India legal 20 April 2020

NDIA EGALL STORIES THAT COUNT
I
ProfUpendraBaxisaysthestrikingfeatureoftoday’snewnormalistheexerciseof
suo motu jurisdictionbycourtsinmattersconcerningdignity,livelihoodand
freedomcostsfortheimpoverished,therebyupholdingbasicrights
Also:APaperless,People-lessCourtby JusticeBhanwarSingh
EMERGINGLAWS&
JURISPRUDENCE
April20, 2020
The Economy:
The road ahead
Lockdown: Shiv Visvanathan
on rising domestic abuse

4 April 20, 2020
HEN I read Nobel Laureate
Albert Camus’ “The Plague” as a
teenager, I shivered all the way
through it. But when I put it
down, I was relieved that I had
returned to my own world and my own planet,
far removed from the black death that had rav-
aged Camus’ city of Oran, destroying its health,
wealth, political and social culture and systems.
The infallible human spirit came to the point of
total surrender, but survived tenaciously in pock-
ets of resistance, as mortals stared at the absurdi-
ty of their lives and support systems as the rel-
entless, unforgiving scourge decimated them
ruthlessly, indiscriminately.
Camus’ “Plague”, (La Peste), having cut a
swath of death and destruction, vanished as sud-
denly as it had arrived. Today, as Covid-19 levels
and unites the world, and hospital beds overflow
with patients, Camus’ 1947 novel has become a
best-seller again. Re-reading it as I sit in my
lockdown study in a New Delhi suburb is a surre-
al experience as I return to that planet where
Camus took me as a teenager.
Camus’ Peste of yesteryear, even though its
bloodlust may have been far more voracious than
Covid’s, is today's Oranian nightmare and seems
indistinguishable from the government ann-
ouncements now reshaping our lives.
It was not by sheer coincidence that while
planning this issue of India Legal under long-
distance, stringent “stay-at-home” quarantine-
like conditions, almost all the stories we planned
or were submitted to us by our contributing edi-
tors led, like the Roads to Rome, to Covid.
The judiciary and the legal system which are
the focus and raison d’etre for our weekly maga-
zine, have also come heavily under the all-envel-
oping wrap of Covid’s dark embrace. Our cover
story, written by the inimitable juridical scholar,
Prof Upendra Baxi, is a forceful and compelling
insight into jurisprudential dangers against
which civil society and, indeed judges and law-
yers, must arm themselves with caveats and
checks and balances lest the very rule of law
should collapse permanently under the weight of
Covid-protection diktats and fiats of administra-
tors and apparatchiks.
That Baxi has penned his thoughts and warn-
ings, albeit in careful and conscientious prose, is
a marvellous tribute to the still-flourishing spirit
of intellectual inquiry and reasoning which are
powerfully contrapuntal to the ideology and the
brute strength of “The Plague”.
He writes, for example, that the intense juris-
tic and judicial discourse around the Indian com-
bat against Covid-19 places legal researchers also
among the frontline of combatants against a sin-
ister global pandemic. There appears to be a gen-
eral consensus on the need for vast executive po-
wers to fight this new menace. But equally, the
implementation of the current lockdown raises
many questions, especially concerning the digni-
ty, livelihood and freedom costs for the impover-
ished strata (including necessitous migrants)
which have been marred by some practices of the
pedagogies of violence and inhuman cruelty.
He asks: “Are these expressive of the ‘cavalier
attitude towards the intersection of pandemics
and mass incarceration’? Such questions raise all
over again, the haunting qualities of fiat justitia
and salus populi maxims in a Covid-19 world—
now infested with new summoning urgencies.”
I fully agree with author and journalist Liesle
Schillinger’s recent essay that if you read “The
Plague” long ago, perhaps for a college class, “you
likely were struck most by the physical torments
that Camus’s narrator dispassionately but viscer-
ally describes. Perhaps you paid more attention
to the buboes and the lime pits than to the narra-
tor’s depiction of the ‘hectic exaltation’ of the
ordinary people trapped in the epidemic’s bub-
ble, who fought their sense of isolation by dress-
ing up, strolling aimlessly along Oran’s boule-
vards; and splashing out at restaurants, poised to
flee should a fellow diner fall ill, caught up in ‘the
frantic desire for life that thrives in the heart of
every great calamity’: the comfort of community.
W
Letter from the Editor
Today,asCovid-19
levelsandunitesthe
world,andhospital
bedsoverflowwith
patients,Nobel
LaureateAlbert
Camus’1947novel
“ThePlague”(La
Peste)hasbecomea
best-selleragain.
Camus’Peste of
yesteryearistoday's
Oraniannightmare
andseemsindistin-
guishablefrom
thegovernment
announcementsnow
reshapingourlives.
Inderjit Badhwar
CAMUS’ UNHEROIC HEROES

| INDIA LEGAL | April 20, 2020 5
The townspeople of Oran did not have the
recourse that today’s global citizens have, in
whatever town: to seek community in virtual
reality. As the present pandemic settles in and
lingers in this digital age, it applies a vivid new
filter to Camus’s acute vision of the emotional
backdrop of contagion.”
But there’s much more than just an emotional
quotient to the contagion. We may overcome the
disease. But what about the poisonous fallout on
the social contracts and arrangements through
which we create humanism as we now know it,
which may outlast the pandemic?
I
n another recent brilliant commentary on
Camus, Matthew Sharpe, Professor of
Philosophy at Deakin University, writes
that arguably the most telling passages in “The
Plague” today are Camus’ beautifully crafted
meditative observations of the social and
psychological effects of the epidemic on the
townspeople.
“Epidemics make exiles of people in their own
countries, our narrator stresses. Separation, iso-
lation, loneliness, boredom and repetition be-
come the shared fate of all.... Places of worship
go empty. Funerals are banned for fear of conta-
gion. The living can no longer live...”
Camus’ enigmatic character Tarrou identifies
the plague with people’s propensity to rationalise
killing others for philosophical, religious or ideo-
logical causes. It is with this sense of plague in
mind that the final words of the novel warn:
That the plague bacillus never dies or disap-
pears for good; that it can lie dormant for years
and years in furniture and linen-chests; that it
bides its time in bedrooms, cellars, trunks, and
bookshelves; and that perhaps the day would
come when, for the bane and the enlightening of
men, it would rouse up its rats again and send
them forth to die in a happy city.
As Sharpe puts it, there is nevertheless truth
in the description of Camus’ masterwork as a ser-
mon of hope. In the end, the plague dissipates as
unaccountably as it had begun. Quarantine is
lifted. Oran’s gates are reopened. Families and
lovers reunite. The chronicle closes amid scenes
of festival and jubilation.
Camus’ narrator concludes that confronting
the plague has taught him that, for all of the hor-
rors he has witnessed, “there are more things to
admire in men than to despise”.
Unlike some philosophers, Camus became
increasingly sceptical about glorious ideals of
superhumanity, heroism or sainthood, writes
Sharpe. “It is the capacity of ordinary people to
do extraordinary things that The Plague lauds.
‘There’s one thing I must tell you,’ Dr Rieux the
protagonist, at one point specifies:
“There’s no question of heroism in all this. It’s
a matter of common decency. That’s an idea
which may make some people smile, but the only
means of fighting a plague is common decency.
“It is such ordinary virtue, people each doing
what they can to serve and look after each other,
that Camus’ novel suggests alone preserves peo-
ples from the worst ravages of epidemics, whe-
ther visited upon them by natural causes or
tyrannical governments.
“It is therefore worth underlining that the
unheroic heroes of Camus’ novel are people we
call healthcare workers. Men and women, in
many cases volunteers, who despite great risks
step up, simply because ‘plague is here and we’ve
got to make a stand’.
“It is also to these people’s examples, The
Plague suggests, that we should look when we
consider what kind of world we want to rebuild
after the gates of our cities are again thrown open
and COVID-19 has become a troubled memory.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
RECOUNTING AN
EPIDEMIC
In a commentary on
Camus (above), Matthew
Sharpe, Professor of
Philosophy at Deakin
University, writes that
arguably the most telling
passages in “The
Plague” (above left)
today are Camus’
observations of the
social and psychological
effects of the epidemic
on the townspeople
annabookbel.net

6 April 20, 2020
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The striking feature of today’s new normal in the backdrop of the Covid-19 crisis is the exercise of
suo motu jurisdiction by courts in matters concerning dignity, livelihood and freedom costs for the
impoverished, thereby upholding basic rights, says PProf Upendra Baxi
Emerging Laws & Jurisprudence
LEAD
10
A former judge of the Allahabad High Court, JJustice Bhanwar Singh analyses the access
to justice in a post-Corona world and how some judges are delivering judgments
A Paperless, People-less Court 14
As jobless men lose their identity during the
lockdown, they take out their anger against
women and cut out their one avenue for
escape, says
The Trauma of
Disaster Economies
OPINION
16

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: AMITAVA SEN
REGULARS
Ringside............................8
Courts ...............................9
Media Watch ..................42
Privacy in
Public Space 40
With liquor accounting for 24 percent of Kerala’s revenue, it was no surprise that
the LDF government tried to allow regular tipplers to get their daily quota till the
Kerala High Court put a stop to it
Coffers Running Dry
Much Ado
About Nothing?
Reports of the centre asking for call data records from
states have sent alarm bells ringing. But privacy activists
should understand that despite laws, the government can
seek personal information from any source
36
STATES
The book, Personal Data Protection Act of
India (PDPA 2020), is a manual for privacy
activists, advocates, IT professionals,
business managers, law enforcement officers
and the government for grasping the complex
issues of personal data usage
MYSPACE
32
26Strategic Help
Even as every country is trying to do the best for its own people
first during the war against Covid-19, smart leaders like Narendra
Modi are obliging other nations in this time of crisis and hoping to
gain dividends later
GLOBALTRENDS
30A Wartime President?
As the US struggles to tackle the severity of Covid-19, Americans
are fast realising that President Donald Trump is out of depth and
gearing up more for the November polls than this health crisis
Testing Times
Various Covid-19 tests are
being done to confirm if a
patient has the disease, be it
bronchoalveolar lavage,
oropharyngeal or
nasopharyngeal swabs or
rapid antibody tests
34
BOOKEXTRACT
COLUMN
18Pact of the Matter
As economic activities come to a standstill due to the Covid-19
lockdown, companies in various sectors are falling back on the
force majeure clause to get released from contractual obligations
and apex court judgments have shown the way forward
LEGALEYE
22Unseen Costs
India’s lockdown will affect it more than any major nation as its
financial system is not strong enough to give the impetus to jump-start
the economy. An economic pandemic will be far worse than corona
ECONOMY

