SJCL PANDEMIC WORKING PAPER SERIES 2021

SJCL PANDEMIC WORKING PAPER SERIES 2021

ST. JOSEPH’S COLLEGE OF LAW RESIDENCY ROAD, (F M CARIAPPA ROAD), BANGALORE 560025

A KNOWLEDGE EXCHANGE INITIATIVE BY RESEARCH CELL

Director’s foreword

Research is a c o n s t a n t p r o c e s s

that trains the mind to learn, re-l e a r n a n d perhaps unlearn s o m e o f t h e things we know. I t i s a l s o a n attempt to make things visible that are normally invisible through unjust structures and processes.

Research challenges the mind to constantly explore our society and its unchartered territories. I believe that research is not purely an academic exercise, it is also the genuine search for truth amidst the apparent colourful appearance. Research has the potential of creating societal impact. One prerequisite for realising societal benefit is to transfer research results to potential users in a meaningful format. Researchers now than ever before have the responsibility of offering innovative solutions that benefit our society, economy and environment through their work. I believe our research endeavour should have uniqueness of having the perspective of poor and marginalised in our society.

I take this opportunity to encourage the young minds at St. Joseph’s College of Law to work across disciplines and with decision-makers to understand how research can have better on-the-ground impact towards longer-term, resilient societal outcomes.

I laud the committed work of faculty members and the students who have contributed to the SJCL Pandemic Working Paper Series 2021 edition.

God bless us all.

Fr. Jerald D’Souza SJ

A message from the Principal

Research is what keeps a person connected with the constant developments in the world of arts, science and academics. It is pivotal for every person in the

legal world to keep himself abreast with the latest happenings.

At SJCL, we are in a constant endeavour to learn and equip ourselves with new information, and one such attempt is the SJCL Pandemic Working Paper Series 2021 edition.

I am sure that the publication will provide an insightful understanding of various issues in the present world.

I am hopeful that the dream of making research a culture at SJCL will certainly come true with such initiatives.

I wholeheartedly congratulate all the students and the faculty members who have worked towards the publication of this issue.

Dr. Pratima Prabhakar

From the editor’s desk

As the lockdown gets lifted in a phased manner across states, inherent fear of the third wave still looms large. Prevention and precaution have come to be redefined as India makes every effort possible to recover from the arrest of the economy. We

are conscious of the fact that COVID became a statistical nightmare and it is important for us to decouple this number from the narrative and look at data as humanely as possible.

We are reminded of Annelise Riles, an anthropologist at Northwestern Law, who argued that ‘the common treatment of text as “data” to be exploited should be rather appreciated as an ethnography of documents to be considered as a “set of social practices, an aesthetic of thought and action”. To this end, the document should be perceived as an artefact, which enters into dynamic interactions with other artefacts and diverse actors.’ The authors of the papers in this edition have taken this piece of scholarly advice to the heart. To look at COVID deaths as a testimony to what solutions can proffer rather than getting lost or overwhelmed with the data.

The following pages are carefully curated pieces of work, each with a specific tone and focus, written by our students as they tackle online classes and societal grief. They are well articulated papers across broad yet thematic areas. The introductory papers give an overview of the legal responses with judiciary activism, followed by vaccine, healthcare and funeral management bottlenecks. Loss of employment, closure of companies and revival of gig economies during the pandemic are the other thrust areas. We conclude our series with graded inequalities seen in the education sector during the pandemic. Each paper is researched and supported with facts and figures, while ensuring the college ethos are maintained in our research endeavours - to be critical and accountable in all our actions. These values resonate with us all the time, as a reminder that was championed by our former director Fr. Praveen Hrudayaraj SJ, whom we lost this year in such indescribable times. This is our attempt to instil his vision, and dedicate it to his penchant to push research to the farthest frontiers. Simi and Jaza, our student coordinators have always stepped up to deadlines and corrections while ensuring we don’t compromise quality.

The aim of these papers is to serve as a ready reckoner of the events from the beginning of the COVID pandemic. We hope these papers will serve as a guide for students and practitioners of the past and the future awaiting us - with promise and growth.

We welcome you to explore the SJCL Pandemic Working Paper Series 2021.

Ann Johnnie Philips and Moses Raj G SResearch Cell coordinators

~ CONTENTS ~

THE COVID COMPROMIS

Diksha Garg and Andrew Saldanha 1-6INDIA’S LEGAL ARCHITECTURE DURING COVID-19 PANDEMIC

Prakriti Priya and Anjali G Nair 7-12A STUDY ON THE PRISON CONDITIONS BEFORE AND DURING THE

PANDEMIC

N. Venkatesh Kamath and Jayanth Peters 13-21A PARADIGM SHIFT IN THE FUNERAL SERVICE INDUSTRY IN INDIA

Syeda Afshan and Safa Shameem 22-31WHAT DOES INDIA NEED TO BATTLE THE INVISIBLE ENEMY?

Nikhita S and D. Tharun Gautham Rao 32-41PANDEMIC MANAGEMENT: AN ASSESSMENT OF THE HEALTHCARE

INFRASTRUCTURE DURING THE PANDEMIC

Bharath M R and Rajath R 42-51INDIA’S VACCINATION STRATEGY – AN INSIGHT

Aarush Jhunjhunwala 52-57THE STATE OF COMPANIES AMIDST COVID-19 CHAOS

Thangam Chandy 58-64PANDEMIC MANAGEMENT: ACCESS TO JUSTICE THROUGH

TRANSPORTATION

Jaza Zehra and Simi Zackariah 65-72COVID-19: EMERGENCE OF INDIA’S GIG ECONOMY

George Thomas Thevaril and Michael Thomas Thevaril 73-82IMPACT AND INFLUENCE OF PANDEMIC ON GIG ECONOMIES IN INDIA

Shabil Shukur K K 83-88

IMPACT OF COVID-19 ON THE MSME SECTOR

Anjali J Nair A and Avanthika R 89-95ATMANIRBHAR BHARAT: EXPLORING ENTERPRISES

Rishabh Jain and Anubhav Das Biswas 96-100MIGRATION OF LABOUR IN INDIA DURING PANDEMIC

Noor Ghousia B and Pooja Mahajan 101-109LABOUR CRISIS DURING THE PANDEMIC

Mamatha Ramapriya 110-116EDUCATION AT CROSSROADS: COVID-19 PANDEMIC

Sandhya S and Shravya D’souza 117-125ONLINE EDUCATION DURING COVID-19: DIGITAL DIVIDE EXACERBATES

EXISITING INEQUALITIES

Priyanka Chakrabarty, Nilani Claire N and Stefy Maria Sebastian 126-134


THE COVID COMPROMIS

Diksha Garg and Andrew Saldanha1 INTRODUCTION “We trust the executive implicitly. God grant that our trust be justified. But if our executive demands our trust, why should not the executive trust the judiciary, why should it not repose confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not see how we can build up an egalitarian or democratic State on such a foundation.”2

Words of H.V. Kamath spoken in defence of the emergency powers, haunt the socio-political environment of a pandemic grippled country. The “permanent crisis governance,” emergent as a consequence to the harrowing pandemic of Covid-19 force us to ponder upon the accountability and liability of the wings of government.3 Covid-19, exposed the vulnerabilities in systems of governance across the globe. The second wave in particular has had devastating impact and consequence in the Indian context. The shortfall in utilisation of archaic laws as a defence against novel situations becoming more apparent by the day.4 From lockdown to the failure of the medical infrastructure, the Pandemic forces us to re-think the implicit trust placed on the elected class. It must, however, be questioned whether a carte blanche violation of Part III by the executive be justified?5 The election centric approach adopted by the executive wing has invited much criticism from all fora. This coupled with the institutional apathy reminds one of the “nasty, brutish, short and isolated” realities.6 In times of such despair the courts of law have undertaken the challenges to place accountability on the executive wings,7 while ensuring that the promises enshrined in the Constitution are not foregone for validation of political gains. This article aims to identify certain pivotal contributions made by the High Courts and Supreme Court vide judgements and orders to alleviate the sufferings of the masses.

1 IV B.A.LLB, [email protected] 2 Constituent Assembly Debates, Vol. IX, Speech of H.V. Kamath, 536(August 20, 1949) 3 Gautam Bhatia, “Coronavirus and the Constitution – XXXVIII One Year On,” INDIAN CONSTITUTION PHILOSOPHY, Mar 24, 2021. Available at https://indconlawphil.wordpress.com/2021/03/24/coronavirus-and-the-constitution-xxxviii-one-year-on/ 4 Geeta Pandey, “Desperate Migrant Workers Trapped in Lockdown”, BBC News (April 22, 2020), available at https://www.bbc.com/news/world-asia-india-52360757; Amy Kazmin & Jyotsna Singh, “India: The Millions of Working Poor Exposed by the Pandemic”, Financial Times (April 22, 2020), available at https://www.ft.com/content/dec12470-894b-11ea-9dcb-fe6871f4145a. 5 Ibid 6 Thomas Hobbes, 1588-1679, Leviathan, Baltimore: Penguin Books, 1968. 7 Finn, P (1994), "Public trust and public accountability", Griffith Law Review, Vol 3 No 2, page 228. Finn states that, "[w]here the public's power is entrusted to others", there is an important and overarching constitutional and fiduciary principle that "[t]hose entrusted with public power are accountable to the public for the exercise of their trust.” Barnes and Gill also observe that the public's trust in the public sector is closely related to the level of confidence the public has in the public sector.”

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THE JUDICIAL INTERVENTION One notable fact is that the institution of Pandemic in India was employed by means of archaic laws instead of utilising the emergency powers, despite the turbulent turn taken in the past few months. The adoption of a ‘legislative model’8 by use of the Disaster Management Act, 2005 (DMA) and the Epidemic Diseases Act, 1987 (EDA) sure does raise curiosity. The pandemic has purported a ‘rule by executive degree.’9 While the substantial failure of the same came as no surprise, the Judicial Intervention by means of pronouncements and orders received many acclamations. When the first- and second-generation rights,10 namely ‘negative’ and ‘positive’ rights, were threatened by means of executive apathy, an attempt to create accountability was made by the Courts of Law. VIGILANCE OF THE HIGH COURTS Several pertinent judgements were pronounced by the courts in the duration of past few months which have addressed situations of vaccination pricing and supply, the supply of medical oxygen to the hospitals and highlighting the information asymmetry. It can however be determined that the High Courts took the lead in delivering a set of progressive and pertinent judgement. This has also been clarified by a suo moto bench of the apex court which determined that, “the High Courts have a robust understanding of ground realities and are grappling with the practical issues and problems which have arisen in their jurisdictions as a result of the outbreak of the pandemic... hence, there is no reason or justification to interdict the exercise of the jurisdiction of the High Courts.”11 The elucidation and observations of the Supreme Court were made manifest by multiple forms when the High Courts placed accountability on the executive for the mishandling of the pandemic. The Patna High Court while noticing the alarming rise in the number of cases of Covid-19 and the significant shortfall in the healthcare infrastructure sought an explanation and accountability from the executive. A division bench of the High Court, while hearing the Public Interest Litigation (PIL) filed, opined that while the courts were mindful of the severe shortcomings of the healthcare infrastructure, it is also duty bound to protect the rights of the individuals enshrined under Art. 14 and 21 of the Constitution of India.12 The court further in its order demanded the executive to furnish credible information to the public inter alia.13

8 John Ferejohn and Pasquale Pasquino, ‗The Law of the Exception: A Typology of Emergency Powers’ (2004) 2 Intl J Constitutional L 210 9 Bonavero Institute of Human Rights (University of Oxford), A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 11 Jurisdictions (No. 3/2020, 6 May 2020) 10 Spasimir Domaradzki et al, ‗Karel Vasak ‘s Generations of Rights and the Contemporary Human Rights Discourse’ (2019) 20 Human Rights Rev 423 11 Re: Distribution of Essential Supplies and Services During Pandemic, suo motu Writ Petition (Civil) No. 3 of 2021 12 Shivani Kaushik v. Union of India, Civil Writ Jurisdiction Case No. 353 of 2021. The court observed that, “Nonetheless, the Constitutional Courts are duty bound to invoke the powers of judicial review and cannot afford to overlook palpable violation of fundamental rights of life and equality of citizens enshrined under Articles 21 and 14 respectively of the Constitution of India.” 13 Meera Emmanuel, People don't have information, State's data appears to indicate that beds exceed COVID-19 patients: Patna High Court pulls up Bihar Govt, BAR AND BENCH, 17 Apr 2021. Available at https://www.barandbench.com/news/litigation/covid-19-bihar-patna-high-court

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In a bid for survival, the judgements of the Delhi High Court were much welcomed by the populus. The Delhi High Court, upon observing the dire situation, issued a caveat to the Central Government to institute contempt proceedings if the need for oxygen is not complied with.14 The case became particularly sensational for being one of the first instances of a High Court imposing liability upon the executive. A division bench of the Court further observed that the supply of the oxygen must be done at affordable and optimal pricing. Further identifying that the need for oxygen is immediate and essential the court in no uncertain terms held that, “Responsibility squarely on Central Governments shoulders to ensure oxygen supply to hospitals for patients.”15 Another notable judgement of the Delhi High Court in these turbulent times was the intersection of tax law and right to health. While dealing with a rare writ petition whereby a notification issued in the realm of a tax statute has been, inter alia, assailed under Article 21 of the Constitution,16 a division bench of the Court observed that the Ministry of Finance may consider alleviation of Integrated Goods and Services Tax (IGST) on the oxygen concentrators imported by the State governments for the purpose of Covid-19 relief. Noticeably, IGST leviable on import of Oxygen Generators is 12 per cent till June 30, 2021, and prior to the May 1 Notification, it was 28% for personal use.17 By way of the impugned order the oxygen concentrators purchased by State, or any other entity authorised by the State was exempted from the payment of IGST till 30th June 2021. The one-of-its’ kind interaction between tax law and proviso of Art. 21 was particularly interesting as the court upheld the right to health and pursued a forgoing of tax.18 The Karnataka High Court, in particular, took a stern stance post the horrid incidence of nearly 24 deaths in Chamrajnagar surfaced. The Court also suggested a judicial probe and investigation of the matter. Further the Court also deliberated on the notion of right to a healthy life in light of the Covid 19 circumstances and contrived that the Right to a Healthy life formulates as an integral part of Art. 21.19 The observations of the Karnataka High Court in questioning the central government on its inability to provide for the requisite quantity of oxygen also gained much traction. While the centre tried to dispute the matter in the Supreme Court, the same was dismissed by the apex court citing that the order issued by the government “well calibrated, deliberated and [a] judicious exercise of power.”20

14 Balaji Medical and Research Centre v. Union of India & Ors., W.P.(C) (temp) 5500/2021 (to be registered and numbered). The court observed, “Now the water is gone above the head. Now we mean business, enough is enough. You made an allocation to Delhi, you fulfil it.” 15 Ibid 16 Case Brief, [COVID-19 surge] Del HC| “Consider exempting Oxygen Concentrators from IGST”, HC tells Finance Ministry, SCC ONLINE, 6th May 2021. Available at https://www.scconline.com/blog/post/2021/05/06/covid-19-surge-del-hc-consider-exempting-oxygen-concentrators-from-igst-hc-tells-finance-ministry/ 17 Ibid 18 Gurcharan Singh v. Ministry of Finance, 2021 SCC OnLine Del 1918. The Court observed that “Since the respondent has gone this far, it could move further, and extend the exemption, to even individuals, to enable them to obtain imported oxygen concentrators by way of a gift, albeit, without having to pay IGST.” 19 Karan Manral, ‘Right to lead healthy life…’: Karnataka HC on violation of Covid-19 norms, HINDUSTAN TIMES, 15th Apr 2021. Available at https://www.hindustantimes.com/cities/bengaluru-news/right-to-lead-healthy-life-karnataka-hc-on-violation-of-covid-19-norms-101618482198397.html 20 Scroll Staff, Covid-19: SC refuses to intervene in Karnataka HC order on increasing oxygen supplies to state, SCROLL, 7th May 2021. Available at: https://scroll.in/latest/994303/covid-19-sc-refuses-to-intervene-in-karnataka-hc-order-on-increasing-oxygen-supplies-to-state

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The scathing remarks instituted by the Madras High Court on the mismanagement and liability of the Election Commission created much buzz as well. In no uncertain terms the High Court in a statement to the Election Commission stated that, “You are the only institution that is responsible for the situation today. No action against political parties taking rallies despite every order of the Court. Your election commission should be put up on murder charges probably!”21 While elucidating the firm stance adopted by the courts of law, it is imperative to be mindful of the dictums of the Allahabad High Court. The Court not only questioned the government on the misconduct during the times of Pandemic but ordered for compensation to the officers on-duty due to election processes. The informational asymmetry presented in the quantification of Covid-related deaths, was also noticed by the Courts.22 Several noticeable judgements by the Bombay High Court and Gujarat High Court have assisted the state governments in formulating policies on vaccination and medical supplies during the Pandemic.23 Further deliberating on the cause for medical supplies the division bench of the Maharashtra High Court urged that, “It has been generally expressed by the experts in the field of medicine who are personally present before this court that this much of production capacity is quite sufficient to cater to the needs of serious Covid patients… and, therefore, if these Companies are directed to streamline their supply process to all the states in India there would be no shortage of Remdesivir drug and it will eventually eliminate the malpractice of sale of these drugs in the black-market.”24 QUOD ATRIUM SUMMI – THE SUPREME COURT In Re: Distribution of Essential Supplies and Services in times of Pandemic,25 the apex court inter alia observed that “It is trite to state that separation of powers is a part of the basic structure of the Constitution. Policymaking continues to be in the sole domain of the executive. The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to the resources which are instrumental to policy formulation. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies18. Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform.”26

21 MR Vijayshankar v. Chief Election Commissioner, W.P.No.10441 of 2021. Further the court also observed that, “At no cost can the counting result in a catalyst for a further surge, politics or no politics, and whether the counting takes place in a staggered manner or is deferred. Public health is of paramount importance, and it is distressing those constitutional authorities have to be reminded in such regard. It is only when the citizen survives that he enjoys the other rights that this democratic republic guarantees unto him…” 22 Omar Rashid, COVID-19 | How the Allahabad High Court is monitoring U.P. govt's response, Hindu, 13th May 2021. Available at: https://www.thehindu.com/news/national/other-states/compensation-to-kin-of-up-polling-officers-who-died-on-duty-very-less-allahabad-high-court/article34545478.ece. On May 4, a Division Bench of the court remarked that deaths of COVID-19 patients due to lack of supply of oxygen to hospitals “is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen.” 23 The Wire, 'Ashamed' of Centre’s Decision to Reduce Oxygen Supply to Maha, HC Orders Immediate Restoration, 22nd Apr 2021. Available at: https://thewire.in/law/ashamed-centre-decision-reduce-oxygen-supply-maharashtra-nagpur-hc-restoration 24 Ibid 25 Supra, at 10 26 Ibid, ¶14

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The judgement also formulated as a bedrock to assist in the formulation of the vaccination policy at the National level. On both questions of oxygen and vaccination the dialogic review of the apex court was showcased.27 The court opined that there needs to be complete transparency as to the methodology of allocation and pricing of vaccines.28 Further stating that “the basis and rationale which has been adopted by the Union government in regard to the pricing of vaccines. The government shall explain the rationale for differential pricing in regard to vaccines sourced by the Union government on one hand and the states on the other hand when both sources lead to the distribution of vaccines to citizens.”29 To ensure a proper supply of medical essentials the Supreme Court additionally set up a 12-member committee.30 The 12- member task force, comprising of renowned national experts with experience in health institutions,31 would look into the supply of oxygen and the distribution. It was also employed to curate audit reports to facilitate the data and documentation work.32 Another notable and progressive judgement of the Supreme Court came in form the order instituted by the apex court arising out of a writ petition for the decongestion of prisons to curb the virus.33 The apex court being mindful of the dire circumstances of the prison system in India instituted an order to direct the state committees set up under the guidance of the High Courts for the release of prisoners on interim bail and parole to reduce the spread of virus. The Order was an essential need to apprise the public regarding the circumstances of the prison.34 CONCLUSION

“The Supreme Court of United States,35 speaking in the wake of the present COVID-19 pandemic in various instances, has overruled policies by observing, inter alia, that "Members of this Court are not public health experts, and we should respect the judgment of those with

special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten" and "a public health emergency does not give Governors

and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.36

27 Gautam Bhatia, Coronavirus and the Constitution – XXXVII: Dialogic Review and the Supreme Court, INDIAN CONSTITUTION PHILOSOPHY, 3rd Jun 2021. Available at: https://indconlawphil.wordpress.com/2021/06/03/coronavirus-and-the-constitution-xxxvii-dialogic-review-and-the-supreme-court-2/ 28 Supra, 10 29 Supra, at 26 30 Union of India v. Rakesh Malhotra and Anr., SLP (C) Diary No. 11622/2021. Available at: https://main.sci.gov.in/supremecourt/2021/11622/11622_2021_35_35_27915_Order_06-May-2021.pdf 31 Kashish Khandelwal, Indian Supreme Court Constitutes National Task Force for Allocation of Medical Oxygen, Jurist Org, 10th May 2021. Available at: https://www.jurist.org/news/2021/05/india-supreme-court-constitutes-national-task-force-for-allocation-of-medical-oxygen/ 32 Ibid 33 In Re: Contagion of Covid Virus in Prison, Suo Motu Writ Petition(C) No.1/2020. The courts emphasised that “From limiting arrests to taking care of COVID-19 patients, there is a requirement for effective management of pandemic from within the prison walls so as to defeat this deadly virus.” 34 Mondaq, Supreme Court Orders Release of Prisoners to Decongest Jails, May 2021. Available at: https://www.mondaq.com/AdviceCentre/Content/4442/Supreme-Court-Orders-Release-Of-Prisoners-To-Decongest-Jails 35 Calvary Chapel Dayton Valley vs Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 (Mem) (Justice Alito Dissenting Opinion) 36 Supra, at 10

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The obiter relied upon by the apex court determines the tone and need for the judicial intervention in Pandemic. The inaction and apathy of the executive class coupled with a rule by executive decree37 coerced the judiciary to step in to preserve rights and direct policy formulations. Notably, there are lacunae in both approaches however, the intervention as supplied in past few months raises substantial questions on public accountability of the government. A key aspect of each of the aforementioned judgement being the lacunae of the executive class to fulfil their obligations towards the public. A proactive judiciary in the times of Covid constituted a welcome change. However, and as has been emphasised upon by the Supreme Court there is a caveat enclosed within the same. Over interpretation and over intervention would inevitably lead to the violation of the Separation of Powers Doctrine and the structure of the Indian governmental institutions.38

37 Spoorthi Cootha, Judicial Review in Times of Crisis: Exploring Constitutional Obligations in Light of Coronavirus, NLS. Available at: https://www.nls.ac.in/wp-content/uploads/2021/04/Spoorthi_Cotha-1.pdf 38 Supra, at 10

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INDIA’S LEGAL ARCHITECTURE DURING COVID-19 PANDEMIC

Prakriti Priya1 and Anjali G Nair2 INTRODUCTION Public health and public policy are interwoven concepts in the administrative governance of India. In the ongoing battle against the spread of Coronavirus, entire political and administrative power was invested in containing the virus, however, even the war like response couldn’t break off the multiplying chain of infected individuals. It is an established fact with the advent of the COVID-19 catastrophe worldwide, several lives and economies have remained shrouded in their battle against it. The government of India notified a directive for all the states to invoke section 2 of the Epidemic Diseases Act, 1897 within their respective jurisdictions. As part of its combative measure, it imposed phase-wise four consecutive nationwide lockdowns starting from March 24, 2020, under the guidelines of the Disaster Management Act, 2005. India also declared pandemic as a 'notified disaster' under the said Act.3 Apart from this, contact tracing, containment zones, usage of electronic, social, and print media to create awareness, among other measures by the government, were some instances to contain this fatal virus. Despite these efforts, India became the second most affected nation after the U.S.A. by the end of November 2020. While normalcy was being restored, the second and more severe wave of COVID-19 hit in March 2021, where the daily tally of confirmed cases reached a record high of 3,00,000 per day in April 2021, with a subsequent rise in death toll compared to the first wave. In order to understand the adversity due to the outbreak of coronavirus, it is essential to analyze Indian legal architecture concerning health emergencies and the powers conferred upon all three levels of government (i.e., central, state, and district level). Public health and public policy are interwoven concepts in the administrative governance of India. In the ongoing battle against the spread of coronavirus, entire political and administrative power was invested in containing the virus; however, even the warlike response could not break off the multiplying chain of infected individuals. This paper attempts to analyze and understand various aspects of the Indian legal regime in response to epidemic diseases, especially pandemics of the scale of COVID-19. PUBLIC HEALTH LAWS With the third wave looming in India, the situation seems to be very grim in the absence of a functional public healthcare system. There is a fundamental problem in responding to public health emergencies (across the globe) due to inadequacies in the prevailing laws. Public Health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private,

1 III Year B.Com., LL.B., [email protected]. 2 III Year B.A., LL.B. 3 India declares coronavirus outbreak as a notified disaster, LIVEMINT (Jun. 26, 2020. 8:34 PM), https://www.livemint.com/news/india/india-declares-coronavirus-outbreak-as-a-notified-disaster-11584184739353.html.

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https://www.livemint.com/news/india/india-declares-coronavirus-outbreak-as-a-notified-disaster-11584184739353.html

https://www.livemint.com/news/india/india-declares-coronavirus-outbreak-as-a-notified-disaster-11584184739353.html


communities and individual."4 Public Health Law is the study of the legal powers and duties of the state, in collaboration with its partners, to ensure the conditions for the people to be healthy, and of the limitations on the power of the state to constrain for the common good the autonomy, privacy, liberty, proprietary, and other legally protected interests of individuals.5 The Constitution of India, though not explicitly, recognizes the right to health as an integral part of Article 21. The Supreme court, on multiple occasions, held that the right to live with human dignity, enshrined in Article 21, is derived from the directive principles of state policy and therefore includes protection of health.6 Public health laws, at present, across the globe, seem to be very outdated. As a result, they do not conform to evidence-based or a human-rights-based approach. Other issues of having multiple layers of law with several inconsistencies scream for single public health law, for the entire nation to tackle exigencies of such kind in future. Broadly, there can be two approaches to look at public health law viz. coercive and rights-based approach. This classification brings us to our fundamental question- Is freedom or health more important?7 Public health laws can impose fetters on rights to achieve a greater common good. The powers have to be derived in consonance with the Constitution and statutes prevailing to prevent state excesses. The prerogative of the state to curtail the freedom ends where the objective, i.e., to protect public health, is achieved.8 EXISTING LEGISLATIVE FRAMEWORKS The Epidemic Diseases Act, 1897 (hereinafter referred to as E.D.A.) The 124 years old colonial-era law was enforced in British India to control the widespread bubonic plague in the erstwhile Bombay. However, this three-page long legislation failed to meet its objective of containing the spread of disease, and as a result, it spread to other places. Section 2 of the E.D.A. provides the authority for the control of 'dangerous epidemic diseases', including banning travel and social segregation at points of entry, such as port and ground, to the state governments. Section 2A (Amendment Act, 1937) entrusts Union Government with powers to inspect any ship at the arrival at the port to contain the outbreak of the virus. While section 3 talks about the punishments for violation of the restrictions imposed. Section 4 exempts public servants from civil and criminal liability while carrying out public duties in good faith

● Penalties for Non-compliance with the Act: The Act has to read with various other penal provisions. Implementation of Section 144 of Cr.P.C. in various states to curb the spread of the virus is one of the speediest redressal mechanisms that the government has opted for, especially from the past one and half years. Due to this, the public is prohibited from gathering, and non-compliance of lockdown or quarantine guidelines attracted sections 269, 270 and 271 of I.P.C. (regulated under Disaster Management Act, 2005), making it very mechanized and subjective.

4 Dr Subhas Salunke et al., Approach Paper on Public Health Act, Taskforce on Public Health Act 1, 3(2012), http://nhsrcindia.org/sites/default/files/Task%20Force%20on%20Public%20Health%20Act_2012_approach%20paper.pdf. 5 Lawrence O. Gostin, A Theory and Definition of Public Health Law in Public Health Law Power, Duty, Restraint, University of California Press,2008 1, 4(2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269472. 6 Bandhua Mukti Morcha vs Union of India & Others, A.I.R. 1984 SC 802. 7 SALUNKE, supra note 2, at 7. 8 SALUNKE, supra note 2, at 8.

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http://nhsrcindia.org/sites/default/files/Task%20Force%20on%20Public%20Health%20Act_2012_approach%20paper.pdf

http://nhsrcindia.org/sites/default/files/Task%20Force%20on%20Public%20Health%20Act_2012_approach%20paper.pdf

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269472


● Limitations of the Act: The Act is silent about the definition of 'dangerous epidemic diseases, and the difference between 'isolation' and 'quarantine' to provide health care relief to the infected persons remains unclear. The provisions of E.D.A. give extraordinary powers to the government to regulate the public. The executive actions exercised under this Act do not require any ratification of the parliament. John Woodburn, the council member who introduced the Bill, said, "Trust the discretion of the executive in grave and critical circumstances". Arbitrary discretion is an antithesis to the basic premise of administrative law. In the words of Joseph Raz, "All laws should be prospective, open and clear. An ambiguous, vague, obscure or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it". This Act is exclusive of touchstone principles like proportionality & transparency.9 It moots for a blueprint to fight the epidemic. Also, there is no clarity as to how these assumed powers will be abandoned once the pandemic subsides.10There is no emphasis on modern scientific responses such as vaccination, surveillance, and organized public health response in the Act.

● Epidemic Diseases (Amendment) Ordinance, 2020: On April 22, 2020, powers under Article 123 of the Constitution of India were invoked to promulgate an ordinance- the Epidemic Diseases (Amendment) Ordinance, 2020 in the light of the attacks/stigmas faced by frontline workers. The ordinance provides punishments for damage or loss to the property and acts of violence against the healthcare workers during the epidemic. This ordinance yet again failed to address the actual problems of the crisis mentioned above. The Disaster Management Act, 2005 (hereinafter referred to as D.M.A)- The objective of D.M.A was to tackle disasters with effective management. It consists of 79 sections. Section 2(n) of D.M.A. defines the 'National Plan’ that includes measures like prevention, mitigation, preparedness and roles and responsibilities. A National Plan for the country was prepared in the year 2016 and was revised and notified in November 2019. It guides government agencies to deal with disaster management. Section 11(4) of the D.M.A. says that the National Plan has to be revised annually.11 It creates authorities like National Disaster Management Authority (N.D.M.A.), State Disaster Management Authority (S.D.M.A.) & district level institutional mechanisms. It gives importance to a blueprint of the actions to be taken by the Governments during a disaster. The N.D.M.A. consists of the Prime Minister as its ex-officio Chairperson and nine other members.12 Section 12 of the D.M.A. empowers the N.D.M.A. to recommend the minimum standard of relief to be given to persons affected by the disaster.

● Penalties for Non-compliance with the Act: Obstruction of an officer from carrying the public duty will be imprisoned for a term which may extend to one year or fine, or both. If the obstruction leads to loss of lives or imminent

9Harleen Kaur, Can the Indian legal framework deal with the COVID-19 pandemic? A review of the Epidemic Diseases Act, BAR AND BENCH (Jun. 21, 2021, 8:20 PM), https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act. 10 Ishan Bhatnagar & Ritesh Patnaik, Deconstructing the Epidemic Diseases Act, 1897 – Tackling Structural Flaws and Inequities, CDML-NLUO 27, 29(2020), https://www.nluo.ac.in/wp-content/uploads/2020/09/compilation-of-published-articles-min.pdf. 11 In re: Distribution of Essential Supplies and Services During Pandemic, Suo Moto Writ Petition (C) No. 3/2021 12 National Disaster Management Authority, https://ndma.gov.in/about-us/introduction (last visited Jun. 25, 2021).

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https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act

https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act

https://www.nluo.ac.in/wp-content/uploads/2020/09/compilation-of-published-articles-min.pdf

https://www.nluo.ac.in/wp-content/uploads/2020/09/compilation-of-published-articles-min.pdf

https://ndma.gov.in/about-us/introduction


danger, the person can be imprisoned, which may not extend beyond two years.13 Circulation of fake news will attract section 52 with imprisonment for up to two years.

● Limitations of the Act: Nonetheless, the Act is not without its flaws. Can epidemics and pandemics be considered under the term 'disaster'? Section 2(d) of the Act defines a disaster as a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. The Union government’s position before the Supreme Court on payment of standard ex gratia compensation to families of those who died of COVID-19 under section 12 of the D.M.A. makes a clear case for having proper definitions in the statute. The Solicitor General of India, Tushar Mehta, representing the Union of India, submitted that "We have to keep in mind that this is an ongoing process. Instead of one-time relief on death, it is better if we go for a multi-pronged approach of preparedness." However, very recently, the Supreme court has directed the Union to provide ex gratia compensation to the said class of people.14 N.D.M.A. has been functioning without leadership for about three years now. The representation of the body from various fields of expertise to tackle a disaster in a better way is very low. According to the present structure, the vice-chairperson and eight members are to report to the prime minister. Currently, the body is without a vice-chairperson, and merely five members currently serving the N.D.M.A. The Act constitutes a National Executive Committee (N.E.C.) headed by the secretary, Ministry of Home Affairs, to assist N.D.M.A. The control of N.E.C. over N.D.M.A. whittles down the role of a statutory body. More so, the powers of the vice-chairman are given to the home secretary, which makes the body further weak.15 The Public Health Bill, 2009 & 2017 The Public Health Bill, introduced in 2009, was a draft that articulated the importance of enunciating health as a fundamental right in the Constitution of India. It also suggested the establishment of a National Public Health Board.16 The Bill mooted for more cooperation among various organizations in the decentralized system. However, the Bill could not become a reality. Subsequently, in 2017, the Public Health (Prevention, Control, and Management of Epidemics, Bio-fear based oppression, and Disasters) Bill 2017 was introduced. The Bill met with the same fate. The 2017 Bill defined terms such as epidemic, isolation, quarantine, public health emergency, and social distancing. The Bill could have been a crucial step as most of the earlier legislation failed to define these terms. Section 3 & 4 of the Bill gives powers to state/U.T., district, and local authorities & defines powers of the Central Government in giving

13 Amita Desai, Covid-2019- Pandemic Rights, Powers & Duties of Government, TAX GURU (Jun. 27, 2021, 6:35 PM), https://taxguru.in/income-tax/covid-2019-pandemic-rights-powers-duties-government.html. 14 Radhika Roy, Supreme Court Reserves Judgment on Plea for Ex Gratia Compensation to COVID Victims, LIVE LAW (Jun. 29, 2021, 5:38 PM), https://www.livelaw.in/top-stories/supreme-court-reserves-judgment-on-plea-for-ex-gratia-compensation-to-covid-victims-176047. 15 Samarth Lutra & Satyam Singh, Hindsight 2020: Retrospective Analysis of Public Health, BAR AND BENCH (Jun. 30, 2021, 7:18 PM), https://www.barandbench.com/apprentice-lawyer/hindsight-2020-retrospective-analysis-of-the-publichealthpreventioncontrol-andmanagementof-epidemicsbio-terrorismanddisastersbill-2017. 16 Narmadeshwar Prasad, Disastrous management: N.D.M.A.'s institutional redundancy and the mismanagement of Covid-19 pandemic, FINANCIAL EXPRESS (Jun. 6, 2021, 7:38 PM), https://www.financialexpress.com/opinion/disastrous-management-ndmas-institutional-redundancy-and-the-mismanagement-of-covid-19-pandemic/2011789/.

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https://taxguru.in/income-tax/covid-2019-pandemic-rights-powers-duties-government.html

https://www.livelaw.in/top-stories/supreme-court-reserves-judgment-on-plea-for-ex-gratia-compensation-to-covid-victims-176047

https://www.livelaw.in/top-stories/supreme-court-reserves-judgment-on-plea-for-ex-gratia-compensation-to-covid-victims-176047

https://www.barandbench.com/apprentice-lawyer/hindsight-2020-retrospective-analysis-of-the-publichealthpreventioncontrol-andmanagementof-epidemicsbio-terrorismanddisastersbill-2017

https://www.barandbench.com/apprentice-lawyer/hindsight-2020-retrospective-analysis-of-the-publichealthpreventioncontrol-andmanagementof-epidemicsbio-terrorismanddisastersbill-2017

https://www.financialexpress.com/opinion/disastrous-management-ndmas-institutional-redundancy-and-the-mismanagement-of-covid-19-pandemic/2011789/

https://www.financialexpress.com/opinion/disastrous-management-ndmas-institutional-redundancy-and-the-mismanagement-of-covid-19-pandemic/2011789/


directions, respectively. It undoubtedly helps to define the Union-states relation better, which has become a severe concern in pandemic responses. The Public Health Bill, 2017 defines "Bio-terrorism", "Public Health Emergency", "Social distancing", and "Quarantine. The definition clause of the Bill is a solid foundation to combat the pandemic and abuse of power.17 Other Important Legislation Some of the other public health laws to fight epidemics are Live-Stock Importation Act, 1898, Indian Ports Act Drugs, 1908, Cosmetics Act, 1940. The Live-Stock Importation Act,1898 regulates the import of livestock and products that are likely to be infected with the virus. Section 4 of the said Act empowers the state government to make rules for the detention, inspection, disinfection, or destruction of imported livestock. Section 6 of the Indian Ports Act, 1908 confers powers upon the government to prevent the public health disorder that includes taking control over medical inspection, detention. Section 26B of Drugs and Cosmetics Act, 1940 empowers the Central Government to regulate, restrict, or manufacture drugs in the public's interest in any case of an emergency arising out of epidemic or natural calamity. The Ministry of Health & Family Safety launched an Integrated Disease Surveillance Project (I.D.S.P.)18 in 2004. A Central Surveillance Unit, State Surveillance Units and District Surveillance Units were established across the country. A laboratory-based IT-enabled disease surveillance system was used to monitor disease trends. An adequate setup was promoted to detect and respond to outbreaks in the initial stage, assisted by a trained Rapid Response Team. The synchronization of all the departments to tackle the pandemic is vital. RECOMMENDATIONS 1. The impetus to scientifically advantageous methods to contain the pandemic should be

given. 2. For surveillance and preparedness against any health-related apocalypse in the future,

provisions with greater coherence, balancing both rights and duties, must be adopted. 3. Every state shall be provided with uniform health infrastructure to diminish uneven

response towards epidemics, 4. Numerous local authorities at the district level must be vested with better decision-making

powers for quicker response. 5. A definite set of guidelines must be issued against casual detention, arrest or penalization

of people and prisoners during the pandemic period. Also, the state must ensure that proper health assistance and quarantine facilities are provided to the prisoners infected with the virus.

CONCLUSION As per the analysis done through this paper, it can be construed that E.D.A. is not well equipped to extricate dynamically advanced citizenry and economy in the present-day pandemics. Due to ineffective and shortage of proper legal architecture with respect to health infrastructure in the country, states are resorting to imposing section 144, Cr.P.C. and other draconian laws to curtail the spread of the virus. Hence, at the moment, paving the way for an updated, definite and comprehensive law to deal with the health emergencies of this scale shall be the paramount priority of the state of affairs. It is also important to note that power vests in "We the people of

17 DESAI, supra note 12. 18 Chiradeep Basak, India is in Need of an Inclusive Public Healthcare Law to Combat Pandemic, JURIST (Jun.12, 2021, 4:43 PM), https://www.jurist.org/commentary/2020/04/chiradeep-basak-public-health-law-india/.

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https://www.jurist.org/commentary/tag/author-chiradeep-basak

https://www.jurist.org/commentary/2020/04/chiradeep-basak-public-health-law-india/


India", which implies that public health objective is a collective effort by both government and people. Therefore, along with adherence to various guidelines issued by the government, people must follow self-imposed restrictions and aim for a better future.

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A STUDY ON THE PRISON CONDITIONS BEFORE AND DURING THE PANDEMIC

N. Venkatesh Kamath and Jayanth Peters1

INTRODUCTION A prison has been defined as an institution for confinement of persons convicted of serious crimes2. As penal institutions, they have existed in India and abroad since times immemorial. Their primary purpose has been to isolate or alienate people termed criminals, convicts and undertrials. In India, the administration and management of Indian prisons is governed by the states, as part of item 4 in List II of the seventh schedule of the Constitution of India3. The states draw their powers from the Prisons Act of 1894, which has its origins in the recommendations of the “Prison Discipline Committee” appointed in 1836 by Lord Macaulay. The Prisons Act defines prisons as “any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention of prisoners and includes all lands and buildings appurtenant thereto”4. Generally, prisoners who are convicted of heinous crimes are assigned to Central Jails, while District Jails are used as stand-in jails for states and union territories that do not possess a Central Jail. Sub-jails are placed in sub-divisional areas of states, and although much smaller in size, they are characterised with an organised setup of prison administration. PRISON CONDITIONS PRIOR TO THIS PANDEMIC

Prison administration and organisation in India has gone through several changes over the years, as numerous committees have submitted their reports and findings, with the general nature of the findings changing from archaic and retributive in their recommendations to more reformative and rehabilitative in the current time period. Prior to the report submitted by the Indian Jail Committee (1919-20), Indian jails were characterised by an approach to treating prisoners that prioritised rigorousness of treatment, while rejecting all humanitarian needs and reforms for the prisoners. It was based on the notion that the best criminal code can be of little use to a community unless there is good machinery for the infliction of punishments5. However, alongside the Indian Jail Committee’s recommendations were similar reports from other committees – The Mulla Committee, (set up in 1980, with the objective of reviewing the overall objective and protecting society and rehabilitating offenders), The Krishna Iyer Committee, (set up in 1987, with the objective of studying the condition of women prisoners in India), etc. These committees, in addition to numerous judgements have continuously expanded the horizons of prisoner’s rights jurisprudence. In spite of these reforms on paper, Indian prisons have seen the same issues occur repeatedly, from the time the Prisons Act was established to current day conditions.

