This article is written by Aditi Lakhanpal, an advocate at the Punjab & Haryana High Court.
On March 11, 2020, the World Health Organization [WHO] declared coronavirus as a “pandemic”. To curtail the spread of the COVID-19 pandemic, the Government of India announced a nationwide lockdown starting from March 25, 2020. Subsequently, the going on pandemic has caused unprecedented sway on almost every sector of the nation; making lives of the people & economy of the nation miserable. While everything is at a halt, Courts in India are still functioning through the platform of video conferencing to safeguard its populaces from the waves of the COVID-19. This article attempts to highlight the comprehensive guidelines, orders, and verdicts of the Apex Court and various High Courts to bring normalcy in the lives of the people & economy of the nation. Below mentioned elucidates the remarkable measures incorporated by the Judiciary in different sectors of the nation.
Banking & finance
On March 27, 2020, Reserve Bank of India [RBI] issued a circular wherein it provided relaxation to borrowers on repayment of term loans and working capital loans to ease the financial disturbance in the nation amid the COVID-19 pandemic. In this piece, RBI allowed moratorium for 3 months starting from March 1, 2020, till May 31, 2020.
The above-said order of RBI was sustained by the Delhi High Court in the case titled Anant Raj Limited vs Yes Bank Limited. In this case, Anant Raj (Petitioner) failed to repay the installment to Yes Bank (Respondent) fell on January 1, 2020, due to the COVID-19 pandemic across the globe. Consequently, Respondent declared the Petitioner as “Non-Performing Assets”. In this regard, Delhi HC had categorically held that (Para 27 & 28):
“The restriction on change in classification as mentioned in the Regulatory Package shows that RBI has stipulated that the account which has been classified as SMA-2 cannot further be classified as a non-performing asset in case the installment is not paid during the moratorium period i.e. between 01.03.2020 and 31.05.2020 and status quo qua the classification as SMA-2 shall have to be maintained.”
“The effect of the same would be that for a period of three months there will be a moratorium from payment of that installment. However, stipulated interest and penal charges shall continue to accrue on the outstanding payment even during the moratorium period. If post the moratorium period borrower fails to pay the said installment, classification would then automatically change as per the IRAC guidelines.”
Henceforth, Delhi HC restored the status quo of the Petitioner as it hoisted on March 1, 2020. Another major relief was provided to Transcon Skycity Private Limited by Bombay High Court in a case titled as Transcon Skycity Private Limited Vs. ICICI Bank wherein Transcon (Petitioner) failed to pay off the debt to ICICI Bank (Respondent) due on February 15, 2020. As a result, Respondent declared the Petitioner as “Special Mention Account-2”. In this case, an issue was put forth before Bombay HC that whether the moratorium period was required to be excluded in counting 90 days NPA declaration period in lieu of the amounts that first fell in arrears erstwhile to 1st March 2020 and continues to be unpaid till date. In this regard, Bombay HC while putting reliance on Anant Raj Limited Case held that (Para 42):
“It is also clarified that these directions consciously do not take into account any partial or staggered lifting of the lockdown, but only a complete lifting. The reason is self-evident. It may be well-nigh impossible for any court ever to decide whether or not a ‘partial lifting’ of the lockdown enables the Petitioners to resume their normal operations and, if so, to what extent. The exclusion from the 90-day NPA-declaration timer and countdown can only, therefore, operate during the lockdown period, full or partial, and will end upon the complete lifting of the lockdown.”
Besides afore-stated, Court even clarified that this verdict will not act as a precedent in any other case and moratorium relief depends upon facts and circumstances of each case.
Recently a foremost issue that came up before Karnataka High Court in the case titled Velankani Information Systems v. Secretary was that whether a writ of mandamus can be issued against a private bank for the enforcement of circular dated March 3, 2020? In other words, whether the moratorium relief is mandatory, directory, or discretionary in nature? Giving effect to principle Ubi jus ibi remedium, Court held that (Para 26):
“A mandamus shall ensue to Respondents No.4 directing Respondent No. 4 – RBI to enforce the recovery package as contained in Circular dated 27.03.2020 issued by it. Respondents No.5 to 7 are hereby directed to grant moratorium for three months from 01.03.2020 to 31.05.2020 as also for the extended period from 01.06.2020 to 31.08.2020.”