8 April 20, 2020
Amitava Sen
RINGSIDE
Howdy, Modi!

Courts
Doctors and medical staff are the “first line
of defence of the country” in the battle
against the Covid-19 pandemic, the Supreme
Court said while directing the centre to ensure
that appropriate personal protective equipment
(PPE) was made available to them for treating
coronavirus patients.
Passing several interim directions to en-
sure safety of doctors and healthcare profes-
sionals, the apex court expressed concern
over the recent incidents of attack on them
and directed the centre, all states and Union
Territories to provide necessary police
security to the medical staff in hospitals and
places where patients, who are either quaran-
tined, suspected or diagnosed with Covid-19,
are housed.
The top court directed that “states shall
also take necessary action against those per-
sons who obstruct and commit any offence in
respect to performance of duties by doctors,
medical staff and other government officials
deputed to contain Covid-19.”
It passed the order on three petitions seek-
ing protective kits, other requisite equipment
and safety measures for doctors and health-
care workers amid the coronavirus pandemic.
The apex court directed that necessary
police security be extended to doctors and
other medical staff, who visit places to con-
duct screening of people to detect symptoms
of the disease.
The Supreme Court directed the
centre to ensure that Covid-19
tests were provided free of cost
to everyone. In an interim order,
the Court said that the centre
should immediately direct all app-
roved diagnostic laboratories, in-
cluding state-owned and private
facilities, to offer free testing. The
apex court, however, said that it
will consider later whether private
laboratories were entitled to any
reimbursement of expenses. The
top court gave the government two weeks to
file a response.
The petitioner, advocate Shashan Deo Sudhi,
had challenged the March 17 advisory issued
by the Indian Council of Medical Research
(ICMR) that had set a price of Rs 4,500 for
screening and confirming Covid-19 cases
by private labs.
A two-judge bench, comprising Justices
Ashok Bhushan and S Ravindra Bhat, agreed
with the petitioner that permitting private labs to
charge Rs 4,500 for screening and confirma-
tion of Covid-19 may make it unaffordable for a
large section of India’s population, and individu-
als cannot be denied their right to test them-
selves for Covid-19 because of lack of money.
The Court said that Covid-19 tests must be
carried out only in labs accredited by National
Accreditation Board for Testing and Calibration
Laboratories (NABL) or any agency approved
by World Health Organization (WHO) or Indian
Council of Medical Research (ICMR).
Ensure free Covid-19 tests for all: SC
In a triumph for animal lovers
everywhere, the Kerala High
Court allowed a man to go
outside his house during the
lockdown to purchase favourite
biscuits for his three pet cats.
“While we are happy to
have come to the aid of the
felines in this case, we are
also certain that our directions
will help avert a ‘CATastrophe’
in the petitioner’s home,” said
Justices AK Jayasankaran
Nambiar and Shaji P Chaly
while allowing the petitioner,
Narayanan Prakash, the owner
of the cats, to go to the market
to purchase the pet food.
The police in Kochi, Kerala,
had earlier denied him a vehi-
cle pass to go and purchase
“Meo-Persian” biscuits for his
three cats.
Concerned about the sur-
vival of his pets, Prakash filed
a writ petition in the High
Court, which ruled in his fa-
vour. The petitioner submitted
that he was a vegetarian and
didn’t cook non-vegetarian
food at home and that his cats
were addicted to these biscuits
and did not accept any other
brand.
The judges quoted the SC
judgment in Animal Welfare
Board of India vs A Nagaraja,
where the right to life of ani-
mals was recognised.
Avert a
“CATastrophe”,
says Kerala HC
—Compiled by India Legal team
Give medics PPE,
security, says SC

Lead/ Column/ Covid-19 Prof Upendra Baxi
10 April 20, 2020
HE intense juristic and
judicial discourse around
the Indian combat against
Covid-19 places legal
researchers also among the
frontline of combatants
against a sinister global pandemic.
There appears to be a general consensus
on the need for vast executive powers to
fight this new menace. But equally, the
implementation of the current lockdown
raises many questions, especially con-
cerning the dignity, livelihood and free-
dom costs for the impoverished strata
(including necessitous migrants) which
have been marred by some practices of
the pedagogies of violence and inhuman
cruelty. Economically, some of these
concerns have been addressed by the
Union of India, as the 2nd addendum
issued by the home ministry (March 28,
2020) and clearly excludes significant
sections of entrepreneurial agricultural
activity from the lockdown regime.
The Supreme Court of India (SC)
and many High Courts have already
acted in many matters by exercising suo
motu jurisdiction, which Professor Marc
Galanter of the University of Wisconsin
Law School earlier criticised for its
“unprincipled nature” and causing dis-
ruption of “the normal operation of
judicial hierarchy”. But he has now
clarified (in a message to me on March
28) that he was criticising merely
those “initiatives” which were acts of
“gratuitous grandstanding, frequently
the expression of a single (Chief)
Justice”. No such “grandstanding” is on
display here.
The question that juristic discourse
(the reportage in India Legal, Live Law
and Bar & Bench, as well as deep
analyses and granular reflections in Dr
Gautam Bhatia’s posts in Constitutional
Law and Philosophy) poses is, however,
about the justification and constitution-
al limits of this power. It is not unpatri-
Emerging Laws
& Jurisprudence
Thestrikingfeatureoftoday’snewnormalistheexerciseofsuomotu
jurisdictionbycourtsinmattersconcerningdignity,livelihoodandfreedom
costsfortheimpoverished,therebyupholdingbasicrights
T
TheSChasconfrontedtheissueoffunctioninginaCovid-19situation(asperCJISABobde,DrJusticeDhananjaya
Chandrachud(centre)andJusticeNageswaraRao)byinvokingthepowersofArticle142.

otic in the least to raise questions con-
cerning the nature, scope, and limits of
power and particularly to demonstrate
how that power may be used to aggra-
vate the violent social exclusion of mar-
ginalised groups. In fact, raising this
awareness—self-styled super-patriots,
please note—serves a democracy-rein-
forcing function.
Indeed, the immediate pre-Covid-19
jurisprudence of the Supreme Court
speaks not of “good governance” but of
constitutional good governance, which
establishes the people-citizens of India
as the real sovereigns whom all constitu-
tional agents and institutions must
serve. The judicial discourse on “consti-
tutional renaissance” and “constitutional
trust” (most notably articulated by
Justice Dipak Misra) indwells in both
normal and extraordinary times.
This does not mean that the judicial
tasks are easy at all, given the eternal
conflict between the wisdom of two
astonishingly relevant Latin maxims:
“Fiat justitia ruat caelum (Let justice be
done though the heavens fall)” and
“Salus populi suprema lex esto (The
health of the people should be the
supreme law or let the good (or safety)
of the people be supreme or the highest
law)”. If the latter maxim justifies con-
ferral and exercise of vast executive
powers, the primary function of courts
and justices, however, remains the doing
of justice and upholding difficult
freedoms and complex rights.
LEGISPRUDENCE
The normative counter-insurgency
against Covid-19 rests on the accumulat-
ed wisdom of legisprudence. Indeed,the
mosaic of power rests on a combination
of specific legislations against epidemics
and disasters, leavened by multifaceted
policy powers under the Indian Penal
Code and the Criminal Procedure Code,
and stands now reinforced by the mod-
ernised Disaster Management Act, 2005
(DMA). In a post-Covid-19 world,
we may reflect on whether it was more
of a catastrophe than a disaster and
whether there should, indeed, be a
multilateral treaty on the best ways to
handle a pandemic.
The revival of powers conferred by
VAST EXODUS
Despite the lockdown, passengers try to bo-
ard buses to their native places, at Lucknow
Photos: UNI

12 April 20, 2020
a 123-year-old Indian Epidemics Act,
1897 (a law of only four sections, but
vast in scope) is combined with the
DMA. And the proclamation of a “noti-
fied disaster” signifies that states can
make use of the State Disaster Relief
Fund, while the central government
contributes 55 percent for Union
Territories (UTs) and over 90 percent
for special category states/UTs (such as
north-eastern states, Sikkim, Himachal
Pradesh and Uttarakhand).
Moreover, as Ishan Bhatnagar and
Ritesh Patnaik (two NLS, Bangalore,
second-year law students) have pointed
out, the “prophetic” aspects of the Public
Health (Prevention, Control and
Management of Epidemics, Bio-
Terrorism and Disasters) Bill of 2017
seem to have guided much of the anti-
Covid-19 law and policy action today.
Whether the continuation of colonial
laws after 70 years of the working of the
Constitution or whether the DMA pro-
vides ek dhakka aur do (give one more
push) to the crumbling citadel of consti-
tutional federalism should furnish some
interesting post-Covid-19 concerns.
Yet, the constitutionality of certain
offences under the Indian Penal Code is
beyond doubt. These include Sections
188 (“disobedience to order duly prom-
ulgated by public servant”), 269 (“negli-
gent act likely to spread infection of dis-
ease dangerous to life”) and 270
(“malignant act likely to spread infec-
tion of disease dangerous to life”). Much
the same can be said of the rather elabo-
rate seven sections of Section 144 of the
Criminal Procedure Code which enable
the executive to issue orders that pre-
scribe powers to maintain order by tak-
ing extreme prohibitive actions that
impinge variously on social and public
life. However, Anuradha Bhasin (2020)
now articulates the criteria of judicially
reviewable objective satisfaction for
Section 144 orders (see my article in
India Legal on February 14, 2020).
In a deep constitutional irony, the
Essential Commodities Act, 1955, a
command and control planned national
economy law, now helps, in a neoliberal
era, to combat Covid-19! It enabled the
Union government on March 13, 2020,
to declare masks and hand sanitisers as
essential commodities until June 30.
This law’s vast potential to control
production, supply and distribution and
to secure their equitable distribution
and availability at fair prices is once
again writ large on the economy and
the nation.
JUDICIAL APPROACHES
How should the justice delivery system
efficiently function in a Covid-19 situa-
tion? The SC has boldly confronted this
question (as per CJI SA Bobde, Dr
Justice Dhananjaya Chandrachud and
Justice Nageswara Rao) by invoking the
powers of Article 142 and providing
guidelines for court functioning (on
April 6, 2020). The open embrace of
digital and medical technologies is strik-
ing; had the Court accepted my sugges-
tion in the early Bhopal days to establish
a science and technology bench, a better
access to a more thorough picture of the
Inadeepconstitutionalirony,the
EssentialCommoditiesAct,1955,a
commandandcontrolplannednational
economylaw,nowhelps,inaneoliberal
era,tocombatCovid-19!
EARLY RELEASE
Prisoners being released from Sabarmati jail
in Ahmedabad due to Covid-19 fears
Lead/ Column/ Covid-19/ Prof Upendra Baxi

