India legal 20 April 2020

1. 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. 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 ravaged 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 magazine, 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 lawyers, 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 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 concerning the dignity, livelihood and freedom costs for the impoverished 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 narrator’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

5. | 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, isolation, loneliness, boredom and repetition become the shared fate of all.... Places of worship go empty. Funerals are banned for fear of contagion. 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, whether 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. 6 April 20, 2020 ContentsVOLUME XIII ISSUE23 APRIL20,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. 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

7. | INDIA LEGAL | April 20, 2020 7 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. 8 April 20, 2020 Amitava Sen RINGSIDE Howdy, Modi!

9. | INDIA LEGAL | April 20, 2020 9 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 ensure safety of doctors and healthcare professionals, 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 persons 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 healthcare 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 approved diagnostic laboratories, including 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 confirmation of Covid-19 may make it unaffordable for a large section of India’s population, and individuals cannot be denied their right to test themselves 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 favour. 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

10. 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 concerning the dignity, livelihood and freedom 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 disruption 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 constitutional 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.

11. | INDIA LEGAL | April 20, 2020 11 otic in the least to raise questions concerning 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 constitutional agents and institutions must serve. The judicial discourse on “constitutional 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 board buses to their native places, at Lucknow Photos: UNI

12. 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 constitutional 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 disease dangerous to life”) and 270 (“malignant act likely to spread infection of disease dangerous to life”). Much the same can be said of the rather elaborate 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 taking 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 situation? 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 striking; 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

13. | INDIA LEGAL | April 20, 2020 13 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 constitutional 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 (following 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/tribunals 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 within and across the states, (as late as April 6), it has declined to substitute the executive 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 behaviour”). Nudges, it is maintained, constitute a “genuinely distinct mode of governance, 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. 14 April 20, 2020 HE Indian judiciary is the protector of the fundamental 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 gravity 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 cannot 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, demolition 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, additional solicitor general of India, assistant solicitor general of India, state public 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 public 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 limited 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, dispossession or demolition is already passed by the High Court, district or civil court, JusticeGovindMathurexercisedhis jurisdictionunderArticles226and227 oftheConstitutionandconstituteda divisionbenchandissueddirectionsin PILNo.564of2020inRev.StateofU.P.

16. 16 April 20, 2020 O one looks at the crisis of the patriarchal economy within a broader political and moral framework. 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 vulnerable 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 welfare. 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 entitled 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 crisis 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 lockdown 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 conditions 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 pandemic,” Secretary General António Guterres (above) tweeted. But governments worldwide did not foresee this and are trying to respond to Aglobalphenomenon N

17. | INDIA LEGAL | April 20, 2020 17 endless waiting. However, the violence of the male in such a situation cannot be dismissed simply. He is both perpetrator and victim. 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 particular, 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 memory 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 families 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 decisions 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 economy. A police station in these locations is a source of continuous threats and violence. 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 restrictions on access to such basic necessities as food, clothing and sanitary facilities”.

18. Legal Eye/ Covid-19/ “Force Majeure” Clause 18 April 20, 2020 HILE the world is crippled by the coronavirus out- break, an important concern among different industrial 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 economic 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 foreseen 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 frustration 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 cannot prevent will become void. Therefore, applicability of both force majeure and frustration of contract require a supervening 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 noticed 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.

19. | INDIA LEGAL | April 20, 2020 19 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 because 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, distribution companies (discoms) normally maintain a payment assurance for all the power that they intend to procure from a power generator (genco) to prevent 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 distribution 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 payment 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 surcharge 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 directions 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 discoms 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. 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 agreements (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 discoms 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 discoms 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 collect consumer dues was not valid. Therefore, the discoms can only ask for relief measures on account of the pandemic, it said. Force majeure was also invoked by some hotels. OYO suspended payment of minimum assured amount to its hotels by invoking this clause in their agreement. 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 contract completely if the situation worsens. F ICCI has also recommended that the government mandate force majeure in all civil aviation contracts to save the industry from this crisis. “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 current scenario of Covid-19 is treated as force majeure, the lessees will be allowed to not make payments or defer payments 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 stating that Covid-19 should be considered as a “natural calamity” and force majeure may be invoked wherever considered 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 outside 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

22. Economy/ Covid-19/ Lockdown 22 April 20, 2020 N March 11, WHO declared 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 understand the difference between the obvious and “seen” costs and the more insid- ious “unseen” costs. It is simple and obvious 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, corporate 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, aggregate 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 exports 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 economy because it was in a precarious situation even before the crisis. Additionally, India’s economy is not structurally suit- ed for a V-shaped recovery. The financial 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

23. | INDIA LEGAL | April 20, 2020 23 to jump-start the economy. Here are some of the unseen economic costs so that Indian policymakers can rationally understand the magnitude 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 savings 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 massive 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 difficult 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 permanently. 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 required and we could be looking at an inflation scenario upwards of 10 percent. 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

24. Economy/ Covid-19/ Lockdown 24 April 20, 2020 capital market is still owned, controlled and operated by the government through its control of the banking sector. The weaknesses in India’s financial system 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 policy neglect and regulatory overkill, this sector is at a crucial juncture. And while Indian factories are shut, Chinese factories 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 certainly 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 people, 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 starvation 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 restrictions. 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 exports, 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 lockdown 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.

