DIGITAL SECURITY DURING COVID 19 AND THE STEPS TAKEN BY GOVERNMENTS TO COMBAT THE SAME

By Amrit Behera

Abstract

This article will mostly focus on how the importance of cybersecurity has increased after the COVID 19 pandemic. The paper will also discuss the major steps that can be taken to ensure a more secure online platform and it will also spread some light on the steps that are taken by the Indian government concerning cybersecurity. And at the end it the paper will also focus on how this pandemic has forced to take steps for the future.

Introduction

The pandemic has posed a huge dilemma for all businesses across the world the main problem faced by them is regarding how to keep operating even after the closures of facilities and some significant offices. Their long-reliant information technology – data centres, cloud systems, departmental servers, and the digital gadgets their now-remote employees utilised to keep connected to one another and to the company’s data – becomes even more critical. The demands placed on the internet infrastructure have increased dramatically in the last few months.

Cybercriminals see such technology as a far bigger and more valuable target. To avoid a second disaster, cybersecurity operations must be improved, focusing on the digital gadgets and networks that have become vastly more important to the businesses present in recent weeks. To put it another way, “business continuity” has become a must.

Impact of COVID-19 on cybersecurity:

As businesses adapt to a new operating paradigm in which working from home has become the “new normal,” the coronavirus pandemic has presented new obstacles. Businesses are speeding up their digital transformations, and cybersecurity has become a big worry. If cybersecurity concerns are ignored, the consequences for reputation, operations, legality, and compliance could be severe. This article looks at how COVID-19 affects cyber risk and what firms may do to mitigate it.[i]

Cyberattacks on video conferencing services:

The series of cyberattacks on video conferencing services is an example of criminals exploiting cybersecurity holes in remote working. Between February and May 2020, almost half a million people were affected by data breaches in which video conferencing service users’ personal information (such as names, passwords, and email addresses) was stolen and sold on the dark web. Some hackers used a tool called ‘OpenBullet’ to carry out this attack.

Credential stuffing tactics are also used by hackers to get access to employees’ credentials, and the stolen information is then sold to other cybersecurity criminals. One of the effects is that firms that rely significantly on videoconferencing platforms will be severely disrupted. Credential stuffing is a type of cyberattack in which hackers utilise stolen login and password combinations to gain access to other accounts. Because it is fairly usual for people to use the same username and password for many accounts, this is conceivable.[ii]

Unwanted and uninvited members have been observed gaining access to virtual meetings and obtaining personal or sensitive information, which is subsequently sold to a third party or made public to harm the company’s reputation.

Ways to reduce the chances of cyberattack:

Cyberattacks have escalated by an order of magnitude as a result of the growth in communications and the widespread shift to conduct business online. They’ve also created a slew of additional dangers. The perimeter security of organisations is at risk of being penetrated. For breaches at both physical and digital access points, they need continuous surveillance and real-time risk assessments.

Leaders in security and risk management must now protect their businesses on a vast scale, and rapidly. They must make sure that their companies’ online services and digital platforms are secure from cyberattacks.

The IT department is also under a lot of strain. IT workers in some companies must expand remote working capabilities to employees who have never worked from home before. This may include their service providers in some circumstances. Many IT departments are in the process of implementing new collaboration tools. While this is useful for keeping staff in sync (especially in agile teams), it also increases the danger of critical material being hacked because it is now stored in less secure remote locations.

However, it is impossible for IT departments to refuse this request. To conduct operations remotely, company leaders, managers, and their staffs require access to internal services and applications. Security leaders are hesitant to give access without stringent access methods since many firms have not previously made these applications and data available through the Internet or virtual private networks (VPN).[iii]

Few companies, understandably, were prepared for their employees to work remotely in large numbers. They’ve realised that secure remote-access capacity and protected access to company systems has become a significant bottleneck.

It’s tough to enforce enterprise security policies and controls on a remote workforce. The majority of controls have limited scalability and take a long time to set up. We know of several companies that have resorted to let employees to access enterprise applications using their own digital devices because there was no way to enforce security measures. Business continuity plans (BCP) and incident response plans (IRP) are insufficient or non-existent for most organisations when it comes to dealing with pandemics. Security officials have never imagined or practised a large-scale BCP operation.

Steps taken by the Government:

In the year 2020 the government of India introduced a National Cyber Security Strategy which was formulated by the National Cyber Security Coordinator’s office at the National Security Council Secretariat.

The main aim of the National Cyber Security Strategy 2020[iv] was to improve the cyber awareness and cybersecurity with the help of more strict audits. Empaneled cyber auditors will examine a company’s security features more thoroughly than is now required by law.