achievements of the lockdown regime.
Pertinent questions have also been
raised concerning acts of deprivation of
dignity and health in the treatment of
migrant exodus and at least in one
instance, of mass spraying (Vrinda
Grover et al: Bar & Bench, April 5,
2020). And the scope of violence by
civil society actors, be it imminent food
riots or domestic violence against
women (see on the latter https://fight-
covidnotpeople.in/2020/04/04/ensure-
womens-rights-during-the-lockdown-
an-open-letter-to-delhi-cm-kejriwal/)
has been questioned. What constitu-
tional courts can and should do to
confront this remains a high priority
matter for anxious debate and urgent
social action.
However, the question what may
constitute “urgent matters” has acutely
arisen as the SC (per Nageswara Rao
and Deepak Gupta JJ, April 3) has
stayed the reasoned order of a single
judge that matters of bail in SC/ST
promotion were not urgent matters
and these should not be listed because
of Covid-19-related contagion. Similar
was the effect of the orders of the
Bombay High Court.
Are these foundationally “wholly
illegal” as amounting to “judicial sus-
pension of Article 21 rights” (as Dr
Gautam Bhatia puts the matter)? Can
these be further read as articulating the
spirit of internal emergency imprinted
on the Indian adjudicatory culture?
Are these expressive of the “cavalier
attitude towards the intersection of
pandemics and mass incarceration”?
Such questions raise all over again,
the haunting qualities of fiat justitia
and salus populi maxims in a Covid-19
world—now infested with new
summoning urgencies.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
ongoing promise and peril of technolo-
gising the administration of justice,
would have been possible. The SC had
earlier decided (on March 23) that it
would only convene benches to hear
“extremely urgent matters”. The High
Courts have also followed suit.
But the striking feature of the new
normal is the wide exercise of suo motu
jurisdiction. First, the SC has passed
certain directions decongesting Indian
prisons and remand homes and asked
the states to prepare “readiness and
response plans” for the prevention of the
contagion. It has proceeded to enquire
into the mid-day meal scheme (follow-
ing the closure of schools and angan-
wadis across the country). Finally, the
Court has directed that the time period
for filing of cases before all courts/tri-
bunals shall stand extended till such
time that it passes further direction.
There are instances where High Courts
also have taken similar initiatives
towards inclusive and complex equality.
The SC is aware of the social criticism of
the plight of migrant workers both with-
in and across the states, (as late as April
6), it has declined to substitute the exec-
utive by judicial wisdom.
Covid-19 raises once again the issue
of powers of nudge function. Social
action litigation in India developed the
art and science of the nudge function
before a full-scale law and economics
theory was built around it. A nudge is
said to work independently of “forbid-
ding or adding any rationally relevant
choice options” and is also different
from “changing incentives” (incentives
that would also “modify rational behav-
iour”). Nudges, it is maintained, consti-
tute a “genuinely distinct mode of gover-
nance, with a corresponding distinct
normativity”. One may consider nudge
functions “in a broader normative
framework, along with other regulatory
techniques; a broader project of good
governance that is not distinct from law
but encompasses various forms of
legality” (see Péter Cserne, “Is Nudging
Really Extra-legal?” 2016). Can socially
responsible evaluation of judicial role
afford to ignore the judicial nudge
function at least in promoting incre-
mental equality?
For example, performances of police
brutality and even acts of sadism in
dealing with citizen behaviour during
the lockdown have marred the vaunted
STOCKING UP
People maintaining a distance while buying
essentials at a shop in Hyderabad

14 April 20, 2020
HE Indian judiciary is the
protector of the funda-
mental rights of citizens
and the guardian of the
Constitution. The Supreme
Court and High Courts are
given the powers to protect, safeguard
and uphold the statute. They are also
empowered to declare a law null and
void if it is found to be inconsistent with
the Constitution. Our courts have stood
by the rights of citizens in tough times
too, especially when the litigants are not
able to reach them.
The Covid-19 pandemic led to a Jan-
ata Curfew on March 22 and a 21-day
lockdown in India. Before the Janata
Curfew, March 19, 20 and 21 were
declared as holidays in Allahabad High
Court as well as Lucknow. This holiday
period was extended up to March 25.
Subsequently, keeping in mind the grav-
ity of the situation arising out of Covid-
19, the holidays were extended up to
March 28.
The courts are closed now due to the
lockdown. It is impossible for citizens to
reach them for access to justice or red-
ressal of their grievances. None of the
petitioners can have access to courts,
nor can lawyers. Even judges are con-
fined to their respective homes and can-
not hold court even if they wish to. In
such a dire situation, how does one have
access to justice?
If a person was released on bail or
interim bail for a limited duration which
expires during this lockdown period,
how would he apply for extension of bail
or interim bail? Or if an eviction, demo-
lition or dispossession order was passed
against anyone, how would he file an
appeal and get a stay?
To ensure that citizens are not dep-
rived of their right to approach courts of
law, the chief justice of Allahabad HC,
Justice Govind Mathur, exercised his
jurisdiction under Articles 226 and 227
of the Constitution. He took the lead in
this regard in PIL No. 564 of 2020 in Re
v. State of U.P., and without a petitioner,
his counsel, state of UP or its counsel,
held a court at his residence by consti-
tuting a division bench on March 26
this too shall be in abeyance for a month
from March 26, it said.
The Court said that considering that
citizens find it impossible to reach the
courts during the lockdown period, it is
expected that state governments, munic-
ipal authorities and agencies and instru-
mentalities of the state will be slow in
carrying out demolitions and evicting
people. It also directed that this order
be published on its official website and a
soft copy be sent to all concerned courts,
tribunals, the advocate-general, addi-
tional solicitor general of India, assis-
tant solicitor general of India, state pub-
lic prosecutor and the chairman of the
Bar Council of UP.
During this time, locus standi too
has been relaxed. Locus standi is the
right to appear/stand in court or the
capacity to bring an action. Normally, an
affected litigant can approach the courts
for airing his grievances.
This rule was relaxed earlier by the
Supreme Court in cases where the pub-
lic was involved in a PIL. But this
requires a public-spirited person to
knock at the door of courts. There are
instances when a letter to the court was
treated as a writ petition or where the
Supreme Court took cognisance on the
basis of a news item.
But during the lockdown period,
physical copies of newspapers are not
available. Even public-spirited NGOs
are under lockdown. In such a scenario,
the Allahabad High Court kept its doors
open for access to justice by litigants. If,
God forbid, the lockdown continues
beyond April 25, it is expected that the
Court’s order will be extended further.
—Justice Bhanwar Singh is a former
judge of Allahabad High Court and is D-
G, Delhi Metropolitan Education, School
of Law, Noida. Prof NK Singh is former
district and sessions judge (UP), and is
Director, Judicial Training Academy &
Dean, DME School of Law, Noida
A Paperless, People-less Court
Inordertoensurethatcitizensarenotdeprivedoftheirrightto
justice,thechiefjusticeofAllahabadHighCourtheldacourtat
hisresidenceandissueddirectionsincases
By Justice Bhanwar Singh and Dr NK Bahl
T
Lead/ Covid-19 Lockdown/ Access to Justice
and issued directions in this case.
It was directed by the Court that if
any criminal court in UP has granted
bail orders or anticipatory bail for a lim-
ited period which is likely to expire in a
month from “today” (March 26), the said
orders would be extended for a month.
Secondly, if any order of eviction, dispos-
session or demolition is already passed
by the High Court, district or civil court,
JusticeGovindMathurexercisedhis
jurisdictionunderArticles226and227
oftheConstitutionandconstituteda
divisionbenchandissueddirectionsin
PILNo.564of2020inRev.StateofU.P.

16 April 20, 2020
O one looks at the crisis
of the patriarchal econo-
my within a broader
political and moral frame-
work. The Indian family
is a fragile thing at best
with some of the highest incest rates.
The myth of the Indian family can be
maintained only in periods of normalcy.
When there is work, men feel more at
home with themselves. There is a sense
of certainty and identity even within the
temporariness of an informal economy.
However, recessions and epidemics
rip open the assumptions of family life.
The man is no longer the breadwinner.
Jobless, he loses both his sense of
masculinity and identity. The vulnera-
bility of man expresses itself in violence
against those who are even more vulner-
able than him. Women sense this
and worry.
A worker who came from the neigh-
bourhood slum where her husband was
an auto driver asked me recently: “A few
of us women are doing domestic work
and keeping our jobs. What happens to
our husbands doing odd jobs and heavy
labour during these moments?” The
woman added that men feel resentment
against the world, for which there are
few outlets. Drink and violence seem to
be the only answers.
Time exaggerates this problem. In
the first week of the crisis, families seem
to adjust, but as the time passes, hunger
and uncertainty corrode them. They
have no social security, no claim to wel-
fare. There are no voluntary groups or
civil society to help. Tensions increase
and violence becomes the only answer.
It is a sequence one sees in the psychol-
ogy of the slum and the middle class.
Few psychologists explore what can be
called the trauma of disaster economies.
In fact, there is a middle class bias in
these discussions. As the saying goes,
the elite and the middle class can have
migraine but the poor are not even enti-
tled to a headache.
But there is more. The coronavirus
was like a tectonic shift. The lockdown
closed many things down, but also
exposed older frailties. One is reminded
of Nirad C Chaudhuri’s statement that
Indian families are married divorced
and don’t know it. He was referring to
the quality of relationship between gen-
ders. Boredom and anxiety bring the cri-
sis to the fore. Middle class women are
again the victims. As lawyer Vrinda
Grover said, the lockdown cuts out the
one avenue for escape. Women cannot
escape to their native homes. They are
locked down in a personal cage but are
exposed to the social virus of violence.
They have little recourse to the police in
such a situation. Habitually, they look to
other institutions for help. The lock-
down turns boredom into a terror of
The Trauma of
Disaster Economies
Asjoblessmenlosetheiridentityduringthelockdown,they
takeouttheirangeragainstwomenandcutouttheirone
avenueforescape.Civilsocietyneedstostepinandhelp
Opinion/ Covid-19 & Domestic Violence Shiv Visvanathan
A
story in The New York Times—“A
New Covid-19 Crisis: Domestic
Abuse Rises Worldwide”—recently
said that mounting data suggests that
domestic abuse is acting like an oppor-
tunistic infection, flourishing in the condi-
tions created by the pandemic. Domestic
violence goes up, says Marianne Hester,
a Bristol University sociologist, whenever
families spend more time together.
Matters finally came to a head so
much so that the United Nations called
for urgent action to combat this scourge.
“I urge all governments to put women’s
safety first as they respond to the pan-
demic,” Secretary General António
Guterres (above) tweeted.
But governments worldwide did not
foresee this and are trying to respond to
Aglobalphenomenon
N

