This article is written by Vandana Shrivastava, a student of B.A. L.L.B.(Hons.) at the Institute of Law, Nirma University, Ahmedabad. The article illuminates a variety of cases which will arise after the lockdown is lifted, with the intent of intimating lawyers to be prepared with concerned legal work, which is highlighted as well.
The world is currently struggling to fight a pandemic. In India, the lockdown imposed by the Central Government combined with the rise in the number of people diagnosed with COVID-19 has instilled fear in the minds of people. When this is over, it’s going to take a while before things settle up. The lawyers and law firms across the nation need to be prepared with potential works beforehand to avoid wasting time later.
All client meetings, court proceedings, and meetings stand cancelled or postponed. There is the paperwork that needs to be filed on the resumption of the Courts. The internet and technological devices are our savior in this hard time.
After the lockdown is lifted, there is going to be a plethora of legal work to be done. Given India’s high population, lawyers are going to earn big, but there could also be too much work to handle. So, buckle up. This article seeks to highlight the things which all concerned law firms should be ready for in advance.
Kind of legal works which is likely to flood law firms after the lockdown is lifted
Few Courts in India began to take up online court proceedings via video conferencing. The majority of the Courts in India became non-functional because they lack resources and the workers are not trained for conducting online Court proceedings. Their work largely depends on paperwork. Moreover, the continuation of Court proceedings would have gathered many people, defeating the purpose of lockdown. Therefore, the apex Court stopped all proceedings until the continuation of lockdown.
The usual conduct of Court proceedings in India is on a halt. India has a high number of pending cases. Amidst the lockdown, old cases, current cases, and potential cases are all waiting to be heard in the Court of law. When proceedings begin again, lawyers and law firms would be required to act fast. The number of pending cases before the Court would be higher than ever. Wasting time would slow down the judicial process, adding to the pile of pending cases. Therefore, it is necessary to act fast and be prepared.
- Draft legal notices to be sent. Be prepared with their replies to legal notices on behalf of their clients which have been received by them.
- Prepare their clients for statements that they would be giving on the resumption of the Court.
- Draft the paperwork for their cases- affidavits, bail and anticipatory bail applications.
- Prepare their clients for cross-examinations, and should prepare for cross-examinations of the opposite sides.
Issues of limitation
Under the Limitation Act, 1963, the phrase “period of limitation” has been defined under Section 2(j) of the Act as a period until which any suit, appeal or application can be filed before the Court. Such a period will depend on the nature of the case, as defined under the Schedule of the said Act.
The apex Court had been taking up proceedings via video conferences amidst the lockdown. The Court is aware that lower Courts and Tribunals do not have adequate resources to adopt the same. Therefore, the Supreme Court gave an order after the placement of lockdown, granting an extension of limitation to all cases in all the Courts across the nation, irrespective of their nature of limitation.
The Court has a special power to pass such an order under Article 142 of the Indian Constitution and by the virtue of Article 141, all orders of the Supreme Court are binding on all subordinate Courts.
Matters relating to Company law are heard by the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). In the light of the Supreme Court order regarding extension of limitation, until the lockdown is lifted, both tribunals have issued notifications in consonance with the order, extending the period of limitation for filing applications.
Matters concerning the Insolvency and Bankruptcy Code, 2016, and Arbitration and Conciliation Act, 1996 would also be covered under the apex Court’s order. Challenges and appeals arising out of Section 34 of the Arbitration Act would be filed after the lockdown is lifted.
Commercial Cases are covered under the Commercial Courts Act, 2015. Schedule 1 of the Limitation Act lays down the limitation period for all cases governed by the Act. All commercial cases having a limitation period of 3 years under the Limitations Act can be filed in reliance with the Supreme Court’s order on the extension of the limitation period. Ongoing cases and pleadings will also be continued after the resumption of Courts.
Business transactions are largely associated with contracts. Entering into a contract creates a legal obligation on the parties to abide by the terms of the contract. This way, if any of the parties to the contract breaches their duty, the other party can sue them.