26. Global Trends/ Covid-19/ Cooperation by Countries 26 April 20, 2020 ORLD leaders and health authorities are scrambling to get their act together 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 affected everyone, the common sense approach 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 recently. 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 village 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 country 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 equipment 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

27. | INDIA LEGAL | April 20, 2020 27 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 coronavirus 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 international community must display strong solidarity and cooperation…In view of the humanitarian aspects of the pandemic, it has been decided that India would license paracetamol and HCQ in appropriate quantities to all our neighbouring countries who are dependent on our capabilities. We will also be sup- plying these essential drugs to some nations 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 foreign 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 hydroxychloroquine 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 administration’s top adviser on infectious diseases, 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 doctors 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, hydroxychloroquine can be used on some patients as a last resort. With the pandemic expected 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

28. 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 government 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 discussed 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 distancing. 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 responsibilities. 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 disease. 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 lockdown 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

29. Bringing You The Stories That Count An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal ONLY THE STORIES THAT COUNT Every week India Legal will bring you news, analyses and opinion from the sharpest investigative reporters and most incisive legal minds in the nation on matters that matter to you Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends NDIA EGALL STORIES THAT COUNT I April13, 2020 analreadyslowingeconomyhasbeendealtabodyblowbythepandemicas productionandemploymentarehit, severelyaffectingtheunorganisedsector.An in-depthanalysisbynotedeconomist ProfArunKumar CrashLanding:Theaviationsectorisamongtheworsthitasfleetsaregrounded andairlinecrewlaidofforsalariescut.Istherelightattheendofthetunnel? MigrantLabour:TheSupremeCourtstepsintoissueordersintendedtohelp migrantsandeasetheirfears.Isit working? LOOMING CATASTROPHE Section 144 and Police Excesses

30. 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 pandemic. Traffic has dis- appeared and only a cyclist intrudes now and then to demonstrate 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 unemployment 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 medical 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 frequently 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

31. | INDIA LEGAL | April 20, 2020 31 his department. Trump’s live TV briefings, more campaign 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, little 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 former 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 president.’ 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 ventilators, 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

32. 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 fighting 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-addiction 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

33. | INDIA LEGAL | April 20, 2020 33 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 asking 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 doctors 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 alcohol 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 against 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 business 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 government led by Oommen Chandy, which in 2014, promised to bring about total prohibition 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 government’s prohibition policy. At first, it allowed bars in hotels with three and four star ratings to sell Indian-made foreign liquor, and lesser rated ones to run wine and beer parlours. The government 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 allowing 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 century ago. As soon as the 21-day lockdown was announced, the Kerala government classified 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 alcohol was classified as an “essential commodity” 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. 34 April 20, 2020 OURS after having advised “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 earlier. ICMR said: “Population in hotspot areas may be tested using rapid antibody test, and antibody positives to be confirmed by RT-PCR using throat/nasal swab. Antibody negatives to be quar- antined at home.” Once it has been confirmed 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 illness) 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 suspected 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 consistent 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 current (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 patients suspected of Covid-19 but who were negative, an immunoglobulin (Ig) M ELISA test proved positive in 93 percent 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 collected, 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 respiratory 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

35. | INDIA LEGAL | April 20, 2020 35 vage (a bronchoscope is passed through the mouth/nose into the lungs with a measured amount of fluid and then collected for examination) should be collected 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 suggested. 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 specimens 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 bronchoalveolar lavage (95 percent) and sputum (72 percent) compared with oropharyngeal swab (32 percent). Data from this study suggested that viral RNA levels are higher and more frequently detected in nasal regions compared with oral specimens, although only eight nasal swabs were tested. Coming to the rapid test, ICMR issued an interim advisory on the use of serological 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 exposed 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 antigens are recognised by the immune system as foreign and are targeted by the immune response.” The serological test screens the plasma 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 developed, which takes a week, can the serological 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 testing 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 managed 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 antibodies, 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. 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 different 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 surveillance, 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 surveillance 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.

37. | INDIA LEGAL | April 20, 2020 37 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 fundamental right and needs to be protected by law, and the government has moved in with the law which it thinks is appropriate 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 privacy are presenting themselves as guardian angels of citizens who are protecting this right of theirs. This industry has even seen the introduction of computer contaminants in devices and OTT services to track and profile consumers for harnessing them for marketing purposes. It may be recalled that DoT has specific powers to seek information from the operators as part of the license system. 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 considered “data fiduciaries” and are responsible 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 personal data as raw material and the government uses it both for national security 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

India legal 20 April 2020

India legal 20 April 2020

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