Socio-Legal Impacts Of COVID-19: Comparative Critique of Laws in India and Nepal

ISBN : 978-9390216024

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प्रथम संस्करण : मई 2020

प्रकाशक : राजमंगल प्रकाशन

राजमंगल प्रकाशन बिल्डिंग, 1st स्ट्रीट,

सांगवान, क्वार्सी, रामघाट रोड,

अलीगढ़, उप्र. – 202001, भारत

फ़ोन : +91 - 7017993445

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First Published : May. 2020

eBook by : Rajmangal ePublishers (Digital Publishing Division)

Cover Design : Rajmangal Arts

Copyright © Alok Kumar Yadav & Jivesh Jha

This is a work of fiction. Names, characters, businesses, places, events, locales, and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental. This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, resold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. Under no circumstances may any part of this book be photocopied for resale. The printer/publishers, distributer of this book are not in any way responsible for the view expressed by author in this book. All disputes are subject to arbitration, legal action if any are subject to the jurisdiction of courts of Aligarh, Uttar Pradesh, India

FOREWORD

It is with great pleasure that I write a foreword to this timely exposition and analysis of the laws introduced in Nepal and India to combat the current COVID-19 Coronavirus outbreak. This global pandemic has been wreaking havoc on the lives of people across the globe, already infecting around 3 million people and claiming around a quarter of million lives thus far.

It may be a little bold to call legal responses against this viral pandemic adopted by India and Nepal progressive laws, as their existing pieces of legislation are neither bold nor comprehensive enough to address the various dimensions and issues of the crisis.  

The main purpose of a legal academic writing should be to perceive and portray patterns and relations in a body of legal rules so as to make it manageable, teachable, comprehensible and usable. In Nepal, we have a limited number of professionals in the field of law who are concerned  with the academic study of law and legal principles. Most of those who do write on legal subjects produce commentaries on existing Acts or epitomize a new discourse, debate, or discussion. The present work succeeds in doing both to a remarkable degree.

The study of disaster law by our legal professionals has evoked a great deal of controversy. There are some who take the view that the crisis or epidemic laws should lay down the rights of the instruments of the state to battle such unprecedented situations. Others take the view that an intelligent approach to the study of all law, whether statute or other common law, is possible only if it strikes a balance between the rights and duties of the state. Regardless of either approach, it is obvious that a writer who attempts to collate and explain the fundamentals of epidemic law which generally trigger legal systems, renders a useful service to legal learning.

The first print of this book seems to be a comprehensive collection of the laws, views of the courts and international practice arranged under appropriate heads. The authors’ reading that the epidemic law regimes in India and Nepal are neither

Socio-Legal Impacts Of COVID-19     

comprehensive nor progressive cannot be overruled. We do not have modern policies, laws and institutions to combat health emergencies. The legal response to health emergencies, like the outbreak of a pandemic, has been poor. Neither country has a comprehensive law that deals with all aspects of prevention and control of a pandemic in the first place. The most important issue in such emergencies is to enable the federal agency to work with all provincial and local hospitals and health posts under federal coordination, resources and external support. Management of large-scale public health crises (i.e., the Coronavirus outbreak) is impossible without cooperation and coordination among the units of governance.

This begs the question about what kind of legal regimes are necessary in order to properly deal with a global pandemic of this scale and its threat to people’s lives, their livelihoods, and the larger economy of a state. Considering some of the issues that have risen in countries that have had large outbreaks of the Coronavirus may be useful in this regard. In contrasting the legal regimes in China (i.e. authoritarian) to that in South Korea (i.e. dramatic), some American scholars were quick to conclude that democracies, with their ingrained values of transparency, were better equipped at handling public health emergencies, while authoritarianism is the greatest public health risk. With news about China stifling whistleblower doctor Li Wenliang, some concluded that China had compromised the freedom of expression and curtailed the free flow of information. Of course, the tables quickly turned, as the pandemic overtook the United States and severely crippled its public health system.