This topic is essential for this article because many cases of a breach of contract are going to arise during the lockdown. The principles associated with a breach of contract are discussed below.
Frustration of Contract
A contract is frustrated when the performance of such a contract becomes impossible due to an unforeseen event. Under this, none of the parties to the contract are at fault. The essence of trade is contract, either written or unwritten. Due to the lockdown, several contracts could not be performed. Force Majeure acts as a supplement to the doctrine of frustration in exempting the parties to a contract. It is a general provision in contracts, which includes unforeseeable natural events that hinder the performance of a contract.
Several contracts could not have been performed due to the lockdown. Once things get back to normal, multiple people will file lawsuits to claim losses from non-performed contracts. For these cases, Force Majeure could be enforced.
There are certain defenses of doctrine of frustration which would be common to the lawsuits:
- Subsequent impossibility: When the parties entered into the contract, it was legal and there was no foreseeable hindrance to the performance of the contract, but it arose subsequently, owing to which the contract could not be performed.
For instance, let’s assume that a production house had entered into a contract with an actor, which states that the actor will work for the said production house from January 1, 2020, to April 10, 2020, to act in a movie. The lockdown was imposed from March 25, 2020, to April 14, 2020, and the people have been asked to stay in home quarantine by the government. People are not allowed to gather for any reason whatsoever. In such a case, the contract between the parties will terminate on April 10, but they cannot shoot the movie due to restrictions imposed by the government.
The contract, when entered, was legal. However, due to unforeseen and inevitable events, the contract could not be performed by either of the parties. Neither of the parties will be liable for claiming damages or compensation from each other.
- Destruction of the subject matter: When the underlying purpose of the contract ceases to exist. For instance, there was a contract of sale of fresh fruits between two parties. If a van containing fruits which were to be delivered in one day took 5 extra days to reach the destination due to lockdown, perishing the fruits to the extent that they become non-consumable, they would be rendered as destroyed.
- Death or Incapacity of the party: If a person who was diagnosed with the novel coronavirus entered into a contract but died before the contract could be performed, then the other party would not be able to claim compensation. Similarly, if a singer was supposed to sing in a live concert but the concert was canceled due to the lockdown, such a person would not be liable because he/she is incapable of performing the contract.
- Government, administrative or legislative intervention: The government has imposed several restrictions, allowing the operation of essential services only. Various manufacturers throughout the country are currently suffering because their products are not yet manufactured, or ready products cannot be transported due to travel restrictions. This includes textiles, automobiles, technological devices, and luxury items.
- The intervention of war: Several nations and people believe that China has waged a biological war against the entire world by spreading a virus so deadly. This could act as a possible defense against non-performance of contract.
Breach of Rental Agreements
Medical and aviation staff are facing harassment amid the pandemic. Neighbours are filing complaints seeking their eviction, stating that they are endangering the lives of many. Many landlords have issued eviction notices to their tenants who are employed in medical services and aviation.
All States have different Acts to govern rental services. General grounds for evicting a tenant in India, when there is a fault on tenant’s part are non-payment of rent, subletting the rented property to another person without landlord’s permission, using the rented property for illegitimate causes, loss of value of property, objectionable conduct by the tenant and conversion of property.
A landlord cannot ask a tenant to evict the property unless the landlord requires the property for personal use. Issuing eviction notices to medical and aviation staff will, therefore, amount to harassment. They could file complaints against neighbours and landlords for disruption of peace and harassment.
Not only this, issuance of eviction notice without valid grounds is also a breach of the rental agreement.
Insurance recovery cases
Mediclaim Policy and Health Insurance
Persons who have been diagnosed with COVID-19 will claim expenses of their hospitalization from the mediclaim policy of their insurance company. The ones who have health insurance wound claim the entire expense from their insurance company.
Very often, these insurances cover specific pre-stated diseases. The novel coronavirus is not covered under the policies of insurance companies unless there is a general term that is inclusive of viruses or life-endangering diseases. With the current rate of increase in the number of patients, insurance companies would attempt to evade insurance claims. Therefore, thorough interpretation is the only means of recovering insurance from companies.
