Learning from others has acquired a new meaning altogether in the COVID19 world order, wherein countries across the globe are trying to deal with an unprecedented situation. Wuhan, where the virus first emerged is now slowly limping back to normalcy as factories have started production again and people are slowly getting back to their jobs and some semblance of normalcy. One of the biggest fallouts of the COVID19 has been that of migrant labourers getting trapped in their places of work as governments announce lockdowns in the hopes of restricting movement and social contact- the biggest way in which the coronavirus spreads. However, this has meant that labourers get stuck in places of their work without work as factories shut down, and without proper access to food as everything goes in a lockdown mode.

The question that emerges in this context is how China has dealt with these questions of employment and migration. China’s economic rise has been built on the availability of cheap labour from migrants in particular. According to the China Labour Bulletin of Hong Kong, there were an estimated 288 million rural migrant workers in China in 2018, making up more than one-third of the entire working population. While migrant workers have been the engine of China’s spectacular economic growth over the last three decades but they face several structural and societal constraints like other parts of the developing world.

On January 23, 2020, China’s central government imposed a lockdown in Wuhan- the epicentre of the coronavirus at 10:00 local time (02:00 GMT), leaving normally busy train stations and airports empty. A city of 11 million people immediately saw the cancellation of all trains and planes in and out. Residents, most of whom were preparing for the Lunar New year were warned not to travel in or out. The only advantage some of the migrant labourers had in this context was that they had left for their respective hometowns for the Lunar Year celebrations. According to an article by RuiZhong and James Palmer for Foreign Policy, migrant workers often begin their travels for the Lunar New Year much before than white-collar labourers for the simple reasons that faster means of transport like flights and bullet trains are simply out of the reach of these workers and therefore they start their long arduous journeys back home using slower methods of transport- which entails them to leave earlier than their white-collar counterparts. This time around this proved advantageous to some, as they were outside of Wuhan which went into lockdown mode from January 23 onwards.

According to Professor Xiang Biao, the immediate aftermath of the SARS outbreak in 2002 was much worse as millions of migrant labourers faced risks of the virus spread. In a journal article for Asia and Pacific Migration journal in 2003, Prof. Xiang wrote, “The government and the public considered rural-urban migrant workers as the most problematic group during the SARS outbreak in China in early 2003. They feared that migrant workers who were susceptible to the disease tended to flee major cities where the early outbreaks occurred, and then spread the virus to the countryside where containing the disease would be difficult”. This was the case in 2003, but how well did China fare this time? In any case, the fact remains that the experience with SARS led China to be better prepared for a similar outbreak.

In India, the stories of migrant labourers trapped in their places of work have been heartrending  and multiple. While the government desperately tries to seek ways to address the situation, taking a leaf out of some of China’s experiences concerning food supplies, online deliveries, managing migrant crises and employment might be beneficial.

Prof. Xiang, speaking at a Zoom conference, mentioned a few steps that the Chinese government is undertaking to mitigate the crisis as well as to create alternative forms of employment, which deserve a closer look by governments across the globe.As Wuhan struggles out of the lockdown, to bring about a “securitisation of labour”, the Chinese government in tandem with the local governments is trying to bring back migrant labourers from the countryside back to the cities, because they are rendered jobless in their hometowns, far away from a Wuhan under lockdown and hypersensitivity to possible COVID19 patients.  For this, the local government did not just release labourers in the cities of work, but organised collective transport for them, from their villages to the specified factories. This curtailed the free movement of labourand reduced possibilities of the virus spread. The entire process was called “point to point transport”. A labour dispatching company or entity was created (which also led to an alternative form of employment), which collated the number of labourers in say village X who had to be transported to factory Y. The entity collated the data of the number of labourers required in factories of a particular city/province.