1 II B.A. LLB A, [email protected] 2 MERRIAM WEBSTER, https://www.merriam-webster.com/dictionary/prison (last visited June 2nd, 2021). 3 INDIA CONST. art. 246, amended by the Constitution (Forty-second Amendment) Act, 1976. 4 The Prisons Act, 1894, Section 3(1), No. 9, Acts of Parliament, 1894 (India). 5 Shaik Ali, Prison in India: An Overview, 4, December 2014 [Shaik]

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The first major problem is mentioned in a Human Rights Watch report6, expressing how Indian prison laws use the terms “prison” and “jail” interchangeably, reflecting that there is no significant effort made to separate “undertrials” from convicts, even though the separation of undertrials from convicts is required by several jail manuals in different states. An undertrial prisoner denotes an un-convicted person who has been detained in prison during the period of investigation, inquiry or trial for the offence he/she is accused to have committed, under any law. So, it includes cases where the charge sheet has not been filed or the trial has not commenced. The proportion of undertrial prisoners to convicts residing in Indian jails has been rising incrementally, from 54.9% of the total jail population in on 1st April, 19777 to 69.05 % in 20198, reflecting an average of nearly 67% over the past years. In addition, the judicial system fails to appropriately dispose of these undertrials, with 74.08% of undertrials confined for up to 1 year, 13.35% for 1-2 years, 6.79% for 2-3 years, 4.25% for 3-5 years and 1.52% of undertrials confined for more than 5 years9. This overflow of undertrial prisoners, combined with an increase in regular convicts (4,637 officially registered in 2019 alone) has led to overcrowded and unsanitary prison environments.

Year

No. of Prisons

Actual Capacity of

Prisons

No. of Prisoners at the end of the

year

Occupancy Rate at the end

of the year 2017 1,361 3,91,574 4,50,696 115.1% 2018 1,339 3,96,223 4,66,084 117.6% 2019 1,350 4,03,739 4,78,600 118.5%

In addition to over 167% occupation in states like Uttar Pradesh10, is a dire lack of prison staff, and adequate training. The sanctioned budget for prisons for 2019-20 was Rs. 6,818.12 crores, a 59.35% increase from 2014-1511. This growth in budget is not reflective of better prison conditions, as almost half the budget is recorded as being spent for food, and 44% being used for “other” activities. Another reality of Indian prisons are the inequalities and distinctions between prisoners, where special privileges are accorded to the minority of prisoners who come from upper and middle classes, regardless of the severity of the crimes they have committed. The same has been reported as far back as 199012. This state of affairs led to attention being called to prisons as “breeding grounds” for the virus when the pandemic was first announced.

6 Aryeh Neier and David Rothman, Prison Conditions in India, p. 7, (1991) [Aryeh] 7 78, Law Commission of India, Congestion of Under-Trial Prisoners in Jails, p.1, (February 2, 1979). 8 25, National Crime Records Bureau, Prison Statistics India 2019, p.12, (August 27, 2020) [NCRB] 9 Ibid. at 153. 10 Ibid. at 5. 11Ibid. at 247. 12 Aryeh, supra note 5.

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13 THE PRISONERS’ DILEMMA: PANDEMIC EDITION

The Covid-19 pandemic has raised several eyebrows over the prison set up in India. Note that 70% of India’s overcrowded prisons are occupied by undertrials.14 Overcrowded jails are a violation of the human rights of prisoners.15 Several steps like releasing a large number of prisoners while creating temporary prisons16, leashing a 14-day quarantine for new admits, their transfer to less crowded prisons, creating awareness, suspension of cultural activities, screening of staff and prisoners, prohibition of visits by lawyers, distributing masks, sanitizers etc. were undertaken to curtail the spread of the horrendous monster.17 This was a humongous task given that prisons are highly understaffed with around 30% vacancies.18 Deriving from the PSI report 201919, 75% of the prisoners were released during the year, connoting a high level of floating population. Since the lockdown of March 2020, prison authorities have attempted to stop the spread of the contagion inside prisons. The temporary prisons have been said to have poor sanitary conditions, affecting the mental and physical health of the prisoners, thus having scant regard to the minimum facilities as prescribed in the prison manuals. In Sunil Batra v. Delhi Administration20, Desai J pointed out that the

13 NCRB, supra note 7 at 6. 14 Ibid at 37. 15 Re-Inhuman Conditions in 1382 v. State of Assam, MANU/SCOR/34349/2018. 16 The Prisons Act, § 7, No. 9, Acts of Parliament, 1894 (IND). 17 India Spend, https://www.indiaspend.com/covid-19-overcrowded-jails-to-release-prisoners-on-parole-but-this-may-just-kick-the-can/ , [9 Jun. 21]. 18 Shaik, supra note 4. 19 NCRB, supra note 7 at 165. 20 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.

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conviction of a person for a crime did not reduce him to a non-person and hence would avail the constitutional protection of Article 21.21 This was also held in the case of Francis Coralie Mullin v. UT. of Delhi22, whereby Bhagwati J stated that the right to life includes the right to live with human dignity. The aforementioned milieu adds on to the obnoxious conditions of the Indian prisons and merely exacerbates it. The jail authorities have been using the ‘make do’ approach, making use of the available resources instead of a scientific one. “If our business methods were as antiquated as our legal methods, we should be a bankrupt country. There is a need for comprehensive enquiry into the roots of our procedure, backed by a determination to adapt it to fit the conditions of the welfare state.” - Lord Devlin23. Our prisons, thus, became ‘docile bodies’ as described by Michel Foucault through the panopticon principles of segregation, segmentation and surveillance24. The prisoners had been transferred from the overcrowded prisons to the less congested ones which was in violation of Rule 5925 of the United Nations Standard Minimum Rules for Treatment of Prisoners, 2015 which requires that the prisoners must be kept in prisons close to their families in order to maintain social relations. In India, like in the American prisons having 75% under trials, the prisoners who were considered to be offenders of less serious offences have been released in large numbers, depicting that dangerousness and not the vulnerability of each individual prisoner was taken into cognizance before releasing them. Prisoners arrested or convicted in offences relating to economic offences, terrorism, foreign prisoners, sexual crimes, organized crime and national security were excluded from eligible categories. This depicts the binary of dualistic exclusion (Foucault, 1995) having a constant division between the normal and abnormal.26 A prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed.27 According to Article 14 (3) (c) of the ICCPR28, an accused has the right to be tried without undue delay and this right to a speedy trial has also been upheld by the Supreme Court of India.29 The Supreme Court of India, on the 16th of March, 2020 asked the state governments to file affidavits, who then submitted their willingness to release prisoners on bail or parole, especially those arrested in less serious offences. According to the orders passed by the Supreme Court on 23 March 2020, the state governments constituted a High-Powered Committee (HPC) chaired by the chairperson of the State Legal Services Authority, the Home Secretary and the Director General of Prisons in the state, to identify the prisoners who can be released owing to the pandemic. The court also asked the Undertrial Review Committees (UTRCs) to meet every week in order to check the release of undertrials on bail or Personal

21 INDIA CONST. art 21. 22 Francis Coralie Mullin v. UT. of Delhi, AIR 1981 SC 746,754. 23 Iyer V.R.K, Equal Justice and Forensic Process, 105, (Eastern Book Company, 1986). 24 Foucoult M, Discipline and Punish, (Vintage Books, 1996). 25UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): resolution / adopted by the General Assembly, 8 January 2016, A/RES/70/175, available at: https://www.refworld.org/docid/5698a3a44.html [accessed 27 June 2021]. 26 Raghavan V, Prisons and the Pandemic, Journal of Social and Economic Development, 2020. 27 State of A.P. v Challa Ramkrishna Reddy, AIR 2000 SC 2083. 28 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March 1976) [ICCPR]. 29 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.

16


Recognizance (PR) bond.30 The Supreme Court followed its decision31 which held that in order to reduce the pressure on prisons, making arrests in case of persons charged with less serious offences was to be avoided as far as possible. The HPCs then issued guidelines for the release of undertrials on ‘temporary bail’ and convicted prisoners on ‘emergency parole’ in offences where the maximum sentence was less than seven years.32 As the cases in India increased, the guidelines began to include more categories of prisoners. The Online Tracker on State/UT Wise Prisons Response to COVID-19 Pandemic in India33 showed the following number of COVID-19 cases detected inside Indian prisons. Number of COVID-19 cases detected inside Indian Prisons (01-03-2021- May end)^

Name of State Number of COVID-19 cases in prisons (Inmates and staff) Deaths

Andhra Pradesh 37 NA

Assam 34 NA

Chhattisgarh 91 1 + 2

Delhi 57 + 494 4

Gujarat 59 NA

Haryana 450 + 56 NA

Jammu and Kashmir 23 1

Jharkhand 4 NA

Karnataka 39 NA

Kerala 319 NA

Madhya Pradesh 7 NA

Maharashtra 360 1

Odisha 219 1

Punjab 650 NA

Puducherry 44 NA

Tamil Nadu 18 1

Uttarakhand 59 NA

Uttar Pradesh 10 + 98 1

Total 3128 12

30 Raghavan V, supra note 23. 31 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. 32 Scroll, https://scroll.in/article/958334/indias-jails-are-vastly-overcrowded-here-are-some-ways-to-protect-inmates-from-covid-19 , (9 June 2021). 33 Commonwealth Human Rights Initiative, https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-covid-19-pandemic-in-india , (9 June 2021).

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https://www.thehindu.com/news/cities/puducherry/41-convicts-3-officials-in-kalapet-central-prison-test-positive/article34380021.ece

https://www.newindianexpress.com/states/tamil-nadu/2021/apr/23/18-tiruchy-prison-inmates-test-covid-positive-2293601.html

https://timesofindia.indiatimes.com/city/madurai/madurai-central-prison-inmate-dies-after-testing-positive-for-covid-19/articleshow/82311298.cms

https://www.livelaw.in/news-updates/uttarakhand-high-court-issues-direction-on-prisoners-number-of-prisoners-being-inoculated-be-increased-173743

https://www.livemint.com/news/india/uttar-pradesh-10-inmates-test-positive-for-covid-19-at-kanpur-jail-11616030536963.html

https://www.newindianexpress.com/nation/2021/apr/25/52-more-undertrial-prisoners-test-coronavirus-positive-in-mathura-jail-2294770.html

https://www.business-standard.com/article/current-affairs/mukhtar-ansari-tests-positive-for-covid-19-in-uttar-pradesh-s-banda-jail-121042700074_1.html


The National Forum on Prison Reforms (NFPR) filed an Intervention Application before the Supreme Court in the ongoing Suo moto PIL, asking the court to pass necessary directions. Some HPCs were more liberal than the rest. The Karnataka HPC included those to be released on bail with mental illness and offences triable by magistrates’ courts. The Delhi HPC issued guidelines to release those with severe ailments on bail or parole. The Haryana HPC included those above the age of 65 years, except those involved in multiple crimes. The Chhattisgarh HPC considered and released prisoners in preventive custody under section 151 and section 107 of the Criminal Procedure Code.34 Certain prisoners accused under the POCSO Act were also released in certain states. The state of Maharashtra having a prison occupancy rate of 152.7%, released 10,581 prisoners whereas the state of Meghalaya having a prison occupancy rate of 157.4% released 94 prisoners. Where Karnataka had an 8.1% change in the occupancy rate, Kerala showed a 26.9% change in the same.35 This does not however guarantee a reduction in the proliferation rate where social distancing is difficult to practice. Hence, raising the right questions is as important as to reach solutions. As per the National Legal Services Authority, over 42,000 undertrials were released to unclog the prisons last year.36 The absence of a gender disaggregated data indicates the lack of importance given to the needs of women prisoners irrespective of the offence for which they have been arrested or convicted, having thought of them as “custodial minorities”. As children live with certain female prisoners, their release becomes quintessential. Following the guidelines of the HPCs, a field action project known as Prayas, understood that the bail applications of the eligible prisoners to be released are either kept pending or have been rejected due to the unavailability of court staff or public prosecutors on the date of hearing of such applications. Several cases were dismissed on technical grounds highlighting the judiciary’s fear of the prisoners absconding after their release.37 Recently, jail authorities in Mysore started releasing under-trials on interim bails and convicts on parole, as 30 inmates tested positive in Mysuru Central Jail. Note that a majority of the prisoners released last year surrendered once their parole period concluded.38 The Supreme Court also had ordered the prisons to adopt video conferencing technologies to overcome the lack of physical meetings but according to the Amnesty International, this has not been implemented well and in some cases, have led to human rights violations.39 The Taloja Jail, where the accused allegedly involved in the Bhima Koregaon violence of 2018 are detained, reportedly has grim conditions with many testing positive and the authorities testing only those who are fit (while placing them with those tested positive), ignoring the sick.40A bench of Chief Justice of India N.V.Ramana and Justices LN Rao and Surya Kant ordered appropriate steps to be taken for the transportation of the released inmates till their homes and to maintain necessary required levels of daily hygiene and sanitation. It stated:

34 Criminal Procedure Code, § 107 and § 151, No. 2, Acts of Parliament, 1974 (IND). 35 CHRI, supra note 28. 36 The Hindu, https://www.thehindu.com/news/national/over-42000-undertrials-released-to-unclog-prisons-nalsa-report/article31609154.ece , (9 Jun. 21) 37 Hindustan Times, https://www.hindustantimes.com/mumbai-news/lower-courts-need-to-grant-bails-to-reduce-pendency-in-courts-avoid-overcrowding-in-prisons-say-experts/story-1KJk8vkDUvKcsrxgnhp2AJ.html., (24 June 2021). 38 Star of Mysore, https://starofmysore.com/mysuru-jail-releases-prisoners-on-parole/ , (9 Jun. 21). 39 The Wire, https://thewire.in/rights/prisoners-rights-covid-19-pandemic-amnesty-international, (26 Jun. 21). 40 The Hindu, https://www.thehindu.com/news/national/taloja-jail-conditions-very-grim-family-of-bhima-koregaon-accused/article34565454.ece , (9 Jun. 21).

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“Those inmates who were granted parole, pursuant to our earlier orders, should be again granted parole for a period of 90 days”.41 POLITICAL PRISONERS

A political prisoner is one who is “imprisoned for their political beliefs and actions.”42 Recently, there has been a flood of political prisoners as a lot of activists were arrested in the anti-CAA protests, Bhima Koregaon case, Article 370 protest etc. The Supreme Court recently has dismissed the bail plea of Gautam Navlakha in the Bhima Koregaon case. Such is the case of several other political prisoners without any indication that the trial for the offences that they have been put in jail for will start anytime soon. Hundreds of prisoners from 12 to 13 states have been arrested on account of their political affiliations or allegations that they participated in conspiracies of a political nature. After a person has been arrested, he is charged under statutes such as the Unlawful Activities Prevention Act, Indian Penal Code etc. and due to certain Supreme Court judgements, the chances of getting an interim bail are shadowed into darkness. If such statutes are invoked, the sentence could extend to life and hence such prisoners are eclipsed out of the administrative orders passed during the pandemic to release the prisoners. The overcrowded prisons become an accomplice of the virus, taking the lives of prisoners even without a determination of their innocence or guilt. The harsh reality before us is that the law defines the offence and the state defines the offender.43 “The worst sin towards our fellow creatures is not to hate them, but to be indifferent to them; that’s the essence of inhumanity.”44 As per the National Crime Records Bureau report of 201945, the conviction rate for UAPA46 is 3.1%, whereas the conviction rate for the earlier laws like TADA47 was 1.4%.48 As stated earlier, the classification of prisoners to be released in India was divided into three categories namely, prisoners who are facing a sentence of seven years or less, those who are facing a sentence of more than seven years and those who have been convicted under the special laws like the UAPA. Only the first category of prisoners was eligible to be released. The conviction rates, however, forces us to think otherwise. This classification was challenged in the Bombay High Court by the National Alliance of People’s Movement and later on, the Supreme Court upheld this classification of prisoners. The courts have also recorded the fact that 95% of the prisoners who were released on interim bail had reported back when the situation had improved in January this year. Another sad reality is that even if prisoners are released on bail, many are unable to meet the bail conditions. The cases of Sudha Bharadwaj and Siddiqui Kappan portray the type of disdain that the executive has towards the Supreme Court.49 It is good to stress on the obvious than to run behind the obscure.

41 Economic Times, https://economictimes.indiatimes.com/news/india/sc-orders-release-of-eligible-prisoners/articleshow/82486825.cms?from=mdr, (9 Jun. 21). 42 Oxford English Dictionary (2nd ed. 1989). 43 The Hindu, https://www.thehindu.com/opinion/op-ed/should-political-prisoners-be-released-during-the-pandemic/article34552812.ece , (9 June 2021) (Pol. Prisoners). 44 Shaw G.B.,The Devil’s Disciple, Act II, (The Library of Alexandria, 1987). 45 NCRB, supra note 7. 46 The Unlawful Activities (Prevention) Act, No. 37, Acts of Parliament, 1967 (IND). 47 Terrorist and Disruptive Activities (Prevention) Act (repealed), No. 28, Acts of Parliament, 1987 (IND). 48 Pol. Prisoners, supra note 42. 49 Ibid.

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https://economictimes.indiatimes.com/news/india/sc-orders-release-of-eligible-prisoners/articleshow/82486825.cms?from=mdr


INTERNATIONAL COMPARISONS The global standard for prisoner rights comes from a combined understanding of several international treaties, such as the Third Geneva Convention that defined humanitarian protection for prisoners of war, and the UN Standard Minimum rules for the Treatment of Prisoners (the Nelson Mandela Rules), etc. Prisons world-over share similar problems to Indian prisons, with the global prison population rising (from 8 million in 2002 to 11 million in 2018), poor prison funding (average total expenditure on prisons in the EU is only 0.2% of their total GDP) and as a result, over a 124 countries exceeding their maximum occupancy rate. The World Health Organization has warned that ‘the global effort to tackle the spread of disease may fail without proper attention to infection control measures within prisons’.50 The most common measures taken by prison authorities to prevent the spread of the virus include limiting contact with the outside world through stricter visiting rules, or outright bans from visiting itself. COUNTRIES Measures Observed USA Increased opportunities for inmate phone calls.

China Prison lockdowns, full staff changes.

France Courts delay short term sentences, reduce prison population.

Russia 5-year prison term for violating 14-day self-isolation period post travel

to specified countries introduced.

Bahrain Three-month prison sentence + fine introduced for violation of COVID-19 guidelines.

Singapore, Hong Kong

Prison charges for misleading authorities and breaking travel restrictions introduced.

Iran Prioritized prosecution of suspects accused of hoarding medical supplies. THE WAY FORWARD

Strict attention needs to be drawn to the proper coordination between the three organs of the government. The executive must enforce every word of the judgement without being propitious to anyone. The judiciary on its part should decongest prisons with the aid of the executive, keeping aside any unreasonable apprehension. To safeguard the inmates and to be better prepared for a similar situation in the future, health infrastructure within the prisons has to improve manifold. The legislature, without being insouciant, in its financial budgets, has to allocate more funds towards the health infrastructure. A stern check needs to be in place so that funds are not misappropriated.

50 WORLD HEALTH ORGANIZATION, https://www.euro.who.int/en/health-topics/health-determinants/prisons-and-health/news/news/2020/3/preventing-covid-19-outbreak-in-prisons-a-challenging-but-essential-task-for-authorities, (last visited June 7, 2021).

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Albeit statutorily mandated, prisons in India are unhygienic and the authorities need to be assiduous and maintain healthy conditions inside the prisons. This would protect their constitutional right of living with dignity. Several laws, such as sedition, need to be re-looked to prevent congestion in prisons. The Kedar Nath51 decision should lead the way. Trials need to be fostered and the accused must have a fair and quick hearing. Non-listing of applications before the court impinges upon the liberty of the person in custody. Increasing the number of judges would not be the ideal solution. As our first Prime Minister said, “My own impression ... is that more the judges, more the work, more the litigation, more the arrears.”52 Activist Medha Patkar’s plea in the Supreme Court53 to release prisoners aged above 70 (though a miniscule) on interim bail or parole is a necessary step. In this situation of distress, to boost the inmates’ morale, recreational facilities in the prisons should be welcomed. The Tinka jail radio should be an inspiration to several other prisons.54 Benign imperatives of processual justice must be such that the class bias adversary system of ours is transformed into a mass bias-based system where all prisoners, innocent or guilty, are given the basic necessities. In addition, the manner in which inmates are treated must shift from the retributive system that is still practiced. Our inmates are treated as scars on society, shielded from public view, lest they offend anybody’s eyes. Instead, our system must shift to one that focuses on rehabilitation and reformation, allowing inmates to potentially be productive members of society when their sentences are completed. ‘We, the People’, in theory, have plenary status in the political dynamics of the country. The ‘in-laws’ (3 branches of the government) are always in the towers of power, while we remain the ‘outlaws.’ Justice and its instruments will belong to the people only if this sorry scheme of things change. Though this is a distant cry, we must begin.

51 Kedar Nath Singh v. State of Bihar, 1962 AIR 955. 52 Iyer.V.R.K, supra note 21 at 123. 53 The Hindu, https://www.thehindu.com/news/national/supreme-court-intervention-amid-covid-19-has-not-helped-elderly-prisoners-medha-patkar/article34856954.ece , (26 June 2021). 54 Millennium Post, http://www.millenniumpost.in/entertainment/tinka-jail-radio-a-means-to-boost-inmates-morale-441360 , (27 June 2021).

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https://www.thehindu.com/news/national/supreme-court-intervention-amid-covid-19-has-not-helped-elderly-prisoners-medha-patkar/article34856954.ece

https://www.thehindu.com/news/national/supreme-court-intervention-amid-covid-19-has-not-helped-elderly-prisoners-medha-patkar/article34856954.ece

http://www.millenniumpost.in/entertainment/tinka-jail-radio-a-means-to-boost-inmates-morale-441360

http://www.millenniumpost.in/entertainment/tinka-jail-radio-a-means-to-boost-inmates-morale-441360


A PARADIGM SHIFT IN THE FUNERAL SERVICE INDUSTRY IN INDIA

Syeda Afshan1 and Safa Shameem2

INTRODUCTION The outbreak of the Covid-19 pandemic has profoundly disrupted global communities and every aspect of life as we know it. India is no exception to this nocuous virus and accounts for 10.1%3 of the cumulative fatalities in the world. As of June 2021, we are 7.9 billion people inhabiting this planet witnessing the birth of an apocalypse, all undergoing the cataclysm of the global pandemic that has unprecedentedly dwindled the human race to ashes and dust. “Diseases have plagued humanity since the earliest days and have forced humans to break with the past and imagine their world anew. This one is no different. It is a portal, a gateway between one world and the next, with our minds still racing back and forth, longing for a return to normality, trying to stitch our future to our past, and refusing to acknowledge the rupture”.4 The novel coronavirus originated in Wuhan, Hubei Province, China, and has rapidly spread across the globe infecting over 179 million people worldwide. In late December of 2019, several health facilities in Wuhan reported clusters of patients with pneumonia of unknown cause.5 Subsequently, on January 9, 2020, the Chinese Centre for Disease Control and Prevention (CDC) reported a novel coronavirus as the causative agent of this outbreak,6 and the World Health Organisation declared this outbreak a global pandemic on March 11, 2020. In India, a nation of approximately 1.3 billion people, this malignant virus was first detected on January 30, 2020 in a student returning from Wuhan. The SARS-CoV-2 (Covid-19) pandemic has surpassed 30 million cases with approximately 3 lac fatalities as of June 26, 2021. The second wave of the pandemic has wreaked havoc in the nation, with more than 4 lac new cases recorded on a single day for W/E 09.05.2021. This deluge of deaths due to increasing incidences of Covid-19 related diseases is one factor proliferating market demand for funeral services consequently, triggering a paradigm shift in the Funeral Service Industry. BUSINESS OF DEATH - A PROFITABLE VENTURE AMIDST COVID-19

In 2020, the global death-care services market size was estimated at a value of $103 billion, having increased at a compound annual growth rate (CAGR) of 4.9% since 2015, and expected to grow at a CAGR of 6.4% to reach $201 billion by 2030.7 The Indian death-care Industry is

1 III LL.B., [email protected] 2 III BBA LL.B. 3 https://www.mohfw.gov.in/ 4Arundhati Roy, The pandemic is a portal, THE FINANCIAL TIMES, (Apr. 3, 2020), https://www.ft.com/content/10d8f5e8-74eb-11ea-95fe-fcd274e920ca 5 Zhu N, Zhang D, Wang W, Li X, Yang B, Song J, et al. A novel coronavirus from patients with pneumonia in China, 2019. N Engl J Med, (Jan. 24, 2020), https://www.nejm.org/doi/full/10.1056/nejmoa2001017 6 Amodio E, Vitale F, Cimino L, Casuccio A, Tramuto F, Outbreak of novel coronavirus (SARS-Cov-2): first evidences from international scientific literature and pending questions, Healthcare, (Feb. 27, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7151147/ 7https://www.globenewswire.com/fr/news-release/2021/02/25/2182755/0/en/Death-Care-Services-Global-Market-Report-2021-COVID-19-Impact-And-Recovery-To-2030-By-The-Business-Research-Company.html

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https://www.ft.com/content/10d8f5e8-74eb-11ea-95fe-fcd274e920ca

https://www.nejm.org/doi/full/10.1056/nejmoa2001017

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7151147/

https://www.globenewswire.com/fr/news-release/2021/02/25/2182755/0/en/Death-Care-Services-Global-Market-Report-2021-COVID-19-Impact-And-Recovery-To-2030-By-The-Business-Research-Company.html

https://www.globenewswire.com/fr/news-release/2021/02/25/2182755/0/en/Death-Care-Services-Global-Market-Report-2021-COVID-19-Impact-And-Recovery-To-2030-By-The-Business-Research-Company.html


worth approximately $2.5 billion, where around 8.5 million die every year.8 Often businesses offering funeral services are viewed in an appalling light. However, the products and services they offer are vital. With the death toll spiralling in epic proportions, funeral services have become a lucrative business in India. Reportedly, funeral service firms are offering packages ranging from 30,000 to 40,000 INR.9 For instance, Antyeshti, a professional funeral service provider, offers end-to-end services through online and offline modes. Their package priced at 30,000 INR is a bargain compared to the prices charged by hearse services that are sky-scraping.10 Despite their reasonable pricing, their revenue hiked by 20% in 2020 and is expected to double this year.11 Similarly, Funeral Seva Services, a Hyderabad-based firm, offering two different packages – gold and basic. The former seemingly guarantees to provide extravagant services.12 Admittedly, on May 4 2021, Distress Management Collective, a Delhi-based NGO trust, filed a PIL,13 inter-alia seeking a writ of mandamus to direct the Government of NCT to regulate the distance-based fare of ambulance services; and rates for cremation/burial of Covid-19 bodies. With the mounting fatalities in Delhi, unscrupulous practices of extracting exorbitant fees for funeral services have significantly increased, thereby subjecting vulnerable groups to the vices of an unregulated Funeral Service Industry during this debacle. STATE-WISE COVID-19 METRICS

India, a federal union of 28 states and 8 union territories, differs considerably in geographical area and population. With each state having distinct regulatory regimes to administer the death toll, propagating exponentially and to contain the spread, a nationwide analysis won’t provide us with an accurate picture. Therefore, this study focuses on the top 7 states ranked highest in Covid-19 deaths as of June 26, 2021.

8 Barve, Manmeet & Bhalerao, Jayshree, End of life: What kind of funeral services would you choose for your loved ones, Research Gate, (Jun,2019), https://www.researchgate.net/publication/350721275_End_of_life_What_kind_of_funeral_services_would_you_choose_for_your_loved_once 9 Abhishek Sharma, Amid COVID-19 crisis, companies offering 'packages' for cremation services, DNA, (Apr 20, 2021) https://www.dnaindia.com/india/report-amid-covid-19-crisis-companies-offering-packages-for-cremation-services-2887195 10 Ibid. 11For these two Indian startups, Covid-19 is an opportunity amid a crisis, THE ECONOMIC TIMES, (May 23, 2021),https://economictimes.indiatimes.com/tech/startups/for-these-two-indian-startups-covid-19-is-an-opportunity-amid-a- crisis/articleshow/82875207.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst 12Sudipta Sengupta, In times of Covid, funeral business offers package deals for dead, TIMES OF INDIA, (Apr 20,2021), http://timesofindia.indiatimes.com/articleshow/82153048.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst 13 https://www.livelaw.in/pdf_upload/delhi-high-court-overcharging-for-ambulance-service-cremations-amid-covid-19-392990.pdf

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https://www.researchgate.net/publication/350721275_End_of_life_What_kind_of_funeral_services_would_you_choose_for_your_loved_once

https://www.researchgate.net/publication/350721275_End_of_life_What_kind_of_funeral_services_would_you_choose_for_your_loved_once

https://www.dnaindia.com/india/report-amid-covid-19-crisis-companies-offering-packages-for-cremation-services-2887195

https://www.dnaindia.com/india/report-amid-covid-19-crisis-companies-offering-packages-for-cremation-services-2887195

https://economictimes.indiatimes.com/tech/startups/for-these-two-indian-startups-covid-19-is-an-opportunity-amid-a-%20crisis/articleshow/82875207.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst



http://timesofindia.indiatimes.com/articleshow/82153048.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

http://timesofindia.indiatimes.com/articleshow/82153048.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

https://www.livelaw.in/pdf_upload/delhi-high-court-overcharging-for-ambulance-service-cremations-amid-covid-19-392990.pdf

https://www.livelaw.in/pdf_upload/delhi-high-court-overcharging-for-ambulance-service-cremations-amid-covid-19-392990.pdf


Fig 1.1

Fig 1.2

(Source: Ministry of Health and Family Welfare, Government of India) Maharashtra, the worst affected state, has seen the maximum number of casualties, with the Covid-19 tally escalating beyond the 6 million count. It is the only state to have transcended 1 lac fatalities for W/E 27.06.2021 (fig 1.2). Reportedly, in the Beed district of Maharashtra, bodies of 8 Covid-19 victims were cremated on a single pyre,14 and most of the smaller cemeteries have either limited their services to residents only or have stopped the burial of Covid-19 bodies.

14 Maharashtra: Bodies of 8 coronavirus victims cremated on one pyre, INDIA TV, (Apr 07, 2021), https://www.indiatvnews.com/news/india/maharashtra-coronavirus-victims-8-dead-bodies-burnt-on-one-pyre-696058

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https://www.indiatvnews.com/news/india/maharashtra-coronavirus-victims-8-dead-bodies-burnt-on-one-pyre-696058


Fig 2.1

Fig 2.2

(Source: Ministry of Health and Family Welfare, Government of India) Karnataka’s Covid-19 tally surpassed the 28 lac mark for W/E 27.06.2021. The cumulative active cases stood at 1,07,218, with a fatality rate of 2.69% as on July 26 2021 (Fig 2.1). The state has seen 34,539 deaths since last year (Fig 2.2), with most fatalities recorded in the districts of Bengaluru Urban, Mysuru, Kalaburagi, and Bidar. On May 3 2021, India Today reported that the government allocated 230 acres of land to the Bruhat Bangalore Mahanagara Palike for burying Covid-19 infected bodies. Moreover, private lands owned by individuals are also being made use of for cremating/burying bodies.15

15 Express Web Desk, Covid deaths: Karnataka govt allows cremation, burial of dead bodies at pvt lands, farmhouses, THE INDIAN EXPRESS, (Apr 22, 2021), https://indianexpress.com/article/coronavirus/covid-deaths-karnataka-govt-allows-cremation-burial-of-dead-bodies-at-pvt-lands-farmhouses-7283651/

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https://indianexpress.com/article/coronavirus/covid-deaths-karnataka-govt-allows-cremation-burial-of-dead-bodies-at-pvt-lands-farmhouses-7283651/

https://indianexpress.com/article/coronavirus/covid-deaths-karnataka-govt-allows-cremation-burial-of-dead-bodies-at-pvt-lands-farmhouses-7283651/


Fig 3.1

Fig 3.2

(Source: Ministry of Health and Family Welfare, Government of India)

The official records documented 32,051 Covid-19 deaths (Fig 3.2) and 47,318 active cases (Fig 3.1) as on June 26, 2021 in Tamil Nadu. However, media reports have alleged significant under-reporting of Covid-19 deaths. Admittedly, Arappor Iyakkam, a Non-Governmental Organization, reported that the actual figures of Covid-19 fatalities were anecdotally eight times higher than the data reported by the state’s health bulletin. Consequently, this has resulted in breakdowns of certain crematoriums, and several bereaved family members have to wait for more than 24 hours to cremate the deceased.16 Further, in response to the complaints filed concerning fleecing at crematoriums, the Greater Chennai Corporation has launched helpline numbers to supervise and efficiently manage cremation sites and burial grounds.17

16 V Prem Shanker, Covid-19: Tamil Nadu’s Crematoriums Don’t Lie, Government Underreporting Deaths, INDIA AHEAD, (May 20, 2021), https://indiaaheadnews.com/india/covid-19-tamil-nadus-crematoriums-dont-lie-government-underreporting-deaths-24227/ 17 Janardhan Koushik, Chennai Corporation launches helpline to resolve cremation/burial issues, THE INDIAN EXPRESS, (May 20, 2021), https://indianexpress.com/article/cities/chennai/chennai-corporation-launches-helpline-to-resolve-cremation-burial-issues-7323457/

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https://indianexpress.com/profile/author/janardhan-koushik/

https://indianexpress.com/article/cities/chennai/chennai-corporation-launches-helpline-to-resolve-cremation-burial-issues-7323457/

https://indianexpress.com/article/cities/chennai/chennai-corporation-launches-helpline-to-resolve-cremation-burial-issues-7323457/


Fig 4.1

Fig 4.2

(Source: Ministry of Health and Family Welfare, Government of India) In the nation’s capital, the total number of registered cases has exceeded the 14 lac count (Fig 4.1), with 24,952 casualties reported (Fig 4.2) as on June 26 2021. The previous month has witnessed an exponential surge in Covid-19 deaths, with an average of 300 per day.18 With the mounting death toll, authorities have alternatively resorted to building makeshift crematoriums on spare patches of land19 and have converted parking lots and other empty spaces into burial grounds. Around 150 new pyres were constructed in the Capital’s Sarai Kale Khan Cremation facility to accommodate soaring fatalities.20 With mass burials and multiple

18 Abhinav Rajput, Delhi: Highest number of Covid funerals took place in May, MCD data shows, THE INDIAN EXPRESS, (Jun 02, 2021), https://indianexpress.com/article/cities/delhi/delhi-highest-number-of-covid-funerals-took-place-in-may-mcd-data-shows-7339930/ 19 Guardian staff and agencies, India’s Covid crisis: Delhi crematoriums forced to build makeshift pyres, THE GUARDIAN, (Apr 28, 2021), https://www.theguardian.com/world/2021/apr/28/india-covid-funeral-pyres-delhi-crematoriums-space 20 Ayshee Bhaduri, As Covid deaths go up, Delhi’s Sarai Kale Khan crematorium will add 150 more pyres, HINDUSTAN TIMES, (May 15, 2021), https://www.hindustantimes.com/cities/delhi-news/as-covid-deaths-go-up-delhi-s-sarai-kale-khan-crematorium-will-add-150-more-pyres-101621089035343.html

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https://indianexpress.com/article/cities/delhi/delhi-highest-number-of-covid-funerals-took-place-in-may-mcd-data-shows-7339930/

https://www.theguardian.com/world/2021/apr/28/india-covid-funeral-pyres-delhi-crematoriums-space

https://www.theguardian.com/world/2021/apr/28/india-covid-funeral-pyres-delhi-crematoriums-space

https://www.hindustantimes.com/cities/delhi-news/as-covid-deaths-go-up-delhi-s-sarai-kale-khan-crematorium-will-add-150-more-pyres-101621089035343.html

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pyres burning, the smouldering ashes are creating health hazards for the inhabitants. Also, the firewood used for performing funerary rituals has become a scarce commodity, resulting in authorities cutting down trees for kindling on pyres.21 Therefore, many funeral service providers are outsourcing work and relying on vendors for procuring the same.

Fig 5.1

Fig 5.2

(Source: Ministry of Health and Family Welfare, Government of India) India's most populous state is one of the worst-hit places, with a cumulative death toll of 22,381 for W/E 27.06.2021 (fig 5.2). The percentage of cured/discharged, as seen in fig 5.1 has steadily increased with a drop in the active case earlier last week. On 28, June 2021 the state set a new record of 8.1 lac vaccinations in 24 hours with a recovery rate of 98.5%.22

21 Anjana Sankar, India Covid Crisis: Bodies overwhelm the funeral industry, KHALEEJ TIMES, (May 02, 2021), https://www.khaleejtimes.com/coronavirus-pandemic/india-covid-crisis-bodies-overwhelm-the-funeral-industry 22 HT Correspondent, 61% of UP’s 3,046 active cases are in home isolation: ACS, HINDUSTAN TIMES, (Jun 28, 2021) https://www.hindustantimes.com/cities/others/61-of-up-s-3-046-active-cases-are-in-home-isolation-acs-101624894933051.html

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https://www.khaleejtimes.com/about-author/Anjana-Sankar/page

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https://www.hindustantimes.com/cities/others/61-of-up-s-3-046-active-cases-are-in-home-isolation-acs-101624894933051.html

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In furtherance of the order passed by the Government, the Additional Chief Secretary issued a directive to the municipal corporations and civic bodies for offering free funeral services for Covid-19 deaths, provided the crematoriums and burial grounds are within the territorial limits of the corporation.23

Fig 6.1

Fig 6.2

(Source: Ministry of Health and Family Welfare, Government of India) Due to the contagion, West Bengal has recorded approximately 14 lac cases on June 26 2021 (fig 6.1). The death count has reached 17,551 (fig 6.2) after 35 more succumbed to the virus. Various media reports have highlighted that the middlemen at cremation sites and burial grounds have been exploiting the bereaved families of Covid-19 victims by overcharging them. As a result, the state government announced free funeral services for all Covid-19 fatalities.24

23 UP's Chief Minister Yogi Adityanath announces free funerals for deceased Covid patients, BUSINESS INSIDER INDIA, (May 08, 2021), https://www.businessinsider.in/news/ups-chief-minister-yogi-adityanath-announces-free-funerals-for-deceased-covid-patients/articleshow/82481859.cms 24 Staff Writer, West Bengal: Last rites of Covid-19 victims will be carried out free of cost, LIVE MINT, (Apr 30, 2021), https://www.livemint.com/news/india/west-bengal-last-rites-of-covid-19-victims-will-be-carried-out-free-of-cost-11619794256145.html

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https://www.businessinsider.in/news/ups-chief-minister-yogi-adityanath-announces-free-funerals-for-deceased-covid-patients/articleshow/82481859.cms

https://www.businessinsider.in/news/ups-chief-minister-yogi-adityanath-announces-free-funerals-for-deceased-covid-patients/articleshow/82481859.cms

https://www.livemint.com/news/india/west-bengal-last-rites-of-covid-19-victims-will-be-carried-out-free-of-cost-11619794256145.html

https://www.livemint.com/news/india/west-bengal-last-rites-of-covid-19-victims-will-be-carried-out-free-of-cost-11619794256145.html


Fig 7.1

Fig 7.2

(Source: Ministry of Health and Family Welfare, Government of India)

With the highest death ratio registered in Punjab, the Covid-19 tally has transcended the 5 lac mark (fig 7.1), with 15,956 fatalities (fig 7.2) as of June 26 2021. The increased mortality has resulted in a large number of cremations being performed daily. Additionally, the state has been facing difficulties to meet the demand for 3-4 tonnes of wood for each pyre. Therefore, the government issued an order for the felling of dead trees to cremate the Covid-19 infected bodies.

COVID-19 BODY DISPOSE OF WITH CARE; RIGHT TO A DIGNIFIED AND DECENT BURIAL?

The conventional wisdom that a soul shall rest in peace only after performing the funerary rites is culturally grounded in India. Oscar Wilde’s famous quote25 reinforces the theory of funerary rites as a means to attain peace in the following words: “Death must be so beautiful. To lie in the soft brown earth, with the grasses waving above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace” [emphasis added]

25 OSCAR WILDE, THE CANTERVILLE GHOST (London: Walker Books, 1997).

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The right to die with dignity is an inextricable facet of the right to life. “As a concept devoid of a precise legal meaning, dignity can be easily manipulated and transposed into a number of legal contexts”.26 Claire L'Heureux Dube, J categorically observed, “dignity is a difficult concept to capture in precise terms”. Nonetheless, the fundamental idea of dignity is regarded as an inseparable facet of human personality, that is available even after death.27 Despite comprehensive guidelines for the burial of Covid-19 fatalities by the World Health Organisation, National Disaster Management Authority, Government of India, and various State Governments, Covid-19 infected bodies are being disposed of in an undignified manner, without exhibiting even a semblance of respect to the mortal remains. Reportedly, during the second wave of the pandemic, several Covid-19 bodies were recovered from the Ganges.28 There are speculations that the bodies were being dumped into the river to conceal the actual figures of death. However, a state official observed that the lack of affordable funeral services and religious practices prevalent in certain communities were some of the reasons for the surge in dumping.29 In an endeavour to uphold the dignity and protect the rights of the dead, the National Human Rights Commission issued an advisory circular vide F. No. R-18/18/2020 – PRP & P (RU-1) under the signature of the Secretary-General, Mr. Bimbadhar Pradhan requesting all the concerned authorities of the Union/State governments and UT’s to implement the recommendations made therein and to submit a report on the action taken and proposed to be taken.30 Though these recommendations create legal exigencies, the Nation’s record of managing fatalities is fraught with failures and ambiguities. CONCLUSION As rightly pointed out, "this pandemic has made death a mere statistical abstraction; faceless, anonymous and devoid of meaning”,31 moulding the creation into impuissant spectators. With searing fatalities, paucity of space and inadequate resources, the traditional methods of corpse disposal, funerary rituals, and customs have witnessed an unprecedented cultural cataclysm. As the disease proliferates across nations, it is incumbent to meticulously strategize our next move, as one thing is certain, the virus is here to stay.