In light of the aforementioned, it is prima facie that Judiciary provides all backing to distressed borrowers. RBI has issued a circular dated March 3, 2020, to ensure the viability of the business amid lockdown, therefore; not providing moratorium relief would prima facie be contrary to the very intent of issuing circular. Needless to say, moratorium relief is discretionary nevertheless denial of it should not be at the cost of the viability of the business. In this regard, the banks must provide moratorium relief for the continuing sustainability of commercial establishments.
De-congestion of the prisons
The likelihood of the risk of transmission of Coronavirus amongst the prisoners due to congestion of prisons cannot be ignored. Accordingly, if not curtailed it may become a hub for an increase in COVID-19 cases. Therefore, Supreme Court took the matter suo moto in the order titled IN RE: CONTAGION OF COVID 19 VIRUS IN PRISONS wherein, it has urged to take imminent measures to avoid the proliferation of COVID-19 in prisons, juvenile homes, and detention centers. To ease the congestion in prisoners, SC directed State/UT to set up High Powered Committee to ascertain which class of prisoners could be released on parole/interim bail amid the COVID-19 pandemic. In this piece, the Supreme Court held that:
“Taking into consideration the possibility of outside transmission, we direct that the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes. Also, the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.”
SC also held that it is completely up to the High Power Committee as to on what grounds prisoners should be released. In this regard, High Power Committee needs to take into account certain factors such as nature of the offence, the number of years prisoner is detained in prison or any other factor which is appropriate in the opinion of the committee. For clarity, SC said that the release of those prisoners could be considered, who have been convicted or are under trial for an offence for which punishment prescribed is 7 years or less than 7 years.
- Cancellation of 10th & 12th class exams:
A major relief was provided to students of grade 10th and 12th by calling off their final exams. Keeping in view the deteriorating circumstances due to the growing spread of the COVID-19 pandemic; a petition was filed before Supreme Court in the case titled Amit Bathla and Ors vs CBSE & Anr. In this case, Petitioner put forth before the SC that examination of students in class 10th & 12th should be cancelled which were scheduled from July 1-July 15 2020. Petitioner also points towards the hitches that will ascend in conducting examination for instance students coming from containment area, non-access to private vehicles, etc. The petitioner in this regard prays that results should be declared based on present academic internal assessment. Keeping in consideration the various opinions of State Government and spike in COVID-19 cases, Supreme Court categorically held that examination of students who are in grade 10th & 12th stands cancelled and results shall be prepared as per the internal assessment of the students. The relevant excerpt of SC’s verdict is extracted herein under:
“Examinations for classes X and XII which were scheduled from 1st July to 15th, 2020 stand cancelled. Assessment of the performance of students in the cancelled examinations will be done based on the assessment scheme as suggested by competent committee of the CBSE for declaration of result for both class-X and class-XII. The said scheme is mentioned in Para-7 below. Results based upon the aforesaid assessment scheme will be declared by 15th July, 2020 so that candidates can apply and seek admissions in Higher Education Institutions in India and abroad, based thereon. However, for Class-XII, CBSE will conduct an optional examination in the subjects whose examinations were scheduled to be conducted from 1st July to 15th July, 2020 as soon as conditions are conducive, as assessed and decided by the Central Government. Candidates whose results will be declared based on the assessment scheme will be allowed to appear in these optional examinations to improve their performance, if they wish so. However, the marks obtained by a candidate in these optional examinations will be treated as final for those who have opted to take these examinations.”
- Private schools cannot force parents to pay fees:
Seeing, the predicament of the parents who have lost their means of livelihood amid this COVID-19 crisis, the remarkable decision was pronounced by the Uttaranchal High Court in the case titled Japinder Singh v. Union of India.
In this case, Parents contended that state government order dated May 2, 2020, clearly elucidated that private schools are allowed to conduct online classes and in this regard, they are not permitted to collect any fees apart from tuition fees. Irrespective of the aforementioned state government order, private schools forced parents to pay tuition fees by sending messages on Whatsapp & e-mails. Parents further alleged that just to collect fees from the parents, online classes were scheduled even for upper kindergarten garden students. In the light of afore-said Uttaranchal HC observed that:
“….The object of the Government Order dated 02.05.2020 is to ease the burden on parents, who do not even have the means to earn their livelihood in this period of crisis, in being required to pay the huge fees which these private institutions charge. While the difficulties of these institutions, in having to incur expenditure without collecting fees from its students, is understandable, times of crisis like these would require the haves to extend a helping hand to the have-nots. The Government Order dated 02.05.2020 binds these private schools and, as long as it continues to remain in force, they are bound to adhere to the conditions stipulated therein.”