Corporations in the country take insurance to cover loss of profit. The same has two categories- material damage policy and business interruption. The former could be enforced when there is a loss due to unforeseen inevitable accidents like fire or flood. It is usually specified while adopting the policy. Business interruption could be claimed only when there is a loss due to material damage.
Ideally, whether or not insurance can be claimed largely depends on specificity of the terms of the insurance. Use of general terms like unforeseeable events makes the scope of claiming insurance premium very large. Most of the firms have their employees working from home. Despite that, productivity could not be as much as it is in the normal course of operations.
Many businesses are going to suffer losses in the foreseeable future. For the same, there are going to be several insurance claims. Insurance companies would not go about indemnifying every firm for its loss.
Employees’ State Insurance
Industrial workers are entitled to Employees’ State Insurance (ESI) as a part of a scheme by Employees’ State Insurance Corporation (ESIC). The pandemic has had a tremendously adverse effect on the world economy. India is facing an economic crisis as well.
The fall of an economy is directly proportional to the increase in unemployment. When an industrial worker loses his/her job without their fault, they are entitled to unemployment cash benefit policy of the ESI. Ongoing market conditions give a hint of potential unemployment in the industrial sector.
ESI is an autonomous corporation which was established by the Ministry of Labour and Employment in India. Though it was set up for employee benefit, there are still chances of certain employees not receiving their rightful benefit. In lieu of the same, there are going to be controversial claims which might require legal representation.
Negligent and Malignant Acts
There are several people who do not understand the grave threat posed by COVID-19 to humanity and the importance of social distancing. Some people understand it, but they deliberately break the law because they are resistant to a change in their life. However, a threat to humanity is greater than the comfort of an individual.
Section 269 of the Indian Penal Code, 1860 (IPC) states the punishment for negligent acts of people which risk the lives of others or infect someone else with a life-endangering disease and Section 270 of the Code lays down the punishment for a malignant act of a person which poses a threat to, or endangers someone else’s life. The difference between the two sections is that the former lacks an intention to commit the crime and the latter possesses an intention to perform the criminal act.
Disobedience to Quarantine
All the persons who have returned from foreign countries were asked to stay under home quarantine for 14 days from the date of their return. When a person is hit by COVID-19, it usually takes five to 6 days to begin showing symptoms. If the movement of such a person is not restricted, that person could infect all those which they meet.
Disobedience of quarantine due to foreign travel and lockdown is to avoid risking the spread of the virus. Section 3 of the Epidemic Diseases Act, 1897 has laid down the punishment for disobedience of quarantine under Section 188 of the Indian Penal Code, 1860.
All the people in India are currently in quarantine, and many are in isolation as per the orders of the Central Government. According to Section 188, any person who disobeys the order of a public servant and endangers the lives of others would be criminally liable for their act. Several people are disobeying the law by performing the aforementioned act. Several cases of this nature are going to arise in the forthcoming future because posing a risk to the lives of all the people.
One of the Indian celebrities who was diagnosed with COVID-19 had a travel history from foreign. She disobeyed her home quarantine and attended a party with 200 guests. The act amounted to an offence under Sections 269 and 188 of the IPC. There are many people with similar travel history who did not follow the guidelines laid down by the government. All these people would be criminally liable, and the persons who suffer due to their acts would be entitled to file a complaint against them.
Adulteration of Drugs
The WHO has advised people to sanitise their hands with alcohol-based sanitizers frequently, to avoid the risk of contracting the disease. People are also advised to use surgical masks, so that droplets from their sneezes and coughs do not fall anywhere. It is for everyone’s safety. India does not have a vaccine to cure COVID-19 but there are many companies claiming to have found a cure for the same.
Pharmacies across the nation are facing a shortage of sanitisers, disinfectants and masks. Cheap, adulterated sanitisers, medical appliances, disinfectants are circulating in the country. Central Drugs Standard Control Organisation (CDSCO) is the regulatory body in India for pharmaceuticals and medical appliances. Drugs Controller General of India (DCGI) is the department which approves new drugs in the country. Only then could a drug be sold in the country.