Table-top cyber crisis management exercises will be held on a regular basis to emphasise the idea that cyber-attacks can happen at any time. It does, however, ask for a cyber-readiness index and accompanying performance monitoring. It is advised that a distinct budget be set aside for cybersecurity, as well as coordinating the roles and duties of multiple agencies with the necessary domain knowledge.[v]

A New Era for Cybersecurity:

The changes we’ve outlined will have an impact on more than just the IT department. Talent managers will need to reassess their policies to allow for a better work-life balance if remote employees demonstrate that they can work more successfully from home. Meanwhile, personnel with important skills and remote-working requirements must be rapidly and effectively on boarded.

Large enterprises will also face new budgetary restraints. There will be new ways to use finances and invest in the correct offerings. Firms will be more conservative in their resource allocation.

Furthermore, businesses will have the ability to restructure their work processes. Prioritize new at-home work arrangements that were developed during the lockdown and have shown to be successful. Finally, as people, assets, and facilities begin to recover, governments all over the world will establish new policies and regulations based on what they learned during the epidemic.

Conclusion:

A new era of cyber security has begun as a result of the epidemic. IT security experts who step up their game and defend their organisations’ people, technology, and data against new or increased threats from more skilled cybercriminals will be critical actors in the economic recovery. And indeed it is a much needed step for the future.

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[i] Daniel Lohrmann & Dan Lohrmann, 2020: The Year the COVID-19 Crisis Brought a Cyber Pandemic, Government Technology   (2020), https://www.govtech.com/blogs/lohrmann-on-cybersecurity/2020-the-year-the-covid-19-crisis-brought-a-cyber-pandemic.html (last visited Jul 16, 2021).

[ii] Impact of COVID-19 on Cybersecurity, https://www2.deloitte.com/ch/en/pages/risk/articles/impact-covid-cybersecurity.html (last visited Jul 16, 2021).

[iii] Deo Prashant, Raj Geetali & Santha Subramoni, How Covid-19 is Dramatically Changing Cybersecurity, Tata Consult. Serv. Ltd., https://www.tcs.com/perspectives/articles/how-covid-19-is-dramatically-changing-cybersecurity.

[iv] National Cyber Security Strategy 2020, , Drishti (2021), https://www.drishtiias.com/daily-updates/daily-news-analysis/national-cyber-security-strategy-2020 (last visited Jul 16, 2021).

[v] 3 ways governments can address cybersecurity right now | World Economic Forum, , World Economic Forum (2020), https://www.weforum.org/agenda/2020/06/3-ways-governments-can-address-cyber-threats-cyberattacks-cybersecurity-crime-post-pandemic-covid-19-world/ (last visited Jul 16, 2021).

[vi] Picture: IEEE inovation at work

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INTERNATIONAL LAW ON CONTROLLING TO SPREAD INFECTIOUS DISEASE

by Vartika Johri

ABSTRACT

Infectious diseases are usually considered from the view point of the human population affected, the diseases that are caused and the biology of the micro-organisms. Microbiologists and epidemiologists seldom consider the political dimensions of their activities. International law has made several attempts to deal with the spread of microbial diseases. International law also made sure that spread of such infectious disease to not cause any disturbance in international trade law and International environmental law. As the current scenario where globalisation is increasing a fast pace the concern with the health of population have become increasingly aware, international law and international health regulations are continuously attempting to control spread of infections.

INTRODUCTION

With recent outbreak of COVID- 19, the world has realised that epidemic diseases do not respect national boundaries, there is a requirement of national infectious disease laws and legislations. Owing to globalisation where every country is connected in such a way that the spread of such infectious disease will be very tricky to handle. International cooperation among national governments and between governments and international non-government agencies are facilitated by a basic set of international public health and infectious disease laws. The body of international infectious disease law is composed of different types of agreement among nations, including various treaties, accords, conventions and agreements, nations contributed to this law by participating in international organisations such as United Nations, World Trade Organisation or World Bank. Over the years the world has experienced a fast-spreading awareness among nations to improve these laws and to create awareness among other nations the importance of having efficient provisions to combat the spread of such infectious diseases, various nations sponsor or aid the mission of various NGOs agreeing to let their members assess and respond to infectious disease outbreaks within their national borders.

