Did COVID-19 bring a knock to our Environmental Laws?

By- Muskaan Singh

The COVID-19 pandemic has caused a huge impact on one and all be it, common migrants, from different states to huge industries running the economy of our country; but one and all Coronavirus has impacted one and all! Although, the major concerns include; the movement of migrants, lower economy, and people being stuck at home with no source of income, as reported by Centre of Monitoring Indian Economy[1], 20.7% of people in India are unemployed right now.

The Corona virus might have had a negative impact on the whole world but it definitely had a positive impact on our environment. People in metropolitan cities finally could breathe fresh air (provided they stay indoors in this global pandemic). The Industries were stopped, cars were not moving, huge factories were at a halt; this is when the environment took a toll on us. All the carbon emissions were dropped by 30% in the month of April[2] in India, which has been a huge deal as India was considered one of the most polluted nations in the world before the COVID-19 pandemic.

Coal in India; bore a crunch

As the factories were not working, neither were the industries; the coal production in India was also at a halt, the thermal energy used in march fell by 15% in March and by 31% in the first three weeks of April. The drop percentage is quite high as compared to previous years where the coal usage would increase by 7.2% every year.

Oil demand in India; down to negative

Oil demand like all other natural sources reduced severely, the crude oil demand reduced by 5.9%, and a 5.2% drop in natural gas. The reduction in oil demand is also in the flattening of the curve of the environment.

CO2 emission down by a whopping 30%

The carbon emission in India fell to a drastic percentage, directly positively affecting the environment. The environment is our reward from the natural world. As said by Antoine De Saint-ExuperyWe did not inherit the Earth from our parents, we have borrowed it from our children” Before the COVID-19 pandemic were we doing justice to our Earth? Carbon emissions reaching heights, wildlife being hunted and poached, aquatic life dying due to water pollution, ancient million years old coral reefs dying, trees being cut for accommodating the new and everyday growing population; the list deems endless if we come to ways we have exploited earth for our vicious benefits.

In India on 22nd March 2020, ‘Janta Curfew’ was imposed by The Prime Minister of India; following which there was a significant drop in pollution levels in big metropolitan cities like Delhi, Mumbai, Kolkata wherein the Air Quality Index (AQI) stayed within two digits. Similarly, in the United States once the lock down was imposed in different stated of America, People started breathing cleaner air. Their Congress in 1970 passed the Clean Air Act and the Clean Water Act for them. These acts were truly implemented when the corona virus lock down was imposed in the country.

These acts in the United States were basically invisible once implemented but after some protest and effect, they stuck filters on smokestacks, car exhaust, and factory pipes. The Environment Protection Agency had to send in photos of how filthy everything was but once things fell into place things got better there!

India since July 2014, that is since last six years has approved more than 270 projects in and about the most protected areas of India i.e. biodiversity hotspots, national parks, wildlife sanctuaries. But at the same time, while approving such orders Indian Government has also warned the stakeholders that the habitat and eco-system of Indian biodiversity are not to be meddled with as it can not only damage the flora and fauna of the country but also pose a possible threat to public health.

The changing habitat and causing destruction to it has caused a changing pattern in infectious diseases. The World Health Organization (WHO) has been warning us about this for years; they have issued a warning a long time ago not to meddle with the bio life or else humanity will be at danger. Zoonotic diseases are diseases that spread from animals to humans such as rabies, Nipah, Ebola, SARS (severe acute respiratory syndrome), MERS (Middle East respiratory syndrome), and COVID-19.

Scientists believed that the novel coronavirus which is sister disease of SARS is likely to be jumped from bats to humans. Can we now see how animals have entered our lives and destroyed it? Our chances of meeting animal diseases are now more when we have entered their habitats and biodiversity in the name of our economic and commercial growth.

Now that we have entered the Unlock phase 2.0 the government now has great responsibly in enhancing our economy which has dipped an all-time low. Now the government must choose between the economy and the environment. India has planned a huge project for the citizens of India giving livelihood to many and giving rise to the economy. These projects are the projects which will invade our biodiversity; these are the projects wherein the flora and fauna of the country will be at stake. Even though the government has issued guidelines, but the question is how many shareholders will follow these guidelines?

Well, now that the Government of India must keep in the mind our down falling economy it will definitely take steps and measures to keep with the economy. But all we have to say is that, don’t let go of this beautiful change which has taken place during the course of lockdown due to Coronavirus. Instead, use this as a head start; now it will be our nation’s responsibility to take care of our environment which has taken its shape. I mean when can you imagine dolphins swimming near Marine Drive in Mumbai one of the busiest cities in India; or when can you expect to wake up one day in Jalandhar, Punjab, and be able to see the Himalayan range from your home. These are miracles that have happened after a long pause, a pause from our daily day to day activities. Now we have to make sure how to improve our economy without neglecting our environment.

[1] India Unemployment rate-CMIE, 10 June 2020

[2] Analysis: India’s CO2 emissions fall for first time in four decades amid coronavirus, Carbon Brief, 12 May 2020

Force Majeure during COVID-19: The Road Ahead!