There are various legal mechanisms at the United States federal government’s disposal to deal with a global pandemic like the COVID-19. For example, the National Emergencies Act (1976) and the Stafford Act allow the president to declare a national emergency, which activate emergency provisions and allows the Federal Emergency Management Agency (FEMA) to access nearly $40 billion in disaster relief funding. Additionally the Public Health Service Act allows the health and human services secretary to declare a public health emergency, "which then triggers a broader authority to ‘take such action as may be

Socio-Legal Impacts Of COVID-19     

appropriate to respond.’"Similarly, the surgeon general is also enabled by this act to use his/her judgment to decide on any measures necessary to prevent the spread of communicable diseases. Additionally, the 10th Amendment under the U.S. Constitution also grants all power that is not specifically allocated to the federal government to the states, which then have the authority to take actions such as isolation and quarantine in their respective jurisdictions.

As such methods are imposed, some questioned how they infringe on Americans’ civil liberties, including individual freedoms, freedom of association, or a restriction on liberty. However, top legal scholars, like Harvard Law School faculty members, Charles Fried and Nancy Gertner, agree that the restriction on individual freedom is largely appropriate for the circumstance. When implementing surveillance measures that have been used by other countries, the issue comes down to whether such measures are proportionate with the purpose of containing the virus. However, Professor Gertner argues that the government cannot target individuals, like by tapping phones, or one business over a similar one, as the common good would outweigh the individual freedoms.

In contrasting the South Korean legal regime with the American, B. Kim, a critic, writes that behind the Korean government’s ability to afford ‘openness’—both in maintaining governmental transparency and in allowing for physical movement—in fact, is a custom-made legal apparatus that has empowered authorities to collect and disseminate private information in aggressive ways. For example, through Article 76-2(2) of the South Korean Infectious Disease Control and Prevention Act (IDCPA), (1) the health minister is legally authorized to collect private data of citizens who are either confirmed with having the virus or are potential patients, and (2) health authorities can request private telecommunications companies as well as the National Policy Agency to share suspected and infected patients’ location information. Thus, without a warrant, South Korean authorities are empowered to gather such persons’ surveillance footage, credit card histories, and geo-locations through cellular data and share them with the

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larger public to warn them about infected patients or buildings in the public vicinities.

This sort of digital surveillance has also been used in various other countries. In Singapore, the government has published an online dashboard that contains detailed information about each positive case of COVID-19; details include which street the person lives on, where he/she works, and the details about their travel history. In India, the state government of Kerala used geo-mapping to locate the primary and secondary contacts of a family that was tested positive for the virus. In Taiwan, the National Health Insurance Administration and the National Immigration Agency joined forces to track the recent travel histories of citizens and their health information to identify high risk patients and monitor them through their cell phones.

The government’s access to such extensive private information, however, begs the question of how to prevent the misuse of this information by the government after the public health emergency has terminated. Many countries are going forward with such digital surveillance measures without much discussion and debate in their respective societies. To help guide this process in democratic nations with values regarding privacy and civil liberties, the Electronic Frontier Foundation provides some guidelines, including only necessary and proportionate privacy intrusions, data collection based on science, not bias, an expiration for additional authority, transparency, and due process (i.e. in the case that a government limits a person’s right based on big data and the concerned individual wishes to challenge the conclusions and limits).

In Nepal, we have a plethora of peripheral laws that may become helpful in dealing with epidemics, but an integrated comprehensive legislation is overdue. The components of national health services, which are responsible for the diagnosis and treatment of individuals with infectious diseases, should act uniformly and in close coordination with a federal agency during the crisis. Local authorities may also be handed over statutory obligations and powers to control the spread of infectious diseases under the law. When it is considered that the existing law is, however, also seemingly quite inadequate in addressing the

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problem and that much more may be needed, one is bound to ask questions about how much of the world’s resources, wealth, energy and intellect is to be spent on this task of regulation and control.