endless waiting.
However, the violence of the male in
such a situation cannot be dismissed
simply. He is both perpetrator and vic-
tim. One has to understand what he is
being subjected to. The city for him
becomes a Hobbesian society, where
lathicharges become a way of life. He
has shades of paranoia as he hears the
reports of crowds beating a man for
coughing too loudly. The patriarchal
male of the informal economy is a
pathetic creature. Between the economy
and the street-level polity, he has little to
look forward to. When he goes home, he
has even less to offer. Violence and
anger become expressions of the sheer
emptiness of the situation.
Yet, society, and civil society in par-
ticular, needs to respond beyond com-
menting on the statistical normalcy of
the situation. When voluntary groups
intervene, the hapless society sees
anchors beyond itself. Hunger has to be
met, work has to be created. But there is
also a sense of trauma, pain and memo-
ry one must listen to. A friend of mine
once suggested that India needs an
equivalent of the Alcoholic Anonymous
—“Violence Anonymous”.
V
iolence today has become equally
addictive to the male. A violence
anonymous where brutality is
recognised as a socio-psychological
problem. Victim and perpetrator need
to be listened to. Civil society needs to
step in as an addendum to the law, to
create new possibilities that such fami-
lies cannot dream off. More than charity,
it is violence that begins at home.
One has to ask about the social and
psychological costs of the various deci-
sions of the regime. Unemployment and
the travails of migration have to be read
psychologically. A migrant is literally in
exile from his family and marginal to
the society where he works. Social scien-
tists and human rights groups have been
noticing that such marginal groups
become vulnerable to the police econo-
my. A police station in these locations is
a source of continuous threats and vio-
lence. When there is an epidemic of
anomie, as during the coronavirus, it is
the police that magnifies the violence
that accompanies it.
As human rights activists have
observed, there is an ironic correlation
between public health and social health.
The coronavirus becomes a display of
such ironies. Human rights activists
need to have futuristic scenarios and
alternative solutions as these situations
emerge.
—The writer is a member of the Compost
Heap, a commons of ideas exploring
alternative imaginations
this risk. The paper said that in Anhui
Province, in eastern China, Lele, a 26-yer-
old woman, while holding her 11-month-
old daughter, was beaten by her husband
with a chair. “Eventually, she says, one
of her legs lost feeling and she fell to
the ground, still holding the baby in
her arms.”
The NYT article said: “As quarantines
take effect around the world, that kind
of ‘intimate terrorism’— a term many
experts prefer for domestic violence—is
flourishing.”
In Spain, the emergency number for
domestic violence received 18 percent
more calls in the first two weeks of the
lockdown than in the same period a
month earlier. The French police too has
reported a nationwide spike of about 30
percent in domestic violence.
Judith Lewis Herman from Harvard
University Medical School said that the
coercive methods used by domestic
abusers are similar to kidnappers who
controlled their hostages and repressive
regimes. Besides physical violence, the
article said, “common tools of abuse
include isolation from friends, family and
employment; constant surveillance; strict,
detailed rules for behavior; and restric-
tions on access to such basic necessities
as food, clothing and sanitary facilities”.

Legal Eye/ Covid-19/ “Force Majeure” Clause
18 April 20, 2020
HILE the world is
crippled by the
coronavirus out-
break, an impor-
tant concern am-
ong different in-
dustrial sectors is the force majeure
clause and whether it will excuse parties
who are otherwise bound by a contract
from performing their obligations. Is the
Indian law well-equipped to deal with a
situation like this, especially as econom-
ic activities and commercial transactions
globally have come to a standstill?
Force majeure is a standard clause in
most contracts. If invoked, it exempts a
party from performing his obligations
due to an event that has not been fore-
seen and which he has no control over.
It’s generally added to the contract to
cover incidents. The Indian Contract
Act does not expressly refer to the term
force majeure, but the essence of the
concept can be found in Section 32 and
Section 52 of the Act.
Section 32 talks about “contingent
contracts” where the performance of the
contractual obligations is contingent on
the happening or non-happening of an
event. Section 52 deals with the frustra-
tion of a contract and states that any act
which was to be performed after the
contract became unlawful or impossible
to perform and which the promisor can-
not prevent will become void. Therefore,
applicability of both force majeure and
frustration of contract require a super-
vening event which is not foreseeable
and is not attributable to either party.
The Supreme Court in its landmark
judgment Satyabrata Ghose vs
Mugneeram Bangur & Co held that to
determine whether a force majeure
event has occurred, it’s not necessary
that the performance of an act should
literally become impossible; a mere im-
practicality of performance will also be
covered. “If the contract has an express
or implied ‘force majeure’ clause, then
the situation will be analysed on the
basis of that, and not through the app-
lication of principles under Section 56,”
it said.
Further, in Industrial Finance Cor-
poration of India Ltd vs The Cannanore
Spinning & Weaving Mills Ltd. and
Ors., the Court stated: “It may be no-
ticed here that the Statute itself has
recognised the doctrine of frustration
and encompassed within its ambit an
exhaustive arena of force majeure under
which non-performance stands excused
Pact
of the
MatterAseconomicactivitiescome
toastandstill,companiesin
varioussectorsarefalling
backonthisclausetoget
releasedfromcontractual
obligationsandapexcourt
judgmentshaveshownthe
wayforward
By Srishti Ojha
W
Forcemajeure isastandardclausein
mostcontracts.It’sgenerallyaddedto
coverincidents.TheIndianContractAct
doesnotexpresslyrefertoit,butthe
essencecanbefoundinsomesections.

by reason of an impediment beyond its
control which could neither be foreseen
at the time of entering into the contract
nor can the effect of the supervening
event could be avoided or overcome.”
In M/s Alopi Parshad & Sons Ltd. vs
Union of India, 1960, the Court held: “A
contract is not frustrated merely be-
cause the circumstances in which it was
made are altered.”
More recently, in Energy Watchdog
vs CERC in 2017, the Court held that if
a contract has an express or implied
force majeure clause, it will apply over
the principles under Section 56 and the
force majeure clause will not apply if
alternative modes of performance
are available.
So how does this clause affect various
sectors? In the power sector, distribu-
tion companies (discoms) normally
maintain a payment assurance for all
the power that they intend to procure
from a power generator (genco) to pre-
vent a build-up of dues. However, after
the lockdown, problems for the power
sector have increased manifold as the
demand of power has come down by 20-
30 percent. Electricity bill collections by
discoms witnessed a fall by 80 percent,
leading to their inability to make daily
payments not only to generators but
also for debt servicing to banks and
financial institutions.
Meanwhile, gencos are required to
make payment for monthly supplies of
coal, but they have been defaulting in
their payment to Coal India Limited
(CIL) due to the lockdown. Despite
this, CIL is ensuring smooth supply to
gencos. The power ministry had
received requests from power distribu-
tion companies and state governments
for waiver of late payment surcharge
considering force majeure coming into
effect due to the lockdown restrictions.
A
cknowledging the gravity of the
situation, the ministry relaxed
the payment security mechanism
to give support to discoms that were fin-
ding it difficult to collect payments for
bills. The ministry stated: “Considering
the unprecedented and force majeure
situation, it has been decided that
power may be scheduled even if pay-
ment security mechanism is established
for 50 percent of the amount for which
payment security mechanism is to be
otherwise established contractually.
This order shall be in effect till June
30, 2020.”
Meanwhile, the Central Electricity
Regulatory Commission (CERC) passed
an order reducing the late payment sur-
charge imposed on discoms for delay in
payment to power generators and trans-
mission companies. It lowered LPA to 1
percent per month from 1.5 till June 30.
The order was passed following direc-
tions from the power ministry under
Section 107 of the Electricity Act, 2003.
CERC has, however, provided relief only
on late payment surcharge.
Six discoms—UP, Punjab, Haryana,
TheDepartmentofExpenditurehas
explicitlystatedthatCovid-19shouldbe
consideredasa“naturalcalamity”and
forcemajeure maybeinvokedifconsid-
eredfit.Itmaynotapplytoallcontracts.
NOTHING
UNLAWFUL
(Above) With
widespread
disruptions in
business due to
the lockdown,
there will be a
lot more force
majeure
invocations;
(right, above) in
the power
sector, six dis-
coms in several
states have
invoked the
clause; (right,
below) FICCI
wants the
government to
mandate force
majeure in
civil aviation
contracts to
save the
industry
UNI
powergridindia.com

20 April 20, 2020
Telangana, MP and Dadra and Nagar
Haveli—have invoked the force majeure
clause for an indefinite period and asked
private sector gencos, with whom they
have entered into power purchase agree-
ments (PPA), not to expect any payment
till further notice.
However, according to the gencos,
these units cannot use force majeure to
deny payment, and notices sent by dis-
coms invoking the force majeure clause
are violative of the PPA. According to
the Association of Power Producers,
these discoms may have misinterpreted
a press release issued by the ministry
asking CERC to specify a reduced rate of
late payment surcharge and grant dis-
coms a longer window for repayment,
which was not intended to absolve them
of their obligations.
In response to a notice by the UP
Power Corporation Limited invoking the
force majeure clause, the Solar Energy
Corporation of India stated that the
claim of force majeure for its inability to
pay on the grounds that it could not col-
lect consumer dues was not valid.
Therefore, the discoms can only ask for
relief measures on account of the pan-
demic, it said.
Force majeure was also invoked by
some hotels. OYO suspended payment
of minimum assured amount to its ho-
tels by invoking this clause in their ag-
reement. Hotel owners have expressed
disapproval and alleged that such a
clause was not included in the original
agreement, while according to OYO, it
reserves the right to terminate the con-
tract completely if the situation worsens.
F
ICCI has also recommended that
the government mandate force
majeure in all civil aviation con-
tracts to save the industry from this cri-
sis. “Epidemic” is mentioned as the
cause in the agreements between the
Airports Authority of India and airline
companies, putting the burden on the
government to bail out these companies.
Similarly, the ministry of road trans-
port and highways has advised the Na-
tional Highways Authority of India
(NHAI) not to levy toll charges during
the lockdown. In order to balance the
revenue loss for companies and NHAI,
it had clarified that the event will be
classified as a force majeure of conces-
sion contracts.
In the real estate sector, if the cur-
rent scenario of Covid-19 is treated as
force majeure, the lessees will be allowed
to not make payments or defer pay-
ments under existing lease agreements
for income-generating properties. As
this is part of the Real Estate Invest-
ment Trusts structure, such disruption
in income generation will eventually
impact them and its unit holders.
However, the Department of Expen-
diture has issued a memorandum stat-
ing that Covid-19 should be considered
as a “natural calamity” and force ma-
jeure may be invoked wherever consid-
ered appropriate. This may not apply to
all contracts as force majeure clauses are
to be interpreted strictly in terms of the
contract. These clauses may be specific
(flood, war, etc) or general (events out-
side the reasonable control of a party to
the contract) or a combination of both.
However, where Covid-19 is not specifi-
cally stated as a force majeure event or
the contract itself does not have such an
express clause, the party may claim
relief on the grounds provided under the
Indian Contract Act.
If this issue is not amicably resolved
between parties in various sectors, it
could lead to a new set of legal cases.
OYOsuspended
paymentofminimum
assuredamounttoits
hotelsbyinvoking
forcemajeure intheir
agreement.Hotel
owners,however,say
thatsuchaclause
wasnotincludedin
theoriginalagree-
ment.OYOsaysitcan
terminatethecontract
completelyifthe
situationworsens.
Legal Eye/ Covid-19/ “Force Majeure” Clause
tophotel.news

