INTRODUCTION

The pandemic of Corona Virus (COVID-19) hit India recently and the associated uncertainty increasingly tested the psychological resilience of the masses. When the global focus has mostly been on testing, finding a cure, and preventing transmission; people went through a multitude of mental problems in adjusting to their current lifestyles and fear of the disease.

SITUATION PRIOR TO THE PANDEMIC

The government’s National Mental Health Survey reported that about 10 percent of adults meet diagnostic criteria for a mental health condition (ranging from mood and anxiety disorders to severe mental illness). The Global Burden of Disease study estimated that nearly 200 million people in India have experienced a mental disorder, nearly half of whom suffer from depressive or anxiety disorders. India accounts for more than a third of the female suicides globally, nearly a fourth of all male suicides, and suicide has been the leading cause of death in young Indians.

THE PANDEMIC

The Covid-19 cases first erupted in China and in no time the cases could be seen throughout the world. With the increase in cases so rapidly, a pandemic was declared and a nationwide lockdown was imposed in India. This pandemic resulted in 2 phases of impact on the mental health of the people. The first phase was when the pandemic surged throughout the country. The cases and acute severity of the transmission. The second phase was basically the economic fall down of the country which got deeper with an increasing number of cases. The virus terrified the people of dying or their loved ones getting contracted the infection. They are even agitated with the whole social distancing, isolation and several precautions that are expected and being followed by the people in order to stay protected.

Covid-19 enables us to witness something that our generation had never seen before. The nationwide lockdown, the devastating no. of surging cases, bans on social gatherings, a lot of precautions, fixed hours to buy essentials and the whole catastrophic situation at the hospitals for medical help. Indian Medical Facilities hit rock bottom when the cases became uncontrolled but resurrected once the solution was found. People started to go along with the home remedies, the easier, healthier and more accessible options to stay fit and fight the virus.

In the First-ever nationwide lockdown, the roads went empty, shops closed, no possible human could be seen, tight security of police personnel and the introduction of masks in our lives were few of the instances that every Indian experienced. With all this came the difficult part, the lives of poor people just got worse, the daily wagers, migrant workers, beggars, and street animals just got stranded. More than Covid, surviving the lockdown was the only resort left to them. Below mentioned are the various challenges that were faced by people during the Covid era.

THE CHALLENGES

  • THE PLIGHT OF MIGRANT WORKERS

The Migrant Workers were forced to migrate back to their villages with no money or job in hand. They were completely clueless about how to earn their bread and butter and look after their family. The families too welcomed them although there were apprehensions about them bringing back the virus from the cities. There was soon a substantial increase in the population of the villages and the locals were afraid that the migrants might start to claim a stake in their property. The poor were though strained as to their limited resources and one time meal for the entire family would be a blessing for them.

The adjustments with the migrants were also tough. There were basically two categories of migrant workers, firstly the unskilled ones like the labors and mazdoors, who availed work under MNREGA and managed to get ration. The second category was those semi-skilled workers like those working in factories and bearing some skill. The adjustment was tough for them and they were the ones who started to develop psychological issues and mental trauma.

While the government focused on providing food and essential supplies to people, there were still no facilities for mental health treatment. With the increasing no. of cases, NGOs like PANI, a social development organization working in underdeveloped regions of Uttar Pradesh, started to arrange counseling and clinical treatments for those affected. Health camps, providing medicines that people could not afford due to lack of money, sufficient check-ups and Therapy sessions were conducted after a survey of the no. of migrant workers that got migrated in the pandemic.

The question was also raised as to the violation of Human Rights when a complete lockdown was imposed on such short notice. There was no chance provided for such lower income group people to arrange their survival. They lost their jobs and the only source of income that kept their family afloat. They have to leave their cities and many returned to their villages on foot since there was no availability of transport. They were given no recourses to survive. No doubt the poor ravaged the major brunt of the pandemic.

  • THE WOMEN STIGMA

The continuing surge in cases of Covid took a heavy toll in the second wave than the first. The second wave was truly a disaster. As a matter of fact, the rural fatalities were disproportionately higher in men than in women. Several women became widows and lost the breadwinner of their family and suffered a double burden of grief and survival. The rural population majorly depends upon agriculture and with no source of income, even women resort to agriculture for survival as it could very well be seen, that the virus might be gender-neutral, but its effects were not. The women faced disparity in land ownership. They were included in the unpaid agriculture labor force even under adverse conditions without any decision-making power. Single women were stigmatized, marginalized, and excluded both in the sphere of community and government policies. The Patriarchal society clearly showcases that with the death of a male member there come many social sanctions and restrictions that disadvantage the women. Women are either compelled to waive off their land rights or their voices are unheard of or suppressed by society. There is a wide gap between the enabling legal framework and the actual extent to which women’s land rights are exercised.