In addition to the above, HC categorically held that a considerable number of students reside in such places where they don’t have easy access to an internet connection to attend online classes. Consequently, parents of such children cannot be forced to pay fees in this regard. Furthermore, if any private unaided school found forcing parents to pay fees of the children then stringent action shall be taken against such an education institution by the Nodal officers.
Tamil Nadu High Court also passed a similar verdict in the case titled Federation of Association of Private Schools in Tamil Nadu v. All India Private Educational Institutions Association by taking into the consideration of the quandaries of parents. HC reiterated the significance of the right to education and that parents can’t be forced to pay fees of their children, conversely if they can pay voluntarily. Nevertheless, the Court also cannot ignore the expenditure of education institutions. Henceforth, to strike a balance between the interest of parents and educational institution, Tamil Nadu High Court held that:
“The petitioners herein are directed to formulate an equation / Scheme with respect to collection of fees, not based on the fee structure framed by the Committee, but in installments for a while, without prejudice to the rights of the parents and children, by way of detailed representations and submit the same to the Government, with an advance copy marked to the learned Advocate General, through e-mail on or before 02.07.2020 at 6.00 pm. On such representations being submitted, the respondent Government shall consider the same, take a decision and file a report before this Court, on or before 06.07.2020.”.
The order passed by the Ministry of Home Affairs dated March 29, 2020, and Ministry of Labour and employment dated March 20, 2020, directed that employers must pay lockdown wages/salaries to their works/employees; which eventually resulted in a batch of petitions challenging above-stated orders. Supreme Court addressed the issue of payment of lockdown wages in the case titled Ficus Pax Private Ltd. & Ors. Vs. Union of India & Ors wherein Court provided the parties with the option of negotiation and conclude a settlement amongst them besides, no coercive action shall be taken against any employer on account of failure to pay full wages/salaries. In this regard, the relevant excerpt is extracted herein below (Para 37):
“We thus direct following interim measures which can be availed by all the private establishment, industries, factories and workers Trade Unions/ Employees Associations etc. which may be facilitated by the State Authorities: – 26 i) The private establishment, industries, employers who are willing to enter into negotiation and settlement with the workers/employees regarding payment of wages for 50 days or for any other period as applicable in any particular State during which their industrial establishment was closed down due to lockdown, may initiate a process of negotiation with their employees organization and enter into a settlement with them and if they are unable to settle by themselves submit a request to concerned labour authorities who are entrusted with the obligation under the different statute to conciliate the dispute between the parties who on receiving such request, may call the concerned Employees Trade Union/workers Association/ workers to appear on a date for negotiation, conciliation and settlement.
In event a settlement is arrived at, that may be acted upon by the employers and workers irrespective of the order dated 29.03.2020 issued by the Government of India, Ministry of Home Affairs. 27 ii) Those employers’ establishments, industries, factories which were working during the lockdown period although not to their capacity can also take steps as indicated in direction No.(i). iii) The private establishments, industries, factories shall permit the workers/employees to work in their establishment who are willing to work which may be without prejudice to rights of the workers/employees regarding unpaid wages of above 50 days. The private establishments, factories who proceed to take steps as per directions (i) and (ii) shall publicise and communicate about their such steps to workers and employees for their response/participation. The settlement, if any, as indicated above shall be without prejudice to the rights of employers and employees which is pending adjudication in these writ petitions. iv) The Central Government, all the States/UTs through their Ministry of Labour shall circulate 28 and publicise this order for the benefit of all private establishment, employers, factories and workers/employees.”
In addition to the above, the Apex Court also directed that under any circumstances if the settlement is not drawn then the parties can approach Labour Commission. Further while adjourning the case, SC held that the case is listed for last week for July if any issue arises on the matter.