Economy/ Covid-19/ Lockdown
22 April 20, 2020
N March 11, WHO dec-
lared Covid-19 a global
pandemic—an indication
of its possible contagion.
This created global pan-
demonium. As a result,
financial markets crashed, production of
goods and services worldwide shut
down, large-scale corporate bankrupt-
cies were certain and human liberty was
curtailed with forced lockdowns.
Nineteenth century economist Fred-
eric Bastiat helped policymakers under-
stand the difference between the obvi-
ous and “seen” costs and the more insid-
ious “unseen” costs. It is simple and ob-
vious to see the health costs associated
with the virus—minute by minute
counts are on TV. But the economic and
social costs of a global slowdown are not
simple and obvious.
And in the case of a fragile economy
like India, it is critical that policymakers
understand that these unseen costs
could be of a magnitude many times
higher than the more obvious costs. The
country has never faced an economic
crisis of this magnitude before. In 2008,
the government’s finances were healthy;
today, government deficits are close to 6
percent of GDP. In 2008, the banking
system was sound; today, 10 percent of
all loans are bad loans. In 2008, corpo-
rate India had significant cash balances
from five years of healthy profits; today,
corporate profits are 3 percent of GDP,
the lowest in 17 years. In 2008, aggre-
gate demand was strong and supportive
of economic growth; today, even before
the virus crisis, aggregate demand was
at a 20-year low. In 2008, India’s ex-
ports were expanding rapidly; today,
they have declined (as a percent of
GDP) for eight years in a row.
The national lockdown will affect
India more than any other major econo-
my because it was in a precarious situa-
tion even before the crisis. Additionally,
India’s economy is not structurally suit-
ed for a V-shaped recovery. The finan-
cial system is just not strong enough to
provide the necessary liquidity required
Unseen Costs
India’slockdownwillaffectitmorethananymajornationasits
financialsystemisnotstrongenoughtogivetheimpetusto
jump-starttheeconomy.Aneconomicpandemicwillbefar
worsethancorona
By Sanjiv Bhatia
O

to jump-start the economy.
Here are some of the unseen econo-
mic costs so that Indian policymakers
can rationally understand the magni-
tude of them.
The best-case estimate is that more
than 40 million people will lose their
jobs. How many of them will never re-
cover their careers? What about their
families, their children, their hopes and
aspirations? Millions will lose their life
savings and be forced to use their retire-
ment funds to survive. The long-term
costs of this disruption to aggregate sav-
ings and investment will be enormous.
Losing jobs will be accompanied by
significant mental illnesses. There will
be issues related to loss of self-worth,
depression, drug and alcohol abuse and
suicides. How many people will lose
their homes, divorce their spouses or
suffer abuse? These unseen social costs
will be substantial and could be a mas-
sive long-term drain on the country’s
productivity.
How many businesses will shut their
doors permanently? The average MSME
company in India has less than 15 days
of cash reserves. Many of them will pull
their shutters down permanently, and
once a business shuts down, it is diffi-
cult to restart it. We know from histori-
cal experiences of prolonged economic
disruptions (Argentina, Chile, Vene-
zuela) that as many as 50 percent of
MSME businesses could shut down per-
manently. The loss to India’s GDP, tax
revenues, employment and supply
chains will be significant and prolonged.
A two-month shutdown (16 percent of a
year’s production lost) could mean any-
where from a minimum of 5 percent
contraction in GDP to up to 20 percent.
How many vital service businesses will
vanish, putting upward price pressure
on the services that remain? Massive
inflationary pressures will be felt on all
goods as supply chains become compro-
mised and production facilities remain
locked. Combine too few goods with
infusion of liquidity from the fiscal and
monetary stimulus that would be req-
uired and we could be looking at an
inflation scenario upwards of 10 per-
cent. And there is no disease that hurts
the poor disproportionately more
than inflation.
How will India’s weak banking system
cope with the inevitable rise in bank-
ruptcies? Most developed countries have
strong and stable financial systems that
are able to provide liquidity, but India
doesn’t. Almost 70 percent of India’s
LOCKDOWN EFFECTS
(Above) The supply chain of goods has been
disrupted, with trucks stranded at many
places in India; the weak banking system of
India will be further exposed by the crisis
Photos: UNI

Economy/ Covid-19/ Lockdown
24 April 20, 2020
capital market is still owned, controlled
and operated by the government thro-
ugh its control of the banking sector.
The weaknesses in India’s financial sys-
tem will be exposed by this crisis.
How many new businesses will fail to
launch? This will hurt innovation and
the country’s long-term economic
growth. Investors and entrepreneurs
say this is easily the worst crisis for
startups in history and as many as 30
percent of existing start-ups could fold
by next month.
India’s exports will take a major hit.
Already suffering from six years of poli-
cy neglect and regulatory overkill, this
sector is at a crucial juncture. And while
Indian factories are shut, Chinese facto-
ries are ramping up production capacity
and rolling out products that the world
will soon demand. Over the next 6-8
months, while export businesses in In-
dia will be pulling down their shutters,
goods from their competitors in China,
Bangladesh and Vietnam will be taking
a market share from Indian companies.
This is already evident in the pharma-
ceutical industry and will soon follow in
other critical export industries.
India’s credit rating will most certain-
ly be downgraded as the economy goes
into recession. This will increase the rate
at which Indian companies borrow
money overseas—the sovereign credit
rating sets an upper boundary on all
corporate ratings. Combine this with a
rapidly declining rupee, which puts
additional pressure on overseas borrow-
ing, and Indian companies are staring at
a severe liquidity crisis.
Will India’s social fabric, already
wearing thin from politics, tear apart?
While the upper and middle classes may
be able to ride the lockdown, the poor
will surely suffer disproportionately. As
a result, deeply embedded social inequa-
lities will likely boil to the surface and
create social tensions. Estimates are that
up to 80 percent of India’s employment
is daily-wage labour, and for these peo-
ple, no work means no money and no
food. And while the government has
announced free rations, it is incompre-
hensible that India’s public distribution
system, which even under the best of
circumstances is grossly inefficient, will
be able to deliver essential supplies to
millions of poor and starving families
across the country. Tens of thousands
could suffer from starvation and malnu-
trition and severely test the country’s
welfare system in years to come.
Will crime spike as millions look for
food and vent their social frustrations?
It is not hard to imagine that given the
choice between certain death from star-
vation and uncertain exposure to a
virus, the vast majority of the poor will
choose to come out in droves looking for
food. This could present a serious law
and order situation.
These are not rhetorical questions.
They become relevant every time a
country faces state-imposed curtailment
on people’s liberties. Venezuela is a good
example of a country that has been pu-
shed back 50 years by economic restric-
tions. Before that, Zimbabwe saw hyper-
inflation of almost 80 billion percent a
year as a result of high national debt,
declines in economic output and ex-
ports, price controls and lack of confi-
dence in the government, the economy
and social life.
As we face this unknown enemy, let
us not act like the fabled Don Quixote.
Let us not expose the people of this
country to a certain economic calamity
by attempting to slay an elusive virus.
The Indian economy, which was already
tottering near recessionary levels before
the virus, is now certainly in a recession.
Like a slow, big ship that takes forever
to turn around, it may be five to six
years before India’s battered economy
returns to normal. Keeping the lock-
down going will only extend the time-
line to recovery.
We need to wrap our collective heads
around a fundamental truth—that we
are in the early stages of an economic
pandemic that will be far worse than the
Covid-19 one in terms of human misery.
The Indian people cannot just sit at
home and wait for aid from funds the
government does not have. Locking 1.3
billion people because 4,000 have been
infected is a flawed idea. It is time to get
the people working and the economy
moving again before the “unseen” costs
consume the nation.
—The writer is a financial economist
and founder, contractwithindia.com
Estimatesarethatupto80percentof
India’semploymentisdaily-wagelabour,
andforthesepeople,noworkmeansno
moneyandnofood.Asaresult,crimemay
spike,leadingtoalawandorderproblem.

Global Trends/ Covid-19/ Cooperation by Countries
26 April 20, 2020
ORLD leaders and
health authorities
are scrambling to
get their act to-
gether to fight the
deadly Covid-19
pandemic which has spared neither
rich, industrialised western powers nor
developing countries in Asia and Africa.
Considering that the disease has affect-
ed everyone, the common sense app-
roach would be to place all hands on
the deck to fight it.
“We must all join the chorus of hu-
manity in the fight against the virus and
win ultimate victory. The virus is a
threat to each of us and we must unite
as one person,” WHO Director-General
Tedros Adhanom Ghebreyesus said re-
cently. He is right. The disease does not
respect national boundaries, colour,
race or status. UK Prime Minister Boris
Johnson and Prince Charles are a case
in point.
The fact that we live in a global vil-
lage where everyone is interconnected
calls for a joint response. This is not the
time to continue with big power rival-
ries, regional or national issues. Every
country knows that co-operation is the
only answer.
Yet that has not happened seamless-
ly. This is mainly because no one saw
the pandemic coming and every coun-
try is struggling to contain the explo-
sion of the disease. Though nations
have pledged to help each other, the
fact is that every country is struggling
to do the best for its own people. Mas-
ks, gloves, personal protection equip-
ment and ventilators are all in short
supply world-wide and countries are
buying up as much as is available in the
Strategic Help
Evenaseverycountryistryingtodothebestforitsownpeople
first,smartleaderslikeNarendraModiareobligingother
nationsinthistimeofcrisisandhopingtogaindividendslater
By Seema Guha
W
A DIPLOMATIC
OVERTURE
US president Donald
Trump has asked
PM Modi to allow
the US to import
hydroxychloroquine
and the latter has
readily obliged

