13 April 2020 1:51 AM GMT
Across the world, countries and governments have adopted social distancing as an important measure to control the community transmission of COVID-19. In India, the Union Government, using powers under Disaster Management Act 2005, implemented a number of steps to shut down commercial and non-essential activities for a period of three weeks across the country, starting from 24 March...
Across the world, countries and governments have adopted social distancing as an important measure to control the community transmission of COVID-19. In India, the Union Government, using powers under Disaster Management Act 2005, implemented a number of steps to shut down commercial and non-essential activities for a period of three weeks across the country, starting from 24 March 2020, effectively imposing a lock down. While this was meant to facilitate social distancing, large numbers of inter-state migrants, whose employment lifelines were consequently cut off, congregated in major cities in the hope of traveling back to their home towns and villages. This led to a secondary and unforeseen challenge that caught Union and State Governments unaware and unprepared. In order to control the movement of inter-state migrants, the Union Government, passed further orders under Disaster Management Act 2005. A careful reading of these orders reveals that while they were likely issued with good intent, the effectiveness and legal soundness of these orders are highly questionable.
Order on Movement of Migrants
On 29 March 2020, the Union Government had realized the extent of "movement of a large number of migrants" and decided to exercise powers conferred under S.10(2)(1) of the Disaster Management Act 2005 and issued further directions to State and Union Territories ("Order"). Specifically, the Home Secretary directed measures with regard to residential tenancy of migrants, as follows:
"iv. Where ever the workers, including the migrants, are living in rented accommodation, the landlords of the properties shall not demand payment of rent for a period of one month.
v. If any landlord is forcing labourers and students to vacate their premises, they will be liable for action under the Act"
The intent of the Order is ostensibly to provide protection to workers, labourers and students who are in residential tenancy from payment of rent and vacation of premises. However, a careful scrutiny of the Order raises more questions and concerns than it intends to address. First, the Order has the effect of interfering in a private contractual relationship between landlord and tenant. Whether this is per se permissible and in vires of the Indian Contract Act, 1872 is not clear. The Order also seems to have the effect of creating a class of "workers, including the migrants" who "are living in rented accommodation" and consequently, implies that landlords may collect rent from all other persons. It is trite that any such classification must pass the test laid down under Article 14 of the Constitution. As such, if the intent is to ensure social distancing across the entire country and protect tenants from any eviction during the lock down period, then the Order is conspicuously silent on why other classes of persons are not provided with the same protection.
Second, nowhere does the Order define any of these classes or categories whom it seeks to exempt from rental payments or protect from eviction. There is no definition of migrant under the Disaster Management Act or similarly placed laws. Though the definition of worker or labourer could be borrowed from the Industrial Disputes Act, 1947, the Order makes no such mention of the same. Furthermore, there is no clarity on the class of 'students' either. The resultant ambiguity is directly at odds with the objectives of the Order and the Union Government.
Third, there is no penalty provided for those who violate the Order other than the penal provisions under Disaster Management Act 2005 itself. Consequently, without any statutory deterrent, the effectiveness of the Order relies entirely on migrants / labourers / workers and students who are affected pursuing civil remedies. As such, this is a weak and impractical presumption as these groups of persons would not have the means to seek legal recourse to any injury. Therefore, in essence, it defeats the purpose for which the Order has been issued.
United Kingdom Approach
It is interesting to look at the approach taken by the United Kingdom to address identical issues and implement social distancing. The Coronavirus Act 2020 which has come into force from 26 March 2020, specifically Section 81 read with Schedule 29, contains provisions to protect residential tenants from being evicted from a property during the coronavirus outbreak period. The Coronavirus Act 2020 effectively amends Rent Act 1977 thereby prohibiting the landlord from commencing eviction proceedings for a three-month period by extending the statutory notice period. This has been reflected in the Courts by amending the practice direction 51Z wherein all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of three months. In essence, therefore, the UK law has the effect of protecting all tenancies from eviction over the next three months at least during the coronavirus pandemic. This is a much better situation as all tenants are protected and this would go a long way in ensuring that there are no tenants rendered homeless and therefore needing to make any inter-city or inter-state travel during the specified period.
It is also trite that Entry no. 18 in List II (State List) empowers the State Government to enact legislation in respect of "land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization". Therefore, it would have been advisable to allow the State Governments to deal with issues that may arise incidental to or in connection with such migration either through a promulgation of an ordinance amending the Rent Control Act of the respective state or by amending Rules under the relevant rental laws rather than by the issuance of an ambiguous Order under the Disaster Management Act 2005. For instance, the appropriate provisions under Chapter V of the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act 2017 could have been amended as required to provide a statutory solution to the problem. This would have been a more effective means to maintain the practice of social distancing as all tenants are guaranteed rental accommodation through a statute which is legally binding. In contrast, the Order issued by the Home Secretary is legally unsound and, at best, an appeal on moral grounds.
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(Authors are Chennai based Lawyers)