- Migrant Workers:
The outbreak of the COVID-19 pandemic had a tremendous impact on the migrant workers. It was observed that migrant workers were restrained from going back to their home town. The status quo deteriorated when due to non-payment of wages, stranded migrants decided en-route towards their home town. To mitigate the situation a writ petition was filed before the Supreme Court in the case titled Jagdeep S. Chhokar vs Union of India wherein Petitioner pleaded that those migrants who have tested negative for COVID-19 should be allowed to return back to their home town and arranging safe travel in this regard. Supreme Court while adjudicating the matter provided substantial relief to these migrant workers. Supreme Court directed the Union of India (Respondent) that:
“…………….to the Respondents to allow migrant workers across the country to return to their hometowns and villages after conducting necessary testing for COVID-19 and to arrange for their safe travel by providing necessary transportation. The order dated 29.04.2020 issued by the Government of India, Ministry of Home Affairs sub-clause (iv) under Clause 17 on movement of persons, the Government of India had allowed the movement by directing all States/Union Territories to designate nodal authorities and develop standard protocols for receiving and sending such stranded persons. The main relief which was sought in the writ petition, thus, stood substantially satisfied by the aforesaid order. The order dated 01.05.2020 issued by the Ministry of Railways has also been placed before us where the Railways has decided to run “Shramik Special” trains to move migrant workers, tourists, students, and other persons stranded at different places due to lockdown. Necessary modalities for such transportation has to be implemented by the concerned States/Union Territories in collaboration with the Railways. Insofar as charging of 15% of Railway tickets’ amount from workers, it is not for this Court to issue any order under Article 32 regarding the same, it is the concerned State/Railways to take necessary steps under the relevant guidelines.”
Considering the deteriorating state of affairs concerning the spread of the COVID-19 virus, on May 26, 2020, Supreme Court took the issue suo moto based on various media reports pointing towards the plight of the migrant workers amid COVID-19 lockdown. It was observed that these migrated workers didn’t have access to necessities at places where they are stranded. Apex Court opined that it is the responsibility of the State/UT to not only refers to policies, measures, and schemes but also to ensure strict vigilance of the same.
In this regard, Supreme Court in the order titled In Re: Problems and Miseries of Migrant Labourers directed following orders to Center/State government intending to mitigate the current status quo of the migrant workers:
- States/UT’s are required to make necessary transportation services (bus/train) for those migrants who are willing to return to their home towns within 15 days.
- Any additional demand apart from 171 Shramik trains shall be taken into consideration and the railway shall facilitate Shramik trains within 24 hours.
- Adequate counseling and assistance shall be provided to migrants who have returned to their native places and now want to come back for employment purposes.
- In case of any prosecution/complaint against these migrant workers have been lodged who alleged to have breached measures of Lockdown by moving on roads amid Lockdown as per section 51 of Disaster Management Act, 2005, such prosecution/complaint shall be withdrawn.
Therefore, the aforementioned directions by the Apex Court have undeniably facilitated to bridge the gaps amid Central & State Government in dealing with these issues.
The role of the Judiciary has turned out to be even more imperative so as to preserve the access to justice amid the novel COVID-19 crises so as to safeguard access to justice amid the novel COVID-19 crises. In order to curtail the spread of the COVID-19 pandemic, it is vital to observe social-distancing along with other precautionary measures. Subsequently, the Supreme Court in the order titled IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC took the matter suo moto and categorically passed directions for the conduct of virtual court proceedings amid COVID-19 pandemic.
Thereafter, in connection to virtual court proceedings, many state High Courts such as Allahabad, Andhra Pradesh, Calcutta, Gauhati, Manipur, Patna, Telangana, and Uttarkhand passed the similar verdict. In this regard, Bombay High Court passed special directions about live-streaming of all matters listed for hearing.
- The limitation period for filing suits/petitions/appeals:
Another notable measure incorporated by the Apex Court pursuant to Article 142 of the Constitution was to extend the limitation period for filing of suits/petitions/appeals etc. so that litigants & lawyers don’t have to haste for Courts in respect to above-stated. The relevant excerpt of Supreme Court order titled IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION is extracted herein below:
“Extension of limitation period: To obviate difficulties caused by CoronaVirus in filing petitions/ applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State), it is ordered that the period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws, whether condonable or not, shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”
In addition to the above order, SC even held that this order shall be binding upon all Courts/Tribunals in India as per Article 141 of the Constitution.
Concerning the aforementioned matter, another SC passed another order dated May 6, 2020, wherein it held that:
“To issue appropriate directions qua (i) arbitration proceedings in relation to section 29A of the Arbitration and Conciliation Act, 1996 and (ii) initiation of proceedings under section 138 of the Negotiable Instruments Act, 1881;” In view of this Court’s earlier order dated 23.03.2020 passed in Suo Motu Writ Petition (Civil) No.3/2020 and taking into consideration the effect of the Corona Virus (COVID 19) and resultant difficulties being faced by the lawyers and litigants and with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court, it is hereby ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings.”
Consequently, if the time limit for passing of the award expired amid COVID-19 lockdown, then in such cases there is no need to file a separate petition under Section 29A of the Arbitration & Conciliation Act, 1996. Henceforth, in the light of the aforementioned, it is prima facie that measures taken by the SC are a convivial stride wherein the right to access to justice is preserved while balancing public welfare.