26 Michèle Finck, The role of human dignity in gay rights adjudication and legislation: A comparative perspective, 26 International Journal of Constitutional Law, (Apr 11, 2016). 27 PL Parmanand Katara, Advocate v. Union of India & Anr.: MANU/SC/2328/1995:(1995) 3 SCC 248; Ashray Adhikar Abhiyan v. Union of India & Ors.: MANU/SC/0018/2002:(2002) 2 SCC 27; S. Sethu Raja v. The Chief Secretary [WP(MD) No. 3888 of 2007]; Marimuthu v. State by The Inspector of Police Pennadam Police Station, Vallalar Division, Cuddalore (Criminal Appeal No. 618 of 1995); Pradeep Gandhy v. State of Maharashtra; Common Cause (A Registered Society) v. Union of India, MANU/SC/0232/2018:(2018) 5 SCC 1; Suo Motto vs. The State of Tamilnadu; Vineet Ruia v. The Principal Secretary, Ministry of Health and Family Welfare and Ors., MANU/WB/0659/2020. 28 The Wire Staff, Prayagraj: As Ganga's Water Level Rises, More Dead Bodies Begin to Emerge, THE WIRE, (Jun 25, 2021), https://thewire.in/rights/prayagraj-ganga-water-level-rise-dead-bodies-covid-19 29 Reuters, Bodies of Covid-19 victims among those dumped in Ganga river: Govt, HINDUSTAN TIMES, (May 16, 2021), https://www.hindustantimes.com/india-news/bodies-of-covid-19-victims-among-those-dumped-in-ganga-river-govt-101621165753886.html 30https://nhrc.nic.in/sites/default/files/NHRC%20Advisory%20for%20Upholding%20Dignity%20%26%20Protecting%20the%20Rights%20of%20Dead.pdf 31 Pathak, A, Trivialization of death: With dignity gone, Covid has reduced it to a statistical abstraction, The Tribune,(July,2020), https://www.tribuneindia.com/news/comment/trivialisation-of-death106976Google Scholar

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https://www.hindustantimes.com/india-news/bodies-of-covid-19-victims-among-those-dumped-in-ganga-river-govt-101621165753886.html

https://nhrc.nic.in/sites/default/files/NHRC%20Advisory%20for%20Upholding%20Dignity%20%26%20Protecting%20the%20Rights%20of%20Dead.pdf

https://nhrc.nic.in/sites/default/files/NHRC%20Advisory%20for%20Upholding%20Dignity%20%26%20Protecting%20the%20Rights%20of%20Dead.pdf

https://www.tribuneindia.com/news/comment/trivialisation-of-death106976

http://scholar.google.com/scholar_lookup?hl=en&publication_year=2020&author=A.+Pathak&title=Trivialization+of+death%3A+With+dignity+gone%2C+Covid+has+reduced+it+to+a+statistical+abstraction-The+Tribune


WHAT DOES INDIA NEED TO BATTLE THE INVISIBLE ENEMY?

Nikhita S1 and D. Tharun Gautham Rao2

“Health care is important to all of us some of the time, but Public Health is important to all of us all of the time”.

- Everett Coup

India is a unique land embarked by an all-encompassing unity in diversity. The country is characterised by a vast geography, lengthy coastline, massive population and a plethora of cultures providing tremendous detail to its political, economic and judicial structure. While these factors are to be cherished, the drawbacks associated with them cannot be ignored. For decades, the Government of India has been facing challenges while dealing with matters such as healthcare, unemployment, poverty, illiteracy, housing, and the like3. These challenges have appeared glaringly during the Coronavirus pandemic that has devastated nations alike. India’s healthcare system is deep-rooted in its past. Traces of medicine crafting and medical practices go back to the Vedic ages from as early as 5000 BCE4. Dhanwanthari, the god of medicine in Hindu religion is said to have been mentioned in the Vedic texts. The Atharvaveda provides a comprehensive explanation of ancient Indian medicine. The practice of preparing Ayurveda and herbal solutions for diseases and complexities is evident in modern times, including for Covid-195. Factors such as invasions, colonial rule and Christian missionary work during the 17th, 18th and 19th centuries led to the transition from traditional to modern healthcare in India. During the 200 years of British colonial rule, several medical facilities were established and considerable medical treatment was provided to the people of India. The Calcutta medical college and the King Edward medical college established in 1835 and 1860 respectively are prime examples6. However, Indian healthcare was far from being adequately purposeful. During the time of independence, the Indian population stood at around 360 million. Research conducted by Sir Joseph Bhore in 1946 revealed that the hospital rate per population was 0.24 hospitals per 1000 people7. PRE- PANDEMIC INDIAN HEALTHCARE SYSTEM Since independence, considerable progress has been made in Indian Health care. The system has a three-tier structure- primary, secondary and tertiary. According to the Indian Public

1 II BA LLB ‘A’, [email protected]. 2 II BA LLB ‘B’ 3 Pandey, R., 2021. Current Major Issues in India. [online] Map My India. Available at: https://www.mapsofindia.com/my-india/society/current-major-issues-in-india [Accessed 23 June 2021]. 4 Jawahar, S., 2007. Healthcare Scenario in India. ICU Management & Practice. Health Management. Available at: https://healthmanagement.org/c/icu/issuearticle/healthcare-scenario-in-india [Accessed 23 June, 2021]. 5 Rao, S., 2021. Ayurveda practitioners hail govt. nod for Anandaiha’s herbal preparation. The Hindu. Available at: https://www.thehindu.com/news/national/andhra-pradesh/ayurveda-practitioners-hail-govt-nod-for-anandaiahs-herbal-preparation/article34693111.ece [Accessed 23 June, 2021]. 6 Mushtaq. M., 2009. Public Health in British India. Indian Journal of Community Medicine. NCBI. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2763662/ [Accessed on June 23, 2021]. 7 Bhore Committee, 1946. National Health Portal. Available at: https://www.nhp.gov.in/bhore-committee-1946_pg [Accessed on June 23, 2021].

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mailto:[email protected]

https://www.mapsofindia.com/my-india/society/current-major-issues-in-india

https://healthmanagement.org/c/icu/issuearticle/healthcare-scenario-in-india

https://www.thehindu.com/news/national/andhra-pradesh/ayurveda-practitioners-hail-govt-nod-for-anandaiahs-herbal-preparation/article34693111.ece

https://www.thehindu.com/news/national/andhra-pradesh/ayurveda-practitioners-hail-govt-nod-for-anandaiahs-herbal-preparation/article34693111.ece


https://www.nhp.gov.in/bhore-committee-1946_pg

https://www.nhp.gov.in/bhore-committee-1946_pg


Health Standards, the delivery of primary health care is provided through sub-centre, primary health centre (PHC), and community health centre (CHC), secondary care is delivered through district and sub-district hospitals and tertiary care is extended at regional/central level institutions or super specialty hospitals. Primary health care (child care and family welfare) services have improved to a certain extent. Efforts made to control communicable diseases like malaria, `tuberculosis and Pulse Polio Programme are certainly commendable. However, the rural side of India largely remains in the periphery in spite of several governmental schemes like Employee’ State Insurance Scheme, Central Government Health Scheme, Universal Health Insurance Scheme (2003), Rashtriya Swasthya Bima Yojana (2008) and the popular Ayushman Bharat Yojana (2018). Relative to the neighbouring countries like Bangladesh, Sri Lanka, and China, India’s progress pre- pandemic has not been very promising in terms of Infant mortality rate (IMR) and Maternal Mortality rate (MMR), the two most important health indicators of any country. Further, there has been increasing economic liberalisation and privatisation of health care, the effects of which are very well evident today. Governments have been consistently criticised for insufficient allocation of funds to public health. Some of the problems that have plagued the healthcare system even before the pandemic hit India include: 1. Lack of infrastructure- There has been a lack of well- equipped medical facilities

throughout India. Although several private institutions maintain world-class infrastructure, they become largely unaffordable to the rural areas which form 60% of the population. Moreover, 70% of private hospitals are established in urban areas.

2. Shortage of efficient and trained manpower- There has been a severe shortage of trained manpower in the medical stream, including doctors, nurses, paramedics and primary healthcare workers

3. Unmanageable patient load due to the high population and lack of supporting infrastructure as evident in the doctor to patient ratio, which now stands at 0.55 doctors per 1000 people.

4. Asymmetry in public health policy- The approach has largely been reactive rather than proactive.

5. High out of pocket expenditure for people - Although public hospitals offer free health services, these facilities are understaffed, poorly equipped, and located mainly in urban areas, increasing dependence on private institutions and higher costs.

THE INVISIBLE ENEMY- CORONAVIRUS IN INDIA THE FIRST WAVE On the 31st of December 2019, the Republic of China reported the presence of an unusual virus, called the Sars- Cov-2 virus across the city of Wuhan. In no time, the virus termed as Covid-19 changed the entire global landscape. The first case of Covid-19 in India was reported on 30th January, 20208. Although the patient recovered eventually, more cases and deaths caused by the virus emerged in several States of India. By mid- March, there were almost 600 cases and the death toll rose to 12 across the country. In order to prevent the chain of infection, Prime Minister Narendra Modi announced

8 Indian Journal of Medical Research. May, 2020. First Confirmed case of COVID-19 infection in India: A case report. IJMR. NCBI. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7530459/ [Accessed on June 26, 2021].

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a 21-day Nation-wide lockdown on the 25th March, 2020. This announcement also included a provision of allocating 15,000 Cr rupees to enhance the medical infrastructure and ensure best possible treatment of rising patients across India. This package, the first of its kind in battling the virus, consisted in purchasing Personal Protection Equipment (PPE), establishing Testing Laboratories and Quarantine centres.

The Ministry of Home Affairs (MHA) published comprehensive guidelines on the 15th April, 2020 on the measures to be taken by all the States and Union Territories. Throughout the country, schools and colleges were to be closed. Non-essential activities were prohibited and all other Standard Operating Procedures (SOPs) were to be strictly followed. Violations were to be kept under the checks of the Disaster Management Act, 2005 and the Indian Penal Code, 18609. With the daily rise of cases multiplying at a tremendous rate, the lockdown was extended at the end of every interval. By the second week of May, there were over 74,000 active cases and over 2,400 deaths across India10. The rapid surge of cases also led to the scarcity of ventilators, hospital beds, oxygen cylinders, medical personnel, testing kits and the like. This burden on the healthcare was worsened with the multiplication of cases. It took 60 days to reach the first 1 lakh case mark in India, and just 16 more days to reach the 3 lakh case mark. This is an astounding amount of rise hardly paralleled in any other land. The problem almost doubled considering the fact that every patient requires a hospital bed for an average of 15 days. By mid-2020, the Indian government catered to the arrangement of numerous hospital beds, leading to the establishment of 7, 13,986 government hospital beds in total. Since 60% of the Indian population live in rural areas, the government set up 25,743 Primary Healthcare centres, additional 1, 58,417 Sub centres and 5,624 Community Health centres in such areas. Attempts were also made to speed up the production of PPE, with over 2 lakh PPE produced per day.

9 15th April, 2020.MHA issues Consolidated Revised Guidelines. PIB Delhi. Available at: https://www.pib.gov.in/PressReleasePage.aspx?PRID=1614620 [Accessed on June 26, 2021]. 10 13th May, 2020. Coronavirus Disease Situation Report. WHO Reporters. World Health Organisation. Available at: https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200513-covid-19-sitrep-114.pdf?sfvrsn=17ebbbe_4 [Accessed on June 27, 2021].

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https://www.pib.gov.in/PressReleasePage.aspx?PRID=1614620

https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200513-covid-19-sitrep-114.pdf?sfvrsn=17ebbbe_4

https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200513-covid-19-sitrep-114.pdf?sfvrsn=17ebbbe_4


The Central Government placed further orders of ventilators with domestic suppliers and International exporters such as Hamilton and Dragger11.

India saw the other major problem of oxygen supply as well. Across the country, hospitals reported shortage of oxygen tanks leading to several deaths. The government then began to sanction the establishment of 162 oxygen plants across hospitals in India. Experts argue that such moves ensured oxygenated bed count rose to over 152% over the next few months. However, oxygen shortage had been an impending problem since 2017, leading to such proposals to slowly assume traction over the next few years.12

By October-November, the beginning of the end of first wave could be seen. The nation witnessed an indomitable effort by all the ‘Covid Warriors’, which eventually led to a considerable decline in rising cases at the end of the first wave. India’s ‘Aatmanirbhar Bharat’

11 Singh A, Deedwania P, Vinay K, Chowdhury AR, Khanna P. 2020. Is India's Health Care Infrastructure Sufficient for Handling COVID 19 Pandemic? Int Arch Public Health Community Medicine. Available at: https://www.clinmedjournals.org/articles/iaphcm/international-archives-of-public-health-and-community-medicine-iaphcm-4-041.php?jid=iaphcm#ref9 [Accessed on June 27, 2021]. 12 ANI. April 18, 2021. Covid-19: 162 PSA oxygen plants sanctioned by Centre, 33 installed. Business Standard. Available at: https://www.business-standard.com/article/current-affairs/covid-19-162-psa-oxygen-plants-sanctioned-by-centre-33-installed-121041800252_1.html [Accessed on June 27, 2021].

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https://www.clinmedjournals.org/articles/iaphcm/international-archives-of-public-health-and-community-medicine-iaphcm-4-041.php?jid=iaphcm#ref9

https://www.clinmedjournals.org/articles/iaphcm/international-archives-of-public-health-and-community-medicine-iaphcm-4-041.php?jid=iaphcm#ref9

https://www.business-standard.com/article/current-affairs/covid-19-162-psa-oxygen-plants-sanctioned-by-centre-33-installed-121041800252_1.html

https://www.business-standard.com/article/current-affairs/covid-19-162-psa-oxygen-plants-sanctioned-by-centre-33-installed-121041800252_1.html


notion was also seen as over 2,000 crore rupees were allocated under the PM Cares Fund to supply Made in India ventilators.13 Such combined massive efforts made India the largest manufacturer of PPE and one of the largest producers of N-95 masks. 14 However, India’s fight against the first wave saw a rather unitary response that is often critiqued for lack of state consultation. THE SECOND WAVE In early March, Mr. Harsh Vardhan, India's health minister declared that the country was "in the endgame" of the Covid-19 pandemic, lauding Prime Minister Modi's leadership as an "example to the world in international co-operation". India even began shipping vaccine doses to foreign countries as part of its "vaccine diplomacy”, in line with its reputation as the vaccine hub of the world. Amidst all this clamor around successfully beating the virus, India failed to effectively prepare for the 2nd wave, which turned out to be devastating for India. On March 29th, India recorded a daily case count of 68,020, the highest in 5 months, surpassing a total of 12 million cases. India kept setting new records every day, reaching 386,453 new infections and 3,498 deaths by 30th April. Meanwhile, India banned export of the antiviral drug Remdesivir15 and its ingredients as domestic demand skyrocketed. Many hospitals reported shortage of beds and supplemental oxygen. Hotels and banquet halls were converted into makeshift hospitals as regular hospitals in the region reached capacity. Yet, people died whilst awaiting treatment, due to shortage of oxygen or after being turned away16. Crematoriums were overburdened. Large religious gatherings at the Kumbh Mela and massive election rallies with ineffective protocols worsened the situation. On 29th April, US president Joe Biden pledged to deliver US$100 million worth of supplies to India, including oxygen cylinders, concentrators, and generation units, PPEs, masks, vaccine ingredients, and COVID tests17. On 6th May, the country reported 412,262 new confirmed cases, the most for a single day for any country in the world since the pandemic began. India's demand for supplemental oxygen increased sevenfold from the previous month18. Makeshift crematoriums took shape with the

13 June 2020. Coronavirus PM CARES Fund allotted 2,000 crores to supply 50,0-00 Made-in-India Ventilators. The Hindu. Available at: https://www.thehindu.com/news/national/coronavirus-pm-cares-fund-allotted-2000-crore-to-supply-50000-made-in-india-ventilators-says-centre/article31897228.ece [Accessed on June 28, 2021]. 14 Bharadwaj, D. may, 2021. From shortage last year, India now has surplus of PPE kits, N95 masks. Hindustan Times. Available at: https://www.hindustantimes.com/india-news/from-shortage-last-year-india-now-has-surplus-of-ppe-kits-n95-masks-101620620597446.html [Accessed on June 28, 2021]. 15 April 11, 2021. India bans export of Covid-19 treatment drug remdesivir. Medical Xpress. Available at: https://medicalxpress.com/news/2021-04-india-export-covid-treatment-drug.html [Accessed on June 28, 2021]. 16 Petersen, H. April 21, 2021. “The system has collapsed”: India’s descent into Covid hell. The Guardian. Available at: https://www.theguardian.com/world/2021/apr/21/system-has-collapsed-india-descent-into-covid-hell [Accessed on June 28, 2021]. 17 April 28, 2021. Fact Sheet: Biden-Harris Administration Delivers Emergency COVID-19 Assistance for India. Briefing Room. The White House. Available at: https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/28/fact-sheet-biden-harris-administration-delivers-emergency-covid-19-assistance-for-india/ [Accessed on June 28, 2021]. 18 May 6, 2021. India COVID-19 cases top 400,000 for a second time as oxygen demand jumps seven fold. Associated Press. Market Watch. Available at: https://www.marketwatch.com/story/india-covid-19-cases-top-400-000-for-a-second-time-as-oxygen-demand-jumps-seven-fold-01620279706 [Accessed on June 28, 2021].

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https://www.thehindu.com/news/national/coronavirus-pm-cares-fund-allotted-2000-crore-to-supply-50000-made-in-india-ventilators-says-centre/article31897228.ece

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people dying faster than they could be cremated or buried and the holy rivers became graves for a few others. Many implored the Prime Minister to impose a national lockdown to help snuff the surge19, including Dr. Anthony Fauci, Chief Medical Advisor to the President of the US. The triple mutant, SARS-CoV-2 variant- B.1.617 that was spreading mainly in India, was perceived as a global threat and was declared as a "variant of concern" by the WHO. Amidst all this, reports that COVID-positive patients were being infected with a potentially fatal black fungus, scientifically known as Mucormycosis changed the health canvas with increase in the requirement of anti- fungal drugs20. Statistics indicate that after having peaked on May 6th, the national curve seems to have entered a declining phase. Going by current trends, it is expected that India would reach a February level case count by July. On 28th June, Union Finance Minister Nirmala Sitharaman announced a 6.28 lakh Cr stimulus focusing largely on extension of load guarantees and concessional credit for pandemic hit sectors and investments to ramp up healthcare capacities21.

Response

19 May 7, 2021. ‘National Lockdown almost inevitable’: Rahul Gandhi writes to Modi again. Express Web Desk. The Indian Express. Available at: https://indianexpress.com/article/india/rahul-gandhi-letter-to-narendra-modi-coronavirus-second-wave-7305536/ [Accessed on June 29. 2021]. 20 Peterson, H. May 21, 2021. Black fungus disease linked to Covid spreads across India. The Guardian. Available at: https://www.theguardian.com/world/2021/may/21/mucormycosis-black-fungus-disease-linked-covid-spreads-indi [Accessed on June 29, 2021]. 21 June 29, 2021. Govt. unveils 6.28 lakh crore stimulus post second COVID wave. The Hindu. Available at: https://www.thehindu.com/business/Economy/nirmala-sitharaman-unveils-new-covid-recovery-package-expands-credit-relief/article35020572.ece [Accessed on June 29, 2021].

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https://indianexpress.com/article/india/rahul-gandhi-letter-to-narendra-modi-coronavirus-second-wave-7305536/

https://indianexpress.com/article/india/rahul-gandhi-letter-to-narendra-modi-coronavirus-second-wave-7305536/

https://www.theguardian.com/world/2021/may/21/mucormycosis-black-fungus-disease-linked-covid-spreads-indi

https://www.theguardian.com/world/2021/may/21/mucormycosis-black-fungus-disease-linked-covid-spreads-indi

https://www.thehindu.com/business/Economy/nirmala-sitharaman-unveils-new-covid-recovery-package-expands-credit-relief/article35020572.ece

https://www.thehindu.com/business/Economy/nirmala-sitharaman-unveils-new-covid-recovery-package-expands-credit-relief/article35020572.ece


The second wave certainly overwhelmed the Indian healthcare system. But, in contrast to the management of the 1st wave, the 2nd wave was left to the states to be handled. Lockdowns were imposed by states such as Maharashtra, Karnataka and Delhi. States were required to buy vaccines directly in the market. Some states even floated global tenders for procurement of vaccines. However, a new policy for Covid-19 vaccination in India came into effect on June 21, shifting to centralised procurement of vaccines, after several states faced difficulties in procuring and managing the funding of vaccines22.

Rural India The rural areas of India were worst hit by the 2nd wave. Access to quality healthcare was not bolstered. According to a report prepared by the CSE, Community Health centres need 76% more doctors, 56% more radiographers, 35% more lab technicians. Affordability issues added on to the burden faced by the people23. A study by the Public Health Foundation of India found that health expenses were responsible for driving 55 million Indians into poverty between

22 June 25, 2021. India’s new Covid-19 vaccination policy: A Quixplained. The Indian Express. Available at: https://indianexpress.com/article/explained/india-covid-vaccination-policy-quixplained-7355731/ [Accessed on June 29, 2021]. 23 Bhinge, M. Deo S. June 14, 2021. How to make Covid tests more accessible, affordable. The Indian Express. Available at: https://indianexpress.com/article/opinion/how-to-make-covid-tests-more-accessible-affordable-rt-pcr-price-7358756/ [Accessed on June 29, 2021].

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https://indianexpress.com/article/explained/india-covid-vaccination-policy-quixplained-7355731/

https://indianexpress.com/article/opinion/how-to-make-covid-tests-more-accessible-affordable-rt-pcr-price-7358756/

https://indianexpress.com/article/opinion/how-to-make-covid-tests-more-accessible-affordable-rt-pcr-price-7358756/


2011 and 201224. As many as 90% of the poor have no health insurance25. These problems have persisted for long and got worsened during the pandemic. VACCINATION On 16th January, 2021, India began vaccinating healthcare and frontline workers. Vaccinations were extended to those above 60 years and those above 45 years with comorbidities on March 1. Starting 1st April and 1st May, all above 45 years and 18 years respectively were eligible to be vaccinated. As on 21st June, a new Vaccination policy was announced that everyone would get "free vaccines". The 2nd wave saw a slowdown in vaccination due to lockdowns. But it also saw a temporary hold on all exports of the Oxford-AstraZeneca vaccine, in an attempt to reserve them for the domestic population. Imports of foreign vaccines were also allowed. As of 30th June, 2021, a total of 32,77,34,77226 vaccine doses have been administered. The vaccination drive however needs to pick up. 3rd WAVE Dr Sitabhra Sinha, a scientist at the Institute of Mathematical Sciences in Chennai said, "Early declaration of victory over Covid-19 has already had disastrous consequences - we don't want to repeat that". Health authorities have been routinely warning of a possible third wave of Covid-19 infections. Earlier this month, the Principal Scientific Advisor K Vijay Raghavan called the third wave “inevitable” adding a caveat that it could be avoided through “strong measures”. The logic that every fresh wave would be weaker than the previous one was proven wrong in India’s case till now. However, there are sufficient reasons to believe that the 3rd wave need not be as strong and devastating, provided there is efficient management. Concerns of the Delta Plus27 variant have also stepped in, calling for accelerated public health response. After a long battle with an invisible enemy for a whole one and a half years, we ought to have learnt invaluable lessons. If that has not happened, the ‘idea of India’ as the Vishwa Guru will certainly disappear soon.

24 Salve, P. July, 2018. Out of pocket health expenses plunge 55 mn Indians into poverty in 2017. India Spend. Business Standard. Available at: https://www.business-standard.com/article/current-affairs/out-of-pocket-health-expenses-plunge-55-mn-indians-into-poverty-in-2017-118071900115_1.html [Accessed on June 29, 2021]. 25 Yadavar, S. December 15, 2019. 90% poorest have no health insurance, reel under high medical costs. India Spend. Business Standard. Available at: https://www.business-standard.com/article/current-affairs/90-poorest-have-no-health-insurance-reel-under-high-medical-costs-report-119121100371_1.html [Accessed on June 29, 2021]. 26 June 30, 2021. Co-win Statistics. National Co-win Statistics. Available at: https://dashboard.cowin.gov.in [Accessed on June 30, 2021]. 27 Mascarenhas, A. June 30, 2021. How worrying is the Delta Plus variant of Covid-19? The Indian Express. Available at: https://indianexpress.com/article/explained/how-worrying-is-delta-plus-sars-cov2-coronavirus-7380124/ [Accessed on June 30, 2021].

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https://www.business-standard.com/article/current-affairs/out-of-pocket-health-expenses-plunge-55-mn-indians-into-poverty-in-2017-118071900115_1.html

https://www.business-standard.com/article/current-affairs/out-of-pocket-health-expenses-plunge-55-mn-indians-into-poverty-in-2017-118071900115_1.html

https://www.business-standard.com/article/current-affairs/90-poorest-have-no-health-insurance-reel-under-high-medical-costs-report-119121100371_1.html

https://www.business-standard.com/article/current-affairs/90-poorest-have-no-health-insurance-reel-under-high-medical-costs-report-119121100371_1.html

https://dashboard.cowin.gov.in/

https://indianexpress.com/article/explained/how-worrying-is-delta-plus-sars-cov2-coronavirus-7380124/

https://indianexpress.com/article/explained/how-worrying-is-delta-plus-sars-cov2-coronavirus-7380124/


CHALLENGES FACED BY THE INDIAN HEALTHCARE SYSTEM Apart from the age- old problems stated earlier, another important challenge that was largely prevalent across the country during the last year is that of misinformation. Pandemics in general cause havoc in any nation, where people resort to any form of advice out of panic to protect themselves. Unfortunately, misinformation may make matters worse than they already are. Furthermore, when people receive wrongful technical advice, healthcare falls under a greater chaos. This was precisely mentioned by Dr Randeep Guleria, the director of All India Institute of Medical Sciences, clarifying the floating misinformation regarding third wave of Covid-19 affecting children more28. WHAT IS NEEDED? Over a decade ago, economist Lant Pritchett29 described India as a “flailing State”, where the head including the institutions at the national level remain sound and functional but no longer reliably connected to its limbs. With the unfolding of the horror and suffering of the second wave of Covid-19, India seems to be resonating that very idea. As hapless citizens struggle, the national government, went out of sight, abdicating all responsibility, from leadership and governance, serving as a reminder that health is a state subject. However, what is required is a robust healthcare system that can materialise only with coordinated efforts. India’s Covid-19 response has seen failure because fundamental principles of good governance and cooperative federalism were ignored. At the start of the pandemic, decision-making was overly centralised. The Centre then abdicated responsibility from its role in procuring vaccines, managing supply chain, oxygen allocation, protocols and resource allocation before taking on a new policy recently with respect to centralised procurement of vaccines. Neither the unitary nor the federal response in the 2 waves respectively witnessed efficient and effective management of the situation. Thus, centre- state cooperation and coordination is the need of the hour. Pandemic management could have been far more streamlined with policies framed on the basis of dialogue and consultation. Policies on hospitals and human resources, evidence-based and transparent data collection, policies on allocation and supply processes, war-rooms at every level of administration to help citizens, and resourced primary health centres and wellness centres to reduce stress on hospitals need to be undertaken. A good way to start is to go back to the electoral promise of 2014- to foster cooperative federalism. Institutional vacuum has come in the way of this, apart from many other reasons. Thus, a possible way to start is the setting up of an inter-state council within the National Disaster Management Authority, comprising the stakeholders from the Centre and State, aiding in restoring trust in political leadership. Covid-19 has certainly strained the age old problems of the Indian Healthcare system to the breaking point and beyond. These problems need to be addressed soon, but not with an ‘I know it all’ attitude. Basic principles and values of communication between the Centre and

28 2021. 3rd wave won’t affect children more: Guleria. The Pioneer. Daily Pioneer. Available at: https://www.dailypioneer.com/2021/page1/3rd-wave-won---t-affect--children-more--guleria.html [Accessed on June 28, 2021]. 29 Aiyar, Y. May 9, 2021. The Second Wave and the Indian State. Hindustan Times. Available at: https://www.hindustantimes.com/opinion/the-second-wave-and-the-indian-state-101620579557130.html [Accessed on June 30, 2021].

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https://www.dailypioneer.com/2021/page1/3rd-wave-won---t-affect--children-more--guleria.html

https://www.hindustantimes.com/opinion/the-second-wave-and-the-indian-state-101620579557130.html


State can form the backbone of effective measures. This will certainly aid the country in the post pandemic era as well. As Teri Reynolds, a scientist at the World Health Organisation said, “It is hard to talk about a middle ground for something that is a fundamental right”.

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PANDEMIC MANAGEMENT: AN ASSESSMENT OF THE HEALTHCARE INFRASTRUCTURE DURING THE PANDEMIC

Bharath M R and Rajath R1

INTRODUCTION The COVID-19 pandemic has been like nothing that any Indian has seen in living memory. Every single pandemic and epidemic of yore that India has seen pales in comparison to the grand scale of this chiefly due to the alarming pace at which it has spread as a consequence of combination of the virulence of this particular virus,2 the more connected than ever world we live in, the general negligence of people and the administration alike. Though the death toll of this pandemic is minuscule when compared to many of the previous ones that the world has seen in terms of percentage of population that has perished because of its onslaught,3 the absolute numbers is still terrifying with death toll breaching one million within the first year4 and the graph continuing to rise in spikes due to the multiple waves that the nations of the world has seen irrespective of its geographic location, economic advancement or any other superficial human constructs. The economic damage sustained by countries across the globe because of the very difficult choice of choosing between life and livelihood will be a subject of studies for decades to come. The exercise of more interest, and criticality, will be to identify and build upon the best practises amongst the many models of response that many different governments across the globe have taken to safeguard the life of its citizens. The story of COVID-19 in India began with the first case recognised in the state of Kerala on 30th of January 2020,5 the first identified patient being a medical student who had recently returned from the city of Wuhan in China, the city from which the virus owes its origin to in a highly debated and suspicious manner.6 It is also interesting to note that the first three cases observed in India were all medical students from Kerala who had recently returned from Wuhan.7 The virus spread like wildfire in a short enough period that the government of India had to take measures that were previously unheard of to any living Indian, which began with the imposition of total lock down on 24th of March,

1 II LLB, [email protected]. 2 Ashutosh Kumar, Pranav Prasoon, Chiman Kumari, Vikas Pareek, Muneeb A Faiq, Ravi K Narayan, Maheswari Kulandhasamy and Kamla Kant, SARS-CoV-2-specific virulence factors in COVID-19, 93 J MED VIROL (2020). 3 HERE’S HOW COVID-19 RANKS AMONG THE WORST PLAGUES IN HISTORY, https://www.vox.com/future-perfect/21539483/covid-19-black-death-plagues-in-history (last visited Jun. 13, 2020). 4 GLOBAL CORONAVIRUS DEATH TOLL PASSES 1 MILLION, https://reliefweb.int/report/world/global-coronavirus-death-toll-passes-1-million (last visited Jul. 01, 2020). 5 M.A. Andrews, Binu Areekal K.R., Rajesh Jijith Krishnan, R. Suryakala, Biju Krishnan, C.P. Muraly, and P.V. Santhosh, First confirmed case of COVID-19 infection in India: A case report, 151(5) INDIAN J. MEDICAL SCIENCES (2020). 6 Prabash K Datta, Origin of Covid-19: why Wuhan lab of China continues to be prime suspect, INDIA TODAY (May. 31, 2021, 03:21 PM), https://www.indiatoday.in/coronavirus-outbreak/story/covid-19-origin-wuhan-lab-china-britain-us-investigation-1809059-2021-05-31. 7 ET Online and Agencies, Three confirmed cases of Coronavirus in India, all from Kerala, ECONOMIC TIMES (Feb. 03, 2020, 01:23 PM), https://economictimes.indiatimes.com/news/politics-and-nation/student-from-kerala-is-indias-first-coronavirus-patient/articleshow/73763438.cms.

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2020,8 something which was extended four times until total lockdown was finally relaxed on 1st of June, 2020,9 at great cost to the livelihood of the citizens of India, especially to the lower income, daily wage earning, immigrant subalterns. The haphazard and sudden decision to impose a complete lock down, in a somewhat signature style of policy-making of the current government, with minimum preparations and lack of foresight cost one of the biggest humanitarian crisis of this generation over and above what this pandemic had already imposed, but that is an issue of another topic. For the scope of this paper, we will analyse the response of the government with regards to the arrangement of beds for the infected patients, oxygen supply for the critically ill, and a few such medical necessities that the citizens faced because of the pandemic. HOSPITAL BED AND MEDICAL PERSONNEL There has always been a considerable shortage of available beds and medical personnel in India especially for the economically disadvantaged and the most susceptible strata of the society, irrespective of them being urban dwellers or rural folks.10 The availability of intensive care units (ICU) beds and specialist medical personnel, be it in terms of doctors or nursing staff, is even more scarce owing to the large investments required for that infrastructure, the low spending capacity of the people and the long periods of time that it take to train specialist medical personnel.11 The average beds per 10,000 people in rural India stood at 3.2 in December 2020 when the first wave of the pandemic had subsided with relatively low mortality.12 This number was lower still in some states. The state of Uttar Pradesh had 2.5 beds per 10,000 people in rural areas, whilst Rajasthan and Jharkhand had 2.4 and 2.3, respectively.13 Maharashtra, the 'richest' state of India and which has seen the largest number of COVID-19 cases, had 2.0 beds per 10,000 population and Bihar has 0.6 beds per 10,000.14 Clearly, this was a worrisome trend especially since the first wave had already stretched the medical infrastructure to its limit and the intensity of the second wave was predicted to be even more deadly.15 The union and various state governments had established many field hospitals, especially in the urban areas where the spread would be more due to the high population density, such as the Karnataka government Setting up temporary medical camps with beds and allied infrastructure in the famous so-called Palace grounds and the International Exhibition Centre

8 Nistula Hebbar, PM Modi announces 21-day lockdown as COVID-19 toll touches 12, THE HINDU (Mar. 25, 2020, 09:49 AM), https://www.thehindu.com/news/national/pm-announces-21-day-lockdown-as-covid-19-toll-touches-10/article31156691.ece. 9 News Desk, Unlock 1: India’s Exit From Lockdown to Begin Today; States Announce Fresh Guidelines | Top Developments, INDIA (May. 31, 2020, 11:57 PM), https://www.india.com/news/india/with-unlock-1-0-indias-exit-from-lockdown-to-begin-today-states-announce-fresh-guidelines-top-developments-4045257/. 10 What all is India running out of?, TIMES OF INDIA (Apr. 22, 2021, 02:33 PM), https://timesofindia.indiatimes.com/india/india-is-running-out-of-everything/articleshow/82161046.cms. 11 Vikas Bajpai, The Challenges Confronting Public Hospitals in India, Their Origins, and Possible Solutions, 2014 HINDAWI - ADVANCES IN PUBLIC HEALTH (2014). 12 Anant Kumar, K. Rajasekharan Nayar and Shaffi Fazaludeen Koya, COVID-19: Challenges and its consequences for rural health care in India, ELSEVIER PUBLIC HEALTH EMERGENCY COLLECTION (2020). 13 Id. at 2. 14 Id. at 2. 15 Alok Sheel, India’s second wave: Deadly, but not more than transatlantic’s, FINANCIAL EXPRESS (Apr. 23, 2021, 06:00 AM), https://www.financialexpress.com/opinion/indias-second-wave-deadly-but-not-more-than-transatlantics/2238416/.

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off NH-48.16 Many government hospitals were reserved only for COVID-19 patients to serve the dual purpose of increasing the availability of beds to COVID-19 patients and to control the spread of the virus in hospitals by making patients with comorbidities to share the same space with patients who are Covid positive.17 The union government stepped in to fill the capacity void that was felt especially acutely in a few states due to a variety of reasons because of which the state administration couldn’t effectively set up the required emergency care centres with adequate beds in a timely and quick fashion, using the military and bureaucratic cadre at its disposal.18 Thousands of beds were set up by the Union government on military land in the states of Delhi, Punjab, etc.19 The expertise of the armed forces and the national disaster relief force (NDRF) was put to good use by the administration units at various levels when the second wave of the virus began its onslaught. The armed forces in particular converted their non-core facilities situated at their bases into ad hoc and makeshift primary care units to treat their personnel, converting on bass entertainment centres, conference rooms, sports complexes et cetera into COVID-19 compliant hospitals.20 Many private individuals, trusts and religious organisations did chip in at this hour of need. The private individuals, trusts, and religious institutions also chipped in at this crucial time of dire need and ensured that their considerable clout and resources are put to use.21 Some of the best examples of this where citizens with social awareness join hands to help fellow citizens was seen in places like Delhi where a group of advocates set up a 50 beds makeshift hospital with oxygen supply,22 temples in Karnataka, Andhra Pradesh, Kerala, Maharashtra were seen converting their own premises into hospitals when the hinder-lands where they are situated in could not muster up enough resources to establish the required medical infrastructure.23 Businessmen with philanthropic intentions to set up COVID-19 care units, were arranging medicines for the sick which could be especially seen in the industrialised states like Gujarat, Maharashtra, Karnataka, et cetera but their names shall be withheld from explicit mentioning for the sake of neutrality.

16 Sharan Poovanna, Bengaluru to convert stadiums, exhibition centres into covid care facilities, LIVEMINT (Jun. 17, 2020, 10:07 AM), https://www.livemint.com/news/india/bengaluru-to-convert-stadiums-exhibition-centres-into-covid-care-facilities-11592367318662.html. 17 Jacob Koshy, Coronavirus | Three out of four COVID-19 patients have comorbidities, says Health Ministry data, THE HINDU (Sep. 21, 2020, 12:27 PM), https://www.thehindu.com/news/national/coronavirus-three-in-four-covid-patients-have-comorbidities/article32654793.ece. 18 Shaurya Karanbir Gurung, 28 hospitals of Indian Armed Forces reserved for Covid patients, ECONOMIC TIMES (Mar. 28, 2020, 09:15 AM), https://economictimes.indiatimes.com/news/defence/28-hospitals-of-forces-reserved-for-covid-patients/articleshow/74854348.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst. 19 Caroline Eshter D’Souza, Army's Western Command to set up COVID-19 facilities in Punjab, Haryana, ZEE NEWS (May. 08, 2021, 07:03 PM), https://zeenews.india.com/india/armys-western-command-to-set-up-covid-19-facilities-in-punjab-haryana-2360637.html. 20 Indian Army converts Base Hospital into Covid-19 facility; sets up 650, LIVEMINT (Apr. 28, 2021, 03:37 PM), https://www.livemint.com/news/india/indian-army-converts-base-hospital-into-covid-19-facility-sets-up-650-more-beds-11619599346416.html. 21 Humanity over hate: Religious organizations help out with covid-19 relief, LIVEMINT (Apr. 16, 2020, 06:39 PM), https://www.livemint.com/mint-lounge/business-of-life/humanity-over-hate-religious-organizations-help-out-with-covid-19-relief-11587041257785.html. 22 ET Bureau, Delhi-based lawyers team up to crowd-source money for makeshift Covid hospital, ECONOMIC TIMES (May. 03, 2021, 11:32 AM), https://economictimes.indiatimes.com/news/india/delhi-based-lawyers-team-up-to-crowd-source-money-for-makeshift-covid-hospital/articleshow/82357861.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst. 23 Puttur temple converts its hall into COVID care centre, THE HINDU (May. 17, 2021, 03:27 PM), https://www.thehindu.com/news/national/karnataka/temple-converts-its-hall-into-covid-care-centre/article34577903.ece.

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While the setting up of physical infrastructure in the form of temporary structures to house makeshift hospitals, produce beds, manufacture the requisite supplies like PPE kits, masks, medicines, etc is pretty easy in a vast, fairly industrialised and innovative country like India with great potential in the form of its untapped cottage industries,24 finding the qualified people in enough numbers to man and administer these inanimate life savers proved to be a bigger challenge. Many retired medical practitioners were called for duty and military doctors too were diverted to serve the citizens in an unprecedented scale.25 Medical personnel were sealed off from their own families for their own safety while on COVID-19 duty and non-COVID-19 related medical personnel such as radiologists were given an extended leaves while the effects of this disease was still yet to be fully understood and the working hours of all personnel was streamlined in order to afford them as much relief as possible so that they themselves do not get overworked. While all these measures seem appreciable on paper, the second wave of the virus laid bare the deficiencies in the system and the planning. It was a very common sight to see the family members of the infected people scampering around frantically in order to secure a bed that the administration had promised them.26 Large scale corruption was unearthed in many parts of the country despite the computerisation and automation of the allotment of beds, making it an ever evolving challenge to all the well-meaning stakeholders who now had to battle not just the virus but also human greed.27 There were also many cases reported where the seriously infected patients died on their way to the hospital or during the wait to be allotted a bed by the administration.28 Overall the general conscience with the experts and the citizens alike is that all the governments, transcending parties, regions and ideologies, could have handled this pandemic, second wave especially, better with regards to providing care to the patients. MEDICAL OXYGEN The fact that India in its living memory had not seen a challenge of this kind nor scale has no better exemplifier than the incredible shortage that the whole country faced with regards to medical oxygen.29 The installed medical oxygen generation capacity, which was adequate during normal times, was strained beyond measure due to the sheer quantum of serious cases that the second wave brought to our doors when it crept onto us while the administration was sleeping. There was no concrete efforts to ramp up oxygen generation through expansion of installed capacity until it hit the fan and there was already a humongous demand for it from the

24 ET Contributors, India’s successful journey to self-sufficiency in PPE kits, ECONOMIC TIMES (Oct. 14, 2020, 03:12 PM), https://economictimes.indiatimes.com/industry/healthcare/biotech/healthcare/indias-successful-journey-to-self-sufficiency-in-ppe-kits/articleshow/78658109.cms?from=mdr. 25 Neetu Chandra Sharma, Armed forces recall retired medical staff to work to battle COVID-19 pandemic, LIVEMINT (Apr. 26, 2021, 11:11 PM), https://www.livemint.com/news/india/armed-forces-recall-retired-medical-staff-to-work-to-battle-covid-19-pandemic-11619458219181.html. 26 People testing positive struggle to get beds as hospitals insist on Bengaluru Urban number, TIMES OF INDIA (Apr. 27, 2021, 10:16 AM), https://timesofindia.indiatimes.com/city/bengaluru/people-testing-positive-struggle-to-get-beds-as-hospitals-insist-on-bengaluru-urban-number/articleshow/82269322.cms. 27 Bed allotment scam: Two arrested, THE HINDU (May. 27, 2021, 09:04 PM), https://www.thehindu.com/news/cities/bangalore/bed-allotment-scam-two-arrested/article34660530.ece. 28 Alasdair Pal Danish Siddiqui, COVID patients die on trolleys outside Delhi hospital, REUTERS (Apr. 23, 2021, 10:50 PM), https://www.reuters.com/world/india/covid-patients-die-trolleys-outside-delhi-hospital-2021-04-23/. 29 Dipu Rai, Why India ran out of oxygen despite boosting capacity more than 125%?, INDIA TODAY (May 12, 2021, 11:21 PM), https://www.indiatoday.in/diu/story/india-oxygen-shortage-boosting-capacity-covid-1801828-2021-05-12.