world market. Leaders are naturally
committed to dousing the home fires
first before turning to help others. Yet,
smart leaders are also reaching out and
hoping to make their voices count.
India’s Prime Minister Narendra
Modi was first on the ball. He called for
a meeting of SAARC leaders to work
out a joint strategy to fight the coron-
avirus which was affecting all member
states. This was an excellent move to
showcase India’s leadership role in the
region. Yet in practical terms little, if
any, can be achieved at a time when In-
dia itself is facing a medical emergency.
Modi has been on the phone with other
world leaders as well.
U
S President Donald Trump
spoke to Modi on April 5. Both
leaders said that India and the
US would jointly fight the Covid-19
pandemic. But the main purpose of the
call was to ask India to allow the US to
import some amount of the malaria
drug, hydroxychloroquine (HCQ),
which is manufactured here. A day
before India had banned the export of
this drug as it was proved to work well
with some patients of Covid-19.
However, on April 7, India decided to
help neighbouring countries and a few
others, meaning the US, by allowing the
export of HCQ. The government made
sure that there are enough stocks for
the country before taking the decision.
But a video of Trump saying he could
retaliate if India does not send it HCQ
gives a new perspective to these ties.
In a press release, MEA spokesman
Anurag Srivastava said: “Given the en-
ormity of the Covid-19 pandemic, India
has always maintained that the interna-
tional community must display strong
solidarity and cooperation…In view of
the humanitarian aspects of the pan-
demic, it has been decided that India
would license paracetamol and HCQ in
appropriate quantities to all our neigh-
bouring countries who are dependent
on our capabilities. We will also be sup-
plying these essential drugs to some na-
tions who have been particularly badly
affected by the pandemic.” Nowhere
was the US mentioned. But basically
Modi has obliged Trump.
According to reports from the phar-
maceutical industry, India has enough
stocks to meet both domestic and for-
eign supplies. But then, India’s altruism
in the pharma sector is well-known.
The pharma industry has done great
service to the poor of the world by man-
ufacturing AIDS drugs at half the cost
of western countries. Despite some
pharma companies being hauled up by
the US Food and Drug Administration
for the supply of sub-standard drugs,
the majority of them have done a major
service to help African countries fight
the AIDS epidemic which at one time
was a major threat to the world.
T
hough there is no solid evidence
to prove that hydroxychloro-
quine is the right drug for all
Covid-19 patients, Trump has been ad-
vocating its use for quite some time at
his daily news conference. He called it a
“game changer”. However, there have
been no clinical trials of the drug on
coronavirus patients. His own adminis-
tration’s top adviser on infectious dis-
eases, Dr Anthony Fauci, has said out-
right that without clinical trials nothing
could be endorsed. “In terms of science,
I don’t think we can definitively say it
works,” he told CBS’s Face the Nation.
Trump’s thumbs-up for the drug led to
a shortage of demand for it at a time
when it was already in short supply due
to surging demand. It, incidentally, is
also used to treat lupus and other rheu-
matic diseases.
Fauci’s caution should be kept in
mind after the experience of a 44-year-
old doctor in Assam who died after
using this drug. Several frontline doc-
tors treating Covid-19 patients use it for
self-protection. But the reaction to the
drug when one is not suffering from
malaria can be disastrous. It has not yet
gone through elaborate trials to ensure
that it is safe. But in a world which does
not have an antidote for Covid-19, the
usual precautions were discarded.
But with no new drug or vaccine
in sight for Covid-19, hydroxychloro-
quine can be used on some patients as
a last resort. With the pandemic expect-
ed to reach its peak in India by the
end of April, can Delhi afford to
Withthepandemicexpectedtoreach
itspeakinIndiabytheendofApril,can
DelhiaffordtoexportthedrugtotheUS?
Ifthesituationwasreversed,wouldthe
USgiveittous?Certainlynot.
CORONA AND POLITICS
Chinese President Xi
Jinping attending the G20
leaders’ summit conducted
via video links on March 26
to intensify global
cooperation to combat
Covid-19

FALL FROM GRACE
With many sectors, including automobiles, hit
by the economic slowdown in India, its clout
is already waning in the global order
28 April 20, 2020
export the drug to the US? The govern-
ment appears confident. If the situation
was reversed, would the US give it to
us? Certainly not, as Trump firmly
believes in America first. The MEA has
given
a solid explanation for lifting the
ban on exports, but basically it boils
down to helping the US for strategic
considerations.
Meanwhile, the UN General Ass-
embly (UNGA) adopted a resolution
sponsored by 187 countries, including
India, to intensify global cooperation to
defeat the pandemic. The resolution
was the first document to be adopted by
the UNGA and is titled “Global Soli-
darity to fight the Coronavirus disease
2019 (Covid-19)”. Not surprisingly, the
UN Security Council has not yet dis-
cussed the issue.
It would be interesting to see if the
US, like Trump, points a finger at China
if the issue is discussed at the UNSC.
Trump insists on calling Covid-19 a
“China virus” possibly with an eye at
thrashing China to please his base for
the November presidential elections.
During his election campaign in 2016,
Trump frequently accused China of cur-
rency manipulation and taking away
American jobs. He even went to the
extent of accusing it of creating the cli-
mate change myth.
The deadly Covid-19 virus started in
China but having come out of it, the
country is now taking the opportunity
to restore its international reputation.
Many critics believe that the authorities
in Wuhan hid the actual dimension of
the epidemic for a long time. It was
only when it got out of control that
China began giving out all the facts and
figures. China controlled the epidemic
well by cracking the whip to impose a
lockdown and practise social distanc-
ing. In fact, social distancing, learnt
from China, is now being replicated
across the world to fight the virus.
C
hina is now going out of its way
to help the world and spread
goodwill. It plays into its ambi-
tions to project itself as a global super-
power ready to take on such responsi-
bilities. While the US has always
played that role, under President
Trump, it has drawn a protectionist
shield around itself and is abandoning
its responsibilities.
China is sending out aid to Europe
and the US. Chinese equipment and
medical teams have been sent to Italy,
one of the worst affected. The China
Red Cross Foundation set up an Inter-
national Humanitarian Assistance Fund
against Epidemics, to raise funds and
help nations affected by the virus. On
March 29, the first aircraft loaded with
80 tonnes of supplies reached New York
from Shanghai. The plane carried 1.3
lakh N95 masks, 17 lakh surgical masks
and 50,000 protective clothing for
frontline health workers. Chinese bil-
lionaire Jack Ma distributed equipment
to US, countries in Europe and Pakis-
tan. China had also helped Iran, South
Korea and Pakistan to battle the dis-
ease. It is hoping to rev up its factories
to meet the urgent demand for medical
equipment. Unfortunately, it is about
the only major country where people
are back at work.
The race for a vaccine against
Covid-19 is on in laboratories across
the world. US, Germany and China are
in the race for this. The US expects a
vaccine by the end of the year. In India
too, efforts are on. Any vaccine or
drug which is successful will be shared
across the world, though first use will
be for the country which produces it.
Meanwhile, in the post Covid-19
world, China will play a significant role.
The US is in retreat under Trump and
is likely to continue this till the run-up
to the November presidential elections.
If Trump loses, Joe Biden as president
will try to reassert US global reach. But
much will depend on the state of the
US economy. If it bounces back, the US
will continue to call the shots. Europe is
also in dire straits at the moment. In
fact, small European nations, such as
Serbia, Slovenia and former East Euro-
pean nations, feel let down by the EU.
It is now China which is flooding them
with medical aid equipment. India’s
clout was already waning due to its
bleak economic performance. The lock-
down will make it worse. India’s power
projection will lack substance without
the backing of an economic revival.
TheUNGeneralAssemblyadopteda
resolutionsponsoredby187countries,
includingIndia,tointensifyglobalcoop-
erationtodefeatCovid-19.TheSecurity
Councilisyettodiscusstheissue.
Global Trends/ Covid-19/ Cooperation by Countries
topgear.com

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April13, 2020
analreadyslowingeconomyhasbeendealtabodyblowbythepandemicas
productionandemploymentarehit, severelyaffectingtheunorganisedsector.An
in-depthanalysisbynotedeconomist ProfArunKumar
CrashLanding:Theaviationsectorisamongtheworsthitasfleetsaregrounded
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LOOMING CATASTROPHE
Section 144
and Police Excesses

Global Trends/ Covid-19/ US Fight
30 April 20, 2020
OST of America is
locked down or ordered
to stay at home to sup-
press the Covid-10 pan-
demic. Traffic has dis-
appeared and only a
cyclist intrudes now and then to demon-
strate that people are still alive. Malls
are closed, parking lots empty.
Behind the scenes of economic de-
mise and human death on television and
computer screens, President Donald
Trump’s senior team is more focused on
eliminating government oversight, given
the disjointed approach to fighting the
spread of the virus.
Trillions of dollars in help have barely
started to trickle out because of paper-
work and management delays, some
caused by confusion over what the rules
are, some by an understaffed-underman-
aged federal government run by true
believers in “small government”. Many
folks expecting a $1,200-gift, which a
new Senate bill proposes to individuals
in the wake of the pandemic, will be
frustrated waiting at the mailbox.
Nearly 80 percent of American
workers live paycheck to paycheck. In
just a two-week period, more than
16,600,000 people filed for unemploy-
ment benefits, while millions of self-
employed are not eligible for benefits,
but face hunger and bankruptcy.
In the midst of this crisis, the Admi-
nistration fired two important inspec-
tors general (IGs) in the last few weeks.
In the US government, the IG’s role is
an independent and non-partisan posi-
tion responsible for fiscal and legal
oversight of a government department
or agency. Trump publicly made it clear
that he did not want any oversight on
how the government disbursed trillions
of dollars or how it was procuring med-
ical supplies.
One of the IGs removed was Glenn A
Fine, the acting IG for the Defense Dep-
artment. He was set to become the
chairman of a new Pandemic Response
Accountability Committee. But Trump
removed him from his Pentagon job,
disqualifying him from serving on the
new panel, and appointed Sean O’Don-
nell, who is the IG at the Environmental
Protection Agency. He will now be han-
dling both jobs. Trump had earlier fired
the IG for the intelligence community,
Michael K Atkinson, who had insisted
on telling Congress about the whistle-
blower complaint on Trump’s dealings
with Ukraine. At the same time, his
temporary appointment to head US
intelligence agencies has removed every
Senate-appointed official in the National
Intelligence hierarchy.
The government official who freq-
uently disagrees with Trump is Dr An-
thony Fauci who has headed the Na-
tional Institute of Allergy and Infectious
Diseases since 1984. Trump frequently
uses his daily televised briefing to pro-
mote hydroxychloroquine, a malaria
drug, as a possible cure for coronavirus.
Fauci has pointed out that there was
scant evidence that it worked and no
scientific tests had been done to verify
its efficacy in this fight. The leadership
of the Centers for Disease Control and
Prevention (CDC) has been co-opted by
Trump’s acolytes, excepting Fauci and
A Wartime President?
Astheworld’ssuperpower
strugglestotacklethe
pandemic’sseverity,
Americansarefastrealising
thatthepresidentisoutof
depthandgearingupmore
fortheNovemberpollsthan
thishealthcrisis
By Kenneth Tiven in
Washington
WOEFULLY UNPREPARED
Trump's press briefings have led to confusion
about the severity of Covid-19 in the US
M UNI