 When labourers are gathered and have to board the transport from village X, full monitoring of health conditions of labourers is done by local government authorities of village X. Similarly while deboarding at factory Y, the local government monitors the health of each labourer. The entire point to point transport is done through a closed designated route and is monitored so that people randomly cannot board the transport and increase possibilities of the virus spread. The Guangdong Province, for example, has promised USD 25 per labourer to the intermediary company, along with a month of social security. The cost of transportation is paid by the Guangdong government.

Another scheme that is intended for labour security entails the creation of another form of intermediary company, which again increases scopes for alternative employment creation. In this process if for example labourer A is employed in a restaurant and has been temporarily laid off because restaurants cannot function under quarantine, then she/he can be employed temporarily by a delivery company, till such time as the situation does not go back to normal. The intermediary company collates the data of such labourers who have been temporarily laid off and who need to be readjusted. Similarly, this intermediary company also finds out the number of delivery services needed city wise. All of this is done with permissions from the State government.

As far as meeting people’s food, medical and clothing needs are concerned, e-commerce has played a big role in both India and China. However, this has been impacted by the lockdowns. In order to assuage the situation, in China as per government orders, the delivery personnel’s body temperature shows up on the receiving customer’s phone screen, who can deny receiving the package if the delivery personnel is suffering from a high temperature. As per interviews conducted with foreign employees in China, in tier A cities like Beijing, people are slowly being allowed to go back to work- but only for two days in a week for starters, with full temperature and medical checks at entry gates of workplaces.

India already has set up AarogyaSetu, and once e-commerce relaxation takes place, temperature checks can be introduced in delivery service apps using some of the technology that has already gone into the making of the AarogyaSetu app. In terms of essential food deliveries, government cadres undertook end to end distribution all across Wuhan during the lockdown. In this, government employees picked up essential commodities after calculating food needs in particular localities and delivered it themselves. In India, this has been done in a few places, but it could probably be expanded. As per interviews conducted with foreign employees in China, in tier A cities like Beijing, people have been allowed to go back to work since February- but only for two days in a week, with full temperature and medical checks at entry gates of workplaces.

While the world continues to grapple with the myriad challenges thrown up by the COVID19, learning from successful cases elsewhere may go a long way in addressing crises. Some of the employment and management policies of China deserve a closer look in this context.

The author is an Assistant Professor and Assistant Academic Dean of the Jindal School of International Affairs, O.P. Jindal Global University.

“Just as Lord Hanuman brought the holy medicine from the Himalayas to save the life of Lord Rama’s brother Lakshmana, India and Brazil will overcome this global crisis by joining forces and sharing blessings for the sake of all peoples”^[i]

President of Brazil, Jair Bolsonaro

The prompt response of the Government of India under the leadership of Prime Minister Narendra Modi has been lauded by nation states and international organisations alike, with the likes of President Donald Trump^[i] of the United States and WHO Director General Dr. TedrosGhebreyesus praising India for the leadership it has displayed in dealing with this pandemic. India’s active efforts in setting up a joint response of South Asia has been well received by members of the SAARC^[ii], and has served as an effective counter to attempts by Chinese authorities to influence the narrative^[iii] on the origin of COVID-19, more commonly referred to as Novel Coronavirus.

At a time when the Chinese have been attempting to buy the silence of various nations through a medical Marshallian plan of pushing medical teams and faulty protective equipment^[iv], India’s diplomacy at the international fora has been well received, with many asking for India to be accorded a more dominant role in South Asian Geopolitics.^[v]

India has for centuries practiced its preaching of VasudhaivaKutumbakam^[vi] (The world is one family) where it has been at the forefront in dispatching humanitarian aid with no strings attached. This vision of India has been strengthened under the Modi doctrine which has sought to assist and aid, and has shattered the erstwhile image of an India that used to punch below its weight. In the case of this pandemic, while many nations chose to tread carefully in terms of placing advisories in the early stages, India was actively involved in dispatching medical teams to China^[vii] and Iran^[viii]. The MEA was prompt in getting back our citizens who were stranded abroad and worked closely with the armed forces and medical teams in setting up quarantine centres. India has also placed two naval ships which can be deployed to any nation that seeks assistance.^[ix]