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general public to save the lives of their dear ones. The situation got so bad that there are examples where large hearted elderly person(s) gave up their allotted oxygenated beds for the sake of younger people who had families that depended on them.30 The demand for medical oxygen began to steadily increase manifold post March when cases began to see a spike in the states of Maharashtra, Kerala and Punjab at such levels that even experts were petrified at the rapid spread of this contagion.31 The fire soon spread to the rest of the nation as the economy, and hence the movement of people, picked up pace from the slow down caused by the first total lockdown and the global economic stall in general and even states with only small to medium urban congregations (such as Jharkhand and Assam) began to feel the pinch this time around.32 The medical oxygen demand in India before the second wave of the COVID-19 pandemic was estimated to be in the ball park of 900 tonnes per day, roughly a tenth of the liquid oxygen India was producing at the time, a lion’s share of this being used for commercial purposes in industries such as construction, fabrication, smelting, etc.33 The total potential to produce liquid oxygen was even higher when one takes into account apparatus that was lying dormant and unused due to various reasons. When it became clear that the dedicated medical oxygen supply was nowhere near enough to cater to the needs of the masses, the union government began to divert liquid oxygen produced for commercial use by private entities towards hospitals, going as far as shadow banning use of liquid oxygen in commercial endeavours.34 PRIMARY HEALTH CENTRES As per the Minimum Needs Program introduced during the Fifth Five Year Plan,35 one Sub Centre was to be established for a population of 5000 people in plains and for 3000 people in hilly and tribal areas. A primary health centre was to be established for 30,000 people in plains and 20,000 in tribal and hilly areas, and one CHC or Rural Hospital for a population of one Lakh.36 A PHC is supposed to have at least four beds in it. On paper, India has had an extensive network of primary health centres (henceforth referred to as PHCs), in spite of less than 1% of GDP being spent for the healthcare of the masses.37 A PHC is supposed to be set up for every 25,000 people as per policy. In states such as Madhya Pradesh, Bihar and Jharkhand a single

30 India Today Web Desk, 85-year-old vacates hospital bed for 40-year-old patient, dies at home, INDIA TODAY (Apr. 28, 2021, 02:25 PM), https://www.indiatoday.in/india/story/rss-worker-85-hospital-bed-young-patient-dies-nagpur-1795854-2021-04-28. 31 Raakhi Jagga, Oxygen shortage: It is hand-to-mouth existence, says Punjab health minister, INDIAN EXPRESS (Apr. 30, 2021, 05:37 PM), https://indianexpress.com/article/cities/ludhiana/oxygen-shortage-it-is-hand-to-mouth-existence-says-punjab-health-minister-7296178/. 32 Deeksha Bhardwaj, Oxygen demand rises in southern states, Odisha and Assam, HINDUSTAN TIMES (May. 21, 2021, 11:15 PM), https://www.hindustantimes.com/india-news/oxygen-demand-rises-in-southern-states-odisha-and-assam-101621556557264.html. 33 Kritika Bansal, Mann Ki Baat: PM Modi Talks About COVID Second Wave, Oxygen Shortage & Cyclones, INDIA (May. 30, 2021, 12:08 PM), https://www.india.com/news/india/mann-ki-baat-pm-modi-talks-about-covid-second-wave-oxygen-shortage-cyclones-top-points-4701823/. 34 Govt completely bans use of ‘liquid oxygen’ for industrial purposes, TRIBUNE INDIA (Apr. 26, 2021, 07:17 AM), https://www.tribuneindia.com/news/nation/govt-completely-bans-use-of-liquid-oxygen-for-industrial-purposes-244070. 35 NITI AAYOG, https://niti.gov.in/planningcommission.gov.in/docs/plans/planrel/fiveyr/5th/welcome.html (last visited Jun. 14, 2021). 36 National Health Mission, Rural Health, https://nrhm.gujarat.gov.in/tribal-rch1.htm (last visited Jun. 17, 2021). 37 Puja Mehra, India’s economy needs big dose of health spending, LIVEMINT (Apr. 08, 2020, 10:52 PM), https://www.livemint.com/news/india/india-s-economy-needs-big-dose-of-health-spending 11586365603651.html.

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PHC covers as many as 45,000, 49,000 and 76,000 people respectively.38 There was also a reported shortage of 9,000 doctors in these PHCs, most of them being in the poorest rural and tribal areas.39 This also hold true in mega financial power cities like Mumbai, where due to maladministration and corruption, paired with reluctance of doctors to work in lower income area, many PHCs do not have qualified doctors and just make do with nursing staff. Only 40.5% of these PHCs (6,733) in the country are functional throughout the day.40 Sikkim is the only state where all the 24 PHCs function round the clock. Among other states, only Tamil Nadu, Tripura, Manipur, Punjab, Jharkhand, Madhya Pradesh, and Mizoram have more than 70% of the PHCs rendering services round the clock. Glaringly, no PHC functions round the clock in an industrial and prosperous state like Gujarat. All these shortcomings have been exposed by the pandemic in such a way that state government themselves, in some cases even the union government, has had to step in to carry out the work that should have ideally been dealt with by district or block administration. The physical infrastructure for PHCs, especially in rural and poor areas, are present in adequate numbers for normal circumstances but they lack manpower and Human Resources, which has become their biggest bane, and the pandemic has only served to magnify this issue.41

38 Satish Kannan, Primary Health Treatment Set For Digital Disruption In India, BUSINESS WORLD (Dec. 24, 2019), http://bwhealthcareworld.businessworld.in/article/Primary-Health-Treatment-Set-For-Digital-Disruption-In-India/24-12-2019-181015/. 39 Pavitra Mohan, Why India's primary healthcare is reeling and what it can learn from others, THE WIRE (Oct. 29, 2018, 07:59 AM), https://www.business-standard.com/article/current-affairs/why-india-s-primary-healthcare-is-reeling-and-what-it-can-learn-from-others-118102900069_1.html. 40 Pavithra K M, Data: What is the status of Infrastructure in Primary Health Centers (PHCs)?, FACTLY (Jun. 13, 2020), https://factly.in/data-what-is-the-status-of-infrastructure-in-primary-health-centers-phcs/. 41 Id. at 02.

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The Center for Disease Dynamics, Economics and Policy42 and Princeton University have studied the state-wise availability of hospital beds, intensive care units (ICUs), beds, and ventilators across India based on data available on the website of Central Bureau of Health Intelligence under title National Health Profile 2019.43 According to CDDEP report and National Health Profile 2019, (i) The total hospitals in India are 69,265 (public hospitals - 25,778 and private hospitals - 43,487) (ii) The total hospital beds - 1,899,228 (Public sector - 7,13,986 and Private sector - 1,185,242) (iii) The total number of ICU beds - 94,961 (Public sector - 35,699 and Private sector - 59,262) (iv) Total ventilators - 47,481 (Public sector - 17,850 and Private sector - 29,631).

42 CENTER FOR DISEASE DYNAMICS, ECONOMICS & POLICY, https://cddep.org/. 43 National Health Profile, 2019, http://www.cbhidghs.nic.in/WriteReadData/l892s/8603321691572511495.pdf.

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Source: (i) the Central Bureau of Health Intelligence and The Centre for Disease Dynamics, Economics and Policy (ii) National Health Profile, 2019, MoHF. With the COVID-19 pandemic testing even the more developed healthcare systems globally, the foundations of India’s healthcare system have naturally also been shaken. The overall response to the pandemic witnessed both the private and government sector working in tandem. The private healthcare players volunteered in time and have been providing all the support that the government needs, such as testing, isolation beds for treatment, medical staff and equipment at government COVID-19 hospitals and home healthcare. India’s private healthcare sector has contributed significantly and accounts for about 60 per cent of inpatient care.44 Most private facilities initiated their plans in response to the COVID-19 pandemic, which involved major investments to equip facilities for controlling and preventing the spread of virus, building infrastructure for quarantine and treatment, and equipping the facility with suitable medical supplies and additional workforce.45 The OPDs had also been closed almost throughout the year as per the government advisory.46 The healthcare industry, with the support of the governments, undertook a vigorous response plan to confront the pandemic by setting up dedicated COVID-19 hospitals, isolation centres and tech-enabled mapping of resources. In order to effectively administer the outbreak, the Indian government also leveraged technology and developed various applications both at the central and state-levels.47 The deficiencies such as the required number of beds or the accessibility of advanced equipment that were highlighted during the worst-hit times of the pandemic are highlighting the need for a healthcare infrastructure that is emergency-proof for such times in the future. Hospitals and specialty centres are taking initiative to build more capacities, mainly in Tier II and III cities.48 Numerous hospital chains have started expanding in these cities by setting up small clinics and associating with reputed local doctors. This is in parallel to government efforts to increase the number of beds per thousand population and close the accessibility gap especially in sub-urban and rural parts of the country. The maintenance of essential healthcare services on an outpatient basis during the aftermath of the COVID-19 pandemic is a major public health challenge. The provision of essential outpatient health care service were disrupted in a significant proportion of PHCs across India with the onset of the COVID-19 pandemic and the rapid escalation of cases.49 Existing PHC facilities in India providing outpatient care during the COVID-19 pandemic are constrained in their functioning by weak infrastructure contributing to suboptimal patient safety and infection control measures.

44 Lalit Mistry, India’s healthcare sector transformation in the post-COVID-19 era, KPMG (Feb. 01, 2021), https://home.kpmg/in/en/home/insights/2021/02/india-healthcare-sector-transformation-in-the-post-covid-19-era.html. 45 Id. at 08. 46 MINISTRY OF HEALTH AND FAMILY WELFARE, https://pib.gov.in/PressReleasePage.aspx?PRID=1684546. 47 Id. at 08. 48 Id. at 08. 49 Suneela Garg, Saurav Basu, Ruchir Rustagi and Amod Borle, Primary Health Care Facility Preparedness for Outpatient Service Provision During the COVID-19 Pandemic in India: Cross-Sectional Study, 6(2) JMIR PUBLIC HEALTH SURVEILL. 2020.

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CONCLUSION COVID-19 is a health crisis impacting all facets of life like health, education, economy, etc., for the entire world, including India. The Central and the State Governments had taken several preventive measures like lockdown, quarantine, social distancing, etc., to stop the spread of the virus. Irrespective of the measures, the outbreak of COVID-19 has taken the healthcare policy to a task. The inadequate availability of medical professionals is one of the critical issues in the public healthcare system. The public healthcare infrastructures in hospitals, primary and community health centres, that is, beds, ICUs, ventilators, etc., are not in accordance with the humongous size of the country’s population. The biggest health emergencies of our times have laid bare the myriad challenges and gaps in our health system.

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INDIA’S VACCINATION STRATEGY – AN INSIGHT

Aarush Jhunjhunwala1

THE WORLD’S MOST AMBITIOUS VACCINATION DRIVE The COVID-19 pandemic has fundamentally changed the world as we know it. Every facet of humankind has been affected and seen transformative change like never before. The main exit route from the pandemic was observed to be vaccination creating herd immunity. Throughout history, vaccines took decades to develop and test before they were considered to be safe for inoculation. With the exponential improvement in communication and medical technology, vaccines for immunity against the virus were developed at breakneck speed. India, the world’s second most populated country, with a high risk of large-scale spread had 2 vaccines being developed. Covaxin, India’s first indigenously developed vaccine is made up of inactive coronaviruses. The administration of inactive virus cells in the vaccine triggers the immune system to produce antibodies against the virus2. Covaxin has been developed by the Indian Council of Medical Research (ICMR) and Bharat Biotech, a veteran vaccine maker3. Covishield is the Oxford-AstraZeneca vaccine being locally produced by the Serum Institute of India. The vaccine’s functioning is fundamentally different to Covaxin as this uses a weakened adenovirus modified to appear like SARS-CoV-2, which triggers an immune response by the recipient’s body4. The Government created a digital platform known as “Co-WIN” for the management of vaccines. This was aimed at vertical integration of the vaccination system which would help in all aspects from storage and stock keeping, to registration and authentication of the vaccine beneficiary5. THE FIRST PHASE OF VACCINATION On the 16th of January 2021, the Government of India launched the world’s largest and most ambitious COVID-19 vaccination drive. The inoculation of people would take place in a phased manner, prioritising groups at higher risk of contracting the virus6. Healthcare and frontline workers were the first groups that were to be vaccinated, due to their high level of risk, they were estimated to be 30 million people in number.

1 III BA.LLB A, [email protected] 2 Sputnik V, Covishield, Covaxin: What we know about India's Covid-19 vaccines, BBC News (2021), https://www.bbc.com/news/world-asia-india-55748124 (last visited Jun 12, 2021). 3 Icmr.gov.in (2021), https://www.icmr.gov.in/pdf/press_realease_files/Press_Release_ICMR_03_March_2021.pdf (last visited Jun 12, 2021). 4 Sputnik V, Covishield, Covaxin: What we know about India's Covid-19 vaccines, BBC News (2021), https://www.bbc.com/news/world-asia-india-55748124 (last visited Jun 12, 2021). 5 Prime Minister reviews status of COVID-19 and preparedness for COVID19 vaccination, Pib.gov.in (2021), https://pib.gov.in/PressReleseDetailm.aspx?PRID=1687305 (last visited Jun 12, 2021). 6 Coronavirus Outbreak, Covid vaccination drive in India to begin from January 16, healthcare workers to get priority India Today (2021), https://www.indiatoday.in/coronavirus-outbreak/story/coronavirus-vaccination-drive-india-begin-from-january-16-healthcare-workers-priority-1757458-2021-01-09 (last visited Jun 12, 2021).

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The Union Government was responsible for the procurement and state-wise allocation of vaccines. For the first phase initially 11 million doses were ordered from Serum Institute of India, and 5.5 million from Bharat Biotech. Orders placed were small and aimed to supply enough for the priority group in the first phase. The order for vaccines with Serum Institute of India was placed on the 11th of January 2021, merely 5 days before the drive was scheduled to begin7. Serum Institute of India had also revealed that they had a stockpile of 50 million doses which were available for immediate usage8. At the time, Bharat Biotech’s Covaxin was only approved for use in “emergencies” as it had not completed its third phase of trials and had received accelerated authorisation9. As a gesture of goodwill, the Government decided to export vaccines to foreign nations. Initially, they were ready to export 25 million doses of the Covishield stockpile along with Covaxin to the nations which required them10. With a drop in COVID-19 cases and a vaccine drive in progress, the Government of India declared an early victory over the virus, even going as far as not granting Pfizer’s vaccine approval for emergency use. THE SECOND PHASE OF VACCINATION The second phase of vaccination began on the 1st of March, 2021. This opened the vaccine drive to all people above the age of 60, and those with comorbidities and above the age of 45. Along with the second phase of vaccination, the second wave of the virus too began to gain momentum11 (fig 1.). The spike in cases and the vulnerability of the age group prompted the government to open vaccination to all those above the age of 45 years12. With over 344 million people eligible to receive the vaccine13 and an extreme shortage of supply, the second wave of COVID-19 cases grew exponentially. The shortage was seen as a result of two factors; export and the miscalculated procurement of vaccines14. Between the 20th of January and the 16th of April 2021, the Government of India exported 66.3 million doses of COVID-19 vaccines15.

7 India "Late To The Table" In Buying Vaccines: Top Virologist, NDTV.com (2021), https://www.ndtv.com/india-news/coronavirus-india-late-to-the-table-in-buying-vaccines-says-top-virologist-dr-gagandeep-kang-2447986 (last visited Jun 12, 2021). 8 Covid vaccination: Govt inks purchase order with SII; dose to cost ₹200/dose, mint (2021), https://www.livemint.com/news/india/covid19-vaccination-india-to-buy-1-1-crore-doses-from-serum-dispatches-may-start-today-says-report-11610360963620.html (last visited Jun 12, 2021). 9 Sputnik V, Covishield, Covaxin: What we know about India's Covid-19 vaccines, BBC News (2021), https://www.bbc.com/news/world-asia-india-55748124 (last visited Jun 12, 2021). 10 India to export Covid vaccines free of cost to its neighbours as a ‘goodwill gesture’, ThePrint (2021), https://theprint.in/health/india-to-export-covid-vaccines-free-of-cost-to-its-neighbours-as-a-goodwill-gesture/587874/ (last visited Jun 22, 2021). 11 India News & Second know, Second phase of Covid-19 vaccination drive from March 1: All you need to know | India News - Times of India The Times of India (2021), https://timesofindia.indiatimes.com/india/second-phase-of-covid-19-vaccination-drive-from-march-1-all-you-need-to-know/articleshow/81230937.cms (last visited Jun 22, 2021). 12 India begins third phase of vaccination drive by including all above 45, Hindustan Times (2021), https://www.hindustantimes.com/india-news/india-begins-third-phase-of-vaccination-drive-by-including-all-above-45-101617277677724.html (last visited Jun 22, 2021). 13 covid vaccination: Will vaccinating Indians above 45 years bring down Covid numbers - Times of India The Times of India (2021), https://timesofindia.indiatimes.com/india/will-vaccinating-indians-above-45-years-bring-down-covid-numbers/articleshow/81702329.cms (last visited Jun 22, 2021). 14 Vaishali Sood, India’s Vaccine Mess: Why Our Vaccination Policy Was Bound to Fail TheQuint (2021), https://www.thequint.com/coronavirus/indias-vaccine-mess-why-our-vaccination-policy-was-bound-to-fail#read-more (last visited Jun 22, 2021). 15 Vaccine Supply, Mea.gov.in (2021), https://www.mea.gov.in/vaccine-supply.htm (last visited Jun 22, 2021).

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Unlike other countries which pre-ordered vaccines in November 2020, the Union Government waited till January 2021 to place its first order16.

Fig 1. A comparison between the daily vaccine doses administered and new confirmed

COVID-19 cases between 16th of January and 28th of June 2021 in India. Source – Our World In Data.

DE-CENTRALISING, LIBERALISING AND ACCELERATING On the 19th of April, 2021 the Prime Minister announced a “Liberalised and Accelerated” vaccine policy which would be implemented from the 1st of May17. The third phase aimed to vaccinate all people above the age of 18. The new policy fundamentally changed the system of vaccine procurement and distribution that was followed up until then. Previously, the Union Government was responsible to procure and 100% of the COVID-19 vaccines. These would then be distributed to states based on their requirements and to private hospitals. The new policy made vaccine manufacturers supply 50% of vaccines to the Union Government, and the remainder 50% would be available for sale to state Governments and commercially on the open market. The vaccines procured by the Union Government would be used to inoculate people above the age of 45, healthcare workers, and frontline workers at Union Government vaccination centres. These vaccines would be distributed to states based on the number of active cases, and the efficiency with which they administer and utilise vaccines18. Along with this, the Union Government allowed state Governments to import vaccines. The shortage of vaccines compelled many states to float tenders globally to manufacturers such as

16 India "Late To The Table" In Buying Vaccines: Top Virologist, NDTV.com (2021), https://www.ndtv.com/india-news/coronavirus-india-late-to-the-table-in-buying-vaccines-says-top-virologist-dr-gagandeep-kang-2447986 (last visited Jun 12, 2021). 17 Press Information Bureau, Pib.gov.in (2021), https://pib.gov.in/PressReleseDetail.aspx?PRID=1712710 (last visited Jun 24, 2021). 18 Press Information Bureau, Pib.gov.in (2021), https://pib.gov.in/PressReleseDetail.aspx?PRID=1712710 (last visited Jun 24, 2021).

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Pfizer. In response, the international manufacturers declined the tenders stating that they would only enter a contract to supply vaccines with a country’s Central Government19. The de-centralised vaccine policy also introduced a differential pricing system for vaccines. Before de-centralisation, the Union Government purchased vaccines at Rs.150 per dose from both manufacturers. These were given free of cost to all eligible people at Government vaccination centres, and prices were capped at Rs. 250 per dose in private hospitals20. With the liberalised policy, manufacturers were able to set prices themselves. Bharat Biotech set its price at Rs. 400 per dose for state Governments, and Rs.1200 per dose for private hospitals21. Similarly, Serum Institute of India set its price at Rs. 300 per dose for state Governments and Rs. 600 per dose for private hospitals22. Additional to the cost price, private hospitals added GST and a service charge. Differential pricing in vaccines and fragmentation of the market would benefit the privileged section of society, and undermine the idea of equity. Vaccine manufacturers would prioritise supplying to private hospitals in an endeavour to make larger profits. The spirit of federalism was undermined by the Union Government. States asked for autonomy in the strategy to vaccinate people, as they intended to inoculate the working population. They expected the centre to use the funds allocated in the 2021 Union Budget for COVID-19 vaccines amounting to Rs. 350 Billion23 to purchase vaccines. As per India Ratings and Research, vaccinating the adult population of India would cost merely 0.36% of the GDP24. The Union Government defended its vaccine policy stating that as per the Constitution of India, health is a state subject25. Although public health may be an Item under the State List, the prevention of the extension from one State to another of infectious and contagious diseases is an item under the Concurrent List26. States would be put under immense financial pressure to purchase vaccines at a time when their revenue was low. The Supreme Court of India took suo moto cognisance of this matter and criticised the policy of the Union Government. They questioned the rationale behind burdening the states with the responsibility of procuring vaccines for the 18-44 age group and the dual pricing policy27.

19 States float tenders but know it’s a long shot, say Centre’s job to buy, The Indian Express (2021), https://indianexpress.com/article/india/states-float-covid-vaccine-tenders-but-know-its-a-long-shot-say-centres-job-to-buy-7314275/ (last visited Jun 26, 2021). 20 Everything You Wanted to Know About the Price of Vaccines in India, The Wire (2021), https://thewire.in/government/everything-you-wanted-to-know-about-the-price-of-vaccines-in-india (last visited Jun 27, 2021). 21 Bharat Biotech cuts vaccine price for States to ₹400/dose, The Hindu (2021), https://www.thehindu.com/business/Industry/bharat-biotech-cuts-vaccine-price-for-states-to-400dose/article34441653.ece (last visited Jun 27, 2021). 22 Serum Institute of India cuts Covishield vaccine price for States to ₹300 per dose, The Hindu (2021), https://www.thehindu.com/news/national/serum-institute-of-india-cuts-covishield-vaccine-price-for-states-to-300-per-dose/article34431403.ece (last visited Jun 27, 2021). 23 Leroy Leo, Covid-19 vaccines worth ₹35,000 crore and more for routine immunisation mint (2021), https://www.livemint.com/budget/news/covid19-vaccines-worth-rs-35-000-crore-and-more-for-routine-immunisation-11612182605317.html (last visited Jun 27, 2021). 24 Staff Writer, Vaccinating all above 18 years to cost 0.36% of GDP: India Ratings mint (2021), https://www.livemint.com/news/india/vaccinating-all-above-18-years-to-cost-0-36-of-gdp-says-india-ratings-report-11619157994486.html (last visited Jun 27, 2021). 25 https://www.hindustantimes.com/india-news/health-is-a-state-subject-centre-defends-vaccine-strategy-in-7-points-101622105429701.html 26 INDIA CONST. Schedule VII, List III – Concurrent List, Item – 29. 27 Karan Tripathi, Dear Central Ministers, Health Is a State Subject But Not Pandemic TheQuint (2021), https://www.thequint.com/news/law/why-centre-cant-shrug-responsibility-of-rescuing-us-from-covid19#read-more (last visited Jun 27, 2021).

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Historically the Union Government has been the primary importer and local procurer for vaccines. The Universal Immunisation Programme introduced in 1978, successfully inoculated people for many infectious diseases such as Polio. The guidelines establishing the same state that all vaccines under the scheme are to be purchased at a central level28. Central procurement of the vaccines furthered the idea of national immunisation. REVERSING A MISTAKE After mounting pressure from the states and the Judiciary, on the 7th of June, 2021 the Union Government announced its restructured vaccine policy. Coming into effect from the 21st of June, the new policy re-centralised procurement of vaccines. 75% of all vaccines including the newly introduced Sputnik V would be procured by the Union Government and distributed to states based on the spread of infection, and the efficiency with which the state was inoculating people. Under the new policy, the Union Government would continue to purchase vaccines at Rs.150 per dose and all those eligible to receive the vaccine would receive it free of cost at Union and state-run vaccination centres29. The remainder 25% would be sold by manufacturers to private hospitals at the established prices by Bharat Biotech and Serum Institute of India30. The viral-vector vaccine Sputnik V, imported by Dr Reddy’s Laboratories would be sold to private hospitals at Rs. 945 per dose. The Union Government also introduced a price cap of Rs. 150 on the service charge that private hospitals could claim31 in addition to 5% GST, to prevent large corporate hospitals from exploiting the public. This brought the consumer price of the vaccines to Rs. 1,410 for Covaxin, Rs. 780 for Covishield and Rs. 1,145 for Sputnik V32. The inaugural day of the new vaccine policy saw record-breaking vaccination numbers. Over 9 million doses of COVID-19 vaccines were administered on the 21st of June, 202133. The spectacle, however, was enveloped in political speculation. Claims were made that some states deliberately slowed down their vaccination drive leading up to the Union Government taking charge again34. THE ROAD AHEAD Mass vaccination is seen as the only effective way out of the COVID-19 pandemic. The herd immunity created can ensure that the spread of the virus is reduced and infected individuals have less severe symptoms. To achieve this the Union Government presented a roadmap in

28 Ministry of Health and Family Welfare, National Vaccine Policy, p.23 (2011). 29 India’s new Covid-19 vaccination policy: A Quixplained, The Indian Express (2021), https://indianexpress.com/article/explained/india-covid-vaccination-policy-quixplained-7355731/ (last visited Jun 28, 2021). 30 These are the changes in India’s vaccine policy that will kick in from June 21, Business Insider (2021), https://www.businessinsider.in/india/news/india-covid-vaccine-policy-changes-june-21-yoga-day-pm-modi/articleshow/83308314.cms (last visited Jun 28, 2021). 31 Mohfw.gov.in (2021), https://www.mohfw.gov.in/pdf/RevisedVaccinationGuidelines.pdf (last visited Jun 28, 2021). 32 India’s new Covid-19 vaccination policy: A Quixplained, The Indian Express (2021), https://indianexpress.com/article/explained/india-covid-vaccination-policy-quixplained-7355731/ (last visited Jun 28, 2021). 33 Coronavirus (COVID-19) Vaccinations - Statistics and Research, Our World in Data (2021), https://ourworldindata.org/covid-vaccinations?country=IND (last visited Jun 28, 2021). 34 Shadab Moizee, Record Number of Doses on 21 June: Govt’s Headline Management? TheQuint (2021), https://www.thequint.com/videos/news-videos/record-doses-on-21-june-vaccine-management-or-governments-headline-management (last visited Jun 29, 2021).

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June 2021 to the apex court, which would guide the future of the vaccination drive. A target of administering a total of 516 million doses from the inception of the vaccination drive up until the 31st of July, 2021 was set by the Government35. An estimated 1.35 billion vaccine doses would be available to inoculate the adult population of India between August and December 202136. In addition to the three vaccines available until August, two new vaccines will be introduced. Corbevax, developed by Biological E is a recombinant protein subunit vaccine. It is composed of a certain part of the SARS-CoV-2 cell which creates immunity when introduced to a body, therefore protecting it from infection. The two-dose vaccine is expected to be the most affordable vaccine in the country, which is possible due to the low-cost platform. The Union Government has pre-ordered 300 million doses of Corbevax37. ZyCoV-D developed by Zydus Cadila is set to have 50 million doses available to the Government between August and December 2021. This three-dose vaccine is the world’s first DNA based COVID-19 vaccine. ZyCoV-D will also be the first vaccine used to inoculate the 12-18 year age group in India38. Apart from the 350 million doses of new vaccines, 500 million doses of Covishield, 400 million doses of Covaxin and 100 million doses of Sputnik V will be procured by the Union Government. 1.88 billion doses of vaccines would be available to the adult population of India. CONCLUSION The roadmap presented in June 2021 was monumentally different to the projection presented by the Union Government in May 2021. A total of 2.16 billion doses of vaccines were projected to be available between the months of August and December, creating a difference of 810 million doses between the projection and roadmap. Eight different vaccines were included in the projection, which was reduced to five in the roadmap39. The Union Government stated that as the adult population of India is around 930-940 million, 1.88 billion doses would be sufficient to administer both doses to all those eligible40. India has seen extreme modulation in its vaccine policy since its inception in January 2021. The de-centralisation of vaccine procurement fundamentally changed how people would have access to the indispensable inoculation, at a time when the pandemic was at its peak. Expeditious vaccination is the need of the hour in India and the only way to prevent further waves of the virus from ravaging the country.

35 In affidavit before SC, Centre sharply cuts projected availability of vaccine doses by 81 crore, India Today (2021), https://www.indiatoday.in/law/story/in-affidavit-before-sc-centre-sharply-cuts-availability-of-vaccine-doses-by-81-crore-1819840-2021-06-27 (last visited Jun 29, 2021). 36 Prodded By Supreme Court, Centre Presents Covid Vaccination Roadmap, NDTV.com (2021), https://www.ndtv.com/india-news/centre-to-supreme-court-on-vaccination-policy-expect-to-get-188-crore-doses-to-vaccinate-all-adults-by-year-end-2473341 (last visited Jun 29, 2021). 37 Explained: How is Biological E’s Corbevax different?, The Indian Express (2021), https://indianexpress.com/article/explained/corbevax-vaccine-biological-e-india-7344928/ (last visited Jun 29, 2021). 38 Zydus vaccine trial to be over soon. Here’s when 12-18-yr-olds can get jabbed, Hindustan Times (2021), https://www.hindustantimes.com/india-news/zydus-vaccine-trial-to-be-over-soon-here-s-when-12-18-yr-olds-can-get-jabbed-101624866954072.html (last visited Jun 29, 2021). 39 In affidavit before SC, Centre sharply cuts projected availability of vaccine doses by 81 crore, India Today (2021), https://www.indiatoday.in/law/story/in-affidavit-before-sc-centre-sharply-cuts-availability-of-vaccine-doses-by-81-crore-1819840-2021-06-27 (last visited Jun 29, 2021). 40 In affidavit before SC, Centre sharply cuts projected availability of vaccine doses by 81 crore, India Today (2021), https://www.indiatoday.in/law/story/in-affidavit-before-sc-centre-sharply-cuts-availability-of-vaccine-doses-by-81-crore-1819840-2021-06-27 (last visited Jun 29, 2021).

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THE STATE OF COMPANIES AMIDST COVID-19 CHAOS

Thangam Chandy1

For the last year and a half, the subject of COVID-19 has monopolized the limelight in all spheres of life. Its impact has infiltrated every single aspect of our world and has tampered with our entire way of living. One would be hard-pressed to find a domain which has not felt the impact of this pandemic. An area which has taken one of the biggest hits is undoubtedly the economy. In the attempt to slow the spread of the virus, countries all across the world went into complete and total lockdowns, essentially shutting down businesses for temporary periods of time. However, the effect of these lockdowns for many companies turned out to be permanent. On the face of it, the various lockdowns led to the closing of factories, physical offices, and facilities across various industries. But experts believe that, more than ceasing business momentum, the bigger impact of these lockdowns was the effect they had on consumer behavior. The levels of unemployment and income uncertainty created in the markets triggered the destruction of demand itself. Downsizing and unemployment led to behavioral changes and lack of demand in consumers, which in turn ran some of the same businesses out of work, thereby forming a vicious circle. Essentially household incomes fell sharply as a result of jobs losses, and subsequently led to an acute demand crisis. COMPANIES THAT TOOK THE BIGGEST HIT Travel and Tourism - The restrictions imposed across various countries subsequently interfered with the functioning of many specific sectors of industry. Travel restrictions and the closing of borders natural led to a blow to the travel and tourism industry. An approximate of 5 million jobs were lost in the travel and tourism sector alone.2 Given the specificity of this line of work, the smaller companies were forced to shut down, and for ousted employees, finding alternative work was near impossible. Similarly, many hotels faced the dismaying scenario of zero occupancy3 for months on end. There was a ripple effect - with one change in the industry, many of the associated industries were also affected. Food service - While some restaurants were able to maintain takeaway business and make their kitchens and staff cost efficient in line with this mode of functioning, numerous food service businesses were not as fortunate. A study by Yelp in the US4 came to the conclusion that the business models which already used takeaway and delivery modules, were more resilient during the pandemic as compared to other traditional dine-in restaurants which had to be reactive to the situation.

1 IV BA-LLB, [email protected] 2 M Saraswathy, Covid-19 Job Impact: Which sectors lost the most people and which ones hired the most in 2020?, MONEYCONTROL (January, 12, 2021) https://www.moneycontrol.com/news/business/economy/covid-19-job-impact-which-sectors-lost-the-most-people-and-which-ones-hired-the-most-in-2020-6334431.html 3 M Saraswathy, Covid-19 Job Impact: Which sectors lost the most people and which ones hired the most in 2020?, MONEYCONTROL (January, 12, 2021) https://www.moneycontrol.com/news/business/economy/covid-19-job-impact-which-sectors-lost-the-most-people-and-which-ones-hired-the-most-in-2020-6334431.html 4 Anjali Sundaram, Yelp data shows 60% of business closures due to the coronavirus pandemic are now permanent, CNBC (September 16, 2020) https://www.cnbc.com/2020/09/16/yelp-data-shows-60percent-of-business-closures-due-to-the-coronavirus-pandemic-are-now-permanent.html

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Recreation and Fitness/Wellness - The word “essential” gained a lot of importance over the last two years. Anything that was not essential was eliminated. Recreation based industries like movie theatres and amusement parks no longer had any purpose. Even fitness and wellness centers became replaceable by at home workouts and methods. These industries lost out because in the midst of the pandemic, the services that they rendered were no longer worth the risk. Transport (Taxis/Cabs Service) - Back in May 2020, Uber Technologies, the company with a global presence laid off 3,700 people in India and halted various side projects in an attempt to make up for their losses.5 The brilliance of this company’s product – being able to book a ride anywhere, anytime, was suddenly obsolete. Nobody could go anywhere anyway, and even if they could, why risk being in such close contact with another person in the taxi? Retail - According to reports, Titan - the watch/jewelry company said that their operating cash flow was negative for two whole months due to virtually zero sales in the first six weeks of lockdown6. However, this is expected to be recovered when jewelry sales recommence. One of the countries leading two-wheeler manufacturers – Hero MotoCorp halted all operations at its manufacturing facilities for a couple of staggered days between April and May of 20217. This suspension was merely temporary, but one must understand the direness of their situation to take a step like that. In a situation where people are struggling to make ends meet and have a hard time purchasing basic necessities, the proportion of privileged few who can still afford to be shopping for luxury goods is slim. THE BENEFICIARIES While the pandemic has wreaked havoc on certain companies, there are those which have benefitted from the drastic changes in the consumer’s lifestyle. Technology has been a coping device during the COVID-19 pandemic. Therefore, all companies that create better virtual experiences or ease the process of using technology to perform daily tasks have benefitted greatly from the changes brought about by the pandemic. Netflix, Amazon, Zoom, Microsoft, PayPal and Shopify are among this list of beneficiaries8. Professional delivery services – At the start of the pandemic, the delivery giant in India, Swiggy, seemed to face many problems with not only the safety of its delivery partners, but also with convincing and guaranteeing customers that their food would be delivered in a hygienic manner. There were multiple layoffs in the first few weeks of lockdown.9 However, they have adopted various safety measures to work around this and now this company seems

5 Sukanya Roy, 10 well-known companies that laid off staff due to coronavirus, BUSINESS STANDARD NEWS (May, 19,2020) https://www.business-standard.com/podcast/current-affairs/10-well-known-companies-that-laid-off-staff-due-to-coronavirus-120051901344_1.html 6 Rahul Oberoi, Covid impact on Indian companies: Titan, Minda & TTK among 10 firms from10 sectors telling you where Covid hurt them the most, THE ECONOMIC TIMES (June,3,2020) https://economictimes.indiatimes.com/markets/stocks/news/titan-minda-ttk-among-10-firms-from-10-sectors-telling-you-where-covid-hurt-them-the-most/articleshow/76171338.cms?from=mdr 7 ENS Economic Bureau, Hero shuts plamts amid surge, first such action by big firm THE INDIAN EXPRESS (April, 21, 2021) https://indianexpress.com/article/business/covid-19-hero-motocorp-plant-7282160/ 8 Prospering in the pandemic: the top 100 companies, FINANCIAL TIMES (June, 19, 2020) https://www.ft.com/content/844ed28c-8074-4856-bde0-20f3bf4cd8f0 9 Scroll staff, Coronavirus lockdown: Here is a list of firms that have laid off employees or enforced pay cuts, SCROLL.IN (May, 20, 2020), https://scroll.in/latest/962452/coronavirus-lockdown-ola-to-layoff-1400-employees-says-ceo

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to be booming. They control not only the restaurants who need delivery services and visibility to customers, but also their employees who are hard pressed to find work else where. Towards the end of 2020 Swiggy’s food delivery order value had already returned to about 80 – 85% and the company firmly believes that things will return to pre-pandemic levels through the course of 202110. Software & IT services / Web developers – Given the current state of affairs, more businesses are looking to build their online presence, and many will have to develop their methods to leverage new opportunities in the digital medium. Businesses now rely heavily upon consultations, and contactless or socially distanced services, to stay operative during this period. Healthcare – Medical and healthcare companies naturally experienced huge demand during this time. The need for medical professionals, in-house care, and specialists was directly proportionate to the levels of panic and fear caused by the virus. During the window wherein the Indian government adopted its “liberalized policy” for vaccines, private medical companies were able to charge exorbitant rates on the vaccines until this opportunity was recently curbed. E-learning companies – The closure of school and colleges led to a surge in online learning. Industry sources said that close to 130,000 jobs were created in the online education sector.11 Essentially many companies are successfully adapting to the uncertain times and evolving with the consumer trends that have been set by the impact of the pandemic. There is also an increasing demand for niche job skills. Specialized certifications and irreplaceable skills are most desirable to ensure job security. INDIA OVER THE LAST TWO YEARS In 2020 when the first wave of the pandemic hit, a wave of unemployment followed closely in tow. Companies like Uber, Swiggy, TripAdvisor, WeWork India, Zomato and CureFit clearly stated that they were downsizing their workforces significantly12. It is unclear whether a last-in-first-out policy was followed, or whether there was some other basis for this process in each company. With close to 10.9 million jobs being lost across sectors, 2020 was termed the worst-ever year for the job market in India13. The ILO estimates working hours lost in 2020 worldwide were equivalent to 255 million full-time jobs, leading to $3.7 trillion in lost labor income14.

10 Aditi Shrivastava & Alnoor Peermohamed, Swiggy expects food orders to return to pre-pandemic levels by year-end, THE ECONOMIC TIMES (October, 30, 2020) https://economictimes.indiatimes.com/tech/startups/swiggy-expects-food-orders-to-return-to-pre-pandemic-levels-by-year-end/articleshow/78943546.cms?from=mdr 11 M Saraswathy, Covid-19 Job Impact: Which sectors lost the most people and which ones hired the most in 2020?, MONEYCONTROL (January, 12, 2021) https://www.moneycontrol.com/news/business/economy/covid-19-job-impact-which-sectors-lost-the-most-people-and-which-ones-hired-the-most-in-2020-6334431.html 12 Sukanya Roy, 10 well-known companies that laid off staff due to coronavirus, BUSINESS STANDARD NEWS (May, 19,2020) https://www.business-standard.com/podcast/current-affairs/10-well-known-companies-that-laid-off-staff-due-to-coronavirus-120051901344_1.html 13 M Saraswathy, Covid-19 Job Impact: Which sectors lost the most people and which ones hired the most in 2020?, MONEYCONTROL (January, 12, 2021) https://www.moneycontrol.com/news/business/economy/covid-19-job-impact-which-sectors-lost-the-most-people-and-which-ones-hired-the-most-in-2020-6334431.html 14 Felix Richter, How many jobs were in 2020 due to COVID-19?, WORLD ECONOMIC FORUM (February, 4, 2021), https://www.weforum.org/agenda/2021/02/covid-employment-global-job-loss/

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In February 2021, the unemployment rate was recorded by the Centre for Monitoring Indian Economy (CIME) as 6.9 percent, which is a slight improvement on the 7.8 percent that it was last year.15 Experts believe that the unemployment scenario is set to improve in the coming months but this would require some level of consistency and the stabilization of manufacturing and other such companies. This is also obviously dependent on whether or not we witness a third wave in the coming months. “The next two-three months will be crucial and the job market stability will depend on how well we manage the crisis. But the good part is salaried jobs in urban India are not getting impacted like last year as businesses have developed resilience and they had already reduced headcount significantly in 2020" said K.R. Shyam Sundar, a labor economist16. But while some jobs have been restored, India’s employment level is still far from what is was pre-pandemic. Economic recovery is crucial at this moment, but the new strains of the virus coupled with the slow vaccination process in our overpopulated country, present its own challenges. Although millions have returned to work around the world, the ILO does not expect global working hours to return to pre-COVID levels in 2021.17 Ashwini Deshpande, a professor of economics and the founding director of the Centre for Economic Data Analysis at Ashoka University was quoted saying “the economy was already dealing with slow growth and sluggish employment when Covid-19 hit. Lower surplus available for reimbursement and lowering of incomes in all sectors will impact demand adversely”.18 SHUTDOWN OF INDIAN COMPANIES Data from the Ministry of Corporate Affairs revealed that 10,113 companies shut down between the months of April 2020 and February 2021. The following is the list of the number of companies that shutdown state-wise19: Delhi - 2,394 Uttar Pradesh - 1,936 Tamil Nadu - 1,322 Maharashtra - 1,279 Karnataka - 836 Chandigarh - 501 Rajasthan - 479

Telangana - 404 Kerala - 307 Jharkhand - 137 Madhya Pradesh - 111 Bihar - 104 Meghalaya - 88 Odisha - 78

Chhattisgarh - 47 Goa - 36 Puducherry - 31 Gujarat - 17 West Bengal - 4 Andaman & Nicobar - 2 Total - 10,113

15 One year since Cocid-19 lockdown: India still recovering from unemployment blow, THE ECONOMIC TIMES (March 4, 2021) https://economictimes.indiatimes.com/jobs/one-year-since-covid-19-lockdown-india-still-recovering-from-unemployment-blow/articleshow/81664834.cms?from=mdr 16 Prashant K Nanda, 7.35 million Indians lost jobs in April, MINT (May 4, 2021) https://www.livemint.com/industry/human-resource/735-million-indians-lost-jobs-in-april-11620066023257.html 17 Felix Richter, How many jobs were in 2020 due to COVID-19?, WORLD ECONOMIC FORUM (February, 4, 2021), https://www.weforum.org/agenda/2021/02/covid-employment-global-job-loss/ 18 Prathamesh Mulye, Covid-19 may leave thousands of Indians unemployed, perhaps forever, QUARTZ INDIA (May 21,2021) https://qz.com/india/2011017/covid-19-may-leave-thousands-of-indians-unemployed-forever/ 19 Joe C Matthew, 2394 companies shut down in Delhi in Apr 2020 – Feb 2021; 1,936 in UP, 1322 in Tamil Nadu, BUSINESS TODAY (March 9, 2021) https://www.businesstoday.in/latest/economy-politics/story/10113-companies-shut-down-in-india-from-apr-2020-feb-2021-delhi-tops-the-list-290397-2021-03-09

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IMPACT ON SMALL COMPANIES IN INDIA According to a survey more than 82% of small businesses in India have suffered some negative impact caused by COVID-19 and 70% of these companies expect that their recovery timeline will be around one year. Only after this period can they hope to return to pre-pandemic levels of business. 60% of these companies claim they will require some form of assistance from the government to get through this period. This survey collected responses from over 250 small business across sectors and states in the country. Further, the survey showed that while 95% of the small businesses were impacted in April 2020, 40% of them were still facing the brunt of the pandemic even in February 202120. “During our recent survey, small business owners cited three most important support measures they needed to revive their businesses post the pandemic — better credit facility (59%), better marketing support (48%) and adoption of technology (35%),” said Arun Singh, global chief economist, Dun & Bradstreet21. COMPARISON TO OTHER COUNTRIES While India has faced drastic changes in its unemployment rates over the past two years, globally unemployment rates have been similarly impacted. The graph below22 depicts the changes caused by the pandemic in the unemployment levels of other countries between 2019 and 2020.