Increasing web of globalisation has caused nations to realise the importance of avoiding the spread of an epidemic disease but if taken a look at history the world was aware about the importance to these laws since the outbreak of European cholera epidemics of 1830 and 1847 which catalysed the evolution of the earliest multilateral governance of communicable diseases, this rooted the link between international law and communicable diseases in the mid-nineteenth century, more precisely in 1851 when France convened the first International Sanitary Conference with the participation of 11 European countries. In most of these conferences no legislative proposal was approved and even no diplomatic efforts were made in this regard. More than 150 years of subsequent multilateral linkage of law and communicable diseases, contemporary global health governance continues to evolve debate in public health discourses and still the legacy of the nineteenth-century public health diplomacy inspires the reach and grasp of contemporary international law to regulate globalisation of emerging and re-emerging communicable diseases within the mandate of WHO and other institutions. Historically speaking international law played a key role in communicable disease surveillance and throughout the nineteenth century international law played a dominant role in harmonising the inconsistent national quarantine regulations of European nation state. Within America in 1905 the Inter-American Sanitary Convention imposed notification duties for cases of cholera, plague and yellow fever. In 1924, the Pan-American Sanitary code provided for bi-weekly notification of ten specific diseases and any other diseases that the Pan-American Sanitary Bureau added also for immediate notification of other dangerous contagion liable to spread through international commerce.

In modern time prior to 1990s the role of international law in efforts by states to control and prevent infectious diseases has not been frequently analysed by international lawyers or international relation scholars.

GLOBALIZATION AND INTERNATIONAL LAW

Increased cross-border microbial traffic through globalisation revealed weaknesses in domestic public health systems such as inadequate surveillance capabilities. International law relates to the horizontal and vertical challenges for infectious disease policy created by globalisation.

Vertical Challenges represent then problems that countries face inside their territories from the national to the local level, responses to vertical challenge aim to reform public health practices and policies within a state but not between states.

Horizontal challenges constitute problems that arise between state from global microbial traffic. States adopted policies to manage infectious disease threats without international cooperation and because of increased volume and speed on international trade and travel moved states from national to international governance, 3 horizontal international legal regimes relating to infectious diseases appeared – the classical, organisational and trade regimes.

1. Classical regime – International sanitary convention adopted from the late 19^th century until World War II and the WHO’s IHR represented the classical regime.
2. The organizational – international health organisation created to deal with infectious diseases and other public problems. WHO served as the leading representative of this governance framework. States created international health organisations to facilitate horizontal cooperation in public health.
3. The trade regime – this regime created in 1851-1951 represented by the General Agreement on Tariffs and Trade (GATT,1947), this regime liberalised trade but recognised that states may restrict trade to protect health but in conformity to GATT rules.

In last 50 years have witnessed changes in international law relating to governance challenges created by globalisation for infectious diseases with foreign policy and national security concerns of the great powers might affect role of international law in global infectious disease policy.

WORLD HEALTH ORGANISATION AND THE INTERNATIONAL HEALTH REGULATIONS

In 1951, WHO adopted the International Sanitary Regulations under Article 6, which is the product of the nineteenth-century international sanitary conferences which was re-named as the International Health Regulations [IHR] in 1969 and later on there were slight modification in 1973 and 1981. The IHR consists of legally binding set of regulations which were adopted under the auspices of WHO as an international organisation and they are one of the earliest multilateral regulatory mechanisms strictly focused on global surveillance for communicable diseases, they provide a set of regulations for the control and sharing of epidemiological information on dangerous communicable diseases. Fundamental principle on which IHR operates is “Maximum security against the international spread of diseases with a minimum interference with world traffic”. Over the years these provisions have proved to be ineffective in controlling the spread as in 1994 a plague outbreak in India which led to US $1.7 billion losses in trade, tourism, travel and 1997, the European Community imposed a ban on importation of fresh fish from East Africa following the outbreak of cholera in certain countries, IHR’s relative inexperience in creating and enforcing legal regimes became the sole reason spread of such diseases and losses incurred because of the spread, owing to these facts in 1995 World Health Assembly adopted resolution WHA48.7(Global health security: economic alert and response) which requested that IHR should be revised to take more effective account of the threat posed by the international spread of new-emerging diseases. The revision was focused on 5 key areas

1. Global health security
2. Public health emergencies of international concerns
3. Routine preventive measures
4. National IHR focal points
5. Synergy between IHR and other related international regimes.

The duty and principle of state co-operation under general international law and the specific obligation of reporting epidemic outbreaks share an obvious fundamental similarity. Although individual states are responsible for preserving public health in their territories their efforts may be rendered meaningless without international co-operation. WHO has aptly exclaimed that “health is a shared responsibility, involving equitable access to essential care and collective defence against transnational threats”. The United Nation Charter Article 1(3), 2, 55, 56 as well as the UBGA’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states which clearly states in order to avoid and achieve maximum health standards as promised by WHO co-operation of all the States is a must, over years this has also became a customary law which is practiced and contributed in its development by all the nations. Article 2(1) of ICESR also requires state to co-operate for fulfilling the rights enshrined in the instrument, however this duty mentioned is specifies and narrowed in the field of public health. 

