this lock down the mental trauma can be very high. Especially in a situation where the victim cannot keep in touch with the outside world. Heart-wrenching stories of physical violence in households were reported which include beating, kicking, sexual abuse, slapping, dowry harassment, etc.

LEGAL PROVISIONS

There are various provisions for the protection of women in the Constitution, the Indian Penal Code, and various Statutes.[9] The Protection of Women from Domestic Violence Act,2005 is the Act that deals with domestic violence in India. On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the United Nations General Assembly. It came into force as an international treaty on 3 September 1981.  185 countries including India ratified the convention. Under Article 253 of the Constitution, India signed the Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW) on 30 July 1980 and ratified it on 9 July 1993 with two declarations and one reservation. Protection of Women from Domestic Violence Act,2005 was enacted on 13th September 2005 and brought into force on 26th October 2006. The Act provides for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. 

Under the Indian Constitution Article 14 ensures equality, Article 15 ensures no discrimination, and Article 21, right to life and personal liberty, protects the dignity of women, ensures the right to shelter and one of the foremost rights that is., the right to be free of violence.

Under the Indian Penal Code section 498-A and 304-B deal with the women suffering in her marital home.

CASE LAWS AND DEVELOPMENTS 

Case laws under the Protection of Women from Domestic Violence Act,2005:

Various case laws have brought praiseworthy new provisions and did a great contribution to the development of the Act. The cases include the interpretation of the aggrieved person defined under the Act, live-in-relations, shared household, and right to reside in the matrimonial house. 

a) S.R Batra v. Smt. Taruna Batraon 15 December 2006.

The Court interpreted section 2(s) of the Domestic Violence Act which deals with the definition of ‘shared household’ and will the house which is not under the name of the husband be treated as a shared household and that can she claim a right to reside in that shared household. In the following case, the property in dispute was in the name of the mother-in-law and the husband had no right in the property. Thus, the court held that 

“the wife is only entitled to claim a right to residence in a shared household, and a shared household’ would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member”.

b) D. Velusamy vs D. Patchaiammal on 21 October 2010.

In this case, the Court held that live-in-relationship will be covered under the aggrieved person in the Protection of Women from Domestic Violence Act,2005. The Court also laid down various provisions to fall under this category and the court stated that “not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005” which includes a ‘keep”.

c) Megha Khandelwal vs Rajat Khandelwal on 10 May, 2019.       

In this case, the wife filed a domestic violence petition against the husband. Later filed an application under section 12 of the Protection of Women from Domestic Violence Act,2005 for interim maintenance allowances. In the initial stages, she asked 5,000 and then wanted a rise to 9,000 and finally demanded 25,000 while taking into the income tax of the husband. The court granted maintenance of rupees 25,000 per month for her. In this case, the court held that the wife being well educated is not a bar to interim maintenance allowances.

Case Laws under the Indian Penal Code 1860

a) Shanti v. State of Haryana. 

In this case, the court held that

“a person charged and acquitted under section 304-B can be convicted under section 498-A without being there if such a case is made out. 

b) B.S Joshi. State of Haryana.

In this case, the court held that “The hyper-technical view would be counterproductive and would act against the interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of the Indian Penal Code”. Thus, quashing of FIR was granted, this was with a view for speedy settlement for the aggrieved women.

There have been various developments that happened during the years for the Protection of Domestic Violence Act,2005. The Act has been given wider interpretations. In the case, Krishna Bhattacharjee v. Sarathi Choudhury and Another list down the duties of a court while deciding a case under the Act. There are situations where a case brought in by a woman is dismissed due to silly reasons. This creates a tendency among women to lose their faith in the court. During this pandemic, women must be aware and they must have that faith in them, that there is a law to protect them from all these atrocities and there is a great role for the executive and judiciary to play in this as well.