20 Pandemic has impacted 82% of small businesses: Survey, TIMES OF INDIA (April 22, 2021) https://timesofindia.indiatimes.com/business/india-business/pandemic-has-impacted-82-of-small-businesses-survey/articleshow/82199365.cms 21 Pandemic has impacted 82% of small businesses: Survey, TIMES OF INDIA (April 22, 2021) https://timesofindia.indiatimes.com/business/india-business/pandemic-has-impacted-82-of-small-businesses-survey/articleshow/82199365.cms 22 Laura James, Daniele Palumbo & David Brown, Coronavirus: How the pandemic has changed the world economy, BBC NEWS (January 24, 2021) https://www.bbc.com/news/business-51706225

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Manufacturing companies have definitely taken one of the biggest hits over the past few months due to the dormancy of production or shutting down of supply chains entirely. Factors such as a company’s productive capacity, their levels of global and domestic production and the type of market they function within, all control the degree of the pandemics impact on the company. Therefore, some companies and certain countries are better prepared to respond to crisis’s such as this pandemic. The UNIDO survey of Asian firms surveyed 1,400 manufacturing companies across 9 countries in Asia, namely Indonesia, Bangladesh, Afghanistan, Vietnam, Malaysia, Thailand, Cambodia, Pakistan, and Mongolia. This research was conducted between April and July of 2020 to shed some light on the pandemics socioeconomic impact on developing countries, and the distinctive effect of COVID-19 on companies with relation to governmental policies. 23 Naturally the results show that the impact on different jobs and companies varies considerably across countries and firms. Over half the firms across these countries predicted significant dips in profit and mass lay-offs. The most pessimistic of these countries seemed to be Mongolia, Indonesia, Bangladesh and Afghanistan, while Vietnam, Malaysia and Thailand seem to be more optimistic overall. 24 The survey also shows that the short term economic impact of the virus in all these countries seems to generally mirror the severity of the respective government’s containment policies. Essentially, countries which announced stricter containment courses of action, witnessed larger declines in industrial activity. Even the number of companies that anticipated mass job cuts rose with the level of stringency of the countries containment methods, as captured by the Oxford University Stringency Index. Another trend identified by this study was that the countries which anticipate the pandemic will have a lower impact on their employment, are the same ones wherein the government has implemented a wider set of support and aid procedures than the others. Government policies seem to play a very important role in deciding the level of impact the pandemic will have on a country.25 It is apparent from this study that manufacturing and other companies will require the widest possible range of aid and support form their governments if they are to sustain through this storm. Governments across the world have already begun to execute exchange rate adjustments, balance of payment methods and various fiscal and monetary policies.

23 Nicola Cantore, Frank Hartwich, Andrea Laplane, Jenny Larsen and ors. Coronavrus: the economic impact UNITED NATIONS INDUSTRIAL DEVELOPMET ORGANISATION (October 21, 2020) https://www.unido.org/stories/coronavirus-economic-impact-21-october-2020 24 Nicola Cantore, Frank Hartwich, Andrea Laplane, Jenny Larsen and ors. Coronavrus: the economic impact UNITED NATIONS INDUSTRIAL DEVELOPMET ORGANISATION (October 21, 2020) https://www.unido.org/stories/coronavirus-economic-impact-21-october-2020 25 Nicola Cantore, Frank Hartwich, Andrea Laplane, Jenny Larsen and ors. Coronavrus: the economic impact UNITED NATIONS INDUSTRIAL DEVELOPMET ORGANISATION (October 21, 2020) https://www.unido.org/stories/coronavirus-economic-impact-21-october-2020

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CONCLUSION In conclusion the effect of the pandemic on companies has varied based on the company’s size, the country, the sector of industry, the governments containment methods and aid, and most importantly the ability of the company itself to adapt to the situation. Although unemployment rates shot up drastically in our country, it is important to note that many other countries faced similar issues. The important thing now is the way forward and moving towards recovery – hopefully with the support of our government. For the companies that are still enduring, it is important to note that they need not provide an “essential” service to stay afloat, they just need to improve their accessibility by adapting to the times.

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PANDEMIC MANAGEMENT : ACCESS TO JUSTICE THROUGH TRANSPORTATION

Jaza Zehra1 and Simi Zackariah2

INTRODUCTION Since the declaration of COVID-19 from the World Health Organisation (WHO) as a pandemic, the world has witnessed an unprecedented challenge. COVID-19 pandemic is a global public health challenge and Public Health emergencies affect both the physical as well as the mental state of the public. Some groups are more vulnerable than others to the psychosocial effects of pandemics and this sheds light on the significance of protection of health. To control the spread, various strategies were considered across the States, lockdown in different phases was imposed at different times, and the restrictions imposed varied in severity from one government to another. However, the impact coronavirus had on the society, medically, politically, economically, is both inevitable and tragic. Global Response The World Health Organization (WHO), on 30th January, designated the COVID-19 outbreak a ‘public health emergency of international concern’ (PHEIC). On 11th March, WHO declared COVID-19 a ‘pandemic’ when there were more than 118,000 confirmed cases and 4,291 deaths in 114 countries.3 Different Countries undertook different measures to handle the pandemic. Several Countries declared national emergency over COVID-19. In the initial stage, complete lockdown of countries resulted in slowing down the spread of the virus but worsening the states economically. In order for the measure to be executed successfully, there must be a transparent policymaking, and a well-coordinated and accountable government whose actions can build and maintain trust between citizens and government. Emergency public health calls for measures that adversely affect the freedom of assembly, association, transportation, or public participation. During the initial stage, United States faced medical emergency as there was shortage in medical supplies which aggravated the situation.4 During the pandemic, besides medical emergencies, US had to tackle issues and implement measures on assembly,5 and its protection and policing to ensure the situation follows COVID-19 protocols,6 unemployment.7

1 III BA LLB (A), [email protected] 2 II LLB 3 WHO Director-General's opening remarks at the media briefing on Covid-19, World Health Organization (2020), https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (last visited June 26, 2021). 4 William Wan, Ariana Eunjung Cha, Lena H. Sun, This is the coronavirus math that has experts so worried: Running out of ventilators, hospital beds, THE WASHINGTON POST (Mar 13, 2020, 08:26 PM), https://www.washingtonpost.com/health/2020/03/13/coronavirus-numbers-we-really-should-be-worried-about/. 5 Kevin Landrigan, Judge upholds governor's power to ban large gatherings, NEW HAMPSHIRE UNION LEADER (Mar 20, 2020, 10:00 AM), https://www.unionleader.com/news/health/coronavirus/judge-upholds-governor-s-power-to-ban-large-gatherings/articlef0e8bac3-fd0c-572c-b9de-87e909dbb1ac.html. 6 Putting people at risk: NYC mayor, police commissioner ban protests during pandemic, FOX 6 NOW (May 4, 2020, 10:00 AM), https://www.fox6now.com/news/putting-people-at-risk-nyc-mayor-police-commissioner-ban-protests-during-pandemic. 7 Heather Long, Andrew Van Dam, U.S. unemployment rate soars to 14.7 percent, the worst since the Depression era, THE WASHINGTON POST (May 9, 2020, 02:35 AM), https://www.washingtonpost.com/business/2020/05/08/april-2020-jobs-report/.

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In the United Kingdom, to curb the spread of the virus, the government exercised powers under the Coronavirus Act, 20208 and imposed a stay-at-home order9 which banned all non-essential travel and contact with other people, shut all schools, businesses, gathering places, detain individuals deemed “potentially infectious” and put them in isolation facilities. Government of various countries had to curb the rights of citizens and prioritize the health of the citizens. Indian Response India being a low-and-middle-income-country (LMIC) faced numerous challenges as the pandemic broke out initially in early 2020. The LMIC, where 85% of World’s population resides need(s) a context relevant approach since they are volatile, uncertain and resource constrained. In the absence of a specific treatment or vaccine for a global crisis like the COVID-19 pandemic, combative interventions are time-sensitive and the onset of the same presented India with complex challenges, the two main ones being economic and public health. The interaction between these two crises lead to unpredictability and uncertainty which made designing a policy response an even more difficult task for the authorities. The Indian response to the pandemic began with issuance of travel advisories, subsequent restrictions and implemented graded international border controls between January and March 2020. There was a spike in positive cases for the virus by early March and the States scaled up the movement restrictions. On 25th March, India entered a complete nationwide lockdown to ramp up the preparedness. Methods such as social distancing, personal protection, aggressive contact tracing and isolation, and mass movement restriction seem untenable in LMIC contexts given the socio- economic disparities and living conditions. Healthcare resources are scarce and surge capacity weak. Vulnerabilities (predominance of unstructured employment, limited employment security and health protection, inadequate health awareness and care access) remain high and unaddressed.10 MANAGEMENT OF COVID-19 IN A QUASI-FEDERAL STATE When it comes to managing a pandemic in a quasi-federal State, where democracy and federalism are a part of the basic structure of the Constitution,11 a lot of legal and ethical issues get inevitably entwined. India, being a quasi-federal state, upholds the principle of Collaborative Federalism and it has been held to be the basic structure of the Constitution. The chief mark of federalism lies in the partition and executive authority between the Centre and the Units by the Constitution.12 India declared COVID-19 as a notified disaster, subsequent to which Centre allocated funds to fight the pandemic in the country. Varying from lockdowns, international and domestic travel ban, curfews, to PM Cares Funds, the quasi-federal democratic State managed the pandemic, however, the management resulted in violation of human and fundamental rights of the citizens.

8 Coronavirus Act, (2020). 9 Prime Minister's statement on coronavirus (COVID-19), Prime Minister's Office (2020), https://www.gov.uk/government/speeches/prime-ministers-statement-on-coronavirus-covid-19-31-october-2020 (last visited June 26, 2021). 10 GRID COVID-19 Study Group. Combating the COVID-19 pandemic in a resource-constrained setting: insights from initial response in India. BMJ GLOBAL HEALTH (2020), https://gh.bmj.com/content/bmjgh/5/11/e003416.full.pdf. 11 S R Bommai v. Union of India, 1994 AIR 1918. 12 Kuldip Nayar v. Union of India & Ors., Writ Petition (CIVIL) 217 of 2004.

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To contain the spread of infection caused by COVID-19, the Government of India invoked two enactment that dominate the legal framework on Public Health Emergency (PHE), the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 which confer power on the government to take measures to contain the virus on the account of an outbreak of any dangerous epidemic disease13 and to implement national plan which issue regulations to quarantine people coming from other countries as well as people having symptoms of COVID-19.14 To control the spread of COVID-19, the Ministry of Health and Family Welfare (MoHFW) issued travel advisory restrictions.15 In a quasi-federal welfare State, providing adequate medical facilities for people to protect their right to life is an essential part of the obligations undertaken by the Government. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is, thus, of paramount importance.16 TRANSPORTATION The global outbreak of COVID-19 and the subsequent policies of social distancing and the nationwide lockdown have changed the whole scenario of the world’s public transportation system. It has affected the transportation sector in multiple ways. The virus’ outbreak has instantly affected the traveling behaviour of the people, which has ultimately resulted in complete stagnation of the transport sector worldwide. As most economic activities are directly or indirectly associated with the transportation system, transport-related activities are also severely affected. The transportation system, especially public transportation, is considered the vein of the economy because all the other economic sectors are directly or indirectly associated with it. It provides mobility and access to essential and recreational opportunities. India boasts of having the largest and most diverse transport sectors in the world, which caters to the needs of nearly 1.3 billion people.17 Public Transportation The adverse impact of COVID-19 can be seen on the public transport sector. The Union and the State governments have the obligation to protect the basic rights of the citizens as well as to take steps to protect workers and passengers and contain the spread of the virus. Indian judiciary has upheld the significance of public transportation for the public during a health crisis to ensure their safe commute back home.18 Access to justice is a human right.19 As the economy grows, inclusion and opportunity become the primary objective to ensure equity, equality, and justice. Transport, more specifically public transport, is one requirement that enables inclusion and opportunity. Inadequate, inaccessible, or unaffordable public transport creates barriers to employment. The idea of mobility as a

13 Epidemic Diseases Act, (1897). 14 Arya Anand, Power of Quarantine and Related Laws in India, LEGAL BITES (last visited 20 June 2021), https://www.legalbites.in/quarantine-related-laws-india/. 15 Ministry of Health & Family Welfare, Consolidated Travel Advisory for Novel Coronavirus Disease (COVID-19) (notified on March 11, 2020). 16 Paschim Banga Khet Mazdoor Samity and Ors v. State of West Bengal and Ors., AIR 1996 SC 2426. 17 Biswajit Paul, Subir Sarkar, The Contagion Effects of COVID-19 and Public Transportation System: Conceptualizing the Shifting Paradigm in India, NATURE PUBLIC HEALTH EMERGENCY COLLECTION, 231–255 (2020). 18 S. Thilakraj v. Union of India, W.P. No.7702 of 2020. 19 Dwarka Prasad Agarwal (D) by Lrs. and Anr. v. B.D. Agarwal and Ors. AIR 2003 SC 2686; Bhagubhai Dhanabhai Khalasi and Anr. v. The State of Gujarat and Ors., 2007 4 SCC 241.

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human right is seen as the right to freedom of movement.20 Everyone has the right of equal access to public service in their country21 and right to public transportation and urban mobility.22 There is an obligation on States to take appropriate measures to ensure persons with disabilities, access, on an equal basis, to transportation.23 Citizens have the right to move freely throughout the territory of India and to reside and settle in any part of the territory24 and there shall be no discrimination25 on the services provided to the citizens, and the State has to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.26 The duty to secure proportionality while exercising their powers conferred under sections 2, 3 and 4 of the Epidemic Act, 1897 falls on the State so as to not infringe the fundamental rights of citizens during a Public Health Emergency. The test of proportionality was upheld by Court27 where it was held that proportionality of a measure must be ensured while imposing restrictions by the State on the fundamental rights of citizens. Court pointed that the State must take immediate steps to make all possible arrangements to enable migrant workers’ transport back to their respective States.28 The Union of India may also issue mandatory instructions to Ministry of Railways to take measures to cater the need of migrant labourers. 29 Migrant Workers Public Transportation plays a vital role in the transportation of migrants as they tend to move often in search of employment. Complete restrictions on passenger travel have an immediate adverse effect on migrant workers, particularly for the marginalized sections of the society and depend on daily wages for living. Soon after the announcement of national lockdown,30 there was an unprecedented migrant worker crisis which unfurled in India and caused chaos among migrant workers. The plight of migrant workers was misgoverned as the government, on 24th of March 2020, conveyed to the parliament that it was not feasible to keep data of migrant labour workforce as they tend to move often in search of employment.31 The judiciary, in several cases,32 has recognized the contribution of migrant workers towards the development

20 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) Art. 13; UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, Art. 12. 21 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 21(2). 22 Right to the City under Article XIII of the World Charter. 23 Art. 9, UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106. 24 INDIA CONST. art. 19(1)(d) 25 INDIA CONST. art. 14 26 INDIA CONST. art. 39 (b) & (c) 27 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. 28 Mohammed Arif Jameel v. UOI, 2020 SCC OnLine Kar 539. 29 Re: Problems and Miseries of Migrant Labourers (2020) SCC OnLine SC 613. 30 Nistula Hebbar, PM Modi announces 21-day lockdown as COVID-19 toll touches 12, THE HINDU (MAR 24, 2020), https://www.thehindu.com/news/national/pm-announces-21-day-lockdown-as-covid-19-toll-touches-10/article31156691.ece 31 Ministry Of Labour and Employment, Unstarred Question No. 4621 (2020), http://164.100.24.220/loksabhaquestions/annex/173/AU4621.pdf 32 R/WRIT PETITION (PIL) NO. 42 of 2020, https://www.livelaw.in/pdf_upload/pdf_upload-375253.pdf

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of the country and has mandated both the Centre and the State governments to provide for transportation of migrant workers to ensure their safe travel back home.33 It is pertinent to emphasise that to assess the damage and work on rehabilitation, reliable data are critical to developing an effective migrant worker policy. Approximately 10.55 million migrant workers were reported to be living in 22,567 shelters set up in various regions of India.34 The exodus of 11.4 million migrant workers resulted in a tragic demise of at least 971 non-COVID deaths, including 96 workers who died on trains.35 The condition of the migrant workers in 2021 stands the same with the current State-wise lockdowns which are tougher for them compared to last year’s all-India lockdown. With orders from Supreme Court and High Courts to ensure safe transportation of migrant workers, they are still left on their own during a public health emergency.36 Tourism Tourism industry has been one of the largest contributors to India's GDP in recent years increasing from a share of 6.70% in 2017 to 9.20% in 2018.37 The novel coronavirus, which is one of its kind of humanitarian disasters, has affected people and businesses worldwide, triggering a global economic crisis. Tourism and hospitality businesses are profoundly affected by COVID-19. Due to the COVID-19 pandemic, the travel and tourism industry's employment loss is predicted to be 100.08 million worldwide.38 As the number of infected cases were rising throughout the nation, and with the implementation of certain measures and campaigns like social distancing, community lockdowns, work from home, stay at home, self- or mandatory-quarantine, curbs on crowding, etc., pressure had been created for halting the tourism industry/business. This change in the current system led to the beginning of the recession and depression, seeking a transformational change in society. It has been reported that tourism growth has outperformed the world GDP growth record from the past consecutively from the year 2011–2017. India is one of the developing nations known for its uniqueness in its tradition, culture and unparalleled hospitality. It is a major destination for many international tourists, creating several employment opportunities and generating enormous taxes. The Indian tourism industry can be divided into three major segments, such as (i) international inbound tourism; (ii)

33 WP 6435/2020, https://www.livelaw.in/pdf_upload/pdf_upload-375470.pdf 34 Rawal S., Jaiswal P., Kumar A. Coronavirus Lockdown: Millions in Migrant Camps Battle Despair about Uncertain Future, HINDUSTAN TIMES (Apr 09, 2020, 03:05 AM), https://www.hindustantimes.com/india-news/millions-in-migrant-camps-battle-despair-about-uncertain-future/story-05uM0Q1zEQQHWVE8x4OssN.html 35 Ministry Of Labour and Employment, Unstarred Question No. 1056 (2021), http://164.100.24.220/loksabhaquestions/annex/175/AU1056.pdf; Stranded Workers Action Network, No Country for Workers (2021), http://strandedworkers.in/mdocuments-library/ 36 Many migrant workers are stranded even without a nationwide lockdown – and it is not making news, MIGRANT WORKERS SOLIDARITY NETWORK (Apr 23, 2021), https://mwsn.in/media-coverage/single/djM4MGNoZmVsUVlpdDBwbHBjNTB2QT09. 37 Impact Of Covid-19 On Tourism Industry And Relief Measures, Mondaq (Oct 01, 2020), https://www.mondaq.com/india/tax-authorities/988010/impact-of-covid-19-on-tourism-industry-and-relief-measures. 38 Sanjita Jaipuria, The impact of COVID-19 on tourism sector in India, 46, Tourism Recreation Research, 245-260 (2020).

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domestic tourism; and (iii) outbound tourism. The Indian tourism industry has created about 87.5 million jobs, with 12.75% of total employment, thereby contributing INR 194 billion to India’s GDP. Moreover, the sector recorded a 3.2% growth from 2018, with 10.8 million foreign tourists arriving in India with a foreign exchange earning of USD 29.9 billion in 2019. In this regard, India ranked 8th with respect to total direct travel and contribution towards tourism of about USD 108 billion. Also, there is a 66.4% decline in overseas tourists’ arrivals in India in March 2020 compared to last year. It has been estimated that there will be about 40 million direct and indirect job losses in India, with an annual loss in revenue of around USD 17 billion in India. MONTH-WISE FOREIGNER ARRIVAL DURING APRIL 2020 TO DECEMBER 2020 VIS-À-VIS APRIL 2019 TO DECEMBER 2019.39

MONTH ARRIVAL MONTH ARRIVAL

APR 2019 774651 APR 2020 470

MAY 2019 615136 MAY 2020 1329

JUNE 2019 726446 JUNE 2020 4480

JULY 2019 818125 JULY 2020 6503

AUG 2019 800837 AUG 2020 11619

SEPT 2019 751513 SEPT 2020 18469

OCT 2019 945017 OCT 2020 30917

NOV 2019 1092440 NOV 2020 60156

DEC 2019 1226398 DEC 2020 79910

Women COVID-19 has posed threat to human lives, however, when looked at through an intersectional lens, the spectrum clearly shows the variety of threat it poses on different sectors. In order to provide equitable relief, the gender differences in the transportation sector must be acknowledged while providing relief measures. 50 percent of sexual harassment cases against women, during pre-covid times, occurred in cities while being the users of public transport and 16 percent while waiting for public transport.40 Gender-based violence, fear of contracting the deadly virus, and differences arising from the contextualisation of traditional toles for women stand as few of the grounds for women for opting for specific travel characteristics while using public transport system.

39 MONTH-WISE FOREIGNER ARRIVAL DURING APRIL 2020 TO DECEMBER 2020 VIS-À-VIS APRIL 2019 TO DECEMBER 2019, https://tourism.gov.in/sites/default/files/2021-02/usq%20940%20for%2008022021.pdf 40 Women And Mobility, pg. 17, THE ASIA FOUNDATION in partnership with SAFETIPIN AND THE CENTRE FOR SOCIAL RESEARCH (CSR), https://safetipin.com/report/women-and-mobility-report-english/.

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It is imperative to assess the consequences of the pandemic on Public Transport female workforce to provide appropriate measures. To understand the transportation sector, a two-fold analysis is required:

i. Employees of Public Transportation System ii. Users of Public Transportation System

Women are significantly under-reported in the transportation sector because of which they face precarious and vulnerable employment situations during the pandemic. Access to safe public transportation is a right of every citizen in India. Limited access to it reduces female labour force participation rate in developing countries.41 In order to provide safe transportation during a pandemic, India will need about 666,667 buses for its 25 million daily commuters, however, it currently has around 25,000 in operation.42 In India, more than 60% of both rural and urban households use bus as their primary mode of transport. Women primarily depend on public transportation for their travel needs, and a poor public transit system can have a direct and disproportionately higher negative impact on women.43 Expatriates During the COVID-19 pandemic, expatriates found themselves living through unprecedented challenges across geographies. When the global lockdown was executed, many expatriates were caught between transit. Two sets of expatriates were severely affected, one being the set where they wanted to return home to families during the pandemic,44 and second being the set where they were laid-off and forced to return home.45 Ban of Airlines to India to contain the spread of the virus affected a lot of expatriates by way of having to take a longer route than usual to return.46 India took the initiative of bringing back its people stranded across the globe by the massive repatriation operation, Vande Bharat Mission. For this purpose, commercial aircraft and naval ships based on lists prepared by the India’s embassies are available for citizens to reach out.47

41 Kühn S, Horne R, Yoon S. World Employment and Social Outlook: Trends for Women 2017, Geneva: ILO (2017). 42 Navdeep Yadav, India needs over 600,000 buses for 25 million commuters daily to follow social distancing norms, according to a study, BUSINESS INSIDER (June 17, 2020), https://www.businessinsider. in/india/news/india-needs-over-600000-buses-for-25-million-commuters-daily-to-follow-social-distancingnorms-in-times-of-coronavirus/articleshow/76417090.cms. 43 Ministry of Statistics and Programme Implementation, http://mospi.nic.in/NSSOa; Buses most preferred mode of transport in India: Survey, THE ECONOMIC TIMES (June 29, 2016, 05:43 PM), https://economictimes.indiatimes.com/industry/transportation/buses-most-preferred-mode-of-transport-in-india-survey/articleshow/52973799.cms?from=mdr 44 Aneesh Phadnis, US citizens, expats rushing home amid second Covid-19 wave in India, BUSINESS STANDARD (April 30, 2021, 01:03 PM), https://www.business-standard.com/article/current-affairs/us-citizens-expats-rushing-home-amid-second-covid-19-wave-in-india-121043000038_1.html 45 Covid-19 impact: 8.7 lakh expats return to Kerala; half of them due to job loss, LIVE MINT (Jan 07, 2021, 08:48 PM), https://www.livemint.com/news/india/covid19-impact-8-7-lakh-expats-return-to-kerala-half-of-them-due-to-job-loss-11610031693569.html 46 Yasmena Al Mulla, COVID-19: Expats in transit lose hope of returning to Kuwait as travel ban continues, GULF NEWS (Mar 10, 2021, 04:49 PM), https://gulfnews.com/world/gulf/kuwait/covid-19-expats-in-transit-lose-hope-of-returning-to-kuwait-as-travel-ban-continues-1.77736931. 47 India's massive repatriation operation to bring back stranded Indians from different parts of the world in the wake of the coronavirus crisis, THE HINDU (May 10, 2020, 11:24 AM),

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Amidst the pandemic, with almost 1,000 pilots in the Indian Commercial Pilots Association (ICPA), it is relevant to shed light on the plight of airline crew where they are to continue working without being vaccinated.48 However, monitoring the situation, Directorate General of Civil Aviation (DGCA) issued guidelines to ensure vaccination of the airline crew to protect their right to life guaranteed by the Constitution.49 CONCLUSION COVID-19 has proved to all countries that there is no one-size-fits-all approach to managing the crisis in hand. This has indeed increased the level of preparedness, alert, and response to implement strong national plans. Each country has worked to assess its risk and rapidly implement the necessary measures to reduce both COVID-19 transmission and economic, public, and social impacts. While dealing with Public Health Emergency, best measures, while useful, may be inappropriate, especially if not complemented by effective and equitable socio-economic measures. To ensure there is a balance between arbitrary measures and measures implemented for public safety, public understanding, support, and cooperation are critical for successful implementation of containment strategies.

https://www.thehindu.com/news/national/vande-bharat-mission-indias-repatriation-operation-to-bring-back-stranded-indians/article31548550.ece. 48 COVID-19: Air India pilots threaten to stop work if airline fails to vaccinate flying crew, THE ECONOMIC TIMES (May 04, 2021, 03:14 PM), https://economictimes.indiatimes.com/industry/transportation/airlines-/-aviation/covid-19-air-india-pilots-threaten-to-stop-work-if-airline-fails-to-vaccinate-flying-crew/articleshow/82386165.cms?from=mdr. 49 Directorate General of Civil Aviation, File No. AV/22025/25A/DMS/MED (Mar 09, 2021), https://www.dgca.gov.in/digigov-portal/Upload?flag=iframeAttachView&attachId=150319488.

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COVID-19: EMERGENCE OF INDIA’S GIG ECONOMY

George Thomas Thevaril and Michael Thomas Thevaril1 INTRODUCTION The word ‘Gig’ has been around for decades. Since, the onset of the COVID-19 pandemic the term seems to have gained popularity not just in India but across the globe. With respect to the current scenario, a 'gig economy' involves a temporary contractual job or short-term contract or freelance work that a person may take, on a project-to-project basis, for which the payment is made once the task is completed. In a gig economy every individual task is referred to as a 'gig'. The Merriam Webster Dictionary defines a 'gig economy' as an “economic activity that involves the use of temporary or freelance workers to perform jobs typically in the service sector”. A gig economy encompasses all platforms such as rider hailing apps, food delivery apps, grocery service apps, etc., that hire independent contractors, in different industries, for different purposes including but not limited to information technology, content creation, social media, art and design, marketing and communications, food and beverages, etc. The impact of COVID – 19 has drastically transformed the corporate and public work culture globally. Due to this gigantic transition, the Indian economy has been left with no option but to find alternative ways and means in order to keep the wheels of the economy running. Companies2 have had to re-think their business strategies, thereby creating policies that create gig jobs and basically ‘think out of the box’, in order to ensure that their businesses continue to stay afloat during such unpredictable times. There are many reasons as to why modern-day companies would prefer a gig economy. In the long run it proves to be very advantageous for companies in good times and bad times. Given how cost-efficient the entire concept is, companies can cut down costs drastically in terms of training requirements for their temporary workforce as compared to its permanent workforce which would need extensive training. Additionally, compliance and administrative costs can further be reduced as companies would only have to incur costs with respect to specific customer requirements/business purposes. There are also many companies and start-ups that cannot afford to recruit skilled professionals as full-time employees. In such cases, companies may opt to enter into contracts that give them the freedom to hire professionals for a specific time period. This relationship is symbiotic as it allows both parties to look for options that cater to their specific requirements. Meanwhile, both parties take full advantage of this opportunity to spend their energy in building and forging professional connections with their respective demographics. According to a website, India3 is home to about 40% of the freelance jobs offered worldwide, with 15 million skilled professionals fuelling the ever-so-increasing demand of the freelance industry. Interestingly, it is only second in line to the US which has 35 million workers. Freelancers are attracted to the gig economy because they can follow their specialisations, with a lot of flexibility and independence.

1 II BA.LLB ‘A’, [email protected] 2 Arnav Das Sharma, The gig economy and India’s changing workforce, Fortune India (Jun. 30, 2021), https://www.fortuneindia.com/macro/the-gig-economy-and-indias-changing-workforce/105359 3 Business Bureau, ‘India constitutes about 40% freelance jobs’, The Hitavada (Jun. 30, 2021) https://www.thehitavada.com/Encyc/2020/3/7/-India-constitutes-about-40-of-freelance-jobs-.html

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https://www.fortuneindia.com/macro/the-gig-economy-and-indias-changing-workforce/105359

https://www.thehitavada.com/Encyc/2020/3/7/-India-constitutes-about-40-of-freelance-jobs-.html


In the process of adapting to the gig economy model it is imperative that companies also hire the right kind of human resource for the specific job requirement. According to John Blueborn, a senior economist associated with the International Monetary Fund, youth inactivity in India stands at an alarming 30%. This is the highest amongst developing countries. the digital sources played a vital role and in this endeavour several websites provided a platform for employers to find the right human resource for their work. The pandemic has seen several freelancers offer a plethora of skills for prospective hirers to choose from. As per Fig.1 The Online labour Index4, which was published under the iLabour project of Oxford University, illustrated the online gig economy equivalent of conventional labour standards by analysing availability of online labour across different countries in various fields. The results showed that the IT and Software industry were the prime targets in terms of a gig economy in India.

Fig. 1

This was further established when PayPal surveyed and published gig economy insights about India and found that gig economies dominated the information technology domain, with 50% percent of the freelance workforce engaged in this sector. After a lot of studies and research conducted, the Government of India as well as most State Governments have realised the huge potential of tapping into the gig economy. As indicated in Fig. 2, an ASSCHOM5 report, the gig Indian economy is all set to increase to an estimate $455 billion at 17% CAGR by 2024, thereby projecting the future of the Indian

4 The iLabour Project, https://ilabour.oii.ox.ac.uk/online-labour-index/, (last visited Jun. 30, 2021) 5 India Brand Equity Ambassador, https://www.ibef.org/blogs/emergence-of-india-s-gig-economy (last visited Jun. 30, 2021)

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https://ilabour.oii.ox.ac.uk/online-labour-index/

https://www.ibef.org/blogs/emergence-of-india-s-gig-economy


economy positively. By the end of 2025, India is slated to have 350 million gig jobs, presenting a huge arena for job seekers to capitalise into presenting a huge arena for job seekers to capitalise into.

Fig. 2 ‘GIGGLING’ IN COVID-19: AN UPHILL TASK To be a part of the gig workforce is contemporary and well-received in today’s India. Despite, this acceptance factor, the pandemic has proved to be a thorn in the flesh for the gig workers’ brigade. Some of these challenges are as follows: MONEY CRUNCH RESULTING IN LOSS OF INCOME DURING COVID-19 The Coronavirus pandemic has had a devastating impact on the Gig workforce in India. In Fig. 3, according to the Centre for Monitoring Indian Economy (CMIE), the rate6 of unemployment rose to 23.52 per cent in April 2020, and it further increased from 6.52 per cent in January 2021 to 11.9 per cent in May 2021 during the second wave of the pandemic. The largest impact has

6 Centre for Monitoring Indian Economy, https://unemploymentinindia.cmie.com/ (last visited Jun. 3oth 2021)

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https://unemploymentinindia.cmie.com/


been on informal sector which saw a 22.6 % reduction in wages as opposed to a 3.6% for formal

workers. In the month of September 2020, a survey conducted by Flourish Ventures stated that 90% of the Gig workers in India had lost their income during the COVID 19 Pandemic.

Fig. 3 With no income to fall on, many of them have borrowed loans and have also used their saving in order to sustain themselves during this pandemic. As the pandemic has ravaged India’s gig workforce, many of these workers are uncertain about what lies ahead of them. At least 87% of the gig7 workers in India have been earning less than ₹15,000 ( Fig. 4) a month since the onset of the coronavirus pandemic.

7 Flourish Ventures, The Digital Hustle, https://flourishventures.com/wp-content/uploads/2020/10/FlourishVentures-GigWorkerStudy-India-FINAL-2020-09-29.pdf (last visited Jun. 30, 2021)

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https://flourishventures.com/wp-content/uploads/2020/10/FlourishVentures-GigWorkerStudy-India-FINAL-2020-09-29.pdf

https://flourishventures.com/wp-content/uploads/2020/10/FlourishVentures-GigWorkerStudy-India-FINAL-2020-09-29.pdf


To cope with the on-going pandemic many of these gig workers have made a lot of sacrifices in order to ensure that their livelihoods are not disrupted. Most of them are also sole breadwinners in their families, that also leaves them in a state of despair, which in turn results in mental and financial problems. Income is considered to be a major driving force for these gig workers, so, at this point in time, their lives seem to be extremely fragile and stagnant.

Fig. 4 LACK OF SOCIAL SECURITY BENEFITS & PROPER WORKING CONDITIONS The lack of a social security net for the gig workforce in India has always been an insidious problem. With no social security net, many gig workers are on the verge of slipping into: abject poverty, economic insecurity, and social inequality. This includes gig economy workers. With the onslaught of the second wave of the coronavirus pandemic in India, the gig workforce have no social security benefits to protect themselves from this deadly pandemic. The gig workforce is bereft of social security benefits like: paid sick leave, health insurance, retirement benefits, pension, etc. At least 1.5 million gig workers in India work for ride hailing companies like Ola and Uber. Most of them are young and companies take advantage of that. These workers are overworked and underpaid for the tasks that they perform. In fact, as per the Fair Work India

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Ratings 20208, ride hailing companies like Zomato, Uber, and Swiggy (Fig. 5) were given 1 out of 10 for labour standards while other companies like Amazon, Ola, and Big Basket received a 2 out of 10 rating for the same. According to Mr P C Mohanan, former Head of the National Statistical Commission, gig workers in India are prone to a rotating attrition. With the absence of these proper labour standards, this report clearly highlights that parameters such as low wages, poor working conditions, and a lack of social security net along with the COVID 19 pandemic has worsened the existing position of the gig workers in India.

Fig. 5

8 Fairwork, https://fair.work/wp-content/uploads/sites/131/2020/12/Fairwork_India_2020_report.pdf last visited Jun. 30, 2021)

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https://fair.work/wp-content/uploads/sites/131/2020/12/Fairwork_India_2020_report.pdf


WOMEN AND MARGINALISATION India’s gig economy seems to be looking up. Despite this, little attention has been paid to the hurdles faced by women in pursuing gig work. The new Code does call for benefits to women service providers, but the fact remains that gig work has witnessed similar gendered division, as has been evident in traditional work, and has not led to a direct increase in Female Labour Force Participation (FLPR) in India.

Fig. 6 One of the primary causes for very high attrition rate, where the women workforce is concerned is because of the burden of simultaneously carrying out unpaid work at home and paid work in their professions, especially after starting families. There is no doubt that the flexibility offered by gig platforms allows workers to better manage unpaid care and paid work, by letting workers determine their work hours and reducing their dependence on a static physical space. However, the assumption that as the gig economy gained more ground, more women would come into the ambit of the workforce in India is sadly not happening. Statistically little improvement has been seen. As per the Fig.6 depicted above which is the State of Working India 20219 published by the Centre for Sustainable Employment, Azim Premji University, it is very obvious that it is the women workforce that bears the biggest brunt of the pandemic. RESPONSES Despite all the drawbacks and misgivings being faced by gig workers, and combined with the fact that the pandemic just keeps making its presence felt with wave after wave, companies

9 Azim Premji University, https://cse.azimpremjiuniversity.edu.in/state-of-working-india/swi-2021/ (last visited Jun. 30, 2021)

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https://cse.azimpremjiuniversity.edu.in/state-of-working-india/swi-2021/


today have been compelled to chart out and put in place a plan that will ensure a more secure workplace for these workers. ON THE GOVERNMENT FRONT The Code on Social Security, 202010, will for the first time mandate companies employing gig or on demand workers, to allocate 1-2% of their annual turnover or 5% of the wages paid to gig workers, whichever is lower, to a social security fund for gig workers. The main aim of this is to ensure uniformity while providing social security benefits to the employees. Earlier this was segregated under different acts and had different applicability and coverage. (Fig. 7)

Fig. 7

10 The Code on Social Security, 2020, No. 36, Acts of Parliament, 2020 (India)

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The Code is a step in the right direction as it also aims to provide social security to a wider group of employees. The Code has recognized and covered workers working in the unorganized sector too. Over the past 1 year new concepts such as gig workers, platform workers, fixed term employee, etc., have been coined which were previously not recognized under any labour legislation. The Government has also published draft rules framed under the Code. This Code encompasses several issues previously faced by the gig workers and it confers power upon the Central Government to frame welfare schemes for the workers in the unorganized sector on the matters related to: Life and disability cover, Accidental insurance, Health and maternity benefit, Old age protection, Creche, etc. BY THE PRIVATE SECTOR The private sector companies have come out with solutions to solve the nemesis faced by the gig workers during the COVID 19 Pandemic. Ride hailing11 companies like Ola and Uber have issued certain safety guidelines for both its customers and drivers. Ola has trained its drivers to maintain personal hygiene in the cab by using hand sanitisers and masks. Further, they have also come out with a 24/7 Ola Helpline wherein drivers can reach out to the company in case they notice any Covid related symptoms in customers. They have also instructed their drivers to quarantine in case they contract the virus or develop any Covid related symptom. Uber has also issued similar safety guidelines for its drivers and customers as well. Drivers would also receive financial aid for the same. Additionally, Uber has stated that it would temporarily suspend the rider or the drivers account in case they contract the virus. Both Uber and Ola have also tied up with Tele medicine providers like Mfine and DocsApp to ensure the safety and well-being of their drivers and families. Under this partnership, drivers working for Ola can avail free medical consultations. In the interests of its drivers and their spouses, Ola and Uber have issued a floater sum of ₹30,000 under which they will be paid ₹1000 per day for a maximum of 21 days from the day they test positive. This will also cover all their medical expenses as well. The company in partnership with DocsApp will provide free medical consultations, subsidised prescription medicines and lab tests to its drivers. Likewise, delivery companies like Zomato and Swiggy have also come out with initiatives like the Zomato Rider Relief Fund, Swiggy Hunger Saviour Covid Relief Fund and a Covid 19 Insurance Policy which will ensure the security of their drivers as well as their families. THE WAY FORWARD These major initiatives will go a long to ease the pressures on these gig workers and it will provide better work opportunities to students and youngsters. It would promote them to take up non-regular jobs in the market and thus supplement the income at home. It will also give the employer some relief. It would be a lesser burden over the employer to not engage in traditional long term employment commitments with the employees. These new concepts would help in encouraging and generating several small jobs which will be then be mandatorily regulated by the labour codes and it will also provide social security to the employees. How these sectors are practically regulated, and the various schemes the Government comes up with to provide benefits to the employees working in the gig and platform-based economy before making any concrete statements will also become apparent.

11 The Economic Times, “Taking a CAB? Uber, Ola issue safety guidelines to tackle coronavirus”, (last visited Jun. 30, 2021)

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CONCLUSION Humanity today is being challenged by a seemingly invincible and incomprehensible enemy, the COVID-19, or in scientific parley ‘The Coronavirus’. This assault of a different kind has unleashed a frightening avatar of the pandemic. A century ago, the Spanish Flu followed on the heels of the horrific World War 1, and in two years close to 50 million of humanity was wiped out. 100 years hence we are at war again with the Coronavirus that shows no signs of being beaten and battered. Humanity is being ravaged all over again. Both the Pandemics have shown up the world’s lack of preparedness. In the middle of all this digitalisation the pandemic unleashed its fangs most viciously in wave after wave. It rages on, the death toll keeps chiming, and dry land seems far away. Globally, the COVID-19 pandemic has led to a dramatic loss of human life, and today everything from public health to food systems and the world of work is being challenged. On the economic and social front the damage has been humongous, millions of people are at risk of falling into extreme poverty, and as for the number of undernourished people, it is just steadily mounting, and at the last count nearly 690 million. As for our workforce, the numbers are staggering, millions of enterprises face an existential threat. Amid all this despair and destruction, the gig economy in India is showing signs of a resurrection. It definitely is giggling. We must come together to brave the social and economic fallout from this pandemic. We simply cannot be consumed by our petty differences anymore. Let us restore the beating heart of our nation, economically and socially.