his department.
Trump’s live TV briefings, more cam-
paign rally than factual or useful, have
caused a lot of confusion in America
about the severity of the disease. The
more fantastical of Trump’s statements
are amplified by media like Fox News,
which still takes Trump seriously, while
belatedly recognising the magnitude of
the situation.
Unearthed memos reveal that trusted
Trump advisor Peter Navarro told the
president in January that coronavirus
could demolish the American economy.
This helps explain why Trump was dis-
missive of the virus for so long, calling it
a hoax and easily managed.
The economic health of America is
crucial to Trump’s re-election. He has
grasped the idea that the daily briefings
could be a campaign event. It satisfied
his need for everything to be all about
him. Despite the growing death toll, lit-
tle has changed. Most afternoons he
badgers reporters and blames others, all
the while offering fearful, unproven
medicine “cures” in a fog of misinforma-
tion, self-congratulation, political
attacks and nonsense. Trump, the politi-
cian, is using the same—perhaps only—
skills he has ever demonstrated in 40
years as a born-rich, make-believe bil-
lionaire businessman.
It is hard to “gaslight” a pandemic
that kills thousands of people, regardless
of their ideology. Trump voters from
2016 are learning this the hard way. In
the president’s heartland, largely rural,
less-populated states, the reality is
crushingly obvious now. In Early Co-
unty, Georgia, close to the Alabama bor-
der, and a typical southern enclave, five
people have died from Covid-19.
Assistant police chief Tonya Tinsley
sums up the shock in a rural county of
fewer than 11,000 people. “Being from a
small town, you think it’s not going to
touch us,” she said. “We are so small and
tucked away. You have a perception that
it’s in bigger cities.” The police chief and
the mayor in Blakely, the county seat,
are among its 92 confirmed cases.
M
uch of the mainstream media
has given up on Trump,
including David Frum, a for-
mer speechwriter for President George
Bush. This conservative writer, now an
editor at The Atlantic magazine, was an
early critic of Trump. He writes: “Trump
now fancies himself a ‘wartime presi-
dent.’ How is his war going? By the end
of March, the coronavirus had killed
more Americans than the 9/11 attacks.
By the first weekend in April, the virus
had killed more Americans than any
single battle of the Civil War. By Easter,
it may have killed more Americans than
the Korean War. On the present trajec-
tory, it will kill, by late April, more
Americans than Vietnam.
“Having earlier promised that casual-
ties could be held near zero, Trump now
claims he will have done a ‘very good
job’ if the toll is held below 2,00,000
dead. That the pandemic occurred is not
Trump’s fault. The utter unpreparedness
of the United States for a pandemic is
Trump’s fault. The loss of stockpiled res-
pirators to breakage because the federal
government let maintenance contracts
lapse in 2018 is Trump’s fault. The fail-
ure to store sufficient protective medical
gear in the national arsenal is Trump’s
fault. That states are bidding against
other states for equipment, paying many
multiples of the pre-crisis price for ven-
tilators, is Trump’s fault. Air travellers
summoned home and forced to stand
for hours in dense airport crowds along-
side infected people? That was Trump’s
fault too. Ten weeks of insisting that
the coronavirus is a harmless flu that
would miraculously go away on its own?
Trump’s fault too.”
The 2020 election is as critical for
the future of America as was the Dep-
ression-era Roosevelt-Hoover election of
1932. But at what cost?
— The writer has worked in senior
positions at The Washington Post, NBC,
ABC and CNN and also consults for
several Indian channels
“TheutterunpreparednessoftheUSfora
pandemicisTrump’sfault.Thefailureto
storesufficientprotectivemedicalgearin
thenationalarsenalisTrump’sfault.”
—DavidFrum,aformerspeechwriterfor
PresidentGeorgeBush
DIFFICULT PHASE
The death toll due to Covid-19 in the US is
dramatically rising every day
UNI

States/ Kerala/ Liquor Business
32 April 20, 2020
DVERSITY, it is said,
brings out the best in
everyone. Two years ago,
when Kerala was ravaged
by floods, Chief Minister
Pinarayi Vijayan led from
the front, displaying leadership qualities
not often noticed among the political
class these days. In the two months
since Kerala became the first state to be
hit by the coronavirus, Vijayan has once
again displayed exemplary qualities by
initiating and implementing measures
that have made the state’s calamity and
pandemic preparedness a benchmark
for other states.
But adversity also brings out the
worst in some. Even as praise continued
to flow in for the chief minister, special-
ly from doctors and health workers, his
government was dealt a heavy blow on
April 2 by the Kerala High Court. It
stayed the LDF government’s decision to
allow those habituated to alcohol to get
around the lockdown and purchase
liquor by getting themselves certified as
alcohol-dependent by a government
doctor. A bench comprising Justices AK
Jayasankaran Nambiar and Shaji P
Chaly said the government order was
“disturbing” and a “recipe for disaster”.
The Vijayan government came up
with the “recipe” after eight people with
an alleged history of alcohol addiction
committed suicide within five days of
the lockdown. The government tried to
paint a picture of its already stretched
health services, which were busy fight-
ing the coronavirus battle, having to
deal with another major health scare
triggered by withdrawal symptoms
among alcoholics.
But Justices Nambiar and Chaly
were not convinced nor was the Nati-
onal Mental Health Wing, the de-addic-
tion wing of the Indian Medical Ass-
ociation (IMA) and the Kerala
Coffers Running Dry
Withliquoraccountingfor24percentofthestate’srevenue,itwasnosurprisethat
theLDFgovernmenttriedtoallowthosehabituatedtotheirdrinktogettheir
dailyquotatilltheHighCourtputastoptoit
By Ashok Damodaran
TIPPLING GOES FOR A TOSS
File photo of a queue outside a liquor shop in
Kizhakkambalamin, Ernakulam district
A

Government Medical Officers Asso-
ciation (KGMOA), who petitioned the
Court. The Kerala chapter of IMA had
earlier written to Vijayan stating that
“making a doctor recommend alcohol to
a person is not ethical” and urged the
government to “reconsider its decision
in this regard”.
The IMA said in its letter: “Alcohol
withdrawal can be managed successfully
using medications and we feel that ask-
ing doctors to recommend alcohol itself
as the treatment of alcohol withdrawal
would be sending a wrong message to
the public. We worry that this would
motivate many people to approach doc-
tors to get ‘prescriptions’ for alcohol,
leading to fraud and malpractices.”
Doctors who spoke to India Legal
expressed surprise that the government
would go to such an extent to keep the
liquor business running as usual. They
said that no member of the medical fra-
ternity would think of prescribing alco-
hol to cure any illness, much less de-
addiction. The secretary of KGMOA,
Dr Vijayakrishna, told the media:“There
are scientific methods to treat people
with withdrawal symptoms and that’s
the medical protocol. This is something
which will affect our morale and numer-
ous side-effects will surface. We cannot
do this.”
Dr P Ismail, former deputy director
of Kerala Health Services, told India
Legal: “The idea is hair-brained. There
are many aspects apart from the moral
ones. What if a handful of people sur-
round a government doctor in a dispen-
sary in some remote village and demand
such certificates? What if a doctor refus-
es to give it and they beat him up? Will
the government give security?”
There were other doctors who, while
not in favour of drinking, advised agai-
nst a complete ban on liquor. “A total
ban may prompt people to turn to other
options like illicit liquor or drugs, which
are even bigger threats,” said one doctor.
But the real reason behind the LDF
government’s move was that like others
before it, it has treated the liquor busi-
ness as a cash cow. Kerala’s sole liquor
supplier is the Kerala State Beverages
Corporation (BEVCO) which until the
lockdown was selling nearly Rs 50-crore
worth of liquor every day. In 2018-19,
BEVCO earned Rs 14,508 crore from
liquor sales. The excise duty on bottled
liquor ranged from 300-500 percent,
depending on the brand. For example, a
bottle of rum that costs Rs 100 was sold
for Rs 400-500 in the market.
T
he incumbent government is only
following in the footsteps of its
predecessors that have always
waxed eloquent about prohibition but
gone on to do exactly the opposite. An
exception was the last Congress govern-
ment led by Oommen Chandy, which in
2014, promised to bring about total pro-
hibition in the state within 10 years. As
a first step, it closed down all bars in
hotels with a rating below five stars. The
fall of the government in a state which
has the unsavoury record of having the
highest per capita consumption of
liquor in the country—8.3 litres per
year—came as no surprise.
In the elections that followed in
2016, the LDF came to power and
began to chip away at the previous gov-
ernment’s prohibition policy. At first, it
allowed bars in hotels with three and
four star ratings to sell Indian-made for-
eign liquor, and lesser rated ones to run
wine and beer parlours. The govern-
ment these days readily hands out liquor
vend licences to anyone with money.
There is only one condition: vends must
not be situated within 500 metres of the
national highway, as stipulated by the
Supreme Court.
The government has defended its
liquor policy and said the crackdown by
its predecessor had cost the state a huge
number of jobs besides hitting Kerala’s
highly lucrative tourism sector. Vijayan
said his government believes in restr-
aint, not prohibition. He claimed that
the use of drugs had gone up alarmingly
after prohibition came into force. “The
liquor policy of the UDF which envis-
aged total prohibition was a complete
fiasco,” he had said in 2017 after allow-
ing hotels to sell liquor.
It’s obvious that the real reason
behind going slow on prohibition as well
as the government’s desperate efforts to
keep the booze business open now was
the money coming into its coffers. Two
of the largest sources of tax revenues
which are under the direct control of
states are petroleum (petrol and diesel)
and alcohol, both of which do not come
within the ambit of GST. Liquor acc-
ounts for about 20 percent of the share
of government revenue in most states,
while in Kerala, it is almost 24 percent,
up from 15 percent a quarter of a centu-
ry ago.
As soon as the 21-day lockdown was
announced, the Kerala government clas-
sified alcohol as an essential commodity
and sales continued. But the state had to
step in after being prodded by the centre
which felt that in the rush to get their
day’s quota, tipplers were not following
norms relating to social distancing. It
downed shutters on March 26, only to
resume it after a two-day break as alco-
hol was classified as an “essential com-
modity” for patients.
But with the High Court throwing a
spanner in the works, it could be a long
thirsty wait for alcoholics in Kerala.
Thegovernmenthasdefendeditsliquor
policyandsaidthecrackdownearlierhad
hitthestate’stourismsector.
ChiefMinisterPinarayiVijayansayshe
believesinrestraint,notprohibition.