I want to thank Alok Kumar Yadav (India) and Jivesh Jha (Nepal) for undertaking such an important and timely research in a very short span of time. This work is an important first step towards rationalisation, for it does, by its very able and effective exposition, enable one to evaluate the dimensions of the problem and arrive at some sort of consensus of the existing legal apparatus. I trust the book will be useful not only to students in legal institutions, but also to the wider circle of scholars, practicing lawyers and others interested in law.

Bipin Adhikari, PhD

Senior Advocate, Nepal Consulting Lawyers, Inc.

Founder Dean, Kathmandu University School of Law

April 28, 2020

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PREFACE

The post-Corona period will be critical for the socio-political governance which calls for careful and serious use of nation’s resources. After all, old and tried approaches have failed to deliver much in welfare states.

While the state should come forward with more funds for fighting against pandemic situations, it is the duty of the lawyers and academicians to make their respective contributions in the study of law. Julius Stone has rightly observed jurisprudence as the lawyer’s extraversion, meaning thereby jurisprudence involves examination of precepts, ideals and techniques of the law by lawyers in the light of disciplines other than the law. It is for this reason this branch of philosophy aims to investigate the nature of law, and its relation with human values, attitudes, practices, and political dimensions. At this backdrop, authors endeavour to examine the precepts of the state, enactments as well as the welfare functions of the state during the deadly Coronavirus lockdown.

The objective of the book is not only to explain the socio-legal impacts and responses to COVID-19 but also the epidemic situations humans have faced earlier. A comparative study of epidemic laws of India and Nepal in the light of various global precedents has been attempted in this book. We have drawn largely the legal provisions relating to epidemic diseases in India and Nepal. We have suggested that welfare states, like India and Nepal could adopt and enact a comprehensive law to battle the pandemic-like situations.

It is also advisable that India and Nepal could take a leaf from England’s Coronavirus Act, 2020 which has been promulgated to address the challenges of COVID-19 in the country.

The book could be helpful for the students of sociology as our work exclusively observes the impact of epidemic law on society from sociological lens. All this has added to the utility of the book. This work embodies the progressive dimensions and

approaches in the field of epidemic law and Coronavirus lockdown.

It is hoped that the book will be welcomed by all those for whom it is meant.

- Authors

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CONTENTS 

S. No.      Page

CHAPTER - 1

Introduction   1-2

CHAPTER – 2

Historical Background of Epidemic/ Pandemic  3-24

CHAPTER – 3

Coronavirus Lockdown in India and Nepal   25-44

CHAPTER-4

Legal Frameworks Observed     45-104

CHAPTER-5

Lockdown from Jurisprudential Perspective   105-115

CHAPTER-6

Covid-19 Outbreak & its Impact on Human Rights   116-128

CHAPTER-7

Role of Ngo amid Coronavirus Lockdown   129-133

CHAPTER-8

Conclusion    134-138

Bibliography     139-141

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Socio-Legal Impacts Of COVID-19     

CHAPTER-1

INTRODUCTION

Prof. (Dr) A. K. Pandey

[1]

The deadly COVID-19 outbreak began its journey from Hubei province and Wuhan of China in December 2019. It then spread as a global pandemic reaching more than 200 countries in all member and non-member states of the United Nations with more than 2,665,974 active cases; 4,894,220 Coronavirus cases and over 320,181 confirmed deaths as of May 19, 2020. As the impact of COVID-19 is being acutely experienced at the rural, urban, provincial and national level, the government heads activated unprecedented and comprehensive prevention mechanism to control and mitigate the transmission. The outbreak compelled the democracies, autocracies or monarchies to impose a total lockdown. India and Nepal are no exception to it.

In a country that observes rule of law, every move of the state should be in consonance with law of the land. The government of India urged the state governments to implement 123-year-old colonial-era law to impose a Coronavirus lockdown. The colonial law, which is widely described as outdated piece of legislation, was first brought into