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IMPACT AND INFLUENCE OF PANDEMIC ON GIG ECONOMIES IN INDIA

Shabil Shukur K K1 INTRODUCTION Covid-19 virus has taken India and the whole world at a surprisingly fast pace. Initially, the SARS‐CoV‐2 virus, which caused the COVID‐19 outbreak triggered in Wuhan city, Hubei province of China in December 2019, and with time it spread all over the globe. India went on a nation-wide lockdown from 24 March 2020 and a subsequent phase-wise unlocking from 1 June 20202. There was only movement of essentials allowed during the lockdown. The Gig economy is a new concept and is considered as one of the major economic change in the last decade and is conceptualised along four dimensions including: online intermediation; paid tasks; independent contractors and personal services. Because of the lockdown, majority of the companies have asked their employees to work from home. One of the main characteristic of Gig economy is that it’s an online market place where sellers and buyers meet. In India, a large section of its urban population is currently engaged with the gig economy in one way or the other. While the platform economy has been portrayed as being pandemic proof or as one benefitting from chaos, it appears to be the worst hit.3 PANDEMIC EFFECT ON GIG ECONOMY The pandemic has brought many changes and new terminologies and one of the terms that came up more often is the ‘gig economy’. However, this gig economy was not a creation of the pandemic and it has been there for some time. The gig economy is also called the digital economy or platform economy. The basic understanding of the business model of any gig economy is that the platform, using software applications, acts as a digital mediator between service providers and the service requesters.4 The idea is to make the process frictionless and provide speedy service through digital intermediation by matching a large pool of workers and customers.5 This fluid and temporary networked collaboration for production and sale of goods and services dissolves immediately after the completion of the task and the individuals are set on seeking new assignments.6 The emergence and success of platform-based companies such as Uber, Ola, Swiggy, Zomato, and Urban Company has helped gig economy to gain momentum in recent times especially in

1 III LLB, [email protected]. 2 Pant and Shende : “The Impact of COVID-19 on the Sharing Economy in India,” Policy Monks, (15 July 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3653008. 3 Ramakrishnan, N : “How Gig Economy Start-ups and Social Enterprises are Facing the Lockdown,” Hindu, (8 April 2020), https://www.thehindubusinessline.com/economy/innovating-to-keep-afloat-during-a-crisis/article31286907.ece. 4 Stewart and Stanford : “Regulating Work in the Gig Economy: What are the Options?”, Vol 28, No 3, Economic and Labour Relations Review, pp 420–437, (2017), https://journals.sagepub.com/doi/abs/10.1177/1035304617722461. 5 Prassl, Jeremias : Humans As A Service: The Promise and Perils of Work in the Gig Economy, Oxford: Oxford University Press (2018). 6 Salamon, Errol : “Digitizing Freelance Media Labor: A Class Of Workers Negotiates Entrepreneurialism And Activism,”, Volume 22, No 1, New Media and Society, pp 105–122, (2019), https://doi.org/10.1177%2F1461444819861958.

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https://www.thehindubusinessline.com/economy/innovating-to-keep-afloat-during-a-crisis/article31286907.ece

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emerging economies. Most of the gig economy jobs are in lower-income job-types such as deliveries, ridesharing, microtasks, care, and wellness. Even though there was a large informal sector in India where the casual workers were employed, the major change was the introduction of technology to deliver these services.7 The lockdown due to the pandemic has helped to change the reservations about the dependability and long term sustainability of a gig workforce. Business have reconsidered their operational strategies due to the remote working advantages on overhead costs and the strained liquidity. They are now opting to hire more gig workers due to the pandemic infused market scenario.8 There was a structural shift in the shopping behaviour as the pandemic made more customers rely on e-commerce. The need for social distancing and safety due to the pandemic led millions of people to turn towards e-commerce platforms this past year in metros as well as tier III cities and beyond.9 The government doesn’t have any data on gig workers in India. After a report indicating high unemployment of the country was leaked in January 2019, NITI Aayog asserted the claims to be false as the applications-based ride-hailing cab companies had alone generated more than 2 million jobs.10 It is estimated that the number of service providers involved with various platforms has increased from 8.5 million in 2016 to 11.7 million in 2017 and 15 million in 2018.11 During the pandemic, the platforms performed various activities. Uber and Ola provided commuting services to front-line healthcare workers.12 Zomato, Swiggy, Flipkart and Uber partnered with various other platforms to provide essential services to the remotest places. 13 Swiggy started various online campaigns to feed the needy, and by 2 April, had served 2,50,000 meals through initiatives. 14 On the other hand, some of these platform laid off their employees due to fall in revenues. In May 2020, Swiggy, Zomato, Ola, Uber and Airbnb fired employees which ranged from 13% - 25% of these platforms’ total workforce.15 Though these workers

7 Augustinraj, Jain, Bansal : "Unlocking the Potential of the Gig Economy in India," BCG, (30 March 2021), https://www.bcg.com/en-in/unlocking-gig-economy-in-india. 8 Sinha, Tarun : "How gig economy is becoming mainstream in India," The Tribune, (3 July 2021), https://www.tribuneindia.com/news/jobs-careers/how-gig-economy-is-becoming-mainstream-in-india-240369 9 PTI : “Lockdown proved inflection point for e-commerce in India,” The Economic Times, (24 March 2021), https://economictimes.indiatimes.com/industry/services/retail/overregulation-gois-problem-for-every-solution/articleshow/84038116.cms. 10 Nair, Gayatri : “TIF- The Gig Economy in the Pandemic,” India Forum, (5 June 2020), https://www.theindiaforum.in/article/covid-19-and-gig-economy. 11 Tiwari, Ganesan Ram and Roy : “What Is It Like to Work in a Gig Economy Job,” Times of India, (12 February 2019), https://timesofindia.indiatimes.com/india/what-it-is-like-to-work-in-a-gig-economy-job/articleshow/69371217.cms 12 Mukhopadhyay and Mukhopadhyay : “COVID-19 and the Gig Economy: ‘For a Few Dollars More’,” Tripura Times, (19 April 2020), https://www.researchgate.net/publication/340756767_COVID-19_and_the_Gig_Economy_'For_a_Few_Dollars_More'. 13 Buchholz, Katharina : “Consumers View Zomato's and Swiggy's Coronavirus Response Positively,” Statista.com, (30 April 2020), https://www.statista.com/chart/21557/brand-buzz-index-yougov-zomato-swiggy/. 14PTI : “Swiggy Plans To Serve 5 Lakh Meals Daily to the Needy amid Coronavirus Lockdown,” Deccan Herald, (2 April 2020), https://www.deccanherald.com/business/business-news/swiggy-plans-to-serve-5-lakh-meals-daily-to-the-needy-amid-coronavirus-lockdown-820599.html. 15 Kumar, K S : “India’s Food Delivery Firms Hit by Covid-19,” Asia Times, (18 May 2020), https://asiatimes.com/2020/05/indias-food-delivery-firms-hit-by-covid-19/.

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https://economictimes.indiatimes.com/industry/services/retail/overregulation-gois-problem-for-every-solution/articleshow/84038116.cms

https://economictimes.indiatimes.com/industry/services/retail/overregulation-gois-problem-for-every-solution/articleshow/84038116.cms

https://www.theindiaforum.in/article/covid-19-and-gig-economy

https://timesofindia.indiatimes.com/india/what-it-is-like-to-work-in-a-gig-economy-job/articleshow/69371217.cms

https://timesofindia.indiatimes.com/india/what-it-is-like-to-work-in-a-gig-economy-job/articleshow/69371217.cms

https://www.researchgate.net/publication/340756767_COVID-19_and_the_Gig_Economy_'For_a_Few_Dollars_More'

https://www.researchgate.net/publication/340756767_COVID-19_and_the_Gig_Economy_'For_a_Few_Dollars_More'

https://www.statista.com/chart/21557/brand-buzz-index-yougov-zomato-swiggy/

https://www.deccanherald.com/business/business-news/swiggy-plans-to-serve-5-lakh-meals-daily-to-the-needy-amid-coronavirus-lockdown-820599.html

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https://asiatimes.com/2020/05/indias-food-delivery-firms-hit-by-covid-19/


were provided with a few months’ salary and other benefits, the job loss during the pandemic hit them hard. CHALLENGES OF THE GIG ECONOMY The gig economy service providers worked on a day to day basis but are formally treated as entrepreneurs by the platform management. This helped the platform companies to shift the business risk and idealise the entrepreneur values on non-entrepreneurs. The individuals are convinced that the work they do is an investment that would bring returns other than wages in the form of a future payoff and the hope for a living wage and stable employment.16 This amounts to self-exploitation by performing “hope labour”.17 So, during the pandemic, the problems faced by the service providers were shown as individual problems and the company owners was not expected to provide any support. This became normalised in India because of the majority workforce in the informal set-up. Most of these service providers faced dilemmas and their approach to the situation varied as they were from different socio-economic classes. Those who were from villages and had some source of income there opted to go back rather than trying to survive in the costlier cities. Those who had bought vehicles on loan for the work stayed back in the cities so they can earn to pay them off.18 Uber and Ola drivers complained that they were not earning enough work compared to the cost they incurred for sanitising and the fuel.19 The autonomy of work was important for the gig workers but they only had autonomy over minute decisions.20 The company decided the prices charged from the customers and the workers didn’t have any say in it.21 When the gig workers resumed work post lockdown they didn’t have enough work from the platforms and neither made sufficient wages nor the chance to set the price for each task. Most of the times, the platforms gave discounted prices and the gig workers had not say in it. Studies have shown the workers got lesser tasks post lockdown from the platforms compared to pre lockdown.22 The workers were not even provided incentives as before even after working for more than 10 hours a day. They didn’t receive any minimum guaranteed pay or any kind of pay packages from the platform.23 So the gig workers had to rely on the platforms for the work, price setting and minimum wages. The platforms promoted themselves stating their services were safe but it was with regard to the customers and not the gig workers in their platforms. The platforms enforced the temperature checks, wearing safety gears and using Aarogya Setu app on the workers.24 But the same was not expected from the customers except in cases of ride hailing platforms where

16 Salamon, supra note 6. 17 Salamon, supra note 6. 18 Lalvani and Seetharaman : “The Personal and Social Risks that India's Food Delivery Workers are Taking During COVID-19,” Wire, (12 April 2020), https://thewire.in/business/covid-19-food-delivery-workers. 19 PTI : “Ola, Uber Cab Drivers Struggle amid Low Demand, Extra Operating Cost,” Economic Times, (20 May 2020), https://auto.economictimes.indiatimes.com/news/aftermarket/ola-uber-cab-drivers-struggle-amid-low-demand-extra-operating-cost/75852702. 20 Wood, Graham, Lehdonvirta and Hjorth: “Good Gig, Bad Gig: Autonomy and Algorithmic Control in the Global Gig Economy,” Vol 33, No 1, Work, Employment and Society, pp 56–75, (2019), https://journals.sagepub.com/doi/10.1177/0950017018785616. 21 Woodcock and Graham : The Gig Economy: A Critical Introduction, Cambridge: Polity Press, (2020). 22 Lalvani, and Seetharaman : “The Personal and Social Risks that India's Food Delivery Workers are Taking During COVID-19,” Wire, (12 April 2020), https://thewire.in/business/covid-19-food-delivery-workers. 23 Lalvani, supra note 22. 24 Nair, supra note 10.

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they had to wear a mask and take precautions. The customers were not expected to take any precautions in case of other platforms while contacting the worker. So the platform was biased towards the customers rather than the workers in it. There were instances where the workers were forced by the platform to deliver in containment zones and highly affected areas to keep their customers satisfied.25 Even though some of the platform promised insurances in case of covid infection, the workers had no faith in these promises due to previous bad experiences.26 In the Financial Year 2020, food delivery company Swiggy’s total revenue stood at INR 2776 Cr, an increase of 115% from INR 1292 Cr in FY19 while the total expense of INR 6545 Cr. Zomato’s revenue stood at INR 2486 Cr, an increase of 98% from the previous year, when it had recorded revenue of INR 1255 Cr while the total expense of INR 4628 Cr.27 Swiggy’s delivery workers have gone on strike in Chennai, Hyderabad and Noida, talking about a fall in their minimum payout per delivery and the removal of monthly incentives.28 ‘Fairwork India Ratings 2020: Labour Standards in the Platform Economy’ report, which scored and ranked 11 Indian startups on the basis of the work conditions prevalent there for gig workers, scored Swiggy, Zomato and Uber a disappointing 1 out of 10 while Ola and Amazon scored 2 out of 10. Only Urban Company and Flipkart scored 8 and 7 respectively.29 Zomato CEO responded by acknowledging they have work to do and room for improvement. They are also testing a new compensation model for its delivery partners in Delhi with a weekly payout structures for completing a certain amount of deliveries.30 Ride-hailing companies Ola and Uber have lost around 30,000-35,000 vehicles from their fleets since September last year mainly due to the inability of drivers to pay the loan instalments on their vehicles. The cab drivers working with Ola and Uber had gone on strike in New Delhi in September last year demanding an extension of the Reserve Bank of India’s moratorium on loan repayments. They also protested against the 20-25% commission charged for each ride by the companies. They also wrote a letter to PM Narendra Modi citing their struggles to repay the loans and their lack of social security. The banks provided the option to restructure the loan for those who were unable to pay their loans and the person had to submit documents necessary to prove their ability to pay the loan had been badly impacted because of the pandemic. The road transport ministry issued Motor Vehicle Aggregator Guidelines – 2020, which provided a framework to the state governments and union territories for the issuance of licenses and to regulate the business conducted by such aggregators, including Ola and Uber. However, cab drivers’ associations weren’t satisfied with the provision of guaranteeing 80% of the ride fare

25 Ashok, Sowmiya : “As Jobs Vanish, Salaried Workers Become Gig Economy 'Partners' with Swiggy, Zomato and Amazon,” Huffpost, (29 May 2020), https://www.huffpost.com/archive/in/entry/jobs-gig-economy-partners-swiggy-zomato-amazon_in_5ed07c19c5b611c4a8df148f. 26 Pant, supra note 2. 27 Rakheja, Harshit : “[What The Financials] Swiggy Earned Nearly INR 300 Cr More Than Zomato In FY20," Inc42, (22 February 2021), https://inc42.com/infocus/what-the-financials/swiggy-earned-nearly-inr-300-cr-more-than-zomato-in-fy20/. 28 Chhabra, Ronak : “Striking for More Wages, Swiggy Workers Champion Collective Care,” Newsclick, (18 September 2020), https://www.newsclick.in/striking-wages-swiggy-workers-champion-collective-care. 29 Fairwork : “Fairwork India Ratings 2020: Labour Standards in the Platform Economy,” (2020), https://fair.work/wp-content/uploads/sites/131/2020/12/Fairwork_India_2020_report.pdf. 30 Rakheja, Harshit : “2020 In Review: From Zomato And Swiggy To Ola And Uber — A Year Of Protests By India’s Gig Workers,” Inc42, (29 December 2020), https://inc42.com/infocus/year-end-review-2020/from-swiggy-to-ola-a-year-of-protests-by-indias-gig-workers/.

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https://fair.work/wp-content/uploads/sites/131/2020/12/Fairwork_India_2020_report.pdf

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for cab drivers as mentioned in the guidelines as cab aggregators Ola and Uber had already been levying a 20% commission from drivers.31 During the lockdown, Uber and Ola started providing services like rides to hospitals and pharmacies, and partnering with other companies to deliver groceries. Meanwhile, bike taxi players moved to innovate, trading out petrol vehicles for electric ones and upgrading infrastructure. There was also a surge in auto rides too due to the open vehicle and convenience for short rides. But the limitation for using four wheelers for logistical purposes restricted the companies.32 Two-wheeler fleets like Rapido, Yulu, Vogo, and Bounce have an upper hand since they let gig workers attach themselves to a logistics network. Two-wheelers were more covid-friendly as they are open-air and easy to sanitise. This resulted in growth as well as funding for the two-wheeler fleet companies.33 The platforms also started to provide training and messages to the workers through app notifications and through online sources.34 Most of the platforms also started the practice of contactless delivery where the packages were left at the door and the worker waited at a distance till the customer picked it up.35 The companies also promoted their workers as Covid warriors and heroes even though they refused to take adequate measures to protect the workers.36 The workers were forced to risk their physical survival for their economic survival. CONCLUSION The pandemic and the uncertainty that followed forced many companies to opt for gig workers and cut down on full time employees. The emergence of e-commerce and online retail has promoted the growth of the gig sector which has made India as one of the largest markets for gig workers. The growing changes along with technological advances and pandemic induced flexibility, the traditional full-time employment is changing. The professionals will have to upgrade their skillset to adhere with the new norms in the market as companies will be looking for more productivity. Despite the growing numbers, the gig economy is still at a developing stage in India and faces various challenges. The workers were given insufficient employment rights including minimum wages, health benefits, sick leaves and such dues and now they have been brought under the scope of the Code on Social Security 2020 which will provide them social security benefits.37 The companies also need to consider contributions to insurance and social obligations of the gig workforce. With IT, ITES, digital and e-commerce industries turning to gig workers especially after the pandemic, the gig hiring trends have changed. Many companies have started to opt for gig workers to reduce operational costs. Finance Minister Nirmala Sitharaman in the Budget 2021-22 proposed gig workers would be covered by the Employees State Insurance Corporation due to the increasing focus on gig economy and its workers.

31 Rakheja, supra note 30. 32 Bhattacharya, Ananya : ““More work, less money”—the reality of India’s ride-hailing services in a post-Covid world,” Quartz India, (22 February 2021), https://qz.com/india/1946259/will-ola-uber-come-out-of-covid-19-slump-in-2021/. 33 Bhattacharya, supra note 32. 34 Lalvani, supra note 22. 35 Ashok, supra note 25. 36 Lalvani, supra note 22. 37 The Code On Social Security, 2020 (Act No. 36 of 2020).

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Women will also be allowed to work in all categories including night shifts with adequate protection. A portal to collect relevant information regarding gig economy workers was also proposed to help in formulating relevant policies for the gig sector.38 The social security benefits for gig workers will benefit millions of workers and help in the sustainable growth of the industry. According to the labour ministry companies like Swiggy, Amazon, Flipkart, Zomato, Ola, Uber and others have committed INR 500 Cr to the proposed social security fund for gig workers in India.39 The circumstance brought about by the pandemic confirms that flexibility is a luxury feature of work in time of stability. It can be a facet of self-realisation at work for some privileged few, yet the contention isn't pertinent to huge populations of workers who go to gig work since they have little else as far as alternatives. The current situation, in which livelihoods and health of an entire workforce are threatened, proves that flexibility cannot come at the cost of most basic protections. All workers need to be able to access health care, to choose to stay home when unwell, and benefit from income support in case of a crisis-related reduction of working time or job loss.40 In that sense, the COVID-19 emergency should be perceived as a reminder to re-examine social security systems for gig labourers and challenge their status as "self-employed entities".

38 Aryan, Aashish : “ESIC, other social security safety nets to cover gig economy workers,” The Indian Express, (3 July 2021), https://indianexpress.com/article/india/budget-2021-esic-other-social-security-safety-nets-to-cover-gig-economy-workers-7170725/. 39 Sharma, Yogima : “Cover for gig workers: Amazon, others pledge Rs 500 crore to proposed social security fund,” The Economic Times, (26 February 2021), https://economictimes.indiatimes.com/news/economy/policy/cover-for-gig-workers-amazon-others-pledge-rs-500-crore-to-proposed-social-security-fund/articleshow/80741309.cms. 40 Berg, Janine : “Precarious workers pushed to the edge by COVID-19,” ILO Blog, (20 March 2020), https://iloblog.org/2020/03/20/precarious-workers-pushed-to-the-edge-by-covid-19/.

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https://iloblog.org/2020/03/20/precarious-workers-pushed-to-the-edge-by-covid-19/


IMPACT OF COVID-19 ON THE MSME SECTOR

Anjali J Nair A and Avanthika R1

INTRODUCTION The second-largest generator of employment in India is the micro small medium economic sector also known as the MSME sector. It has rendered vast opportunities and resources to entrepreneurs in extending their tentacles into the business ecosystem. India has approximately 6.3 crores of MSME as of 2019. This sector in India is being dominated by the micro-enterprise, constituting 99.4 percent of the total MSMEs.2 The ongoing Covid 19 pandemic has severely disrupted the national as well as the global economies. It has left a large number of people stranded at homes. This contagious epidemic has put many business firms into economic causalities. Lockdowns, stringent international and interstate movement restrictions have sped up discrepancies in the supply chain, paralyzing the economy. The major sufferers turned out to be MSMEs. Before the advent of the pandemic, their contribution to the GDP of the county was rated up to thirty percent. These sectors have been facing a lot of challenges; drastic decrease in demand, shortage of raw materials, transportation barricade, non-availability of labour, supply chain difficulties, and as a direct consequence the earnings of MSMEs reduced by 20 to 50 percent.3 EFFECT ON INDIAN ECONOMY According to the reports, India's GDP would be only 2 percentage higher than March 2020 by the end of 2021-22. As per ILO the effect of Covid 19 on the informal sector like real estate, wholesale and retail trade, construction contracted sharply than that of the formal sector. The unanticipated lockdown forced the $2.9 trillion economies to be shuttered inside.4 This resulted in the loss of income to 77 percent of the working class; the most affected are of the age group of the 40s. Lockdown was first announced on the last week of March, after which those employed in the construction, textile sector as daily wagers, had to encounter a hardship of default in wages. The second most affected class were 'micro enterprises' like street vendors, small shop owners who are self-employed, occupying an integral part of the informal sector. According to CMIE chief (Centre for Monitoring Indian Economy) Mahesh Vyas, 'the labour force declined from by 1.1 million in April 2021 to 424.6 million compared to 425.8 million in March'.5

1 III B.Com LLB, [email protected] 2 59% of start-ups and MSMEs may shut shop, sell off or scale down: Survey: available at: https://economictimes.indiatimes.com/small-biz/sme-sector/covid-second-wave-59-of-startups-and-msmes-may-shut-shops-sell-off-or-scale-down-localcircles-survey/articleshow/82974477.cms?from=mdr 3 India lost 3.4m salaried jobs in April: available at: https://www.rediff.com/business/column/mahesh-vyas-india-lost-34m-salaried-jobs-in-april/20210519.htm#:%7E:text=The%20labour%20force%20shrank%20by,to%20425.8%20milion%20in%20March.&text=The%20employment%20rate%20fell%20from,a%20fall%20in%20labour%20participation 4 Rapid assessment of the impact of COVID-19 on enterprises and workers in the informal economy in developing and emerging countries: available at: https://www.ilo.org/global/topics/employment-promotion/informal-economy/publications/WCMS_743032/lang--en/index.htm 5 India lost 3.4m salaried jobs in April: available at: https://www.rediff.com/business/column/mahesh-vyas-india-lost-34m-salaried-jobs-in-april/20210519.htm#:%7E:text=The%20labour%20force%20shrank%20by,to%20425.8%20milion%20in%20March.&text=The%20employment%20rate%20fell%20from,a%20fall%20in%20labour%20participation

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https://economictimes.indiatimes.com/small-biz/sme-sector/covid-second-wave-59-of-startups-and-msmes-may-shut-shops-sell-off-or-scale-down-localcircles-survey/articleshow/82974477.cms?from=mdr

https://economictimes.indiatimes.com/small-biz/sme-sector/covid-second-wave-59-of-startups-and-msmes-may-shut-shops-sell-off-or-scale-down-localcircles-survey/articleshow/82974477.cms?from=mdr

https://www.rediff.com/business/column/mahesh-vyas-india-lost-34m-salaried-jobs-in-april/20210519.htm#:%7E:text=The%20labour%20force%20shrank%20by,to%20425.8%20milion%20in%20March.&text=The%20employment%20rate%20fell%20from,a%20fall%20in%20labour%20participation




https://www.ilo.org/global/topics/employment-promotion/informal-economy/publications/WCMS_743032/lang--en/index.htm

https://www.ilo.org/global/topics/employment-promotion/informal-economy/publications/WCMS_743032/lang--en/index.htm






The nationwide lockdown was declared on the evening of 24th March 2020 which extended until 31st of May 2020, suspending all factory services and business activities. Indian Railways announced to ferry only essential goods only. Later on, on April 16th the government decided to spilt the lockdown region-wise: "red zone" area with more infected people, "orange zone" with less infected people, and "green zone" with no infected people. Certain relaxation was provided by the government on April 20th, allowing agricultural businesses, including dairy, aquaculture, and plantations, as well as shops selling farming supplies, to open. Cargo vehicles, including trucks, trains, and planes, were also allowed. Business establishments located in the green zone were allowed to work with 50 percent capacity. Erstwhile the economic growth rate had deeply affected, falling below -3.8 percent. Taking circumstances to consider and to prevent economic disasters the Ministry of Home Affairs went ahead unlocking phase by phase various sectors by the first week of June 2020. The number of small and medium scaled business enterprises sensed a great relief, whereas the situation turned out to be hostile. Though hotels, restaurants, factories, handicraft, weaving, and textile industries were permitted to operate, it was subjected to conditions like parcels only in case of eateries, 50 percent workforce only to be present in factories and other industries, etc. Above all the consuming pattern of the consumer had taken a drift towards essential commodities only. Since a lot of people were laid-off from their workplaces, a good number of people ran bankrupt. They belonged to the lower and middle class, who the customers of these small and medium scaled business units. For instance, the textile industry, the significant player of the Indian economy, which creates 60 million employments directly or indirectly after the agriculture sector was one among the worst hit. The pandemic has doomed the industry, by decreasing the demand for clothes. The main cause for the downfall in the demand is because people were stranded at homes, and clothing seemed to be a superfluous substance. Therefore, many units stopped functioning giving up themselves to challenges brought about by the pandemic. Before the pandemic, India had a global share of 6 percent in the export of agricultural products. The agricultural sector also faced its share of challenges due to the pandemic. 58 percent of the Indian population depends on agriculture and 44 percent of the country's workforce is employed in it. The harvesting season of wheat is in the mid of April. States who are major exporters of wheat like Punjab and Haryana were thrown completely off balance due to lockdown. Labour scarcity also affected, as many of the migrant laborers fled back to their hometown. Also, the transportation of the crops played its hand in putting down this industry. Many micro-scaled units like saloons, bakers, etc, faced liquidity issues and these firms are still operating in an impoverished state since they have to invest extra to procure masks, sanitizers, gloves for their employees and the customers to keep up with the cleanliness which the necessity of the hour. PROBLEMS FACED BY MSMES MSMEs faced challenges related to debt repayments, wages. Lack of access to global markets also decreased the revenue. The protracted lockdown harmed the products manufactured by the small firms. This led to low demand for their products and the interference between the supply chain increased the cost of raw materials which negatively affect the income of MSMEs. Some top challenges faced by them are:

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Fix in external funding, workforce and massive cash crux According to records, 96 percent of micro small, and medium enterprises are found to be unregistered, they don't pay taxes or maintain accounts, thereby reducing their costs. But this has limited the government's effort to provide wage subsidy and extra credit to the firms as in developed countries. Also, most of the funding for MSMEs comes from informal sources, making it tough for RBI to shove more liquidity to the firms. Local banks too refuse to give loans to small firms due to the history of bad debts and the common notion that they would not repay. Extended lockdown harmed the obtainability of employees to work on production and supply units. Many factories laid off their workers due to their incapability to pay salaries. Undertakings manufacturing essential commodities were in a safer place in terms of expected cash flows. Thus, MSMEs faced an enormous cash crisis due to the crash of business. A significant proportion of firms have asked workers to take unpaid leave, work for reduced pay, reduce working hours, or even laying off permanent staff. 30% of companies report deduction of workers due to containment measures, family responsibilities, and fear of the spread of infection. A significant proportion of firms have asked workers to take unpaid leave, work for reduced pay, reduce working hours, or even laying off permanent staff. 30% of companies report deduction of workers due to containment measures, family responsibilities, and fear of the spread of infection. Reduced demand and catching up with the online race Some private firms have shifted to digital methods like e-learning which saw a surge after the lockdown. Most of the schools and colleges rely on electronic means to take classes which have increased the business of such firms who distribute materials on the same. Many enterprises shifted their focus to essential products like masks, hand sanitizers, PPE kits, and hand wash to sustain their income. An ILO SCORE Programme Survey on 1000 companies from eight countries across 4 continents reveals that 75% of companies are suffering from decreased demand.33% are experiencing more than 50% drop in the customer order. Lack of access to working capital and fear of shutting down Most of the MSMEs have failed in registering under the GST network due to the lack of financial records. They require regular working capital of loans ranging between fifty thousand to a lakh. But formal banks can provide only eleven lakh crores, which is less than one-third of the demand from the sector. This is because banks cannot check creditworthiness without financial records. This leads to MSMEs depending on loans by informal lenders at high interest and ending up at stake. Several MSMEs in the formal and informal sector were closed down permanently or temporarily due to the pandemic. However, the data regarding these are not maintained by the Government of India nor by the Ministry of Micro Small Medium Enterprise. The data from the Economic Census of 2013 on MSME were used by the government to provide relief measures. The economic census data reveals that there are 63 million self-employed persons in India but only 2 million enterprises have been registered in the Udyam portal. A survey

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conducted by AIMO (All India Manufacturer’s Organisation) revealed that “35 percent of MSMEs and 37 percent of self-employed respondents said that they see no chance of recovery in the business and have begun shutting down operations. STRATEGIES AND PACKAGES BY THE GOVERNMENT Apart from announcing lockdowns to curb the fast-spreading coronavirus, the central government also took the calibrated approach in offering relief to farmers, workers in the unorganized sector, and small and medium scaled business establishments.6 PM SVANidhi, a relief package for street vendors aimed to provide loans to 5 million vendors. Like always this initiative didn’t sow the results due to some ever known and eternal dilemmas of illiteracy, unawareness and no bank accounts for the vendors in parallel with the issues created by covid. The RBI put forth a Long-Term Repo Operations (LTRO) worth Rs 100000 crore to help banks increase lending at cheaper interest rates. The Small Industries Development Bank has declared a compromised interest rate of 5 % for loans to MSMEs. These loans were granted to MSMEs that only produce products in connection with fighting the pandemic. Also, these loans could be borrowed within 48 hours with no collateral and less paperwork. But the materiality stood different, the companies manufacturing materials required to tackle the pandemic were generating sales revenue more than usual. The actual ones who required such schemes were the small and medium scaled sectors striving hard to fit themselves to the internet selling. ATMANIRBHAR BHARAT The covid relief package almost equal to the GDP of Pakistan, which translates to "Self-reliant India" was announced by the Prime Minister on the 12th of May 2020. The total scheme worth 15 percent of Indians' GDP, which amounts to 26,500 billion rupees. Out of this mega package, 3700 billion rupees were allocated to boost the MSMEs through 6 schemes. Revised Definition According to the Micro, Small and Medium Enterprise Development Act, 2006, the definition of MSMEs is expounded as those manufacturing enterprises with an investment of less than 2.5 million and service enterprises with less than 1 million investments can be categorized as micro-enterprises. Manufacturing and service units that invest lies between 2.5 million – 50 million and 1 million – 20 million respectively falls under the small-scaled enterprise. Medium enterprises are those with investments between 50 million to 100 million in the case of a manufacturing firm and 20 million to 50 million in the case of service providers. However, after the commencement of this new policy, the limits meant to categorize business firms under MSMEs have been amended. The distinction between manufacturing and service enterprise is removed. The criterion was only investment before the amendment but now annual turnover of the enterprise shall also be taken to consideration. Presently micro-enterprise includes manufacturing and service units with investments and annual turnover below 10 and 50 million respectively. Those enterprises with investments between 10 to 100 million and annual

6 No official data on MSMEs shut due to COVID-19 pandemic: Union Minister Nitin Gadkari: available at: https://www.moneycontrol.com/news/business/no-official-data-on-msmes-shut-due-to-covid-19-pandemic-union-minister-nitin-gadkari-6492961.html

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https://www.moneycontrol.com/news/business/no-official-data-on-msmes-shut-due-to-covid-19-pandemic-union-minister-nitin-gadkari-6492961.html

https://www.moneycontrol.com/news/business/no-official-data-on-msmes-shut-due-to-covid-19-pandemic-union-minister-nitin-gadkari-6492961.html


turnover from 50 to 500 million are defined as small enterprises. Medium enterprises cover units with investment between 100 to 200 million and annual turnover between 500 million to 1 billion.

Difference in between the revised definition of MSME7

Definition as per MSMED Act,2006 Composite Criterion: Investment

Type of MSME Micro Small Medium Manufacturing Enterprise <25,00,000 <5,00,00,000 <10,00,00,000

Service Enterprise <10,00,000 <2,00,00,000 <5,00,00,000 Revised Definition

Composite Criterion: Investment and Annual Turnover Type of MSME Micro Small Medium

Manufacturing and Service Enterprise

I: <1,00,00,000 I:<10,00,00,000 I:<20,00,00,000 AT: <5,00,00,0000 AT:<50,00,00,000 AT:<100,00,00,000

Emergency Credit Line Guarantee Scheme Also known as ECLGS aims at providing 3000 billion collateral-free automatic loans for MSMEs. Under this scheme, Member Lending Institutions (MLI) like commercial banks, NBFCs (Non-Banking Financial Companies) and other financial institutions will lend loans to MSMEs, granted with a loan up to 250 million and eligible for 1billion as turnover, up to 20 percent of the outstanding credit as on 29th February 2020 as additional working capital. The borrowers are 100% guarantee by the National Credit Guarantee Trustee Company Limited (NCGTC) on the principal amount and interest. The loans granted shall have 4 years of tenor with a moratorium of 12 months on principal repayment. MSMEs that have been badly hit by the pandemic can avail loans as additional working capital or term loans, up to Rs 5 crores, with no guarantees nor fresh collaterals, and resume their operations. The scheme aimed at boosting 45 lakhs business units and safeguard the jobs of people employed under them. Credit Guarantee Scheme for Subordinate Debt (CGSSD) Also known as Distressed Assets Fund, this scheme intended to provide subordinated debt to 2 lakhs stressed MSMEs that have become non-performing assets as of 30th April 2020. Subordinate debts are unsecured loans or bonds ranked below other loans and securities concerning claims on assets and earnings. The government of India will facilitate the provision of 200 billion as subordinate debt. They shall extend support of rupees 40 billion to the Credit Guarantee Fund Trust for Micro and Small Enterprises (CGTMSE). CGTMSE will provide partial credit guarantee support to banks. Promoters of MSMEs will be given credit equal to 15% of their stake by the banks. The NCGTC will extend a 90% guarantee for subordinate debt and the rest 10%is on the promoters. There shall be a moratorium of 7 years for payment of principal and a maximum of 10 years for repayment.

7 Table representing the difference in the limit and composition criterion for MSMEs as per the Micro, Small and Medium Enterprises Development Act.

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Fund of funds Fund of funds will provide equity funding to MSMEs and support them to be listed on the Indian Stock Exchange. Equity infusion of 50000 crores will be done through a "mother fund" to MSMEs with growth and potential viability. There shall be several daughter funds through which the mother fund operates. This fund structure will help leverage with rupees 500 billion of funds at the daughter level. Fund of the fund will be set up with a total amount of 100 crores, helping MSMEs to expand in size as well as capacity. Amendment to Government Procurement Policies and Directions to PSUs The small and medium scaled business has always faced unfair competition from the foreign companies. The very purpose of the Atmanibhar mission is to promote and give preference to indigenous products. The government has taken a step ahead in implementing the linguistic sense of the mission by amending the General Financial Rules 2017 through a notification dated 15 May 2020. The order provides that there will be no 'global tenders equity' for government acquisitions up to Rs 200 crores. This will benefit the MSMEs to bid for such attainment without competing with global equivalents. MSMEs usually market their products through fairs and exhibitions. Due to the mishaps created by covid, the MSMEs are facing problems of marketing and liquidity. E-commerce has started ruling the business ecosystem, to which these small-scale businesses put up. The government fintech to assist the MSMEs in enhancing transactions-based leadings using data generated by the e-marketplace. Under the MSMED Act, there is 45 days' time frame for buyers to make payments to MSMEs. But due to the pandemic, the Cabinet Secretary has mandated the Public Sector Undertakings to pay outstanding debts to MSMEs before 45 days. Analysis Though the government has taken up such a great initiative to reinstate the economy the scheme is not problem-free. The biggest challenge is the execution of the scheme. A good plan is not enough to succeed, there should be a proper execution of the plan. Another important criticism lies with the revision of the definition of the MSME. This amendment opens the gateways to large companies to be included with the brackets of MSME and avail the benefits granted exclusively to them. This shatters the opportunities of micro and small-scale enterprises to bring themselves up. Due to unawareness or lack of reach, schemes like ECLGS, CGSSD would again benefit the corporates than the actual ones in need. The ECLGS aims at just 45 lakh units whereas the total number of MSMEs operating in India counts up to 6.5 crores. 30 percent of the micro emprises are on the verge of shutting down but the CGSSD aims on facilitating only 2 lakhs stressed MSMEs. The government should have allocated funds amongst the three different sectors of MSME in the first hand. The major sufferers are the MSMEs situated on the rural side of India. Government should have considered them specially. CONCLUSION Even in these difficult times, a hand full of MSMEs have managed to save themselves. They got creative and made a sudden switch to manufacturing and selling products required to save

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the world from the coronavirus. Many enterprises moved completely to the virtual platform in selling their products which saved them a good amount of rent. Ban on Chinese apps paved the way for many app developers in creating a replica of the banned apps. On the survey conducted by ILO, it is evident that half of the MSMEs have decreased their manufacturing of goods to make up for reduced demands. 38% of SMEs are thrashing out wage moderations with laborers or altered payment terms with banks and suppliers. Some are trying to expand their sales channels.

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ATMANIRBHAR BHARAT: EXPLORING ENTERPRISES

Rishabh Jain1 and Anubhav Das Biswas2 INTRODUCTION The COVID-19 is the worst the world has seen since the great depression of 1930. With almost the entire globe under lockdown, the world economy, which was already in peril, took a major hit. The effects of the same could be seen in the Indian economy as well, which was still recovering from the impact of GST and Demonetization With the onset of COVID, the Indian economy saw another set of challenges that left the economy in a shattered position. The worst of which could be felt by the backbone of the Indian economy, the Micro, Small, and Medium Enterprise (hereinafter referred to as the MSME Sector). The Classification of the business into the Micro, Small, and Medium can be understood from the table below:

MSME – Merged Criteria: Investment and Annual Turnover

Sector/Enterprise Type Micro-Enterprise Small Enterprise Medium Enterprise

Manufacturing & Services Sector, Both

Investment less than Rs. 1 crore

Turnover less than Rs. 5 crore


Turnover up to Rs. 50 crore


Turnover up to Rs. 250 crore

Table1: MSME Division The sector forms an integral part of the supply chain, international exports, and employment opportunities in rural as well as urban India. It contributes to approx 30% of the Indian GDP roughly amounts to 50 % of the industrial population. As per the data Central Statistics Office (CSO), Ministry of Statistics & Program Implementation, the sector has been flourishing over the years.

Year MSME

Gross Value Added

Growth (%)

Total Gross Value Added

Share of MSME in GVA (%)

Total GDP

Share of MSME in

GDP (in %) 2011-12 2622574 – 8106946 32.35 8736329 30 2012-13 3020528 15.17 9202692 32.82 9944013 30.40 2013-14 3389922 12.23 10363153 32.71 11233522 30.20 2014-15 3704956 9.29 11504279 32.21 12467959 29.70 2015-16 4025595 8.65 12566646 32.03 13764037 29.20 2016-17 4405753 9.44 13841591 31.83 15253714 28.90

Table 2: Contribution of MSME Sector to the Indian Economy

1 III B.com LLB, [email protected]. 2 III BA LLB-B

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IMPACT OF COVID ON MSMES Even before the pandemic and the subsequent lockdown hit India, the MSME sector was in great distress. The demonetization, the poorly implemented GST regime, the constant falling economy in terms of demand and revenue, the COVID-induced national lockdowns were just the final nail in the coffin. To distress of the MSME sector can be classified in the below-mentioned points:

1. Labor shortage: The Rural population forms the majority of the workforce for these MSMEs, even in the urban areas. With nationwide lockdown in action, the workforce started moving back to rural areas due to uncertainty of the future. This created a shortage of manpower at their disposal. The situation was further intensified due to liquidity crisis of the owners.

2. Freeze on economic activities: The manufacturing and the service part of the industry were affected the worst. Due to the complete closure of economic activities further intensified by the lack of workforce, the demand and revenue fell sharply. The lockdown resulted in a complete freeze of 60% of economic activities that were carried out by the MSME sector in India.3

3. Lack of raw materials: With the inter-state travel ban, logistics had come to a standstill

and the distortion of the supply chain, making it extremely difficult for the business managers of these MSMEs to procure the required raw materials at an affordable rate. The situation further intensified with the disturbance of trade relations with China. Since many of the key raw materials were imported from China, the cost of raw materials soared4. This led to many small commercial and industrial outlets to shut down5.

4. The shift in consumer demand pattern: With the sharp change in the consumer

demand pattern and the decline of the export sector, the MSMEs were knocked off balance.

5. Shortage of cash flow: with the sharp decline in the retail demand, closure of state

borders, and halt at the international trade; the MSME sector faced a disposal cash crunch. They didn’t have sufficient liquidated assets to meet the personal and business requirements. The business managers faced serious issues related to debt repayment, wages/salaries, statutory duties, etc.