Section 274 of the IPC criminalises the manufacture of adulterated drugs and medical appliances, while Section 275 criminalises the sale of such products if the retailer knew about such adulteration and sold the products regardless. Any drug which is not approved is illegal and any person who consumes such drug could file a complaint against the manufacturer and retailer.
There are several people claiming to have a cure for the novel coronavirus. If anyone endangers the life of a person on the pretext that such a person has a cure for diagnosed people and/or a vaccine for healthy people, when in reality, that person is acting maliciously, such person would be made liable under Section 415 of the IPC for the offense of cheating.
There is a large section of the Indian population that believes in superstitions and has faith in self-proclaimed saints. Such people are often robbed of their money. Many ill people die during their pseudo treatment from such deceivers.
Miscellaneous Criminal Acts
The lockdown has given an opportunity to habitual offenders. Thieves and burglars take undue advantage of the lockdown since most of the police force is engaged with saving the lives of many more people. People are not going to their offices and workplaces. There must be many cases of theft and robbery which will come into the light once things get back to being normal.
Not only this, stealing food grains out of fear of scarcity, sanitisers, and masks for either stocking them or for resale are few of the common crimes which are currently being committed. Their trials will begin after Courts reopen.
Many people, especially women and children are subjected to domestic violence in their homes. Normally, people have the option of going out. But during a lockdown, with nowhere else to go, many people would be subjected to domestic violence in their houses.
The victims might get a chance to evade and file complaints when the restriction on movement is lifted. There will then be a rise in such cases.
Worldwide, doctors are working day and night to treat patients, trying to curb the spread of the pandemic. India is also witnessing a rise in the number of people diagnosed with COVID-19. If the number of diagnosed people continues to rise, there would be chaos.
A high patient count will lead to haphazard actions. Unhygienic conditions in hospitals, incomplete treatment, or anything which has an adverse contribution to any patient’s condition would force the wronged patients to file complaints against doctors.
Causing the death of a person through a negligent act amounts to the offense of culpable homicide under Section 304A of IPC. There is no specific provision for crimes committed by doctors. The Courts have developed criteria to check the liability of a doctor through the interpretation of the law in several landmark judgments.
A Bolam Test could be conducted to determine the liability of the doctor. If a medical association or a body acknowledges that due care was exercised by the doctor in medical terms, then the accused doctor would not be liable.
It is mandatory for healthcare workers to do their jobs at present. There are several doctors who are resigning from their jobs out of fear. Legal notices have been issued to such doctors for non-fulfilment of their duty and for breaking their oaths.
If a virus hits a person and an ill person is admitted in the same location, and the virus infects the ill person because due care was not taken by a medical worker, then they would be liable under Section 188 IPC and Consumer Protection Act, 1986.
If the virus spreads to the extent that doctor to patient ratio becomes too high to manage, doctors will have to prioritize between patients. A similar situation arose in Italy, where doctors had to choose among patients because they could not treat all patients at a time.
In the foreseeable future, there are going to be several new cases against doctors, hospitals and everyone associated with healthcare. Their prime responsibility now is to plan for a large patient count from now, so that when the situation arises, patients could be treated systematically. If the same is not done by the medical workers now, the death of any person caused due to medical negligence would be their fault.
In case of medical negligence and medical malpractice, the accused, if convicted, would be liable for punishment under the IPC and/or for compensation under the Consumer Protection Act, 1986.
Consumer Protection Cases
Ever since people anticipated a lockdown/curfew-like situation, they began hoarding or stocking goods. In a pandemic, every household tries to do the same, which leads to a shortage of goods. Manufacturers then begin to supply cheap, adulterated products to meet the demand. The consumption of such products deteriorates the health of people at large.
In the prevailing situation, if someone is hospitalized due to the aforementioned circumstances and that person contacts the novel coronavirus, a heavier penalty would be imposed on manufacturers. Section 2(1)(d) of the Consumer Protection Act, 1986 defines the meaning of a consumer.