INTERNATIONAL LAW RESPONSE TO COVID 19

Ever since 1851, when the first International Sanitary Conference attempted to harmonize quarantine procedures among European States, countries have repeatedly united around the need to prevent the spread of disease. The latest iteration of the global rules on pandemic, the 2005 International Health Regulations which has requirements for states to report outbreaks and manage diseases within their borders and cooperate to prevent spread. The rules are binding on all 196 WHO members as they aim to ‘prevent, protect against, control and provide a public health response to the international spread of disease’

During COVID-19 the IHR have too often proved ineffective in shaping the response of states and even the WHO itself acted way too casual to the pandemic, there was inexplainable delay in reporting a public health emergency even after learning about the outbreak, and not even WHO many member states broke the recommendations of imposing strict travel bans, stay-at-home orders and other repressive measures, where state co-operation being the motive stated in the various conferences yet competition ruled the day.

IHR is binding on the member countries but lacks any punitive measures in case of violation of rules and duties and no enforcement mechanism resulted in drastic failure in handling a deadly pandemic which resulted in lockdown of the economy.

INDIA’s FIGHT AGAINST EPIDEMIC

The colonial-era Epidemic diseases Act [EDA] of 1897 is India’s solitary law that has been historically used as a framework for containing the spread of various disease including cholera and malaria. This Act came into force amidst the outbreak of the bubonic plague in Bombay, this law proved to be inadequate and the plague later spread itself to Bangalore and also other parts of the country. Over the years no standard or model rules and regulations have been prescribed as a corollary to the law and this law merely outlines a set of rudimentary elements including travel restrictions, examinations and quarantine of person suspected of being infected. There are major defects in the law as it has proved next to be useless in modern times but this an insufficiency on part of the central government of the country that even in middle of such pandemic there are no amendments in the act, which should be carefully examined and revised as being the need of the hour. Internationally the binding ruled of IHR has been strictly followed by the country but for an all-round protection the internal laws of the country are way too ancient to be effective.

CONCLUSION

In the words of Paton “From institutional point of view international Law is weak as it has no legislative support though there is international court of justice but the functions or takes cases on the basis of mutual consents of the states and it has no power to get the decisions implemented” there are various laws made, set up and rectified by the States, these are binding on member nations but still there are violation and still international law has always been silent on the punitive measures applicable in case of violations of these rules. If there had been a watch dog to make sure that the rules are being implemented it would have been easy to handle the fast spread of various epidemics and pandemics. In future the international laws need to be backed up with more strict laws because in this highly dynamic era emergence of new issues is no element of surprise, it should also be noted that simple formation of a law does no good but making sure it is implemented does.

REFERENCES:

1. https://link.springer.com/chapter/10.1057/9780230524248_13
2. https://www.encyclopedia.com/media/educational-magazines/legislation-international-law-and-infectious-diseases
3. https://jech.bmj.com/content/55/6/448.2
4. https://www.ncbi.nlm.nih.gov/books/NBK56586/
5. https://www.who.int/bulletin/archives/80(12)946.pdf?ua=1#:~:text=The%20IHR%20are%20a%20set,traffic”(7).
6. Picture: Bored Panda

ONLINE COURT: A MERE RECOURSE OR IDEALISTIC VISIONS

by Amrit Behera

Abstract

This article will mainly focus on the importance of online court and will list down the limitations that come with the online court. And at the end it will also suggest ways through which this problems can be solved. And it will conclude by focusing upon the future impact of the electronic courts in the society.

Introduction

Due to the COVID-19 pandemic, the Indian judiciary system got no other option other than to continue the court on an online platform. The Supreme Court of India had passed directions for all the courts across India to use the medium of video-conferencing for judicial proceedings. Under Article 142, the Supreme Court used its plenary power to order all high courts over the country to create a systematic procedure which will further help them to use the available technology during the pandemic. The practice of online court has been taking place from 25^th March 2020 with the sole motive of maintaining social distance.

The Concept of Virtual Courts

The main objective of virtual courts is to eliminate the presence of litigants or lawyers in the court of law as this will help to maintain social distancing and will also help in adjudicating the cases through an online platform. The virtual courts can also be known as e-courts or electronic court. The concept of electronic courts can be explained as a place where legal issues are decided in the presence of qualified judges and with the help of a well-developed technological infrastructure. The electronic courts are totally different from the computerized courts that have been replaced way before from 1990s. In order for proper functioning of electronic courts online environment and an Information and Communication Technology (ICT) enabled infrastructure is required.[i]

1.  The goal of electronic courts is to make judicial processes more user-friendly.
2. This would be advantageous in terms of enhancing court processes as well as providing citizen-centric services.
3. Litigants can use e-Filing to file their complaint and pay their court fees and fines online.
4. Litigants can check the status of their case online using different variety of service delivery mechanisms.