6. The second wave: As the situation became better and economy was slowly trying to

recover, the second wave of COVID destroyed all the hopes. With business again

3 Arundhati Roy, B.C.M. Patnaik,Ipseeta Satpathy, Impact of Covid-19 crisis on Indian MSME sector: A study on remedial measures, Eurasian Chemical Communications,(2020), http://www.echemcom.com/article_1146 72.html 4 BusinessToday.In, Don't boycott China, say MSMEs! Input cost will shoot 40%, BusinessToday.In, ( July 1, 2021), https://www.businesstoday.in/latest/economy-politics/story/dont-boycott-china-say-msmes-input-cost-will-shoot-40-261647-2020-06-19. 5 Sipahi, E, Covid 19 and MSMEs: A Revival Framework, Research Journal in Advanced Humanities, (2020), https://royalliteglobal.com/advanced-humanities/article/view/146

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coming to a standstill and partial lockdowns throughout the nation, the situation is looking grim for the sector.

GOVERNMENT RESPONSE TO THE ECONOMIC STANDSTILL

With the near-complete disruption of the economic activities, the union government stepped up and came up with a set of fiscal measures to revive the MSME sector. The government announced an economic package as part of “Atmanirbhar Bharat Abhiyan”, worth ₹20 lakh crore. While various economists and the global recognition believed that the existing economic recession must be tackled by boosting the aggregate demand, the government focused on a liquidity-based approach to boost the supply of the products.

Table 3: Breakdown of the Economic package:

Economic Package Component Amount (₹ crore) Revenue Lost to Tax Concessions since March 22, 2020 7,800

Pradhan Mantri Garib Kalyan Package 1,70,000 PM’s announcement for Health sector 1,70,000

RBI's Measures (Actual) 8,01,603 Tranche 1 (MSME + NBFC + Power) 5,94,550

Tranche 2 (Migrants, KCC, Nabard, MUDRA etc) 3,10,000 Tranche 3 (Agriculture) 1,50,000

Tranche 4 + 5 48,100 Total 20,97,053

Source: The Wire

Since the government’s proposal was credit-focused which aimed to ease the liquidity in the affected sectors, the actual cash outlay by the government was far less than the proposed fiscal relief of 20 lakh crore, In some of these cases, any costs incurred will be initially covered through banks or other financial institutions and thus not result in actual cash outgo by the Centre. As per the estimates, the actual fiscal cost/impact would have been between the range of 1.65 lakh crore to 2.5 lakh crore, which is roughly 1% of India’s GDP in 20206. The Government as a part of this relief package announced ₹3.7 lakh crore and various reforms for the MSMEs. The various highlights of the package are:

1. Emergency Credit Line Guarantee to MSMEs: Almost the entire sector, baring those

involved in the production of essential commodities and medical equipment, were facing a shortage of working capital. They required immediate capital to pay for raw materials, wages, operational liability, restart the business, etc. To combat this, the government announced collateral-free loans to the MSMEs which were completely guaranteed by the central government. These loans had a repayment tenure of 4 years and a one-year principal repayment moratorium period. All MSME owners who had an outstanding credit of up to 25 crores and an annual turnover of up to 100 Crore were eligible for 20% of their outstanding credit in the form of loans from banks and Non-Banking Financial Companies (hereinafter referred to as NBFCs). The banks were initially hesitant to extend loans as firms had already pledged

6 The Wire Analysis, Modi's Rs 20 Lakh Crore Package Will Likely Have Fiscal Cost of Less Than Rs 2.5 Lakh Crore, The Wire, (May 17, 2020), https://thewire.in/economy/modi-rs-20-lakh-crore-package-actual-spend.

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their assets and obtained loans against them7. Since the government pledged ₹3 lakh crore as collateral for this scheme, the banks were comfortable to lend money to small businessmen or MSME managers with no collateral.

2. Debt for Stressed MSMEs: The stressed MSMEs i.e the functioning MSMEs which

were considered as non-profiting assets by the banks, were guaranteed loans under the scheme. This was a partial credit scheme announced by the government which allowed the promoters of MSMEs to raise loans. The government promised a sum of Rs. 20,000 crore which was channelized through the Credit Guarantee Fund Trust for Micro and Small Enterprises (hereinafter referred to as CGTMSE). The CGTMSE used this amount to extend partial credit guarantees to banks. The banks in turn extended loans to promoters of stressed MSMEs to increase their equity. The government estimates aimed to help out 2 lakh stressed MSMEs with non-profiting assets.

3. Equity infusion into MSMEs: To facilitate the initial seed of new MSMEs or a promising MSME, the government introduced a new concept called funds of funds, which was based on a similar concept in mutual funds. Under this concept, a mother fund and several daughter funds are established to operate and control the corpus funds. The government had promised an initial fund of ₹ 10, 000 crores, which will be used to fund such MSMEs, in return for 15% of their business stake (equity). The dividends yielded by such investment will be ploughed back to similar ventures and further expand the corpus. The government aims to increase the fund to ₹50, 000 crore to help similar enterprises.

4. Cap on global tenders: The MSMEs were unable to compete with the global

competition when it came to government tenders. they were not able to withstand the fierce and unfair competition against foreign companies. To handle this hindrance and promote the cause of Aatmanirbhar Bharat, the government disallowed the global tenders in government procurement up to ₹200 crores.

5. Other relief measures: Apart from the above-mentioned steps the government and the

MSME ministry had announced several other measures such as8- ● In order to facilitate fairs and exhibitions in a pandemic situation, the

government had set up a virtual market linkage to overcome the marketing barrier.

● Fintech companies are promoted to enhance and secure financial transactions through electronic mode. These companies will also be used to boost transaction-based lending.

● The government also proposed to settle the payment owed to MSME so that they can further sustain their business.

● The government had also announced a dedicated plan for the NBFC, Micro Financing Institutions, and Housing Finance Institutions.

IMPACT OF THE RELIEF PACKAGE

7 Dubey P. & Sahu K.K., MSMEs in COVID-19 crisis and India’s economic relief package: a critical review. International Journal of Indian Psychology, 8(4), 1651-1656. DIP:18.01.179/20200804, DOI:10.25215/0804.179 8 Aditya Birla Capital, Mission ‘Atmanirbhar’: 6 COVID Relief Measures For The MSMEs, Aditya Birla Capital (Sep 1, 2020), https://www.adityabirlacapital.com/abc-of-money/six-covid-relief-measures-for-the-msme

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The demonetization and the GST had already troubled the sector and curtailed the business capabilities. The MSME sector in India was already facing a lot of problems and required a stimulus. However, the Atmanirbhar Bharat package fails to achieve the required result. With unemployment soaring high, restraints on exports, and reduction in personal expenditure, the gross domestic demand is really low. The prevailing situations failed to boost the production of products as there was low demand and an increase in supply will not lead to the creation of demand in the market. This creates a vicious cycle, where lowering the production rate decreases the employment opportunities which leads to further compression of demand. Under such circumstances, the government's approach to extend loans to revive the MSME was not an effective decision as firms would prefer not to borrow more loans. In an interview with the wire, ex RBI Governor, Raghuram Rajan had expressed his concern over the government's measures9. He called for improving the business conditions for the firms, and find ways for debt relief rather than providing them extra loans. With Border issues remaining unchanged, the cost of certain raw materials and equipment’s still remains high and is not addressed by the government at all. The government needs to formulate a action plan to overcome the situation. The general logic of the policy moves (‘relief’ packages’) has been centered around debt and the logic of debt creation. The Union Government has looked to and promoted borrowing solutions to resolve its problems. Ideas of moratoriums (temporary delays) have been endorsed yet no real policy to waive off debt has seen light. Not only do the population comprising the MSME sector have to look to the organized banking sector (yet have been seen more recurrently loaning out of unorganized banks), but the State governments too have also been shown the same door. This is precisely where the Union government’s policy can be felt generating waves of further disharmony. The State has severe limitations when it comes to expenditure, unlike the Union government that has access to the Central Bank with authority to print more money. CONCLUSION The emergence of the COVID 19 has brought the entire world on their knees. All economies throughout the world are facing the burn of it. The worst of all is being faced by the MSME sectors. The sector which was still not recovered properly from the after effects of demonetization and GST had to fight a very long battle against the COVID to survive. According to a survey, disruptions caused by the Covid-19 pandemic have impacted MSMEs earnings by 20-50%. The fiscal measures adopted by the government failed to address the real issue, i.e. decline in consumer demand due to fall in disposable income. It rather focused on increasing the supply to boost the economy. The approach of the government was critised by various economists including ex RBI Governor Raghuram Rajan. With the emergence of the Second COVID wave, there is a need for a MSME centric fiscal measure to revive the sector.

9 Karan Thapar, Raghuram Rajan: The Govt Package Has Some Good Elements But a Lot More Needs to Be Done, The Wire, (May 27, 2020), https://thewire.in/economy/raghuram-rajan-modi-government-economic-package

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MIGRATION OF LABOUR IN INDIA DURING PANDEMIC

Noor Ghousia B and Pooja Mahajan1 INTRODUCTION At the outbreak of Covid-19 pandemic in India, lakhs of migrant workers belonging to economically poor states, who had migrated to various other economically and stronger states had to return back to their native places. There were several reasons behind their return migration. However, the most important was the closure of all kind of economic activities at the place of migration. Central and State governments had tried to provide assistance to mitigate the adverse impact of pandemic on this workforce through various schemes and policies. The plight of these workers has exposed to some extent but the underlying governance weaknesses and lack of coordination among policies across various sectors like employment, health, housing, supply of food etc. had multiplied their misery. The government of India imposed phase-wise lockdown from March 25, 2020 to April 14, 2020, then second phase stretched up to May 3, 2020, the third phase up to May17, 2020 and duration of the fourth phase was from May 18 to May 31, 2020. Therefore, the lockdown lasted for a period of total 68 days and ended up into an unprecedented disruption of the migrant workers, their economic activities, means of livelihood. All of a sudden, they had to suffer, due to loss of income, shortage of food supply, fear of getting contacted with the virus and uncertain future. They were left with no option but to return to their villages or native places. The questions which arise are, what happened to their means of livelihood, what was the pattern of labours migration and industries and most significant is to know the impact of pandemic on them. This paper tries to answer these questions and also focus on state as well as national perspective of these issues. A migrant worker depends upon his daily earnings for his family subsistence. Therefore, the phrase “Life is bigger than business” does not hold good for him. MIGRATION OF LABOUR As per 2011census, the total number of migrant workers in India was 45.36 crore which is 37% of the country’s total population. However, in 2016 this figure has been increased to 50 crores. This includes inter-state migrant workers and the migrants within the state. It has been revealed through various studies and reports that the migration pattern of the migrant workers in pre-pandemic phase was towards highly developed states from the low developed ones. However, on outburst of pandemic, the direction of migrant workers changed and a ‘reversed migration’ was witnessed.

PATTERN OF MIGRATION2 I. Classified on the basis of origin and destination:

a. Rural- rural (21 crore/ 54% of the total inter-state migrant labour) b. Rural-urban (8 crore) c. Urban-urban (8 Crore)

1 III LLB, [email protected] 2 Iyer Madhunika, Migration in India and the impact of the lockdown on migrants, The PRS Blog June10, 2020 https://www.prsindia.org/theprsblog/migration-india-and-impact-lockdown-migrants

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d. Urban-rural (3 crore/ 7% of the total migrant workers)

II. Classified as: a. Inter-state migrant workers b. Intra-state (88% of the total interstate migration i.e. 86.8 Crore people)

GLANCE TO PRE-PANDEMIC MIGRATION Cities According to census 20113 a major lot of workers’ migration occurs within the district and to neighbouring districts within the state. Around a quarter of all, migrate to another state. There was lot of rural to urban migration due to availability of employment opportunities. Figure1 depicts the pattern of their migration in pre-pandemic phase.

According to the Economic Survey of 2016–2017, more than 9 million individuals relocate themselves within the country each year. Delhi followed by Mumbai, Bangalore and Chennai have been the most popular destinations for migrant workers. Majority of them are from Bihar, Uttar Pradesh, Bengal, and Assam.

3 D-series Migration tables, Office of the Registrar General & Census Commissioner, Ministry of Home Affairs, Government of India. https://censusindia.gov.in/Tables

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States For the purpose of study, India has been divided into 5 different zones. On the basis of rate of migration, U.P. and Bihar constitute 35.5% out-migrants. These two states have been highest contributor of out-migrants out of total migrant workers in India. However, most of the North-Indian states have low contribution in out-migrants. Then comes the western states including Maharashtra, M.P., Rajasthan, W.B., Chandigarh, Puducherry and Karnataka. The moderate zone includes states like Punjab, Haryana, A.P., Jharkhand, Tamil Nadu, NCT of Delhi, Odisha and Kerala. The contribution of UTs like Andaman & Nicobar, Goa, Lakshadweep, Dadra & Nagar Haveli and North-Eastern states like Manipur, Arunachal Pradesh, Mizoram, Tripura & Meghalaya has been very insignificant.4 High income states have higher in-migration rate such as Delhi, Karnataka, Goa, Punjab, Haryana, Maharashtra as compare to low-income states. OUTBURST OF PANDEMIC The outburst of pandemic, triggered the ‘Reverse’ Migration. The pattern of labour movement from rural to urban areas, now started moving in reverse direction i.e. from urban to rural. The inequality in economic development was the most significant factor in deciding the pattern of inter-state migrant workers during pandemic. Traditionally, the trend of migrant workers movement was dominated by male migrant workers from rural to urban or from low developed states to high developed states in search of better employment opportunities. The workers who have migrated with their families had to face the brunt during lockdown. The induced lockdown seized the employment opportunities and had devastating immediate effect on the migrant workers. According to a survey conducted by SWAN(2020), it was found that 89% of inter-state migrant workers were not paid wages during nation-wide lockdown.

4 All India Report, Survey on Migrant Workers: A Study on their Livelihood after Reverse Migration due to Lockdown, Inferential Survey Statistics and Research Foundation, Oct.2020. https://www.im4change.org/upload/files/All-India-Report-on-Migrant-Workers.pdf

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West Bengal received volumes of inter-state migrant workers returning from various other states like Delhi, Gujrat, Maharashtra and Tamil Nadu. According to Official sources, the last year lockdown resulted in displacement of 14 million people out of which 6.7 million migrant workers returned to six states namely Odisha, Chhattisgarh, Bihar, U.P, West Bengal and Jharkhand.5 As per the Skill Development Ministry database the actual number of displaced migrant workers was much higher than the reported figures. In recent study by ICRIER (Indian Council for Research on International Economic Relations) & ISSRF (Inferential Survey Statistics & Research Foundation) 38.6% of displaced number of migrant workers found no work at all after returning to their homes and their income dropped by 85% as an immediate outcome of lockdown. STATE TO STATE MIGRATION As per various reports it is estimated that maximum number of migrant workers originates from Uttar Pradesh (25%) and Bihar (14%) of total inter- state migrant workers. It is followed by Rajasthan and Madhya Pradesh at 6% and 5% respectively. This would also mean that this much population did reverse migration due to outburst of pandemic.6 Cities The inter-state migrant workers crisis was felt more in cities like Delhi and Mumbai. Out of Delhi’s total percentage of migrant workers 88% are from different states and 63% belong to rural areas. Mumbai has 46% migrants from other states and 52% are from rural areas. Districts According to the Economic Survey for 2016-17 the highest movement of migrant workers has been witnessed within various districts such as Gurugram, Gautam Buddh Nagar in Uttar Pradesh, Indore in Madhya Pradesh, Coimbatore in Tamil Nadu. Some of the other districts which showed the highest outward movement of migrant workers are Muzaffarnagar, Moradabad, Faizabad and 33 other districts in Uttar Pradesh, Uttarkashi and Prayag, in Uttarakhand, Pali in Rajasthan, Jehanabad in Bihar, Dhanbad in Jharkhand and few districts in Maharashtra.7 REVERSE MIGRATION As per the ‘All India Report’ by Inferential Survey Statistics and Research Foundation the state wise reverse migration pattern of migrant workers was as follows- From Chhattisgarh, 31.40% migrant workers returned within 2 weeks and another 9.20% within 3 weeks of first lockdown. Followed by Uttar Pradesh, West Bengal, and Odisha with approximately 22% migrants in each of the states returning to their native places within 3

5 Deka Kaushik,Covid-19 Second Wave: Has the Situation Improved for migrant workers, India Today, May 3, 2021. https://www.indiatoday.in/magazine/cover-story/story/20210503-covid-19-second-wave-has-the-situation-improved-for-migrant-workers-1794150-2021-04-24 6 Singh Sushant, Explained: Indian migrants across India, The Indian Express, April 6,2020. https://indianexpress.com/article/explained/coronavirus-india-lockdown-migran-workers-mass-exodus-6348834/ 7 Supra 3

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weeks. West Bengal had the reverse migration of 12.83% migrants returning back just before the lockdown and which is closely followed by Odisha with 9.05% of its migrant workers returning back to their native places. Surprisingly Uttar Pradesh has maximum number of migrant workers, 64.02% staying even after the nation-wide lockdown from 7-10 weeks which was followed by Bihar at 51.49%. State wise Duration of Stay at Native Place The survey reveals that almost one-third of migrant workers from Chhattisgarh and West Bengal stayed at the native place for 13 weeks and more than that duration, whereas from Uttar Pradesh 96% and from Bihar, Jharkhand and Chhattisgarh more than 65% migrant workers stayed at their native place for almost more than 11 weeks. However, the reverse migration stopped in the states of U P and West Bengal but from Odisha and Bihar it continued.

INDUSTRIAL SECTOR There is no official data available for the inter-state migrant workers in the country. A study by Research and Information System for Developing countries gives an estimation that there are a total of approximately 65 million inter-state migrants in our country and out of that 33 per cent are migrant workers. The study further states that 30 per cent of them are casual workers and another 30 per cent work on regular basis in unorganized sector. Further a study by the Centre for the Study of Developing Societies (CSDS) and Azim Premji University in 2019 estimates that 29% of total population of India is of daily wagers. As per Census 2011, there were around 65 million migrant workers who were engaged in various occupations, excluding cultivators and agricultural labourers. Craft and associated trades as well as plant and machine operators and assemblers account for a considerable proportion of non-agricultural migrant workers.

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However, according to a recent survey report of Al-Jazeera8, most of the inter-state migrant workers migrate from impoverished states in the north, such as Bihar and Uttar Pradesh, to work in the industrial areas of more developed states in the south, such as Gujarat and Maharashtra or in metro cities like Bangalore, Mumbai etc. Further, a recent research study by Mehrotra and Parida9 gave approximate estimates that 115.3 million migrant workers are employed in the industrial sector, 56.4 million in manufacturing and the remaining 58.9 million employed in non-manufacturing sector. Textiles and apparel employ the most people in the manufacturing industry, followed by food and beverage. Construction work employs the vast majority of individuals employed in non-manufacturing occupations (92 percent).The service sector employs around 144.4 million people out of which the hotels and restaurants employ around 6% of the overall workforce, whereas the education sector employs around 12% of the total workforce in the service industry. According to a report published by the National Statistical Office (NSO) in SARVEKSHANA by the Government of India10 68 percent of migrant workers are engaged in non-agricultural industries and in the unorganised sector. The impact of shutdown was mostly on these two sectors, agricultural and non-agricultural. The occupation is also categorised into casual labour, salaried and wage earners also the self-employed. Almost all states of the country affected the migrant workers equally. However, in the states of Uttar Pradesh and West Bengal, the impact on casual labour in non-agricultural sector was more. Jharkhand has trend opposite to all India average as the effect was more on salaried and wage earners as comparison to casual labour in non-agriculture. Jharkhand has migrated more migrants as salaried and wage earners than as casual labours in agricultural or non-agricultural sector. According to the Confederation of Indian Business (CII), more than half of the tourist and hospitality industry suffered and became bankrupt during pandemic, resulting in the loss of livelihood for these migrant workers. According to a report of Retailer Association of India.11 the retail sector alone employs over 40 million people in the informal sector. It has been reported that a considerable number of migrant workers lost their employment either temporarily or permanently. Those who work in the unorganised sector and those who do not have written contracts had to face the maximum brunt during the pandemic. Health workers, domestic worker food industry workers, sellers, and tourism workers are among those who are most vulnerable to illnesses due to their socio-economic, gender disadvantages and nature of work.12

8 Sanghera Trish, Hungry, desperate: India virus controls trap its migrant workers. Al-Jazeera, April 2,2020 https://www.aljazeera.com/economy/2020/4/2/hungry-desperate-india-virus-controls-trap-its-migrant-workers 9 Mehrotra Santosh & Parida Jajati, India’s employment crisis: Rising education levels and falling non-agricultural job growth, October, 2019, Working Paper, Centre for Sustainable Development, Azim Premji University. cse.azimpremjiuniversity.edu.in 10 Vol. No. PDOS 57XXXV No.1&2, SARVEKSHANA, 107th Issue, 2019, Journal of National Statistical Office. www.mospi,gov.in 11 Nahata Pallavi, Coronavirus Impact: Fear of contract job losses prompt cash transfer calls, Bloomberg Quint, March19,2020 https://www.bloombergquint.com/business/fear-of-contract-job-losses-prompt-cash-transfer-calls 12 Lewis Emma, Invisible hands: How millions of domestic workers fare under COVID-19,Global Voices, July 20, 2020 https://globalvoices.org/2020/07/20/invisible-hands-how-millions-of-domestic-workers-fare-under-covid-19/

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IMPACT ON INCOME As per the survey conducted by CSDS from 2017-2019 the monthly average income of these migrant workers who are mostly daily or weekly wagers is up to Rs 2,000 of 22%, between Rs 2,000 to Rs 5,000 of 32% , between Rs 5,000 to Rs10,000 of 25%, between 10,000 to Rs 20,000 of 13% and more than Rs 20,000 of 8% of their total strength. As an outcome of reverse migration, the migrant workers who were earning salary or wages were in the worst situation. Followed by casual labours and self-employed in non-agricultural sector were next in the line of suffering. Most of them lost their employments during lockdown. Those who were in the non-agriculture sector had to change their occupations. Hence there was a drastic decline in the self-income of migrant workers from place of migration to native place.

LIMITED GOVERNMENTASSISTANCE Jan Dhan Account As documented by various press reports, Government started providing support to migrant workers by depositing cash in their Jan Dhan account or payment of cash provided after their quarantine. The survey also revealed that almost all the migrant workers were quarantined. But the Government assistance did not extend to all migrant workers or was provided to those who had their bank accounts. The study reveals that only 8.50% migrants received deposits in their accounts. State-wise distribution reveals that each state followed different policy for it. In the state of Bihar 28.09% of migrant workers got these deposits. West Bengal has no deposits at all in their accounts and only 1.96% of workers got other cash assistance. Chhattisgarh was worse as just 1.40% of workers got deposits. It is significant to note that the migrant workers of Odisha are the largest beneficiaries with 11.07% and 63.38% receiving other cash assistance. Uttar Pradesh is again a notable state which had 20.75% migrant workers getting cash assistance either under Jan-Dhan scheme or otherwise or both. Public Distribution System As far as PDS is concerned, many migrant workers across the states received PDS ration either free or on minimal price. Every State provided PDS ration to its migrant workers according to their names at their place of origin. Rice is the popularly distributed ration across the country. Chhattisgarh is the state where 97.80% migrant workers received PDS rice, followed by Jharkhand 92.82%, West Bengal 85.43% and Uttar Pradesh with 75.22%. However, it is to be noted that there are some inconsistencies in distribution as well universalisation of PDS. Other Areas The migrant workers having skill of construction, tiles and pipe cutting work, iron-welding and fabrication is prominent and dominated by the state of Odisha followed by West Bengal. The unskilled migrant workers are basically from Uttar Pradesh and Odisha. Masons are basically from West Bengal and Jharkhand. Machine operators from Odisha and Uttar Pradesh. Cooking and food service skilled migrant workers from West Bengal. Skilled drivers are from Uttar Pradesh and Bihar. Tailoring is from Uttar Pradesh, Odisha and West Bengal. Textile workers and goldsmiths migrate from West Bengal. Carpenter and painters generally migrate

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from Uttar Pradesh. Hospitality service from West Bengal, security guards are generally from Bihar. However, Governments Initiatives like Mega Skill Development and Employment Opportunities Programme may not be significant in such an environment.13 NATIONAL PERSPECTIVE At the outbreak of pandemic, it was thought that the virus would act as an equaliser. It began in Wuhan, China, and proliferated to the world. The unprecedented policy measures were implemented to bring the virus spread under control in most of the OECD (Organisation for Economic Co-operation and Development) countries, particularly in India14 However, the claims that the virus is a "great equaliser" started fading. Long-standing claims of having systematic and sufficient health care infrastructure collapsed in the entire nation. The CDC (Centre for Disease Control and Prevention) 202015 in its recent reports stated that members of racial and ethnic minority groups are at higher risk of contracting COVID-19 and would be suffering severe symptoms. It further stated that illness would affect more severely to mobile populations. They have been placed in vulnerable situations as a result of the nature of their occupation, nature of the actions taken by Central Government and various state governments around the nation in response to their health, job and food security, displacement, transportation etc. It also emphasised on various determinants of health such as age, gender, socioeconomic status, race or ethnicity, occupation, indigeneity, homelessness, and incarceration play an important role in risk of COVID-19 infection, particularly when there is limitation on the ability to maintain physical distancing as in case of migrant workers. The pandemic began in urban and thickly populated areas and then spread to rural locations of the country. However, these are the areas with weak and inadequate health facilities as well as medical infrastructure. The second wave of the pandemic was much more severe and fatal as compare to the earlier one. Its impact was felt by entire nation. Judicial Intervention On June 29, 2021 the Supreme Court observed in its judgment, delivered by a Division Bench constituting of Justices Ashok Bhushan and M.R. Shah stated that in the pandemic phase a government cannot abdicate its duty of providing food to migrant workers just because they do not possess ration cards. Their disability is due to poverty and lack of knowledge. The governments must ensure them welfare facilities as in the wake of pandemic most of them have lost their means of livelihood and cannot satisfy even their basic needs. The apex court has ordered the state governments to make proper arrangements to distribute dry ration to migrant workers by July 31. It further held that the Central government has to supply additional quantity of food grains if demanded by states. Right to food is basic necessity of life and also an integral part of Right to live with dignity under the Constitution of India.16

13 Supra 3 14 At the time of finishing the draft of this article, at the end of August 2020 the number of daily new cases in India had become larger than anywhere else in the world (Drèze 2020); the number of cases (and recorded deaths) relative to the population has remained well below the worlds average https://www.worldometers.info/coronavirus/; accessed 30 August 2020 15 Health Equity Considerations and Racial and Ethnic Minority Group,Apr.19, 2021 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.html. 16 Rajagopal Krishnadas, Ensure that no Migrant Worker goes hungry, Supreme Court instructs Government, The Hindu, June 29,2021, https://www.thehindu.com/news/national/ensure-that-no-migrant-worker-goes-hungry-supreme-court-instructs-government/article35030657.ece.

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RECOMMENDATIONS

● The pandemic has reinforced the need and importance for compiling data of migrant

workers. The database in public domain would help in effective administration. ● This work force may be treated as a special group and all facilities, such as ration card,

medical insurance bank account etc. be provided by the local Government at the place of work.

● The PDS needs to be strengthened and its implementation should be made effective and transparent. State authorities must look into the inconsistencies and problems.

● The survey results show that the cash assistance was provided only to 8.50% migrant workers through Jan-Dhan account and 15.26% through other ways. Therefore, bank accounts should be opened for all migrant workers so that they can avail the benefit of cash assistance by the Government,

● The government must facilitate migrant workers’ return to the place of migration and workplace with a reasonable financial assistance.

CONCLUSION COVID-19 came as a shock. The Government's response of imposing lockdown and providing extremely limited help to tens millions of migrant workers who are supposed to be the backbone of India’s economy, demonstrates the negligence towards them. The pattern of cyclical movement has been taken for granted by the governments and employers, who have provided minimum facilities and security to them. The crisis presented an opportunity to ‘rebuild for better'. It includes not only urgent social support but also tackling deep-seated inequalities. As it is rightly pointed out by the apex court in its recent judgment that these migrant workers have considerable contribution in the country’s economy and Government has an obligation to satisfy their basic needs. The adverse impact of pandemic can be mitigated by effective implementation of policies for the welfare of this invisible force.

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LABOUR CRISIS DURING THE PANDEMIC

Mamatha Ramapriya1

INTRODUCTION The sudden outbreak of pandemic, COVID-19 has shown much faultiness and resulted in widespread panic in the contemporary world.2 COVID-19 has emerged as a watershed moment in the timeline of world history. The first case of novel coronavirus infection (COVID-19) was reported in the Wuhan district of China in December 2019.Within a month, the virus had infected numerous people across the world. The first case in India was recorded in the State of Kerala in January 2020, and he had recently returned from China, according to his travel history. Since then, the number of COVID-19 cases has wreaked havoc across India. From totally paralysing the tourism sector, disrupting the supply chain of the interconnected international market to forcing the nation to reprioritise security concerns, the outbreak of the pandemic has created a horrendous situation.3

On the 24th of March 2020, at 8 p.m., the prime minister of India announced a nationwide lockdown, which was to be implemented after merely 4 hours, which confined a population of 1.3 billion to their homes. It was a sudden announcement, without any prior guidelines or preparatory measures. It failed to address basic concerns about support for individuals whose livelihoods were in jeopardy; this accounted for more than 90% of the workforce in the country's unorganized/informal sectors, including daily wage employees, of whom a large proportion were migrant workers.4 The initial lockdown that was imposed, had measures entailing a strict observance of physical distancing and isolation measures while suspending movement and economic activity. The prolonged lockdowns that include the 2020 national lockdown and the 2021 selective district lockdowns, have led to a reduction or complete loss of the livelihoods of labourers, specifically that of the informal sector. Lockdowns and poor administration have disproportionately affected the migrants and the working poor. Others, such as health workers and those in essential services, have experienced a huge increase in workloads and schedules amidst uprise of the pandemic. In the service sectors, the pandemic not only led to lay-offs and unemployment, but has also been a catalyst for the transformation of the workplace.5 For decades, millions of workers have migrated from their rural homes to urban cities, looking for employment. In 2011, the Census reported 450 million internal migrants, with 78 million (or 15.6%) of them being rural-to-urban migrants. More than half of those were women (55%). Migrant workers from Uttar Pradesh, Bihar, Madhya Pradesh, Punjab, Rajasthan, Uttarakhand, and West Bengal largely worked inter- and intra-state.6 They constituted about 130 million. The below sample represents the net in and out migration in each state of the country.

1 II BA LLB A, [email protected] 2 Ranjan, R., 2020. Impact of COVID-19 on Migrant Labourers of India and China. Critical Sociology, 47(4-5), pp.721-726. 3 id 4 Jha, P. and Kumar, M., 2020. Labour in India and the COVID-19 Pandemic. The Indian Economic Journal, 68(3), pp.417-437. 5 Strad Research, 2020. Impacts of COVID-19 pandemic on Indian economy: A Survey. 7(12). 6 TRIVEDI, D. and RAMAKRISHNAN, V., 2020. Understanding migration. frontline, [online] Available at: <https://frontline.thehindu.com/cover-story/article31657020.ece> [Accessed 7 June 2021].

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Figure 1: Inter-state Migration (in lakh)7

Note: Net out-migrant state is one where more people migrate out of the state than those that migrate into the state. Net in-migration is the excess of incoming migrants over out-going migrants. Sources: Census 2011; PRS.8

Naturally, the most threatening consequence of the lockdown measures in the country is the unprecedented, tragic and desperate mobility of hundreds of thousands of unmitigated vulnerable workers from large urban centres to rural homes. Migrant labourers defied the lockdown on a large scale, beginning just three days after it was announced. According to early predictions, the lockdown would have rendered tens of millions of migrant workers jobless in India by the end of March 2020.9 Migrant workers from all across the city were observed walking to bus terminals in order to return to their hometowns. The workers bearing the wrath of the ill-managed lockdowns were recorded. With most transport links shut down, many were trying to walk back to their rural homes with their families. Images of workers in distress and exodus, clutching their meagre belongings and often carrying children and the elderly on their shoulders and backs as they struggled hundreds of thousands of kilometres to reach their "home," were widely reported in the print and visual media for several weeks, followed by a lack of assistance from the administration. Perhaps the most spectacular displays of the fragility and precarity of workers and their families, who had lost not only their jobs, but also their health and temporary housing in their destination places. Many died on the way, of hunger, exhaustion and accidents. There were reports of migrants dying due to heat strokes resulting from the scorching sun. This tedious migration was reminiscent in numerous ways, of the trauma inflicted on people during the 1947 partition of the country. Then again, citizens were turned into outsiders! It has been the world’s most draconian ‘shock and awe’ COVID-19 lockdown, where masses in general and an overwhelming majority of workers were left to their own fate.

7 Iyer, M., 2020. Migration in India and the impact of the lockdown on migrants. [Blog] The PRS Blog, Available at: <https://www.prsindia.org/theprsblog/migration-india-and-impact-lockdown-migrants#_ednref1> [Accessed 24 May 2021]. 8 Id 9 Jha, P. and Kumar, M., Supra note 3

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IMPACT ON WORKFORCE During the global financial crisis of 2008–2009, an estimated 22 million individuals lost their jobs, according to the International Labour Organization (ILO). In 2009, India, like many other countries throughout the world, experienced a recession. The United Nations Development Programme conducted a research that revealed some facts regarding how the recession affected migrant labourers in India. Internal migrants account for around 20% of the workforce in India, according to the government's 2016-17 Economic Survey.10 They make up a large part of the informal economy. According to the United Nations Educational, Scientific, and Cultural Organization, they provide around 10% of India's economic output. As a result, job losses were concentrated in the unorganised sector. Downsizing negatively impacts those who work in unorganised businesses and those who work in organised businesses but have informal employment contracts, according to the lessons learned during the 2009 recession. The recession caused by COVID-19 appears to be more severe than the one we saw in 2009. According to the ILO, COVID-19 might result in the unemployment of up to 25 million people worldwide, with job losses ranging from 5.3 million in a "low scenario" to 24.7 million in a "high scenario" (ILO, 2020).11 Impact may differ from country to country. Even a quarter of the 130 million migrants India impacted, is a huge effect. According to recent PLFS estimates of the approximately 470 million workers, 245 million workers were self-employed, 170 million were casual workers, and 107 million were regular workers, with median monthly earnings of rupees 8,000, 5,000, and 10,000, respectively; these figures clearly show the country's workforce's fragile structure and overall vulnerability.12 The near-shutdown of economic activity with only a 4-hour warning caused chaos and misery for the vast majority of workers, who lacked social security or the necessary resources to cope with the problems of such a massive disruption and uncertainty in their economic and emotional well-being. Such a reverse migration, aided in the increase in rate of infection in rural areas. A survey found that 23 per cent migrant workers, had to walk back to their villages after coronavirus lockdown threatened their survival in cities and towns. During the lockdown, the rural population of the country faced rising debt, increasing hunger, complete loss of livelihoods, and inability to access healthcare, according to the Gaon Connection's 'The Rural Report 2020' survey of 25,300 migrants across 179 districts in 20 states and three union territories. According to the poll, the financial situation of migrant workers was fragile to begin with and worsened as a result of the coronavirus outbreak. 22 % of migrant workers receiving monthly pay said they earned less than Rs 5,000, 45 % said they earned between Rs 5,000 and Rs 10,000, and 34 % said they earned more than Rs 10,000. Nearly half of the migrant workers polled, 48%, indicated they were paid their complete salary or earnings, while 20% claimed they were only paid partially and 28% claimed they were not paid at all. Around 72% of

10 Khanna, A., 2020. Impact of Migration of Labour Force due to Global COVID-19 Pandemic with Reference to India. Journal of Health Management, 22(2), pp.181-191. 11 International Labour Organization, 2018. India Labour Migration Update and. [online] p.5. Available at: <https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-new_delhi/documents/publication/wcms_631532.pdf> [Accessed 23 May 2021]. 12 SAGE Journals. 2021. Labour in India and the COVID-19 Pandemic - Praveen Jha, Manish Kumar, 2020. [online] Available at: <https://journals.sagepub.com/doi/10.1177/0019466220983494> [Accessed 14 June 2021].

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monthly wage earners were paid in full or in part, whereas just 52% of weekly or daily wage earners were paid in full or in part by their employers.13

IMPACT ON WOMEN Women's absence from the labour force is less likely to be recorded in official statistics because they are often engaged in unrecognised or informal sectors. The pandemic has exacerbated the gendered nature of unpaid labour that previously existed. With the closure of offices and educational institutions, as well as the simultaneous emergence of the norm of work from home and online education, and the lack of domestic workers, the need for household members to perform unpaid chores such as cooking, cleaning, and baby care, among others, has increased.14 For working women, the lockdown has resulted in the blurring of the lines between their professional and personal lives, causing them to juggle office work and household chores.15 There has been a drastic increase in the time spent on unpaid work by both men and women during the lockdown, relatively more burden falling on women.

Figure 216 Fig.2 depicts the time spent on unpaid work before the pandemic. It is clear from the sample that there is a disproportionate burden on women when compared to men.

13 WRAP, B. and Politics, E., 2021. 23% migrant workers walked back to villages during coronavirus lockdown. [online] Businesstoday.in. Available at: <https://www.businesstoday.in/current/economy-politics/23-percent-migrant-workers-returned-home-walking-during-coronavirus-lockdown/story/412585.html> [Accessed 3 June 2021]. 14 Alon, T. and Doepke, M., 2020. THE IMPACT OF COVID-19 ON GENDER EQUALITY. 1st ed. Cambridge: NBER WORKING PAPER SERIES, p.39. 15 Chauhan, P., 2020. Gendering COVID-19: Impact of the Pandemic on Women’s Burden of Unpaid Work in India. SpringerLink. 16 id

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Figure 317

Fig.3 depicts the time spent on unpaid work by men and women during the pandemic. The work done between 0-7 hours/week by men and women has reached negatives. But it can be inferred that the work load on women has increased relatively and disproportionately for the ones who were already spending more time on unpaid work. For women in paid employment, the drudgery of unpaid work is so high that they work longer than men owing to the triple burdens of unpaid work, reproductive work and paid employment. Despite the fact that men lost more jobs than women as a result of the lockdown, women who were employed prior to the lockdown were 20 % less likely to be employed afterward. In April 2020, the number of women employed was 61 % of the pre-lockdown annual average, while the number of men employed was 71 %. The lockdown also harmed rural women's farm-based livelihoods, which are a vital source of income during the lean summer months.18 Even with these figures potentially understating the actual impact of COVID-19 on women's livelihoods, there is a clear need for more granular, disaggregated data gathering as a precondition for initiatives addressing gender-based employment and income disparities. Since frontline and community health professionals were diverted to support the COVID-19 response, they were unable to provide care to pregnant and nursing women, as well as young children. During the lockdown, 42 percent of homes with pregnant women did not receive prenatal care or vaccines.19 Vaccine distribution has been hampered, as has access to sexual health and family planning services, leading to an increase in undesired pregnancies, teenage pregnancies, and unsafe abortions. The Ministry of Women and Child Development is responsible for ensuring that women and children's rights are respected, particularly in relation to domestic violence, sexual abuse, trafficking, and school attendance. Gender mainstreaming, in which gender perspectives are integrated into the design, implementation, monitoring, and evaluation of policies, should be the focus of new work standards and associated policy by both the government and private sector, rather than addressing these matters in isolation.

17 Chauhan, P., 2020. Gendering COVID-19: Impact of the Pandemic on Women’s Burden of Unpaid Work in India. SpringerLink. 18 Deshpande, A. (2020). The Covid-19 Pandemic and Lockdown: First Effects on Gender Gaps in Employment and Domestic Work in India (No. 30; Discussion Paper Series in Economics, p. 21). Ashoka University. ftp://52.172.205.73/ash/wpaper/paper30.pdf 19 Gaon Connection. (2020, August 10). During lockdown, rural India faced insurmountable sufferings; 74% satisfied with government. Gaon Connection. https://en.gaonconnection.com/gaon-connection-survey-rural-india-facedinsurmountable-sufferings-during-covid-19-lockdown-74-of-respondents-satisfied-with-modi-government/ [Accessed 4 June 2021].

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STEPS TAKEN BY THE GOVERNMENT In March 2020, the central government gave states permission to use the State Disaster Response Fund to house migrant workers. States were encouraged to build up relief camps with medical services along highways to guarantee that people stayed in the camps while the lockdown was in effect.20 The Ministry of Home Affairs issued an order in April, allowing states to coordinate separately to transport migrants using buses. For the first time since the lockdown started, Indian Railways restored passenger service with Shramik Special trains in May 2020, allowing migrants stuck outside their home state to return home.21 Indian Railways operated 4,197 Shramik trains between May 1 and June 3, conveying almost 58 lakh migrants. Gujarat and Maharashtra are the top states from which Shramik trains originate, and Uttar Pradesh and Bihar are the top states from which the trains terminate. The Ministry of Health and Family Affairs authorised state governments to run migrant worker relief camps with food, sanitation, and medical services on April 1. On May 14, the Finance-Minister declared that migrant labourers who have been without a ration card for two months would receive free food grains under the second tranche of the Aatma Nirbhar Bharat Abhiyaan.22 Under PMAY (Pradhan Mantri Awas Yojana), the Aatma Nirbhar Bharat Abhiyaan has introduced a programme for Affordable Rental Housing Complexes for Migrant Workers and Urban Poor.23 The plan calls for repurposing existing housing stock under the Jawaharlal Nehru National Urban Housing Mission (JnNURM) and incentivizing public and private organisations to build new affordable rental units. One more opportunity for post-COVID relief and social challenges might be found in the flagship Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA). Enacted in 2005, MGNREGA provides each rural household with 100 days of paid manual work per year. The scheme has had a demonstrable impact on lifting people out of poverty, providing a safety net for rural workers during times of distress, while creating useful public assets.24 The Food Corporation of India has provided five kgs of food grain and dal to the migrants and the poor.25 Amma's canteens in Tamil Nadu, Indira canteens in Karnataka, and daal-bhaatkendras in Odisha, Chhattisgarh, and Jharkhand are examples of communal kitchens maintained by migrants. These can be self-managed by the employees and give them with a way to make money. New communal kitchens at train stations and bus terminals, as well as block headquarters in rural areas, for people who are equally impacted have been set up.