The stark difference between the Indian approach and that adopted by Beijing was also quite visible in terms of dealing with the South Asian region. While India chose to build quarantine shelters in close coordination with Maldives and Nepal, actively pursuing for cooperation amongst the SAARC, Beijing went about signing loans worth USD 500 million with countries like Sri Lanka under the garb of ‘helping it mitigate the financial impact of the pandemic’^[x]. Countries like Pakistan, for whom relations with China take priority over everything else due to their financial condition, went a step further in refusing to withdraw their students from the epicentre Wuhan, in a show of ‘solidarity’^[xi]. The attempts of China therefore, have culminated in giving rise to a wariness amongst various nations on receiving aid from Beijing, and has consolidated India’s position as a responsible leader in this Multipolar world. The pre-emptive, pro-active and graded response of India serves as an innovative model that must be taken into consideration by the various nations. A global pandemic has shown that it is time for the world to accord due recognition to India’s role as a leader in the subcontinent.

Shaurya Bhandari is a B.A.LL.B(Hons.) student at National Law University, Jodhpur.

^[i] ‘Will not be forgotten: Donald Trump thanks India, PM Modi for supplying hydroxychloroquine to US’, Indiatoday.in (9 April 2020)

^[ii]‘India reaches out to SAARC with rapid response teams, platform for health info exchange’, Times of India (3 April 2020)

^[iii] ‘China is fighting the Coronavirus Propaganda War to Win’, Foreignpolicy.com (20 March 2020)

^[iv] ‘Coronavirus: Countries reject Chinese made equipment’, BBC news (30 March 2020)

^[v] ‘PM Modi’s CoVID-19 video-conference reasserts India’s leadership role in South Asia’, Economic Times (15 March 2020)

^[vi]Vedantic dictum that appears in the Maha Upanishad (VI.71-73)

^[vii] ‘India provided 15 tonnes of medical supplies worth Rs. 2.11 Crore to Coronavirus-hit China: Government’ Economic Times (18 March 2020)

^[viii] ‘Coronavirus: A team of Indian Health officials is in Iran, says Jaishankar’, Business Standard (14 March 2020)

^[ix] ‘Army medical teams, 2 Navy ships ready to help friendly nations’, The Hindu (26 March 2020)

^[x] ‘China’s Coronavirus Debt Traps are coming’, Foreignpolicy.com (23 March 2020)

^[xi] ‘Pakistan not to evacuate its citizens from Wuhan in show of ‘solidarity’ with China’, Indiatoday.in (31 January 2020)

 

The world is perhaps facing its biggest crisis, both in human and economic terms, due to the spread of the corona virus which originated in Wuhan in China. As per data released by the John Hopkins University, the virus, COVID-19 has affected close to two million people across the globe and has led to over a hundred thousand fatalities since it first appeared in Wuhan, China sometime in December 2019 (data as of 14 April 2020).^[i]

This pandemic has affected the world socially, psychologically and economically, with millions of people suffering job losses and companies experiencing an economic downslide. The rapid rise in unemployment figures due to COVID-19 has led the world to a major economic crisis and India too is similarly impacted. Due to the pandemic, most business enterprises in India have been struck, with the MSME (micro small and medium enterprises) and SME (small and medium enterprises) being the hardest hit and facing an acute financial crisis.

Recognising the financial distress and to alleviate the woes of the corporate sector, Ms Nirmala Sitharaman, Union Minister of Finance and Corporate Affairs, in a press conference held on 24 March 2020, announced certain relaxations in corporate and tax laws. She also announced relaxations in Insolvency and Bankruptcy Code (IBC), 2016 since, to protect businesses from being unnecessarily dragged to the NCLT (National Company Law Tribunal) for the initiation of the insolvency process, thereby hampering the economy.