Issuance of eviction notices to residential tenants, sale of adulterated products to a retail customer, medically negligent conduct and medical malpractice would all be triable by the Consumer Courts. If found guilty, the defendants would be liable to pay compensation to aggrieved parties. Such cases are going to escalate in the future, there is currently a shortage of numerous essential commodities.
Violation of civil rights of citizens
Central and State Governments across the country are conducting awareness campaigns, in addition to imposing a national lockdown. There are multiple videos of police brutality surfacing on the internet. The number is so huge, that a Public Interest Litigation could be filed against these people.
Unreasonable restrictions are being imposed on the public in the name of security. Besides this, there are multiple false rumours doing rounds in the country. These rumours state that a couple of States have issued shoot-at-sight warrants against people infringing on the lockdowns. Facts stated by a person should be verified by lawyers as well.
Infringement of Right to Privacy
In different regions, there are several lists of alleged COVID-19 diagnosed people. The lists are not released by the Government except for a few States. In others, there are people who are not even diagnosed, but their details are surfacing on the internet. This is done without the consent of the people concerned. Furthermore, false health updates of quarantined, isolated and diagnosed people harm their reputation. It is also an act of unlawful interference and disturbs people.
Right to Privacy is a fundamental right in India, according to Article 21 of the Indian Constitution. The said article is in consonance with Article 12 of the Universal Declaration of Human Rights, 1948, Article 8 of the European Convention on Human Rights and Article 17 of the International Covenant on Civil and Political Rights, 1966, wherein both Articles define privacy. The Articles state each person has the right to be legally protected against unreasonable or arbitrary interference with their life or reputation.
Non-maintenance of social distance with a person against their will would also amount to infringement of their Right to Privacy. Since many people are not following the instructions of the government, they may be sued by any such person whom they forcefully come into contact with and endangers their life. In a country with a population of more than 1.3 billion, hundreds of such cases will arise.
Citizens of North-Eastern origin in India are subjected to racial discrimination ever since the pandemic began to spread in India. There are instances of people calling them out for being Chinese and spreading COVID-19 in the country. Similarly, an instance of a man spitting on a North-Eastern girl, calling her Chinese was recorded.
In one of the regions in India, North-Eastern people were denied entry into a supermarket, alleging that they carry the novel virus and will infect others. A complaint was lodged against the manager of the supermarket.
Many similar incidents would not have been covered by the media, but there is gross racism in the country. It is violative of Article 15 of the Indian Constitution for discrimination on the basis of race and infringes Article 21 of the person concerned.
A large part of the married urban population included both working spouses. People are used to a certain lifestyle. A sudden change, when people are locked in their houses for weeks could take a negative turn. Couples might realise their incompatibility. In one of the COVID-19 struck countries, there was a remarkable increase in the rate of divorce cases after lockdowns were imposed.
It is alleged that the novel coronavirus spread from a man who ate a bat soup. Since then, several rumours have spread that animals carry the virus and spread it to humans, but the same has not been proven yet. There are no cases of animals infected with COVID-19 either.
Incidents of pet owners abandoning their pets in the streets have recently come into the light. Without any scientific evidence, there are instances of killing and abandonment of pets in many cities. Unreasonable abandonment of pets in a manner that hurts them in any manner as specified under Section 11(1)(i) and Section 11(1)(j) of Prevention of Cruelty to Animals Act, 1960 (PCA Act), would be punishable under the said Act.
Killing or maiming any animal worth more than 50 rupees is punishable under Section 428 and Section 429 of the IPC. Observing the high number of cases of cruelty against animals, there are going to be several complaints against the same.
Everyone must keep in mind that no one has seen a pandemic before. Combined efforts of all sectors are needed to restore the loss of the country. Lawyers and legal firms should be ready with potential legal work and research for timely justice. The motive should be the curtailment of the already pending number of cases in the country, instead of contributing more to it.
Many people are going to be wronged in the process of saving lives. It should be ensured that such people do not lose faith in the judiciary and are aided at all costs.
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