34 April 20, 2020
OURS after having ad-
vised “rapid antibody
tests” in “hotspot areas” in
an interim advisory, the
Indian Council of Medical
Research (ICMR) left the
decision to states and put out a list of
such tests that had been approved earli-
er. ICMR said: “Population in hotspot
areas may be tested using rapid anti-
body test, and antibody positives to be
confirmed by RT-PCR using throat/na-
sal swab. Antibody negatives to be quar-
antined at home.” Once it has been con-
firmed that Covid-19 is finally over,
diagnostic criteria will change. We may
no longer require diagnostic tests with
100 percent specificity.
But for now, everyone with cough,
fever and breathlessness (influenza-like
illness or severe acute respiratory ill-
ness) will need to be treated as a Covid-
19 patient unless proved otherwise.
Secondly, fever with loss of taste and
smell will also be treated as Covid-19.
Also, people with interstitial oedema on
ultrasound, bilateral pneumonia on x-
ray or ground glass appearance on chest
CT will be treated as Covid-19. Also,
those with low lymphocyte counts, high
ESR or rise in C-reactive protein (found
in blood plasma and whose concentra-
tions rise during inflammation) in sus-
pected viral fevers will also be tested.
Populations need to be classified
rapidly in five groups:
Who is infected?
Who is presumed to be infected (i.e.,
persons with signs and symptoms con-
sistent with infection who initially test
negative)?
Who has been exposed?
Who is not known to have been
exposed or infected?
Who has recovered from infection and
is adequately immune?
Now rapid tests based on IgM and
IgG antibodies will be done to test the
patient’s immunity. Earlier done on
dengue patients, they should be able to
identify patients who have either cur-
rent (IgM) or previous infection (IgG) as
a screening test. “M” means I am there
and “G” means I am gone.
In one study that included 58 pat-
ients suspected of Covid-19 but who
were negative, an immunoglobulin (Ig)
M ELISA test proved positive in 93 per-
cent of the cases. Rapid tests are cheap
and rapid and can triage a patient in no
time. Co-infection with SARS-CoV-2
and other respiratory viruses, including
influenza, have been reported. This may
impact management decisions.
Those who require confirmation of
Covid-19 will go for a nasopharyngeal
(reaching the posterior part of the
throat through the nose) swab speci-
men. An oropharyngeal (reaching the
pharynx through the mouth) swab can
be collected but is not essential. If col-
lected, it should be placed in the same
container as the nasopharyngeal speci-
men. Oropharyngeal, nasal mid-turbi-
nate or nasal swabs are acceptable alter-
natives if nasopharyngeal swabs are
unavailable. Expectorated sputum
should be collected from patients with
productive cough; induction of sputum
is not recommended. A lower respirato-
ry tract aspirate or bronchoalveolar la-
Testing Times
Varioustestsarebeingdonetoconfirmifapatienthasthe
disease,beitbronchoalveolarlavage,oropharyngealor
nasopharyngealswabsorrapidantibodytests
Column/ Covid-19 Dr KK Aggarwal
H
CRUCIAL PROCEDURE
A sample being taken from a coronavirus
patient for testing, which has become critical
Photos: UNI

vage (a bronchoscope is passed through
the mouth/nose into the lungs with a
measured amount of fluid and then col-
lected for examination) should be col-
lected from patients who are intubated.
SARS-CoV-2 RNA is detected by
reverse-transcription polymerase chain
reaction (RT-PCR). A positive test for
SARS-CoV-2 generally confirms the
diagnosis of Covid-19, although false-
positive tests are possible. False-negative
tests from upper respiratory specimens
have been documented. If initial testing
is negative, but the suspicion of Covid-
19 remains, repeating the test is suggest-
ed. In such cases, the WHO also recom-
mends testing lower respiratory tract
specimens, if possible. Negative RT-PCR
tests on oropharyngeal swabs despite CT
findings suggestive of viral pneumonia
have been reported in some patients
who ultimately tested positive for SARS-
CoV-2. Lower respiratory tract speci-
mens may have higher viral loads and
are more likely to yield positive tests
than upper respiratory tract specimens.
In a study of 205 patients with Co-
vid-19, the highest rates of positive viral
RNA tests were reported from bron-
choalveolar lavage (95 percent) and spu-
tum (72 percent) compared with oro-
pharyngeal swab (32 percent). Data
from this study suggested that viral
RNA levels are higher and more fre-
quently detected in nasal regions com-
pared with oral specimens, although
only eight nasal swabs were tested.
Coming to the rapid test, ICMR issued
an interim advisory on the use of sero-
logical tests in “hotspots”, before pulling
it down hours later.
A
ccording to the Johns Hopkins
Bloomberg School of Public
Health, “Serology tests are
blood-based tests that can be used to
identify whether people have been ex-
posed to a particular pathogen. Sero-
logy-based tests analyse the serum com-
ponent of whole blood. The serum in-
cludes antibodies to specific components
of pathogens, called antigens. These an-
tigens are recognised by the immune
system as foreign and are targeted by
the immune response.”
The serological test screens the plas-
ma for antibodies that the body devel-
ops against the virus. It takes less than
30 minutes. It is important to note,
however, that the PCR test is capable of
identifying infection at an earlier stage.
Only after the antibodies have devel-
oped, which takes a week, can the sero-
logical test come in.
As recently as on March 28, the
ICMR’s guidance document on these
tests said that they “can be done on
blood/serum/plasma samples; Test
result is available within 30 minutes;
Test comes positive after 7-10 days of
infection; The test remains positive for
several weeks after infection; Positive
test indicates exposure to SARS-CoV-2;
Negative test does not rule out COVID-
19 infection” but are not recommended
for diagnosis of the infection. “These
tests are not recommended for diagnosis
of Covid-19 infection,” before going on
to list the 12 approved serological test-
ing kits.
South Korea, which had shot up to
the top of the Covid-19 chart in Febru-
ary, is now a success story in its contain-
ment by aggressively using mass testing,
including with serological kits, to reduce
the number of cases. The country had
9,976 cases and 169 deaths but man-
aged to contain the virus without the
kind of lockdown that several countries
including India have now gone into.
These are the ways in which mass
testing can help:
If done on all healthcare workers, we
will be able to identify asymptomatic
cases who have recovered and no more
need PPE strictly as indicated
If all those exposed develop antibod-
ies, it may mean that they have been
cured because of asymptomatic
infections
Epidemiological data will show
recovered asymptomatic cases in the
community
If positive patients at 14 days have
antibodies, they can be classified as anti-
gen-infective positives
If the elderly and at-risk population
are antibodies positive, they may not
require much restriction
All hotspots can have extensive tests
done cheaply and quickly for the pres-
ence of IgM
IgM has become a standard strategy
for dengue rather than NS1 and Elisa
tests.
—The writer is President,
Confederation of Medical Associations
in Asia and Oceania and former
National President, IMA
SARS-CoV-2RNAisdetectedbyreverse-
transcriptionpolymerasechainreaction
(RT-PCR).ApositivetestforSARS-CoV-2
confirmsthediagnosisofCovid-19,but
false-positivetestsarepossible.

36 April 20, 2020
HERE have been news
reports that the Depart-
ment of Telecommuni-
cations (DoT) has sent
out unusual requests to
some telecom operators
for call data records. The requests have
reportedly been made to circles in Delhi,
Andhra Pradesh, Haryana, Himachal
Pradesh, J&K, Kerala, Odisha, Madhya
Pradesh and Punjab and it is for the
“records of all consumers” on specific
days. These days are different for differ-
ent states. For example, for Delhi, the
dates are February 2, 3, 4 and 18; for
AP, it is February 1 and 5; for Kerala
and Odisha, February 15; for MP and
Punjab, January 31 and February 1,
respectively. The press reports do not
provide an actual order and are entirely
based on an unnamed industry official.
However, the Cellular Operators
Association of India (COAI) has red-
flagged them and reportedly written a
letter to DoT that the requests were
not in accordance with the usual norms.
A former chairman of the Telecom Re-
gulatory Authority of India reportedly
commented that this was an “arbitrary
action and a violation of the right
to privacy”.
According to industry sources, if the
information sought was part of surveil-
lance, then the government would ask
about certain identified numbers rather
than data of the entire circle. Also, the
request for different dates in different
circles is not consistent with surveil-
lance requirements, if any. Hence,
industry observers are intrigued by
the request.
One speculation is that DoT is moni-
toring the recent “call drop” situation. It
is possible that it may be investigating
possible fraud billings where operators
may be raising fake calls and call drop-
ping but billing them to the customers.
Such fake billing has been a long-stand-
ing allegation of customers, which they
cannot independently verify. At a time
when operators are under pressure to
make revenue due to past dues that they
need to settle with DoT, such unethical
practices cannot be ruled out. It is up to
DoT to clarify matters.
It is interesting to note that some
operators and parts of the press have
raised the issue of privacy and possible
surveillance by the government. Parti-
cularly in Delhi it has been alleged that
the call records will include those of
consumers who could be VVIPs and
therefore, are more objectionable than
otherwise. The objection is from that
part of industry which is opposed to the
MuchAdo
About
Nothing?
Reportsofthecentreaskingforcalldatarecords
fromstateshavesentalarmbellsringing.But
privacyactivistsshouldunderstandthatdespite
laws,thegovernmentcanseekpersonal
informationfromanysource
My Space/ Call Data Records Na Vijayashankar
T
Accordingtoindustrysources,if
theinformationsoughtwaspartof
surveillance,thegovernmentwouldask
aboutcertainidentifiednumbersrather
thandataoftheentirecircle.

proposed “Personal Data Protection
Act” (PDPA) being passed in India and
is raising objections on one ground or
the other. The Supreme Court has held
that the right to privacy is a fundamen-
tal right and needs to be protected by
law, and the government has moved in
with the law which it thinks is appropri-
ate for the purpose. But part of the
industry which may be inconvenienced
by it is interested in postponing it as
long as possible.
I
t is ironical that mobile industry
operators who are themselves the
biggest infringers of the right to pri-
vacy are presenting themselves as guar-
dian angels of citizens who are protect-
ing this right of theirs. This industry
has even seen the introduction of com-
puter contaminants in devices and OTT
services to track and profile consumers
for harnessing them for marketing
purposes.
It may be recalled that DoT has spe-
cific powers to seek information from
the operators as part of the license sys-
tem. However, the proposed PDPA will
put some restrictions on DoT as it is
within the regulatory mechanism of the
Data Protection Authority (DPA) and
has to abide by the provisions of PDPA
regarding “consent” and “purpose ori-
ented usage” of personal data.
Cell phone operators are also consid-
ered “data fiduciaries” and are responsi-
ble for protecting the privacy rights of
consumers. In this context, COAI flag-
ging the request for clarification is well
within their “fiduciary responsibilities”.
However, such thoughts may not have
been even remotely under the consider-
ation of operators when they raised their
complaint. The administrative inconve-
nience of having to provide such a huge
amount of data on a regular basis could
be more a motivation than the welfare
of consumers.
Nevertheless, it is time for us to
recognise that situations like these are
precisely the discussion points when the
bill for PDPA will be discussed by the
Joint Parliamentary Committee before it
is passed. Hence, a brief discussion on
the implications of this DoT circular is
in order to raise awareness about the
forthcoming law.
The draft bill for Personal Data Pro-
tection Act (PDPB 2019) recognises in
its preamble itself that apart from the
objective of privacy protection, other
stakeholders such as business use per-
sonal data as raw material and the gov-
ernment uses it both for national securi-
ty and for delivering services to
IXED SIGNALS
Industry observers are intrigued by
unusual requests by the DoT to some
telecom operators for providing call data
records in certain circles
avingcollectedtheinformationfor
aspecificpurpose,theresponsibilitylies
withthegovernmenttoensurethatitis
secureanddoesnotleakoutasidentified
informationfromitsend.
bhaveensheth.blogspot.com

India legal 20 April 2020

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