By-Muskaan Singh

All over the world, 213 countries are battling global pandemic caused due to COVID-19. On 11th March 2020, the World Health Organization declared Coronavirus as a global pandemic. With the initiation of COVID-19 in India, there was not only a humanitarian crisis but also an economic crisis of an unapprehended scale. But particularly, restriction on the movement of people and goods has raised serious doubts in the mind of the people for the economy of the country. Uncertainty has arrived as to if the performance of the contract has led to parties breaching the contract.

Force Majeure means an “event or effect that can be neither anticipated nor controlled . . . [and] includes both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars).”[1]

‘Vis Major’ (meaning ‘Act of God’ in Latin) is defined as an “overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood, or tornado.” [2]

The terms ‘Force Majeure’ and ‘Vis major’ or ‘act of God’ are similar yet different To sum it up ‘Force Majeure’ would be a wide ambit and ‘vis major’ can fall in that ambit; as Force majeure covers all the possible consequences natural or man-made whereas Vis major would only cover natural consequences. The Supreme Court in its landmark judgment Dhanrajamal Gobindram v. Shamji Kalidas & Co.[3]recognized the difference between the two.

Force Majeure: Contracts Act

Among unforeseen events such as wars, terrorism, riots, labour strikes, epidemics, pandemics, etc., if the certain event is capable enough to affect the performance of the contract, due to events like pandemic or epidemic; the parties in the said contract will be relieved from the performance of the contract.

There are situations and events wherein some events are not covered under the force majeure clause but; the clause contains a catchphrase that completes or includes the mentioned event. The catchphrases would have similar language to “including, but not limited to” etc; although such catchphrases are constructed ejusdem generis which is totally depending on the width of the language including all the clauses of the force majeure. For instance, if the event can be seen as a natural event, the language clearly states an event is a natural event; then the event will be covered under the ambit of Vis major.

Is an epidemic/pandemic an act of god?

Indian courts have not directly justified that an epidemic/pandemic is an act of God, but the arguments in Supreme Court case of The Divisional Controller KSRTC v. Mahadev Shetty[4]said that the expression “Act of God” includes the events which are natural and free from any human intervention. Similar rulings have also been passed by Kerala High court[5] and Madras High Court[6].

Although globally different countries have different interpretations towards it, countries like the United States of America and the United Kingdom include the event of pandemic/epidemic under the expression of ‘Act of God’.

In cases like Lakeman v. Pollard[7], the plaintiff was a laborer at a mill and he left his job because of contracting cholera and was not being able to complete the contract i.e. his work contract. The owner’s association were now seeking compensation because the work contract had been breached. The Supreme court held that there was no breach of contract as cholera would be under the ambit of an epidemic i.e. Act of god thus the duty to perform the contract was relieved.

In another interesting case of Sandry v. Brooklyn School District[8]appeals were made to the Supreme Court of North Dakota by the school bus driver for their compensation as during the influenza outbreak the transport services were shut.

The Supreme Court of Dakota held that the school was free from paying the bus drivers as the influenza outbreak would be considered under the Act of God. It is important to understand that the performance of the contract was relieved because it was absolutely impossible to perform the contract.

Provisions under Indian Law: the absence of Force majeure clause

There are two provisions under The India Contract Act 1972 which are relevant to Force Majeure and Act of God. Section 32 of The Indian Contract Act deals with contingent contracts and inter alia it is based on the happening of a future event and when it becomes impossible the Contract also becomes void.

Similarly, section 56 of the act deals with the frustration and provides that a contract becomes void if it is impossible to perform the contract; by the reason that the promisor could not prevent.

In a number of cases starting from Satyabrata Ghosh v. MugneeramBangur[9] to Energy Watchdog v. CERC[10], events such as force majeure were relatable as it was held by the Supreme Court that when a clause is related to force majeure in a contract it is guarded by section 32 whereas section 56 applies when the event dehors.

The mere reason that COVID-19 is pandemic would not suffice for force majeure clause to apply to the contract. The force majeure event should directly affect the parties in such a way that the parties or even a single party is not able to perform the contract after trying all alternate solutions; only then the said contract will be relieved and the parties will be relieved of its duty.

In situations like the one which is currently going on where the world is at stake; the lives of people are at stake; the global economy is at stake, still, the people are taking advantage of such a situation and relieving themselves from their duties and contracts. The global pandemic has bought the economy at a standstill because of the people using this event under the clause of force majeure even though the majority of them will not be entertained under this ambit.

So, in order to curb such situations, people should not only send letters for applying the force majeure clause but also now provide reasons as to how the situation is affecting the parties or anyone party of the contract. Because of which the performance of the contract is impossible.

Providing the same would remove all the ambiguity and thus, a clear image would be drawn as to how the economy is being varied because of the non-fulfillment of the contracts in such pandemics.

[1]Black’s Law Dictionary (11th Edition, 2019).

[2]Black’s Law Dictionary (11th Edition, 2019).

[3]Dhanrajamal Gobindram v. Shamji Kalidas & Co., AIR 1961 SC 1285.

[4] The Divisional Controller KSRTC v. Mahadev Shetty, 2003 7 SCC 197.

[5] Kerala Transport Co. v. Kunnath Textile, 1983 KLT 480.