Advantages of using electronic courts

The growth in the electronic courts will result in easy accessibility for all the sections of the society to justice at the assigned courts. The electronic court system will provide a much more private and personalised experience in comparison to the actual courts as the electronic court do not involve any public- speech based system. If the necessary logistics are provided, the spread of electronic courts will speed up the process of litigation. With the use of electronic courts, India’s judicial system can overcome the hurdles and make the service delivery mechanism transparent and cost-effective. The judicial system will also be benefited from electronic courts, which will allow for more flexible retrieval of recorded information. Judges will be able to see past case hearings or retrieve other crucial papers with the press of a button.[ii]

Issues

In today’s world the existence of virtual courts might seem necessary but the technology that we have today is not sufficient enough to tackle the shortcomings that take place during the execution.[iii] The following will list down some of the issues that are been faced while using the electronic courts:

1. The general public faces a lot of complications while going through the process of e-filling.
2. The development of the electronic courts is an expensive procedure as setting up of this will require a much developed and new age technology.
3. In most of the rural areas of India, challenges can arise due to the lack of infrastructure and lack of electricity and internet connectivity. It must also be made sure that both electricity with that of a proper internet with computers must reach out to ever section of the society in order to ensure justice.
4. The staff will face a lot of difficulty in maintaining records of electronic courts. The assigned staff lacks the necessary equipment and training to adequately handle document or record evidence and make it accessible to the litigant, the council, and the court.
5. The biggest problem that the courts might face is of hacking and cyber security. The government has taken attempts to address the problem and developed the Cyber Security Strategy, but it is mostly focused on following prescribed rules. It remains to be seen how this will be implemented in real life.
6. Other problems might arise such as the litigant becoming under confident in following the processes approved by the Supreme Court due to the lack of juxtaposition.

Suggestions

The first and foremost step to be taken by the government is to plan up a proper procedure that would encourage in setting up of the electronic courts. The second important step to be taken is to upgrade the present state of infrastructure and technology. The government must identify and create the necessary infrastructure to enable the electronic court project. The government must create a secure online ecosystem where there must be no chances of data breach. This will prove a secure platform where the electronic courts can take place. There is a need to develop a user friendly ecosystem is this this attract more people to use the electronic courts unlike the present ecosystem. To manage all of the e-data, the government must devote significant resources to human training. These include keeping accurate records of e-file minute entries, notification, service, summons, warrants, bail orders, order copies, and e-filing, among other things, for future reference.[iv] Conducting training workshops for judges to familiarise them with the electronic courts structure and procedure can help electronic courts run more smoothly. Increasing awareness of electronic courts through speeches and seminars can help to bring the benefits and convenience that e-courts can provide to light.

As the technology is developing every day, so achieving the above mentioned is a piece of cake. It might take time but the day is not far that we will be having an efficient and effective electronic court system.

Conclusion

Even after the Courts resume normal operations and the lockdown is lifted, it is advisable to keep the option of e-filing and electronic courts accessible as it will strengthen the system. This will assist the assigned staff, the Bar, and the Bench in becoming accustomed to the method, as well as assisting us in identifying and correcting its weaknesses.

While video conferencing has its own advantages, it also necessitates a significant amount of training, discipline, and basic infrastructure, all of which can only be achieved if all parties work together to reach this milestone in the country’s judicial administration system.

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[i] The Big Picture – Virtual Courts and Way forward, (2020), https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-virtual-courts-and-way-forward (last visited Jul 6, 2021).

[ii] E-Courts: Supreme Court’s digitalisation vision will ease access to justice – The Financial Express, (2021), https://www.financialexpress.com/opinion/e-courts-supreme-courts-digitalisation-vision-will-ease-access-to-justice/2258945/ (last visited Jul 6, 2021).

[iii] The Supreme Court is online: Pros, cons and the way forward for hearings by video conferencing, (2020), https://www.barandbench.com/columns/the-supreme-court-is-online (last visited Jul 6, 2021).

[iv] The Big Picture – Virtual Courts and Way forward, supra note 1.

[v] Picture Credit: BloombergQuint

LEGAL RIGHTS DURING QUARANTINE

by Garima Mehta

Abstract

The following article deals with Legal Rights during quarantine and coronavirus. Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered coronavirus. Most people infected with the COVID-19 virus will experience mild to moderate respiratory illness and recover without requiring special treatment. Older people, and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer are more likely to develop serious illness. Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick. These people may have been exposed to a disease and do not know it, or they may have the disease but do not show symptoms.

Quarantine[i]

Quarantine is a specific period of time in which a person or animal that has a disease, or may have one, must stay or be kept away from others in order to prevent the spread of the disease.

Quarantine is considered as the oldest mechanism to reduce the rapid spread of bacterial infections and viral onslaughts. It has been legally sanctioned by all jurisdictions in the world for the maintenance of public health and to control the transmission of diseases.