Increase in the Threshold

Section 4 of the IBC States:

“This part shall apply to matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees”

The proviso to this Section empowers the Central Government to issue a notification for any change in the default amount. By virtue of proviso to Section 4 of IBC, the Finance Minister, while addressing the media, announced that monetary threshold for initiation of insolvency proceedings shall be increased from Rs 1 lakh to Rs 1 crore. It was pointed out by the Finance Minister that this step has been taken “so that we can prevent the triggering of defaults against MSMEs”. For triggering the Code, the threshold limit was purposely kept as one lakh rupees, making it clear that even small individuals may also trigger the code as a financial creditor.^[ii] But in the current scenario, keeping such a low threshold will only have repercussions on the economy. Therefore, if an application has to be filed under Section 7 (CIRP by Financial Creditor), Section 9 (CIRP by Operational Creditor) and Section 10 (CIRP by Corporate Applicant), the default should amount to Rs one crore.

Effect of Notification: Retrospective or Prospective

The notification of 24 March 2020 is silent on the point that whether it will have retrospective or prospective effect. Before the announcement by the Finance Minister, the IBC had been amended for the fourth time on 12 March 2020, with the amended Code mandating that for initiation of Corporate Insolvency Resolution Process under Section 7 of the Code, the application has to be jointly filed by 10 per cent of the total real estate allottees or 100 real estate allottees whichever is less. The third proviso to Section 7(1) provides that application filed before the amendment should be modified in 30 days following the amended Code, else the applications will be presumed to be withdrawn.

So, concerning this notification also, it can be presumed that the notification will have a prospective effect since it is silent on this issue. Also, it is a well-settled principle that a statue that affects substantive rights is presumed to be prospective in operation if the statute is silent on the retrospective effect.

The Finance Minister also briefed the press that the matter would be reviewed on 30 April, and if the situation worsens, then Section 7, 9 and 10 will be temporarily suspended.

Concluding Remarks

During the lockdown announced by the Prime Minister on 24 March, which came into force the next day, many businesses were compelled to stop their operations, thereby losing revenue generation and running into losses. Many such businesses were more likely to make default in payments. Had the Government not issued this notification of providing relaxation under IBC, the companies could have been dragged to NCLT, which would have further exacerbated the situation.

It has been observed that in few sectors, there has been a spate of applications filed where single class borrower triggered the code because of one lakh monetary threshold for initiation of Corporate Insolvency Resolution Process which is not a very happy situation. Hence, the 24 March Notification is a good move by the Government to preserve the economy while fighting the pandemic.

Animesh Upadhyay is a 4^th year BA.LLB student at Dr Ram Manohar Lohiya National Law University. He is also State Co-Convener Think India UP Chapter.

^[i]https://coronavirus.jhu.edu/map.html, accessed 14 April 2020.

^[ii]MansiBrarFernandes v. Gayatri Infra Planner Private Limited MANU/NC/0206/2020

An event like an unfolding global crisis, especially one with a fog of uncertainty surrounding it, lends itself to analysis not just from experts with domain specific knowledge but even from intelligentsia with no immersion in the subject matter who generate elaborate commentary largely furthering their own preconceived notions and biases by employing both the real and imagined consequences of the catastrophe. Last week, the Financial Times carried an article on the ongoing pandemic written by novelist and commentator, Arundhati Roy, within its prestigious pink sheets. Having held no administrative role or public office in her lifetime, Ms. Roy tears into the Indian administration’s response to the pandemic by throwing nuance to the wind with such certitude and confidence that would probably embarrass an actual expert.

In her article, which she probably wrote within the confines of her Delhi’s urban elite circles,Ms. Roy stops short of exhibiting glee at the prospect of the virus bringing the “engines of capitalism to a juddering halt” and that of the virus making the “mighty kneel…like nothing else could”. It doesn’t require much effort on the part of an alert reader to further lift the layers of literary embellishments revealing the logical fallacies and contradictory inconsistencies within the arguments she presents.