[6] P.K. Kalasami Nadar v. Ponnuswami Mudaliar, AIR 1962 Mad 44.

[7] Lakeman v. Pollard, 43 Me 463 (1857).

[8]Sandry v. Brooklyn School District, 182 NW 689.

[9]Satyabrata Ghosh v. Mugneeram Bangur, [1954] SCR 310.

[10]Energy Watchdog v. CERC, (2017) 14 SCC 80.

Justice Awaited In the Crises of COVID-19

By: Ishita Pancholi

The world is pathetically affected by COVID19 which shut down all the medical services, frameworks at the point of emergency, and how there is a big crumbled up economy that is being shattered up. So for the betterment and establishment, there is a need for a rebuilt labor competency which is right now on a stake, and a lot of unemployed workers who can’t feed their family strive through hunger. But the government is indulged between the extension of a lockdown or rather checking the spread or to evict the pandemic situation to not to give up on the economic failure.

The major issue that comes up in our judicial system is hearing of the cases as crime never stops being committed. So, if there is a stoppage to the daily operations of the courts due to COVID 19 crises it will infringe the right to access justice.

Admission to justice is considered a human privilege and it is being mentioned in our constitution. It is basically a significant feature of law and it is guidance to the smooth flow of the judicial operations. It will correspond to the people that offenses committed by the accused are being punished. This right comes from early 1215, when, Magna Carta appeared. Magna Carta makes certain subjects to the law and it ensures the fundamental opportunities to the citizens of the country.

The constitution makes certain guidelines that every citizen has their own human rights and it is being validated to a certain principle or legal way. There is a maxim that plays an important role in the concept i.e. Ubi jus ibi remedium, which states that where there is a right, there is a remedy. So, in the context of this, courts move their day to day operations to have a reasonable guarantee towards the equity. There are circumstances where the aggrieved party shows the issues about lack of awareness or high-cost aids and it is considered as non-equitable because this right is only for a privileged person.

But the reality check is that all the accused, lawyers, and witnesses have to endure a lot because there is no assurance towards the access in justice and there is no proper legal aid to the needy groups due to downfall in the economy. The income status of every individual has been affected and there is a financial hardship that is right now impossible to overcome with.

Judicial System is in the requirement of legal aids, so the government plays as a guarantee in providing all the financial operations, and legal help to the helpless people.

For a full correspondence and reasonable hearing of any autonomous court, everyone is qualified and the option to access justice is a natural right and each and every citizen can’t be removed on the basis of sacred or legal proclamation, not even in the crisis. There is an enormous effect on necessary legal assistance and certain measures taken by NALSA (National Legal Service Authority) give the best arrangement for poor people as well as oppressed areas of the society. NALSA addresses the worries of poor from food to fundamental necessities to take into consideration. SLSA (State Legal Services Authorities) is in the involvement of providing every basic legal aid to the needy people.

Guidelines at Indian Outlines

People are regularly confronted with the endless issues towards the proper access to courts and it is infringing their human rights. But as far as our legal executive is concerned, operational activities of the court are still in motion during the pandemic situation. Supreme Court is taking cases suo moto which provides the guidelines about the functioning of the courts through video conferencing and it will reduce the physical appearance of the judges, advocates, court staff, and any other workforce.

According to Article 142 of the Constitution under which certain measures are taken into consideration:

  1. Separate High Courts conduct their proceedings which reduce the spread of coronavirus.
  2. There is the proper utilization of video conferencing for the legal framework on a strong base.
  3. Creation of a helpline where the complaint can be enrolled with their respective nature of the feed.
  4. No record of evidence without the assent of both the parties.
  5. Defendants with no entrance to the offices will be equivalent.

Guidelines at Universal Outlines

Due to the predominant conditions of the legislature, the states moved towards some advanced measures for removing the social approach and to safeguard from the pandemic. In reference to safeguarding, the apex court is concerned about the social distancing in the court premises and better be safe as much as one can.

There is a comparable emergency in the world where the spread of COVID 19 shattered the whole economy and it seems to have a permanent stay. It feels like from the past 2 to3 months things aren’t normal as previously they were but soon things will return to normal by establishing certain standards of social distancing and self-safety which is a very much important factor to get rid of COVID- 19 in the overwhelming world.

The right to access to justice states that there is no restriction on a sudden delay of all the proceedings of the court for a long span of time and the decisions taken by the apex court to fall back upon the video conferencing as an only option to proceed with the due hearings especially in criminal cases with the necessary protocols during this pandemic. COVID 19 has no ifs and/ or buts, and it harmed the nations so pathetically that certain measures are being called upon in these extreme circumstances where all the methods become obsolete and by creating strategies, proceedings of the court through video conferencing gets much easier and it might be incapable but at least there is an equivalent working operation going on. It gets over-abundance on the legal executive and there is no infringement on access to Justice.

There are multifaceted issues regarding our judicial system like improper management of judges due to this pandemic and there is a lack of awareness of the rights in the illiterate groups. Some are in the avoidance to resolve their matters in the court. The best way is to take the situation in a normal way by utilizing the technology in a very solitary manner.