In present scenario, Quarantine is used to keep someone who might have been exposed to COVID-19 away from others. Quarantine helps prevent spread of disease that can occur before a person knows they are sick or if they are infected with the virus without feeling symptoms. People in quarantine should stay home, separate themselves from others, monitor their health, and follow directions from their state or local health department.

The current COVID-19 crisis, with its closure of shops, academic institutions and postponement of public examinations, has put the people in a de facto quarantine.

Coronavirus and COVID-19[ii]

COVID-19 is a disease caused by SARS-CoV-2 that can trigger what doctors call a respiratory tract infection. It can affect your upper respiratory tract (sinuses, nose, and throat) or lower respiratory tract (windpipe and lungs). It spreads mainly through person-to-person contact. Infections range from mild to deadly.

The virus can lead to pneumonia, respiratory failure, heart problems, liver problems, septic shock, and death. Many COVID-19 complications may be caused by a condition known as cytokine release syndrome or a cytokine storm. This is when an infection triggers your immune system to flood your bloodstream with inflammatory proteins called cytokines. They can kill tissue and damage your organs.

A contact in the context of COVID-19[iii]

A contact is defined as a healthy person that has been in such association with an infected person or a contaminated environment as to have exposed and is therefore at a higher risk of developing disease.

A person living in the same household as a COVID-19 case:

•A person having had direct physical contact with a COVID-19 case or his/her infectious secretions without recommended personal protective equipment (PPE) or with a possible breach of PPE.

•A person who was in a closed environment or had face to face contact with a COVID-19 case at a distance of within 1 metre including air travel.

The epidemiological link may have occurred within a 14‐day period before the onset of illness in the case under consideration.

Law in India in Relation with Quarantine[iv]

The legal framework in relation to tackling the current Pandemic situation and public health disaster arising out in India interpreted from major legislations-

• The Constitution of India
• The Epidemic Act 1897
• The Disaster Management Act, 2005
• The National Health Bill, 2009
• Indian Aircraft (Public Health) Rules, 1954
• Port Health Rules, 1955

The Epidemic Diseases Act, 1897, a law of colonial vintage, empowers the state to take special measures, including inspection of passengers, segregation of people and other special steps for the better prevention of the spread of dangerous diseases. It was amended in 1956 to confer powers upon the Central government to prescribe regulations or impose restrictions in the whole or any parts of India to control and prevent the outbreak of hazardous diseases. Quarantine is not an alien concept or strange action and it has been invoked several times during the bizarre situations caused by the cholera, smallpox, plague and other diseases in India.

Detection of a travel related/unrelated suspect case of novel Coronavirus Disease (COVID19) will be followed by rapid isolation of such cases in designated health facilities and line listing of all contacts of such cases. Home quarantine is applicable to all such contacts of a suspect or confirmed case of COVID-19.

This intervention will be limited to the initial phase of India reporting only:

• travel related cases
• focal clusters arising from a travel related/unrelated case where cluster containment strategy is adopted.
• Persons coming from COVID-19 affected areas where local and community transmission is evident.

In our country, disobedience to quarantine rule is punishable under Section 271 of the Indian Penal Code, 1860 with imprisonment of either description for a term which may extend to six months, or with fine, or with both. Failure to take requisite precautions despite being aware of the possibility of the spread of such infection or disease is punishable under Sections 269 and 270 of the IPC. Under Section 269, whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description up to six months or fine or with both fine and imprisonment.

Under Section 270, Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Malignancy is characterized in diseases that are highly virulent, infectious and life-threatening. Disobeying the norms prescribed for social distancing, coughing or sneezing without covering the nose and mouth, not wearing masks in public, disregarding norms for social isolation, loitering on the streets in groups, socializing in disregard of the prescribed regulations, etc. are all punishable offences under Section 270. 

We also have the Disaster Management Act, 2005 that provides for effective management of man-made and natural disasters which may result in substantial loss of life or human suffering. Biological disasters that may be caused by epidemics are covered under National Disaster Management Guidelines, 2008 for the management of biological disasters drafted by National Disaster Management Authority, Government of India. We also have a National Disaster management plan, 2019 to strengthen disaster resilient development and enhance our capacity to recover from them.

A Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill was drafted by the Ministry of Health and Family welfare in 2017 to empower local government bodies for taking swift action during emergency situations.

The coronavirus period will be counted as an emergency period. World Health Organization has declared novel coronavirus (COVID-19) “Pandemic”SARS-CoV-2, commonly known as COVID-19 is an airborne disease and has rapid contagious characteristics. The lockdown method seems to be the most adopted approach by countries across the globe in lieu of curbing the increase of COVID-19. The outbreak of Coronavirus (COVID-19) first reported in December 2019 at Wuhan, China has now created a vulnerability in the entire World.