Ms. Roy suggests that the response to the pandemic would have been better had countries diverted the spend on defence to building adequate stocks of medical supplies beforehand. The obvious hindsight bias notwithstanding, the real logical problem visible in her argument relates to her blindness to the understanding of ‘tail risks’. While states can (and should) certainly be criticised for failing to maintain buffer stocks of medical supplies to combat the increased tail risk of epidemics and pandemics in a hyper-connected world, it is fallacious to suggest that this can be done at the cost of building adequate defence capabilities to combat another ‘tail risk’, that of a war, especially for a nation like India which faces a hostile and bellicose neighbour to its north-west making the region equivalent of a strategic tinder-box. Seen in this light, her facetious suggestion to the Prime Minister to renege on the Rafale deal and use the proceeds on emergency measures seems little more than an imprudent rhetorical remark.

Just as a chef modifies his dishes to suit the palette of his patrons, so does Ms. Roy, while writing in a newspaper almost exclusively read by the world’s elite. She uses hyperbole to cement the frame of a poor, filthy, unhygienic India within the minds of her readers when she characteristically claims that most Indians would not have known about the existence of a ‘hand sanitiser’ but for the advent of this crisis. Complementing this distortion with another, Ms. Roy performs the role of a judge, jury and executioner (of a kangaroo court perhaps) when she crafts an elaborate narrative pinning the blame of the Delhi riots on the city’s majority Hindu population with its Muslim residents acting as submissive victims. She does not let the fact that the investigations of the tragedy which unfolded are still ongoing come in the way of her storytelling.

Announcement of the lockdown was followed by the moving pictures of migrant workers fleeing the prospect of possible starvation in India’s cities. Ms. Roy mentions in her article that she used her press pass that day to drive to the border between Delhi and Uttar Pradesh to witness the exodus first hand and gather testimonies of the people returning to their villages. The reader cannot help but wonder if Ms. Roy used the facility of her air conditioned four-wheeler to ferry to the safety of the nearest government shelter at least some of the children and the weak among those walking in the scorching heat or if she took the effort to inform those walking of the arrangements the government was making for them in Delhi’s night shelters. The reader earnestly hopes that Ms. Roy did not let her concern for the state of the returning migrants be limited to the collection of sound bites for her article.

Ms. Roy makes a reference to the TablighiJamaat event in Delhi which has jeopardised India’s fight against the pandemic. However, the reader finds that her concern is not so much about the fallout of the carelessness of its organisers but for the prospect that the scenario would be exploited to “stigmatise and demonise Muslims.” Even if one overlooks the obvious ideological undertone behind her concerns, one cannot help but overlook yet another example of a lack of understanding of the risk of ruin on the author’s part. If the reader opens a newspaper a month later and finds that India has witnessed the unfortunate prospect of thousands of deaths then which of the two causes would be the most likely ones: the event itself or the prospect that it was used to “stigmatise and demonise Muslims?”

Ms. Roy ends her article expressing the hope that the pandemic would convince us to imagine a new world order. But this rhetorical statement is not followed by any specifications as to what this new world would look like and how different would it be in the author’s view. Perhaps this ambiguity is intentionally maintained for any specificity would have brought the author’s prescriptions under closer scrutiny by her sophisticated readers.

As this crisis generates a tsunami of opinions from experts and intellectuals across the world, it is essential to develop a filtering mechanism to focus only on views worthy of our limited time and attention. I suggest a simple heuristic to enable this filter. Would the reader of an opinion piece be comfortable with the hypothetical prospect that the author of the piece was leading the war on this deadly virus? If the immediate answer from the reader is in the affirmative only then is the view worthy of any attention from the reader. Unfortunately, Arundhati Roy’s article fails to pass this litmus test.

*The author is a Young India Fellow from the batch of 2019 and is currently working as a Finance Professional.