Medical & health care workers
- Salaries & Quarantine Facilities:
Doctors and health care workers are the most vulnerable group to get infected with death-defying COVID-19 virus. Without the help of doctors & health care workers, it is impossible to combat the COVID-19 pandemic. Despite this dictum, doctors & health care workers are not provided with necessary facilities, particularly with salaries and quarantine arrangements as per guidelines dated May 15, 2020.
Considering the plight of doctors & health care workers, a writ petition was filed before the Supreme Court in a case titled Arushi Jain v Union of India wherein Petitioner highlighted the deteriorated conditions of the doctors and health care workers and urged that they should be provided with regular salaries besides mandatory quarantine arrangement for those who directly deal with COVID-19 patient. In this regard, SC directed the Central Government to provide sufficient PPEs to doctors & health care workers for treating COVID-19 patients. The further relevant excerpt of the SC order is extracted herein below:
“The Central Government shall issue appropriate direction to the Chief Secretary of the States/Union Territories to ensure that the orders are faithfully complied with, violation of which may be treated as an offence under the Disaster Management Act read with the Indian Penal Code.”
- Private Hospital charging exorbitant fees for COVID-19 treatment:
Time and again, the issue of charging exorbitant fees for COVID-19 treatment has been highlighted by the patient. The COVID-19 patients even pointed out that many hospitals are charging a hefty admission deposit. In this piece, Gujarat High Court took the matter suo moto and held that:
“…the most important direction necessary to be issued to the State Government is to see that all the private hospitals across the city of Ahmedabad and also situated at the outskirts work out the modalities with respect to the fee structure. At any cost, the private hospitals should not be permitted to demand exorbitant amount for the purpose of treatment of COVID19 patients. These are difficult times and not the time to do business and earn profit. The medical services are the most essential services and in times like the present one, the private hospitals cannot demand lacs of rupees from a patient.”
In addition to the above direction, HC even cautioned the private hospitals to desist from charging exorbitant treatment fees else stringent action including cancellation of license would be taken against such hospitals.
Power & energy sector
The on-going COVID-19 catastrophes have witnessed an augmented reduction of power demand by 25% approximately due to standstill in economic operations. Subsequently, the current state of affairs has led to liquidity distress for the already cash-crunched state power distribution companies ‘DISCOMS’ who are trying hard to get on the road to recovery in the power demand and restoration of the economic activities. In this regard, the Haryana Electricity Regulatory Commission in the case titled HERC (Suo Motu) v HVPNL & Ors provides relief to Haryana DISCOMs in the Late Payment Surcharge (‘LPS’) to the State Genco & Transco from 14.6% to 8.65% as present status quo falls under the ambit of force majeure. The relevant excerpt is extracted herein below:
“In order to take a balanced view in the matter, the Commission has perused the CERC order dated 03.04.2020 cited by HVPNL as well as the directive issued by Ministry of Power u/s 107 of the Act. The operative part of the ibid directive is that the LPS should not be more than the cost that the Generating Company or Transmission Licensee would have to bear because of the delayed payment. Hence, in effect, the directive has benchmarked LPS to cost of borrowing on the loans to bridge the working capital gap due to delayed payment and is not in the nature of penal rate. Further, the rate of interest on working capital allowed by the Commission to HVPNL and HPGCL for the FY 2020-21 is also 8.65% i.e. cost of raising short term funds. Additionally, even if the Discoms are able to raise some fund from the Rs 90,000 crore package announced by the Central Government, the cost including Government guarantee is likely to exceed 8.65% LPS allowed by the Commission. The benchmark LPS including margin on MCLR is also different as per CERC and HERC. Hence, not comparable.”
In such state of affairs, prompt notifications and measures by CERC & HERC have inspired confidence amongst various stakeholders of the powers sector. Thus, relief measures adjudicated by CERC & HERC i.e. relaxing rates LPS and allowing power generators to avail moratoriums would aid the power sector to maintain it through these unprecedented times.
To sum up, the measures carried out by Apex Courts and other state HC are commendable, as hitherto these have turned out to be very operative in stabilizing the capricious status quo going on in the nation. As COVID-19 continues to spread, both Judiciary and the general public should be observant concerning the compliance of the above-mentioned guidelines and orders. Furthermore, to take apposite steps to fulfill such compliance in a judicious modus. Henceforth, it is not wrong to deliberate that the aforementioned measures not only instill faith of the public in the judiciary but also motivate them to fight against this pandemic.
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