The novel corona virus (COVID-19) embarked on the Indian government to hone out public health strategy provided under national laws and policies. The incidence and prevalence ofCOVID-19 compelled the government to clamp the Epidemic Diseases Act, 1897, on March 11, 2020, by social distancing and the voluntary public curfew norm in the country.

Conclusion

The critical appraisal of Indian public health legislation reveals that the government has not discharged its constitutional obligation for the enactment of public health and emergency preparedness laws in epidemic-pandemicCOVID-19 like situations. The COVID-19 being a crisis, also served an opportunity to redress the long-standing reform of public health laws, but it passed as a great miss. The promulgation of the Epidemic Diseases (Amendment) Ordinance, 2020, is seen to be aligned with 123 years old colonial legislation more as a criminal statute than that civilian approach to health care and equity.

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Quarantine (June 25, 2021, 10:00AM)

[i]https://www.webmd.com/lung/coronavirus_quarantine

Coronavirus disease (COVID-19) pandemic (June 25, 2021, 11:00 AM)

[ii]https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Coronavirus disease (COVID-19): Contact tracing (June 25, 2021, 12:00 PM)

[iii]https://www.who.int/news-room/q-a-detail/coronavirus-disease-covid-19-contact-tracing

Coronavirus: The legal framework behind lockdown, curfew, and quarantine (June 25, 2021, 1:00 PM)

[iv]https://www.barandbench.com/columns/coronavirus-the-legal-framework-behind-lockdown-curfew-and-quarantine

Picture: MarTech

Mental Health: Improving and Creating Awareness and Legal Frameworks

By Adv. Rashmi Raman

As they say, there are pros and cons in every aspect of life. This pandemic also has its own pros and cons. On one hand where nature is recovering from human abuse and people rediscovering themselves in form of hobbies, creative outlets and finding them, utilising the time saved from commuting, lesser socialising and staying indoors. On the other hand due to this pandemic many lives are lost, people are struggling for jobs, students and working professionals have to spend endless hours in front of computer screens with limited to almost nilin-person interaction. Due to this decreased in-person interaction, people in every age group are experiencing increased levels of stress, anxiety and unhappiness. In India, mental health and wellness does not have the level of recognition that it deserves. However mental health is equally important as physical health. As the saying goes “A healthy mind lives in a healthy body and vice versa,” the two being inseparable. However, there is a lot of stigma surrounding mental health, which keeps people away from seeking help and continues to live with their undiagnosed mental illness and anguish. Many companies are taking initiative to bring awareness about Mental Healthto overcome such stigma among their employees.

There is a lot of confusion when it comes to terms like anxiety, depression, mental illness or unsoundness of mind. Even in Indian Legal System these terms are not defined clearly. Section 84 of IPC defines the Act of a person of unsound mind “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” Even this section deals only with the “act of a person of unsound mind” and discusses mental insanity as defence. There is very little clarity on the related subject.

In a recent Supreme Court judgement, it was observed that ‘depression’ does not qualify as ‘unsound mind’ for the purpose of entitling a defence under Section 84, IPC.

A judicial bench, constituted of Justices Rohinton Nariman, Navin Sinha and Krishna Murari was hearing an appeal against a 2018 order of dismissal passed by the Armed Forces Tribunal, Regional Bench, and Lucknow. In the appeal application, the appellant pressed that he was suffering from depression and was under treatment for same when he assaulted his senior officer with stones, resulting in serious injury to the senior officers. “The question is whether depression can be regarded as unsoundness of mind” was raised by the counsel of appellant. To which Justice Nariman observed that “Section 84 of the IPC is based on the McNaughton’s Rule…smashing of head should seem like smashing a coconut! That is the level of insanity needed.” So the appeal was dismissed by the Hon’ble Supreme Court of India. ^[1]

A Similar observation was made during a bail plea of a city cop’s son accused of murdering his mother by the Sessions Court in Mumbai in 2017. The Court observed that symptoms of depression would be natural in a person accused of a “brutal act” such as murdering “the nearest one like mother” and it cannot be considered a sign of unsound mind. ^[2]

Ambiguity in the law gives people opportunities for its misuse for a legal defence. Indian law recognises only two concepts related to Mental Health unsound mind and mental illness, which are related but distinct. These concepts have been treated as synonymous many a times but the law distinguishes between the two clearly. Mental illness is considered a medical condition while unsoundness of mind is a legal finding. Expressions as anxiety or depression are nowhere defined in law. Although clinical depression is a major concern in society, the sections elaborating they are very outdated and unclear in the Indian Legal System and they need immediate revision. In India, the Mental Health Care Act 2017 was passed in April 2017 and came into force in May 2018. Attempted Suicide was decriminalized under this act, which was before punishable under Section 309 of the Indian Penal Code. The law describes as “An Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.” This Act is a revised version of the previously existing Mental Health Act, 1987 passed on 22 May 1987. ^[3]        