While the COVID-19 pandemic ravages away across 190+ countries in the world, the problems that the pandemic presents for India multiply exponentially, not only because of its large population and high population density, but also because the only effective pandemic control law that India has, is an archaic, 123-year old law that traces back to the British colonial era and was originally drafted to control the fallout of the Bubonic plague epidemic that raged throughout Mumbai in the late 1890s and was later on used for the selfish political motives of the British who used it against freedom fighters and incarcerated them.

The Epidemic Diseases Act, 1897, a vestige of English law, is one of the shortest acts to exist in Indian legal system and spans merely four sections. Section 2 of the aforementioned act provides the states with special powers to issues health advisories to the public if the state authorities have sufficient reasons to believe that the state is marred with an epidemic.^[i] Continuing, Section 2A bestows the state with the right to seal off the sea ports and detain any ship that is suspected to have been contaminated and this extends to any person intending to sail on the aforementioned contaminated ship or arriving thereby.^[ii]

There is no denying the fact that the lack of new legislations regarding pandemic control and the usage of a century old law was just a deadly concoction, boiling in a pressure cooker, waiting to go off and the COVID-19 pandemic provided it with a fertile ground. The technological developments that have taken place in the past century basically mean that the law serves no purpose because it doesn’t take into consideration the vast usage of air travel rather than sea travel, large scale migration of people to urban areas, thanks to urbanisation, drastic changes in climatic conditions and other important factors such as public health policy formation and breach of biohazard measures.

The innate problem of the Act is that is doesn’t define “dangerous epidemic disease” in clear terms. Who gets to decide what kind of an epidemic indeed is “dangerous” and whether the term “dangerous” is set by the magnitude of havoc the pandemic can wreck or by the virulent nature of the pathogen itself? The Act portrays the inferior technological standards of those times when compared to that of today, in ways such as, the Act pays more impetus on the forced quarantine, isolation and lockdown of affected populations but goes lenient over the extent of testing, surveillance and other ethical issues that concern the public-health sector.^[iii]

The problem in controlling the pandemic in India isn’t however, only limited to the Act. Health being a state list subject, the Union barely has a say in what measures individual states take up to fight the pandemic. It can only issues advisories and appeal to the states to follow a route that shall end up serving the common good of the nation. Times like this call for centralised measures for the entire country rather than decentralised, state specific ones because that causes great political chaos.

The effects of the pandemic are manifold as they trickle down onto the question of fulfilment of contractual obligations of corporates and individuals. While some companies might want to delay or avoid the performance of their contractual obligations for genuine causes like non-performance on the part of their suppliers or because of changes in the cost of exporting and importing materials from or into affected areas while most places go under lockdown, some firms might just want to misuse the situation to evade their contractual obligations. The fallout isn’t limited to the performance of contractual obligations only; it extends to the legal responsibility of corporates to ensure the safety of their workers during the pandemic, creating and sustaining a healthy work-place while navigating around the travel restrictions and imposing strict surveillance measures.^[iv]

While the pandemic presents a multitude of questions ranging from the ethics of pandemic control to the actual procedure of going about with the containment of the pandemic, it can only be hoped that the Indian legal system doesn’t get overwhelmed with the problems, given the lack of a holistic and robust law to address the spread of epidemic diseases in India.

*The author is a First Year law student at National Law University, Patiala

^[i] The Epidemic Disease Act of 1897, Act No 3 of 1897.

^[ii] Id.

^[iii] Rakesh PS, The Epidemic Diseases Act of 1897: public health relevance in the current scenario, Vol. 1, IJME (2016).

^[iv] Cyril AmarchandMangaldas, Coronavirus: Key Legal Issues For India Inc. With Covid-19, Bloomberg Quint Opinion (March 17 2020, 7:57 PM), https://www.bloombergquint.com/opinion/coronavirus-key-legal-issues-for-india-inc-with-covid-19.