20 Biji Ahuja, N., 2020. State disaster funds to be used for immediate relief to migrants and homeless. The Week, [online] Available at: <https://www.theweek.in/news/india/2020/03/28/state-disaster-funds-to-be-used-for-immediate-relief-to-migrants.html> [Accessed 2 June 2021]. 21 Order No. 40-3/2020-DM-I (A), Ministry of Home Affairs, May 1, 22 Ministry of Finance, 2020. Finance Minister announces short term and long-term measures for supporting the poor, including migrants, farmers, tiny businesses and street vendors. [online] Available at: <https://pib.gov.in/PressReleseDetail.aspx?PRID=1623862> [Accessed 4 June 2021]. 23 id 24 Narayanan, S. (2020, March 17). The Continuing Relevance of MGNREGA. The India Forum. https://www.theindiaforum.in/article/continuing-relevance-mgnrega 25 The Hindu 2021. [online] Available at: <https://www.thehindu.com/news/national/govt-to-provide-free-food-grains-to-poor-under-pm-garib-kalyan-ann-yojana-in-may-june/article34392466.ece> [Accessed 9 June 2021].

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CONCLUSION

The COVID-19 pandemic has ubiquitous impacts on people across the globe. The vulnerable segments of the population, however, have been disproportionately impacted by the pandemic, and the case of migrant workers in India is an issue of grave concern. Migrant workers' contributions are critical to the long-term viability of urban economies. It's difficult to predict how long the pandemic will last and how much of an impact it will have on people's lives and the country's economy. To deal with this situation, the administration must devise a well-thought-out strategy. A year after Covid-19 lockdown, India still doesn’t have reliable data or policy on migrant workers.26 Currently, every other state in India has announced mini-lockdowns or extended them to curb the rise of record infections in the country. The current lockdowns have been tougher for migrant workers compared to last year’s all-India lockdown.27 Months of unemployment in 2020 has left them with little to no savings, and now jobs are scarce and living costs have rocketed. There is a need to relook at the national migration policies, which should accommodate the assistance and protection of migrants arriving from, or faced with the prospect of returning to, the areas affected by health crises. Food insecurity and the impulse to return to one's homeland could be reduced if resilient food systems are established. More research is needed on the effects of health crises on migration, especially in separating health from other reasons for migration. At the national level, greater coordination is required between government agencies separately tasked with migration and health mandates.

26 Shreehari Paliath, I., 2021. A year after Covid-19 lockdown, India still doesn’t have reliable data or policy on migrant workers. [online] Scroll.in. Available at: <https://scroll.in/article/990527/a-year-after-covid-19-lockdown-india-still-doesnt-have-reliable-data-or-policy-on-migrant-workers> [Accessed 12 June 2021]. 27 Paliath, S., 2021. Second wave of Covid-19 has left migrant workers in India with no savings and few job opportunities. [online] Scroll.in. Available at: <https://scroll.in/article/996337/second-wave-of-covid-19-has-left-migrant-workers-in-india-with-no-savings-and-few-jobs> [Accessed 2 June 2021].

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EDUCATION AT CROSSROADS: COVID-19 PANDEMIC

Sandhya S and Shravya D’souza1

INTRODUCTION The COVID-19 pandemic led to an unprecedented closure of educational institutions across the globe resulting in a surge of online learning. Developing countries like India, where education plays a crucial role but the spending on improving educational infrastructure is rather slow. The sudden need to accommodate online mode of learning turned out highly problematic for the stakeholders. Although this system existed in developed countries it was not commonly available in the Indian context, the pandemic situation left no choice but to adapt to it as a necessity in a desperate situation. This sudden need for adapting to online learning led to a paradox of sorts where digital infrastructure was dependent on income of families, rural dwellers vs urban dwellers and affordability vs availability. This saw a spectrum of situations where the benefits were applauded at times and the demerits aggressively debated. This, leading to situations where the state had to take contradicting twists and turns exposing their inadequacies, suddenly imposed on them, to deal with the process of online learning deployment and governance. The adaptation process saw a number of ups and downs, with the urban centric area adapting comfortably whereas the rural segment partially adapted to online clubbed along with offline learning processes. The whole country was subject to such adaptation but the effect of this change was distinct from person to person with respect to finance, location, infrastructure, profession and status. The level of adaptation varied in different States highlighting each state's governance and digital infrastructure. The gradual utilization also brought to the fore front the intent of institutions and individuals to bridge the digital need of the hour. This period also saw a plethora of innovation, both organised and ad hoc (also known as jugaad in Indian parlance). ANALYSIS:

● COVID 19 and student dropouts: The initial phase of the pandemic was hardly felt or imagined as the numbers were low, and misled many to assume that it wouldn't turn into a pandemic but would remain at epidemic levels. This early conclusion created a state of reluctance among the institutions in deciding on the right mode of distance learning, even though the talk of educational institutions going in for a temporary shut - down was a precautionary measure. Now with institutions initiating the use of the online learning system it is essential to analyse the various aspects that influenced the student dropout as a result. India known to be a developing nation has a population of about 1.38 billion people where nearly around 230 million people fall below the national minimum wage threshold of ₹375/- per day. The pandemic contributed further to an increase in the overall poverty rate by about 15% in the rural areas and 20% in the urban areas. With regards to employment number , around 100 million jobs were lost nationwide during the April-May 2020 lockdown, though

1 III BBA LLB, [email protected]

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most of these workers had found employment by June 2020, about 15 million continued to remain out of work. On the income front, “for an average household of four members, the monthly per capita income in Oct 2020 (₹4,979) was still below its level in Jan 2020 (₹5,989) as per reports. Due to the employment and income losses, the labour share of the GDP fell by 5 percentage points, from 32.5% in the second quarter of 2019-20 to 27% in the second quarter of 2020-21. “Of the decline in income, 90% was due to reduction in earnings, while 10% was due to loss of employment. This means that even though most workers were able to go back to work, they had to settle for lower earnings. Monthly earnings of workers fell on an average by 17% during the pandemic, with self-employed and informal salaried workers facing the highest loss of earnings. The poor households were hit the hardest, while the poorest 20% of households lost their entire incomes in April-May 2020, “the richer households suffered losses of less than a quarter of their pre-pandemic incomes.” During the period from March to October 2020, an average household in the bottom 10% lost ₹15,700, or just over two months’ income.2 Computing the statistics mentioned, we can correlate that the impact of loss of income and students dropping out of educational institutions directly. The increase in unemployment rate, the reduction in family income, the financial burden due to prior commitments on families created additional pressure thereby, not being able to make any investments and focussing only on their basic survival budget. The aim was more on surviving the COVID-19 pandemic and fulfilling their essential requirements like nutrition and health taking a priority. Education for below poverty line section was the most affected in Indian society. Online learning requires infrastructure such as internet connectivity, digital devices, electricity and affordability this fed to the financial burden already faced by this section. Furthermore, the need to immediately invest in tools to facilitate online learning exceeded their financial capacity. This dilemma they faced led to their children dropping out of schools in large numbers. The children who dropped out resorted to working at construction sites or other places in order to support their families’ financial needs so as to enable them to fulfil their basic needs. This led to larger societal issues like child labour, child marriage and labour regulation issues. The lower salaried and suddenly unemployed population, had to face a financial crisis of another order due to the additional investments in technology to assist online learning compounded by exorbitant school/college fees which remained unfettered and their concerns, struggles continuing to be disregarded.

2 Corona virus Average Monthly Income for Workers fell by 17%’, The Hindu,(May 22nd, 2021,11:06 AM) https://www.thehindu.com/news/national/coronavirus-average-monthly-income-for-workers-fell-by-17/article34491703.ece

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https://www.thehindu.com/news/national/coronavirus-average-monthly-income-for-workers-fell-by-17/article34491703.ece

https://www.thehindu.com/news/national/coronavirus-average-monthly-income-for-workers-fell-by-17/article34491703.ece


Source: Ministry of Statistics & Programme Implementation

The state in order to curb the number of students from dropping out of schools introduced various schemes and portals to bridge the divide and avail remote access to study materials as well as a medium to conduct classes thereby facilitating online education. Some of the schemes are: Swayam (Study Webs of Active Learning for Young Aspiring Minds): Launched in the year 2017 by the Ministry of Education, this portal aims to impart quality education to school students, undergraduate and postgraduate students in India by offering free materials, lectures and courses. DIKSHA: Launched in 2017, it aims to facilitate advanced digital learning for teachers from Classes 1 to 12. Swayam Prabha: Consists of a collection of 32 DTH channels that telecast educational content throughout the day for students across India. NDLI (National Digital Library of India): This is an extensive platform designed for students, teachers, researchers and scholars. It is a virtual repository consisting of academic content from school to postgraduate courses.

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E-Shodh Sindhu: This is a digital library designed for higher education in India, providing access to various e-resources.3 A consistent, coordinated and well publicised approach creating awareness would have led to a better implementation of its schemes effectively to be able to continue imparting education even in the most remote areas of the country supported by minimum digital infrastructure development given the diversity of our country physically and economically. In May 2021, the Ministry of Women and Child Development stated that around 577 children across the country are orphaned during the second wave of the pandemic after which the Central Government announced that it would provide financial assistance to those children under the PM Cares for Children’s Scheme. The Scheme plans to fund school fees of the children in private schools and also ensures admission in Government schools such as Kendriya Vidyalaya, Navodaya Vidyalaya, etc. Apart from funding school fees, the Scheme also provides for paying interest on education loans taken by such students for higher education, like undergraduate courses and vocational courses.4

3 Taniya Choudhury, ‘Top 8 Government e-Learning Platforms for Students, ABP Education’, (May 23rd, 2021, 5:14 PM) https://www.abpeducation.com/education-tips/top-8-government-elearning-platforms-for-students-1.1192917 4 Express News Service, ‘PM announces aid, Free Education, for COVID orphans; pension for employees’ next of kin’ The Indian Express, (June 12th, 2021, 12:33 PM) https://indianexpress-com.cdn.ampproject.org/v/s/indianexpress.com/article/india/centre-to-help-children-left-orphaned-by-covid-with-education-loan-7335686/lite/

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https://www.abpeducation.com/education-tips/top-8-government-elearning-platforms-for-students-1.1192917

https://www.abpeducation.com/education-tips/top-8-government-elearning-platforms-for-students-1.1192917

https://indianexpress-com.cdn.ampproject.org/v/s/indianexpress.com/article/india/centre-to-help-children-left-orphaned-by-covid-with-education-loan-7335686/lite/

https://indianexpress-com.cdn.ampproject.org/v/s/indianexpress.com/article/india/centre-to-help-children-left-orphaned-by-covid-with-education-loan-7335686/lite/


Increase in child labour: A direct consequence of loss of income in rural families and low income groups is a menacing increase in child labour which leads to students dropping out of schools. With parents losing their jobs and unable to find new ones during lockdown, the children of the household are compelled to leave their education and work in order to sustain their families. According to the 2011 Census, 10.1 million children were subject to child labour in India, out of which 5.6 were boys and 4.5 were girls.5 Currently standing at about 33 million, 80% of total child labour is from the rural parts of India and the pandemic has created a situation where children are being forced into labour at an alarming rate. A study conducted by the Campaign Against Child Labour in 24 districts of Tamil Nadu during September and November 2020 revealed a significant increase in the proportion of working children from 28.2% to 79.6% out of 818 children. The study also found out that there was a 280% increase in child labour among the more vulnerable communities such as the Scheduled Castes and Scheduled Tribes in the State. Apart from job loss and family pressure, a certain percentage of children wanted to work in order to buy smart phones.6 A direct correlation can be made between the pandemic and effect of online education on students with poor educational facilities. Between April 2020 and September 2020, the Bachpan Bachao Andolan movement rescued about 1200 children who were trafficked and made to work in factories and farm’s with an average monthly wage of Rs. 1,000 per month. (It is important to notice that the modus operandi of schools in rural and semi urban areas is not only education centric, but also acts as a surveillance system by safeguarding students from domestic violence at home and possible child trafficking and labour, by providing adequate nutrition to students through the Mid - Day Meals scheme.) Subsequent to the lockdown in March 2020, with the closure of schools on one hand and a considerable percentage of students facing financial and technical difficulties thus unable to cope up with online education on the other, the increase in number of student dropouts in both private and government institutions has notably increased. The added financial pressure in rural families led to children working in factories and other establishments for less than minimum

5 ‘Child Labour and Exploitation’, UNICEF, (May 23rd, 2021, 6:01 PM) https://www.unicef.org/india/what-we-do/child-labour-exploitation 6 P.A. Narayani, ‘Child Labour increase during COVID - 19: Survey’, The Hindu, (May 23rd, 2021, 6:15 PM) https://www.thehindu.com/news/cities/Madurai/child-labour-increased-during-covid-19-survey/article34054623.ece

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https://www.unicef.org/india/what-we-do/child-labour-exploitation

https://www.unicef.org/india/what-we-do/child-labour-exploitation

https://www.thehindu.com/news/cities/Madurai/child-labour-increased-during-covid-19-survey/article34054623.ece

https://www.thehindu.com/news/cities/Madurai/child-labour-increased-during-covid-19-survey/article34054623.ece


wage and in harsh conditions, blatantly violating numerous legislations including the Child Labour (Prohibition and Regulation) Act. Various studies in different parts of the country have reported adverse effects of digital learning and its affordability on children. With the given data, it is only a matter of time when the larger part of the youth of the country are pulled away from education permanently leaving the future of the Indian economy and its workforce at a huge risk. The pandemic cannot be used as an excuse to justify the increase in child labour. Immediate action for controlling child labour and redressal schemes by the government must be implemented at the earliest, along with stringent application of child labour laws in the country. Digital infrastructure has to be made available for the most remote areas in order to encourage and implement online education even in rural areas. Increase in child marriage: COVID-19 has made an already difficult situation for millions of girls even worse. Shuttered schools, isolation from friends and support networks, and rising poverty added fuel to the fire; the world was already struggling to put out. Before the pandemic, India accounted for one in three child marriages globally and had become a world leader in working towards reducing child marriages, by education and awareness programmes. A harsh, long lockdown, which was implemented suddenly, left millions of daily labourers and migrant workers without employment, pushing millions into poverty. India's economy contracted by almost 24% last quarter and schools remain closed across the country as COVID-19 cases continued to rise and forcing families to consider child marriage to alleviate poverty.7 The recently published NFHS (National Family Health Survey) Factsheet shows a high prevalence of child marriages in different parts of the country. The data shows that in some states, more than 40% of the female population was married before they turned 18.UNICEF statistics show that over 12 million girls worldwide were married off in their childhood every year, with India ranking fourth among eight South Asian countries after Bangladesh, Nepal and Afghanistan. The recent report of UNICEF on the impact of COVID-19 on child marriages states that India is among the five countries that account for half of the child marriages in the world.8 • COVID 19 and educators: With various studies and surveys conducted on the situation of

online education and its impact on students, the impact of online education on educators and teachers across the country was rather impaired. The immediate need to conduct classes in a different mode left teachers in a lurch. Inadequate training, faulty infrastructure and a forthcoming tilt in their work life balance and work style were few of many problems that teachers across the country faced. The challenges were common for teachers irrespective of whether they taught at government institutions, private institutions, boards and geographical locations. However, the sole point of difference between them was the intensity and impact of such learning. Remote learning as opposed to traditional classroom teaching has created a whole new set of unprecedented problems which the country had to come to terms with causing great discomfort to teachers and institutions. India witnessed widespread unemployment in the year 2020. There was a huge spike in the unemployment rate in India from 5.36% in 2019 to 7.22% in January 2020. With the commencement of

7 Sophie Cousins, ‘2.5 million More Child Marriages due to COVID-19 pandemic’, The Lancet, (May 26th, 2021, 3:29 PM) https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32112-7/fulltext 8 Mathew Thomas, ‘Rise in Child Marriages in the Lockdown’, The Wire, (26th May, 2021, 3:35 PM) https://thewire.in/rights/rise-in-child-marriages-in-the-lockdown-how-the-centre-ignored-data-of-its-own-nodal-agency

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https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32112-7/fulltext,4:34pm

https://thewire.in/rights/rise-in-child-marriages-in-the-lockdown-how-the-centre-ignored-data-of-its-own-nodal-agency

https://thewire.in/rights/rise-in-child-marriages-in-the-lockdown-how-the-centre-ignored-data-of-its-own-nodal-agency


national lockdown, from March 2020, India’s unemployment rate reached a peak of 23.52% in April 2020.9 In the year 2020, teachers across India faced the brunt of unemployment. In Maharashtra, about 60,000 teachers lost their jobs consequential to the pandemic. Lakhs of teachers from over 90% of schools and associations faced salary cuts from 20% - 50% which they claim was due to parents refusing to pay fees. It was reported that schools fell short of funds to pay teachers as the rate of fee collection was below 40%10. Around 40,000 private school teachers lost their jobs in Karnataka during 2020. Restrictions by the Government which includes banning of online classes for pre nursery schools and no new admissions were taken for primary schools which put schools in a tough position. This led to salary cuts in both budgets as well as premium schools.11 The Karnataka government announced relief packages of Rs. 1250 Cr on May 19 2021 to various frontline workers. However, this package does not cover teachers which caused uproar among the teacher community. Teachers of both government and private institutions are left discouraged but still asked to conduct online classes out of their comfort zones as neither parent, management or the government seem to pay heed to the aftermath of such actions. The problem worsens as a considerable number of teachers are the sole breadwinners of their family. As the year 2021 saw state elections in 4 states, teachers from government schools were appointed for election duty. For instance, about 135 contractual teachers who were appointed for poll duty in the Uttar Pradesh panchayat elections have died due to COVID-19 while on duty.12 The Uttar Pradesh Government has a policy for providing compensation to officials deputed to election duty who die as a result of terror attack, explosion, firing or violence during booth rigging. However, deaths due to COVID-19 have not been included in the policy. On the contrary, states like Bihar and Rajasthan have announced policies compensating COVID deaths up to Rs. 30 Lakhs. Navodaya a school whose teachers have complained of not receiving their pension, as opposed to Kendriya Vidyalaya schools and other State Government schools.

Source: Times Now via Quartz

9. Impact on Unemployment Rate due to Coronavirus (COVID-19 Lockdown in India from January 2020 to January 2021)’, Statista, (27th May, 2021, 4:09 PM) https://www.statista.com/statistics/1111487/coronavirus-impact-on-unemployment-rate/ 10. Abhishek Choudhari, ‘Over 60K Teachers have Lost their Jobs in State: Associations’, The Times of India, (27th May, 2021, 5:31 PM) https://timesofindia.indiatimes.com/city/nagpur/over-60k-teachers-have-lost-their-jobs-in-state-associations/articleshow/77684276.cms 11. Aksheev Thakur, ‘Karnataka: Over 40,000 Private School Teachers Lose Job Amid Coronavirus Crisis’, Deccan Chronicle, (June 3rd, 2021, 7:09 PM) https://www.deccanchronicle.com/nation/current-affairs/080720/karnataka-over-40000-private-school-teachers-lose-job-amid-coronavir.html 12. Jyoti Yadav, ‘She was 8 Months Pregnant, was forced into UP Poll Duty that Killed 135 Teachers’, The Print, (June 7th, 2021, 7:11 PM) https://theprint.in/india/she-was-8-months-pregnant-was-forced-into-up-poll-duty-that-killed-135-teachers/648092/

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https://www.statista.com/statistics/1111487/coronavirus-impact-on-unemployment-rate/

https://www.statista.com/statistics/1111487/coronavirus-impact-on-unemployment-rate/

https://timesofindia.indiatimes.com/city/nagpur/over-60k-teachers-have-lost-their-jobs-in-state-associations/articleshow/77684276.cms

https://timesofindia.indiatimes.com/city/nagpur/over-60k-teachers-have-lost-their-jobs-in-state-associations/articleshow/77684276.cms

https://www.deccanchronicle.com/nation/current-affairs/080720/karnataka-over-40000-private-school-teachers-lose-job-amid-coronavir.html

https://www.deccanchronicle.com/nation/current-affairs/080720/karnataka-over-40000-private-school-teachers-lose-job-amid-coronavir.html

https://theprint.in/india/she-was-8-months-pregnant-was-forced-into-up-poll-duty-that-killed-135-teachers/648092/

https://theprint.in/india/she-was-8-months-pregnant-was-forced-into-up-poll-duty-that-killed-135-teachers/648092/


Parents, teachers and institutions are part of a vicious economic loggerheads with parents refusing to pay the school fees and management running out of funds to sustain teachers as well as non-teaching staff forcing them to lay off their employees and hardly any regulation being effective to prevent such job losses. A quick and collective drafting and implementation of policies for teachers during the course of the pandemic would have saved as lakhs of teachers their jobs and done away with the sceptic views of new trainees associated with risk factors of the noble profession. Teachers across the country were trained to teach in a physical classroom environment, adapting to online teaching came with numerous hurdles in the profession. The primary issue was having a consistent and reliable power source, strong internet connectivity and the right digital equipment. A recent survey in Delhi pointed out that there was a considerable gap between government and private institutions for accessing the internet and the required digital equipment. About 72% of teachers reported that private institutions had the infrastructure to conduct online classes. On the other hand, only 17% of government schools had such suitable infrastructure. In locations where majority of teachers had access to consistent internet connectivity, the issue was insufficient training as online teaching required special training. About 76% of teachers were trained by the institution for online teaching, only 27% percent being from government schools.13 Teachers were not accustomed to teaching with the help of PowerPoint and other applications and the customary chalkboard teaching was replaced with applications like Zoom, Google Meet, Microsoft Teams, etc. This increased the digital divide among government and private institution teachers as teachers, especially in rural areas, were not trained adequately for this situation. As teaching cannot come to an absolute halt, teachers had to learn how to use online platforms by reading manuals, through students and colleagues. This highlights how training falls short on online teaching and how there is an immediate need for such inclusion. Apart from training, teachers are required to invest more time in preparing for their lessons as conventional hand written notes and printed textbooks cannot be used to deliver to the students. According to the survey in Delhi, only about four fifth of the teachers confirmed that institutions helped teachers convert their materials to more suitable forms. To add on to these issues, was diligent course completion due to the lockdown. The early stages of the pandemic lockdown saw hardly any classes being organised as they were getting digitally prepared for the challenges. Once they overcame these challenges many colleges and universities refused to reduce portions adding pressure on teachers to make do and complete the syllabus. RECOMMENDATIONS

1. To formulate and inculcate online methods of teaching in teacher training programs across the country.

2. The systematic distribution of additional responsibilities by the government to its agencies’ to ensure access to prompt, feasible and efficient digital facilities to all

13 Samta Jain and Others, ‘Teachers Voices on the Impact of COVID-19 on School Education: Are ed-Tech Companies Really the Panacea?’, Sage Journals, (June 11th, 2021, 3:47 PM) https://journals.sagepub.com/doi/full/10.1177/0973184920976433

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sections of the society, and contribute to minimize the growing digital and economic divide.

3. Consistent and wide spread awareness programmes regarding various government schemes and initiatives among parents, students and educators in rural areas

4. To take immediate action to curb child labour and child marriages by providing financial relief to poverty struck families.

5. Provide fee concessions/loans/scholarships/instalments in schools and colleges to reduce financial burden among parents and also grant relief to educators who are subject to income reduction and temporary job loss.

CONCLUSION: The COVID-19 pandemic has caused irreversible changes to various sectors in most economies. Although it may not be possible to avoid such circumstances in the future completely, but being well prepared would help to cope up with such situations and also help to move on in life without coming to a complete standstill. It has now become a growing need to develop educational infrastructure with a vision to face and prepare for such unprecedented circumstances such as the pandemic in the future more effectively. Since the key to curtailing larger societal and economic issues lies in education, it must be given the highest priority. The government is taking active initiatives in furtherance of this, but it has not been sufficient in reaching out to the larger masses thereby continuing the aforementioned issues of child marriage, child labour and so on. The importance of implementing such initiatives should not only be limited to students and educators but also extended to the parents as well. The limited approach towards the teaching community might serve as a deterrence to the aspirants of a nation building profession. If this condition continues to subsist, the consequences of this might become an onerous task to retrieve from. In turn, creating an adverse effect on the country’s workforce as well as economy as a whole, in the near future.

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ONLINE EDUCATION DURING COVID-19: DIGITAL DIVIDE EXACERBATES EXISITING INEQUALITIES

Priyanka Chakrabarty1, Nilani Claire N2 and Stefy Maria Sebastian3

INTRODUCTION On 30th January 2020, the World Health Organization (WHO) declared the novel coronavirus, also known as COVID-19, to be a Public Health Emergency of International Concern4 (PHEIC). PHEIC is outlined in the International Health Regulations, 2005 (IHR) by the United Nations (UN). IHR is legally binding on India as it is one of the signatories5. On 24th March 2020 the first fourteen day lockdown was imposed in India6. Since March 2020 educational institutions in India have suspended physical classes7 and have shifted to online teaching and learning. For this paper, we will analyse notifications by Bar Council of India (BCI) in ensuring law education through online mediums and decisions regarding examinations. Furthermore, interventions by student bodies and subsequent judicial interventions by the High Courts and Supreme Court will be analysed to understand the measures that are taken by institutions. The shift to online teaching methods poses major policy complexities with regards to internet privileges, accessibility, and effective and fair methods of conducting examinations. In light of the policy decisions and the judicial interventions, the central question this paper explores is the ways in which online education exacerbates existing inequalities along the lines of [A] caste [B] gender. Furthermore, have the legal educational bodies and judicial authorities been able to address the issue of inequality in accessing online education created by the COVID-19 pandemic? DIGITAL DIVIDE AND DISPARATE IMPACT IN ACCESSING ONLINE EDUCATION DURING COVID-19 In the landmark case of Griggs v. Duke Power Co8., the disparate impact theory of discrimination originated. The judgment and the subsequent theory states that laws and policies that are neutral in appearance, in practice, they are anything but neutral9. The disparate impact

1 II LLB, [email protected] 2 IV BA. LLB 3 IV BA. LLB 4 COVID-19 Public Health Emergency of International Concern (PHEIC) Global research and innovation forum, (12th February 2020), https://www.who.int/publications/m/item/covid-19-public-health-emergency-of-international-concern-(pheic)-global-research-and-innovation-forum. 5 International Health Regulations (2005), 2nd ed, ( 1st January 2008), https://www.who.int/health-topics/international-health-regulations#tab=tab_1 6 COVID-19: Lockdown across India, in line with WHO guidance (24th March 2020), https://news.un.org/en/story/2020/03/1060132. 7 Atanu Biswas , “COVID-19 and the blow to the education sector” (01st May 2020 07:37 AM), https://www.newindianexpress.com/opinions/2020/may/01/covid-19-and-the-blow-to-the-education-sector-2137682.html 8 Griggs v. Duke Power Co., 401 U.S. 424 (1971). 9 Melissa Hart, Disparate Impact Discrimination: The Limits of Litigation, the Possibilities for Internal Compliance, 33 J.C. & U.L. 547 (2007), available at https://scholar.law.colorado.edu/articles/328.

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of laws and policies has also received judicial acknowledgment in the Navtej Singh Johar v. Union of India10. In the judgement disparate impact is defined as, when an action disproportionately impacts access to opportunities and benefits which are available to other members of the society and, thus, puts an individual or certain groups of individual at a disadvantage11. The digital divide in India is staggering and is structured along the lines of existing inequalities. Envisioned in the Constitution of India is the aim of providing equality of educational opportunities to all citizens irrespective of caste, class, gender and religion. Article 29 (1) provides for equal access to educational institutions maintained by the State without discrimination on grounds only of religion, race, caste, language or any of them12. Furthermore, Right to Education Act 2009 guarantees equitable quality education to all children from six to fourteen years of age13. Digital Divide mirrors Caste Inequalities in Online Education The key findings of the Household Social Consumption on Education in India, 2017-18 National Sample Survey (NSS)14 shows the digital divide not just between rural-urban, private-public educational institutions but also by caste. At the graduation level, less than 6% of rural and 25% of urban households have access to a computer. And, less than 17% of rural and 44% of urban households have access to internet. At the school level, the situation is even worse as illustrated in Chart 1.

Source: NSS Report No. 585: Household Social Consumption on Education in India

10 Navtej Singh Johar v. Union of India, AIR 2018 SC 4321 11 ibid at 394 & 395 12 INDIA CONST. art. 29, cl. 1. 13 Right to Education Act, 2009, No. 35, Acts of Parliament, 2009 (India). 14 NSO, “Household Social Consumption on Education in India” NSS 75th Round, (JULY 2017 – JUNE 2018) http://mospi.nic.in/sites/default/files/publication_reports/Report_585_75th_round_Education_final_1507_0.pdf.

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If the differences between government versus private run schools and universities are observed, as illustrated in Chart 2, then more students have access to computer and internet under private institutions. However, even at the college level for private institutions, access to internet and computer is under 33% and 54% respectively.15


Out of all students enrolled for education, around 77.8% of Scheduled Tribes and 69.4% of Scheduled Castes were in government institutions whereas more than 52.2% of Forward Castes were in private institutions, as illustrated in Chart 3. The data illustrated that a higher proportion of the deprived groups are dependent on government sources for education, as it is significantly cheaper and affordable than private institutions. The move towards online education will adds disproportionate financial burden on such students and their families.16

15 ibid. 16 supra note 14

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Out of total enrolled students, 96% of Scheduled Tribes and 96.2% of Scheduled Castes did not have access to a computer whereas 83.8% of Forward Caste students did not have access to a computer at their homes, as illustrated in Chart 4.17

Source: NSS Report No. 585: Household Social Consumption on Education in India For students enrolled in colleges that year, 95.1% of Scheduled Tribes and 94.1% of Scheduled Castes did not have access to a computer at home as compared to 80.1% of students belonging to Forward Castes.

17 supra note 14

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Another requisite for online learning is access to internet. The stark difference in access to internet for different caste groups, as illustrated in Chart 5, illustrates that historically marginalized groups would be further kept out from education. 89.3% of Scheduled Tribes and 85.7% of Scheduled Caste households whose children were in school did not have access to internet whereas the figures for upper castes whereas high as 64.9%. Similarly, the digital divide based on caste persists for higher education as well.18

Source: NSS Report No. 585: Household Social Consumption on Education in India The latest household survey data on education highlights the persistence of socio-economic inequalities in India. Higher education, in fact, helps in bridging the social gap. It is true that online teaching has been forced by extraordinary circumstances. While it is important that teaching and learning do not become a causality of the pandemic, it is also critical to ensure that a big segment of students are not excluded from digital learning19. Digital Divide exacerbates existing Gender Biases According to The Mobile Gender Gap Report 2020 of Groupe Speciale Mobile Association (GSMA) that represents the interests of mobile operators worldwide, only half of the women in India use mobile internet compared to men—21% of women compared to 42% of men20. This disparity appears to have manifested even more adversely during the Covid-19 pandemic. A September 2020 study by Centre for Catalysing Change, a not-for-profit organisation, shows how adolescent boys had more access to digital infrastructures such as mobile phones, internet

18 supra note 14 19Avinash Kumar Mayur Kumar, Data of disparity shows why it’s critical that digital learning is inclusive, (June 17, 2020, 18:17 PM), https://www.thenewsminute.com/article/data-disparity-shows-why-it-s-critical-digital-learning-inclusive-126756. 20 Isabelle Carboni, Nadia Jeffrie, Dominica Lindsey, Matthew Shanahan, Claire Sibthorpe, Connected Women “The Mobile Gender Gap Report 2021”( June 2021), https://www.gsma.com/r/wp-content/uploads/2021/06/The-Mobile-Gender-Gap-Report-2021.pdf

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services, radio, and media. This evidence is particularly demonstrating how lack of access to gadgets and technology may have forced many girls to stay away from any form of digital schooling over last few months. A study by Young Lives, on childhood poverty worldwide, highlights disturbing gender dimension to digital access in India. According to the study, “Boys in India are much more likely than their female peers to use a computer and the internet regularly”. These numbers expose the vulnerability of a female students many of whom are also likely to be subjected to a deep gender bias21. The digital gender gap begins in early childhood, as parents and teachers act in accordance with the perception that computers are a masculine domain. The motivational beliefs and behaviours are shaped by their experiences and are a result of gendered socialization processes. The digital gender gap corresponds to societal gender stereotypes that portray young and adolescent men as autonomous, independent, and adept at technology-related domain. While young and adolescent women are not encouraged to explore technological domains. This influences women’s access to technology and has far-reaching consequences for their education and subsequently their career choices22. In this part we traced the ways in which online education during COVID-19 creates a disparate impact because of existing gender and caste based inequalities. These existing inequalities then determine educational outcomes, including access to online education. In the next section, we will look into educational litigations, subsequent judicial interventions, and institutional policy making. The central question would be, have these interventions been able to bridge the digital divide and ways in which access to online education is impacted by circumstantial factors. THE IMPACT OF INSTITUTIONAL POLICIES AND JUDICIAL INTERVENTIONS ON ACCESSING ONLINE EDUCATION The shift from offline to online education due to COVID-19 brings up novel challenges for fulfilling academic requirements. It also brings to forefront the question of examination. The traditional method of closed book testing coupled with faculty invigilation is the standard practice. Norms of social distancing and frequent lockdowns poses a challenge to conduct examinations in a free and fair manner. The aspect of law education and admission to National Law University (NLUs) faced major hurdles due to inability to conduct offline exams. Furthermore, COVID-19, at a global level impacts income capacities of individuals which disrupts the ability to pay the academic fees, which is a mandatory requirement for accessing education. In this part we will explore existing disparities in the domain of online education along with [A] contestations around examination practices [B] economic disparities heightened by COVID-19 which disrupts access to online education. Furthermore, [C] the ways in which continuous isolation impacts physical and mental health and ultimately educational outcomes.

21 Sourav Banerjee, “Girls and boys need equal tech access for online school classes”, (DEC 25, 2020 05:20 PM IST) “https://www.hindustantimes.com/analysis/girls-and-boys-need-equal-tech-access-for-online-school-classes/story-yB0qwTMIYT9yTf8gpRqLbM.html 22 Selma Korlat, “Gender Differences in Digital Learning during COVID-19: Competence Beliefs, Intrinsic Value, Learning Engagement, and Perceived Teacher Support”, (30 March2021), https://www.frontiersin.org/articles/10.3389/fpsyg.2021.637776/full.

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Student Activism, Examinations and Judicial Interventions: The case of Law Examinations during Covid-19 Karnataka State Law University (KSLU) through a notification on 22nd February, 2021 announced that offline examinations will be held for law students across all colleges in Karnataka23. This notification was in violation of the University Grants Commission (UGC) notification released on 27th April, 202024 which proposed an evaluation format based on performance on previous semester and internal assessment. Law students at the Karnataka State Law University (KSLU) through the National Students Union of India (NSUI) filed multiple public interest litigations under Article 226 of the Constitution of India. In the petitions of Rithvik Balanagaraj vs Bar Council of India25 and Purbayan Chakraborty vs Bar Council of India26 where students of KSLU challenged the notification sighting the existing disparities in accessing online education. The petition sites27 that affordability, accessibility, and remote localities hinder students’ ability to write offline examinations. Furthermore, students who have been unable to access online education due to any hindrance arising as a result of the digital divide, would be compelled to write examinations for subjects that have not been taught to them. This creates a disparate impact on students who are already marginalized and excluded from the system due to existing digital divide. In the petitions it is further cited that accessing online classes is not enough. The ability to access resources including library for study material and reference books is a crucial aspect of legal education28. In the absence of such facilities, students who belong to economically backward classes and do not have access to individual books or study material are at a disadvantage. One of the petitioners for the case of Rithvik Balanagaraj vs Bar Council of India29 has been undergoing financial difficulties and heavily relied upon library resources for academic purposes. Furthermore, they do not have access to smartphones or computer. Hence, due to complete absence of resources and existing digital divide, the petitioners contest that online education puts law students from marginalized backgrounds at a distinct disadvantage. The Karnataka High Court in this instant case quashed the notification issued by the Karnataka State Law University and set aside the intermediary semester exam for the 1st to 4th year students. The time table that was announced with regard to this was also quashed. It also laid down that the even semester shall be assessed based on the internal assessment of the students to an extent of 50% and the remaining 50% on the basis of performance in the previous semester only30. The Common Law Admission Test conducted by National Law Universities in the year 2021 is also facing difficulties. The CLAT-2021 scheduled to be held on June 13, 2021 was

23 KSLU, Revised Notification on Extension of dates for provisional registration of Examination ( 22nd February 2021), https://kslu.karnataka.gov.in/storage/pdf-files/Notification/Revised%20Notification.pdf 24 Guidelines on Examination and Academic Calendar for the Universities in view of COVID-19 Pandemic and Subsequent Lockdown( April 2020) < https://www.ugc.ac.in/pdfnews/4276446_UGC-Guidelines-on-Examinations-and-Academic-Calendar.pdf> 25 Rithvik Balanagaraj v. Bar Council of India, WP No15485/2020. 26 Purbayan Chakraborty vs Bar Council of India , WP No. 9047 OF 2020 27 ibid. 28 supra note 21, Para 10 29 supra note 21, Para 12 30 supra note 21.

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postponed31 and subsequently, the General Body of the Consortium of National Law Universities met on the 12th June, 2021 and held that CLAT-2021 will be conducted on Friday, 23rd July, 2021 between 2 & 4 PM for both UG and PG programmes.32 Financial Constraints Most of the prominent law schools like NLUs and leading private law schools charge Rs. 1.5 lakhs every year by way of fees. Due to the nation-wide lockdown caused by the pandemic, the subsequent job losses, unemployment have resulted in constrained finances in several households.33 Recently, many cases have been filed in different High Courts to resolve the despair students face as they continue to pay the semester fees for services not utilized.34 Impact of online classes on physical and mental health The present situation has caused many students to suffer from physical health issues which might prevent them from attending classes. The pandemic has aggravated the deteriorating mental health conditions in the country.35Experts have opined that “the lockdown has increased the already prevalent risks related to mental illness, financial insecurity and work stress, and has added new ones like loss of control, depletion of social networks, job uncertainty, abuse and social isolation.”36 Some students claimed that the long lasting hours of classes were burdensome which effected their physical and mental health. Many universities conduct four or more classes a day, and several students complained of strain in the eyes from sitting before the screen for hours. Migraine headaches were another reported concern.37 CONCLUSION Students in India have been subjected to online classes for more than one and a half years now. With rumours of a third delta variant, the chances of online classes becoming a norm is being

31 Common Law Admission Test (CLAT) 2021, May 15, 2021, https://consortiumofnlus.ac.in/clat-2021/notifications/CLAT-2021-Notification-2021-05-15.pdf 32 Common Law Admission Test (CLAT) 2021, June 14, 2021, https://consortiumofnlus.ac.in/clat-2021/notifications/CLAT-2021-Notification-14-06-2021.pdf 33 IANS, ‘18.9 mn Salaried People Lost Jobs since April, 5 mn in July, Says CMIE’ Business Standard India (19 August 2020) https://www.business-standard.com/article/economy-policy/18-9-mn-salaried-people-lost-jobs-in-covid-era-5-mn-last-month-cmie-data-120081900172_1.html 34 Meera Emmanuel, ‘Students of RGNUL Move P&H HC Challenging University Demand for Full Semester Fee amid COVID-19 Crisis’ https://www.barandbench.com/news/lawschools/students-of-rgnul-move-ph-hc-challenging-demand-for-full-semester-fee-covid-19-crisis; ‘Law Students Approach Kerala HC Against Collection Of Fees By NUALS For Services Not Availed By Them During Lockdown Period’ (Live Law, 22 August 2020) https://www.livelaw.in/news-updates/law-students-approach-kerala-hc-against-collection-of-fees-by-nuals-161801. 35 Joel P., ‘COVID-19 and Mental Health: Suicidal Tendencies and Self-Harm on the Rise’ (The Wire) https://thewire.in/health/covid-19-mental-health-suicidal-tendencies-self-harm-rise.; Mohammad Ibrar, ‘Lockdown Triggers Rise in Mental Health Issues among Students: Delhi University Professor’ The Times of India (19 May 2020) https://timesofindia.indiatimes.com/city/delhi/lockdown-triggers-rise-in-mental-health-issues-among-students-delhi-university-professor/articleshow/75826330.cms . 36 ibid. 37 Svetlana Correya and Swati Agrawal, Shreyas Alevoor and Puja Raghavan, “Making Online Education Accessible and Inclusive in the Time of COVID-19 Pandemic” (September 24th 2020) https://www.idialaw.org/blog/making-online-education-accessible-and-inclusive-in-the-time-of-covid-19-pandemic/.

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https://www.business-standard.com/article/economy-policy/18-9-mn-salaried-people-lost-jobs-in-covid-era-5-mn-last-month-cmie-data-120081900172_1.html

https://www.business-standard.com/article/economy-policy/18-9-mn-salaried-people-lost-jobs-in-covid-era-5-mn-last-month-cmie-data-120081900172_1.html

https://www.barandbench.com/news/lawschools/students-of-rgnul-move-ph-hc-challenging-demand-for-full-semester-fee-covid-19-crisis

https://www.barandbench.com/news/lawschools/students-of-rgnul-move-ph-hc-challenging-demand-for-full-semester-fee-covid-19-crisis

https://www.livelaw.in/news-updates/law-students-approach-kerala-hc-against-collection-of-fees-by-nuals-161801

https://www.livelaw.in/news-updates/law-students-approach-kerala-hc-against-collection-of-fees-by-nuals-161801

https://thewire.in/health/covid-19-mental-health-suicidal-tendencies-self-harm-rise

https://timesofindia.indiatimes.com/city/delhi/lockdown-triggers-rise-in-mental-health-issues-among-students-delhi-university-professor/articleshow/75826330.cms

https://timesofindia.indiatimes.com/city/delhi/lockdown-triggers-rise-in-mental-health-issues-among-students-delhi-university-professor/articleshow/75826330.cms

https://www.idialaw.org/blog/making-online-education-accessible-and-inclusive-in-the-time-of-covid-19-pandemic/

https://www.idialaw.org/blog/making-online-education-accessible-and-inclusive-in-the-time-of-covid-19-pandemic/


discussed. While several institutional attempts have been made to re-start offline classes, most institutions have been unable to make the shift. Online education continues to be a contested terrain marked by inequalities of caste, gender, rural-urban divide and other accessibility barriers. It also ignores the aspect that education isn’t just finishing syllabus and conducting examination. Students have to compromise of the social aspect of being a part of educational institutions and participate in building a common culture with peer groups. The nature of online education is reductive and exclusionary. While there have been legal interventions and institutional policies, they have remained pre-occupied in giving immediate reliefs and meeting academic requirements. Online education is neither a student centric approach, nor a student friendly method. It is simply a method of meeting academic goals even at the cost of exclusion and existing inequalities.

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