As most of the Indian laws were either framed during the colonial period or them have their origins rooted in that period a British influence is clearly evident in them. It is now time that we update these laws, especially those related to Mental Health. Laws about Mental Health are presently at crossroads as most of them are under revision, to bring them in accordance with UNCRPD-2006. ^[4]Human right activists are demanding an introduction of absolute terms with regard to legal capacity of Mental Health, while psychiatrists are pressing for retaining provisions of involuntary hospitalization in special circumstances. The ultimate aim of any legal provision should be the welfare of the Mental Health and the society at large. Seeing the current pandemic scenario we must encourage and take initiatives to create awareness about Mental-wellbeing in society. And law makers should include more provisions and absolute terms in regard to mental health in Laws and Acts.

References:

1. https://www.livelaw.in/top-stories/how-dare-he-says-what-is-article-32-for-cji-bobde-arnab-goswami-vs-maharashtra-assembly-165599?infinitescroll=1
2. https://timesofindia.indiatimes.com/city/mumbai/judge-denies-bail-depression-natural-if-brutal-act-involved/articleshow/61747326.cms
3. https://en.wikipedia.org/wiki/Mental_Healthcare_Act,_2017
4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705679/
5. Picture Reference: Quora.

Gujrat Govt.’s new Labour Laws Update: SC

by Adv. Rashmi Raman

Gujarat govt makes labour law flexible for industries with less than 300 workmen to ‘hire and fire’ without permission;

As the world faced a pandemic, everything came to halt for a few months. Not only lives of people were at risk, but livelihood also became difficult for majority of people.

India had been witnessing pre-pandemic slowdown but still took a decision of lockdown for its people. The strict lockdown for first 21 days itself brought the decrease in economy of Indian growth in fourth year 2020 by 3.1% by Ministry of Statistics. According to World Bank this is the lowest figure in growth India has seen in three decades.

But does it call to be a public emergency??

Is Covid-19 really a public emergency??

So, the answer is NO according to Supreme Court’s latest judgement on the petition filed by Gujrat Mazdoor Sabha and Centre of Indian Trade Unions(CITU) against Gujrat Government’s notification on increasing the working hours of factory workers and exempting factories in state from the obligation to pay overtime wages.

According to section 5 of The Factories Act 1948, which states as below:

“5. Power to exempt during public emergency.—In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act 1[except section 67] for such period and subject to such conditions as it may think fit: Provided that no such notification shall be made for a period exceeding three months at a time. 2[Explanation.—For the purposes of this section “public emergency” means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.]”

The Gujrat Govt. observing the Section5 of The Factories Act,1948 argued that COVID-19 amounted to public emergency and was on the “brink of internal disturbance.” According to the notification issued by Gujrat Govt. the number of daily working hours were increased from 9 hours to 12 hours daily amounting to 72 hours of work from 48 hours work limit along with 6 days mandatory working in a week. Additionally, no overtime allowance was supposed to be given which is typically double the amount of original wage. It was notified that the overtime hours will be paid at the rate of ordinary wages.

The bench headed by Justice D Y Chandrachud along with Justices Indu Malhotra and K M Joseph rejected the above argument stating that “the economic slowdown created by the COVID-19 pandemic does not qualify as an internal disturbance threatening the security of the state”.

The Court observed under the judgement authored by Justice D Y Chandrachud  “Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are supposed to be used sparingly under the law. Recourse can be taken to them only when conditions requisite for a valid exercise of statutory power exists under section 5. This is absent in present case.”

Several States including Rajasthan, Uttar Pradesh, Himachal Pradesh, Gujrat, Karnataka, Punjab, Haryana  had extended the number of working hours for factory workers. But after the Supreme Court quashed the orders of Gujrat Government, other States withdrew their official notification orders as well.

Economically weaker section of our society, who form the backbone of our economy are usually illtreated and mishandled by their employers. Same was expected to happen with these State Govt. orders for extension of working hours for them. Though the order was supposed to be for three months , many factory owners were trying to compensate the loss they faced during lockdown through this order, which would have further worsen the living conditions of these factory workers or labours. The factory workers who already faced hardships during the lockdown period should be provided suitable working conditions along with job stability according due to Article 21, Article 23 and Article 43 of the Constitution for better living as citizens of our Country by the State Govts.

References:

1. “India’s economic activity almost at pre-lockdown levels but Covid looms: Nomura”. The Economic Times. 15 September 2020. Retrieved 15 September 2020.