CONCLUSION

The measures that can be taken during the pandemic are limited due to the constraints of lock down but we cannot let this situation continue unattended. To help women file complain and seek help, the National Commission for Women has launched an emergency Whats App number in addition to the regular online complaint links and emails. But this doesn’t essentially mean that every woman is aware of these measures. To overcome this problem, the initiative should be taken by the central government to increase awareness among women. One of the possible ways this can be done is by notifying the local authorities and political leaders to set up specific teams to interact with women in their local jurisdiction and provide them with all the help and protection necessary. To ensure that women can file complaints against abusers fearlessly, the government must provide abused victims with a safe place to stay away from the abuser. Under section 6 of the Protection of Women from Domestic Violence Act,2005, the Protection Officer must provide the aggrieved party accommodation where the party has no place of accommodation. Shelter homes in India are currently not admitting abused victims out of fear of the spread of the virus and most of them lack adequate facilities.[10] To provide a safe space for abuse victims, governments must ensure adequate facilities and social distancing in shelter homes.

CITATIONS

[1] Caroline Bettinger-Lopez, A Double Pandemic: Domestic Violence in the Age of COVID-19, COUNCIL ON FOREIGN RELATIONS (Aug. 10 ,2020, 10:05 PM), https://www.cfr.org/in-brief/double-pandemic-domestic-violence-age-covid-19.

[2] UNITED NATIONS, What is domestic abuse (Aug. 10 ,2020, 10:15 PM), https://www.un.org/en/coronavirus/what-is-domestic-abuse.

[3] Phumzile Mlambo-Ngcuka, Violence against women and girls: the shadow pandemic, UNITED NATIONS WOMEN (Aug. 10, 2020, 10:21 PM), https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-   during-pandemic.

[4] TNN,, Domestic violence plaints on the rise: Kerala state women’s commission chairperson, TOI, (Aug 10, 2020, 10:31 PM),

https://timesofindia.indiatimes.com/city/kochi/domestic-violence-plaints-on-the-rise-kerala-state-womens-commission-chairperson/articleshow/73630749.cms.

[5] Thomson Reuters Foundation, India most dangerous country for women: survey, DECCAN HERALD, (Aug. 10, 2020, 11:05 PM), https://www.deccanherald.com/international/india-most-dangerous-country-677132.html.

[6] Ambika Pandit, Lockdown saw significant rise in domestic violence complaint to NCW, THE TOI, (Aug. 10, 2020, 10:44 PM), https://timesofindia.indiatimes.com/india/lockdown-saw-significant-rise-in-domestic-violence-complaints-to-ncw/articleshow/76240502.cms.

[7] Vignesh, Sumant & S Naresh , Data | Domestic violence complaints at a 10-year high during COVID-19 lockdown, T. HINDU, (Aug. 10, 2020, 10:50 PM),

https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-  lockdown/article31885001.ece.

[8] Ibid.

[9] INDIA CONST. Art. 14, Art 15,cl 1, cl.3, Art. 16, Art 39, cl. A & cl. D, Art. 42, Art. 46, Art. 47, Art. 243D, cl. 3 & cl. 4, Art. 243T, cl. 3, & cl. 4.

IPC. Sec. 376, 363-37,302/304-B,  498-A, 354, 509.

[10] Aathira Konikkara, Lockdown and domestic violence: As NGOs struggle to support women at risk, government plays catch up, THE CARAVAN,(Aug. 10, 2020, 11:20PM), https://caravanmagazine.in/gender/lockdown-domestic-violence-ngo-struggle-government-catch-up.

BOOKS & STATUTES

  1. D.D Basu, Introduction to the Constitution of India, 23 rd ed. 2018.
  2. Prof. S. N. Misra, Indian Penal Code, 21 st ed. 2019.
  3. The Protection Of Women From Domestic Violence Act, 2005, NO. 43, Acts of Parliament, 2005 (India)

CASE LAWS

  1. S.R Batra v. Smt. Taruna Batra 2007 (1) RCR (Crl) 403 (SC).
  2. D.Velusamy v. D. Patchaiammal (2010) 10 SCC 469.
  3. Megha Khandelwal v. Rajat Khandelwal SLP (Crl.) No. 6422 of 2018).
  4. Shanti v. State of Haryana 1991 AIR 1226, 1990 SCR Supl. (2) 675.
  5. B.S Joshi v. State of Haryana, 2003 Cr LJ 2028 (SC).