  • THE WHO REPORT ON MENTAL HEALTH AND COVID-19: EARLY EVIDENCE OF THE PANDEMIC’S IMPACT

The World Health Organization published a report wherein it emphasized the impact of Covid 19 that is been generated on the mental well-being of the people throughout the world. The cases of Suicides, self-harm, Depression, Mental Trauma and stress, physical and mental exhaustion, sleep disturbances, and physical and mental exhaustion. The data even indicated that there is a higher risk of suicidal behavior in the young generation. The report also stated that the risk of severe illness and death from COVID-19 was higher among people living with mental disorders. There is no consistent evidence that people living with mental disorders were more susceptible to COVID-19 infection. Inadequate infrastructure, pre-existing inequalities, and low levels of technological literacy were reported e-health barriers.

  • COVID-19 AND THE INCREASE IN DOMESTIC VIOLENCE AGAINST WOMEN

Covid-19 unveiled the existing inequalities in families and society and exacerbated the structural factors that contribute to domestic and intimate partner violence. Even the UN Secretary-General appealed to the leaders of Member states to put ‘Women’s Safety First’ and to build gender-responsive measures in their plans to address the Covid Challenge. The National Commission for Women (NCW) reported a two-fold increase in complaints relating to Domestic Violence since the imposition of lockdown. Data from National Legal Services Authority (NALSA) observed an increase in cases of domestic violence during the lockdown. Complaints of rape or attempted rape have risen sharply. The Childline India Helpline 1098 recorded that of the 3.07 lakh calls received by the helpline for children in distress across the country. A national collective of sex workers reported that close to 60% of sex workers had to return to their home states due to the threat of COVID-19.

Research undertaken by a Think Tank on the virus’s impact on slum communities in Mumbai, India’s financial capital and one of the biggest COVID-19 hotspots, reveals that with the lack of basic infrastructure, women from urban poor households are queuing up for long hours, most often during the early morning when still dark, to collect water from community taps. Many women are also buying water from the black underground markets that operate in the wee hours of the morning and often face sexual and verbal harassment.

With the increase in domestic responsibilities and household care due to the COVID-19 outbreak, where women also tend to eat the least and the least, the financial strain and food storage have severely impacted women’s health and nutrition more than men.

The trauma of women migrant workers has been invisible in media reports as has been the response and relief measures by the Government and others. A state-wide survey by a Karnataka-based organization reported that over 60% of surveyed women (284 of 1387 respondents were women laborers, sex workers, and trans-persons), and did not have access to basic medical treatment, food, and incomes due to the lockdown.

  • DOCTORS AND FRONTLINE WORKERS

A survey of 152 doctors found that more than a third of them are experiencing depression and anxiety due to the pandemic. Frontline workers are reportedly burdened by over-work, and anxious about contracting the virus.

RESPONDING TO THE CRISIS

There had been proliferating initiatives that were introduced to address the growing mental distress and health issues among the people such as Telemedicine Platforms which would be available 24*7 for medical supplies, and telepsychiatry consultations. Several Central Government initiatives were launched whereby persons with mental illness were provided with electronic medical prescriptions, although this was not much fruitful for the rural population. Several non-profits, private hospitals, and universities have set up helplines and e-counseling—for example, the Neptune Foundation, Trijog, Mastermind Foundation, Samaritans, Jamia Millia Islamia, and others.

The pandemic and the lockdown were a timely opportunity for all those who are concerned and are a part of it to reunite and address the issue of mental health care along with containment of the pandemic. There should be an acknowledgment of the several ways by which mental health gets affected and one must go beyond the narrow, disease-based models of mental healthcare.

This article is written by Ajita Dixit, who graduated from ILS, Dehradun, and is currently pursuing her Master’s in Law.

INTRODUCTION

“Covid-19 has had a significant impact on economies all over the world impacting their trade and financial markets, in addition to being a global pandemic and public health disaster.”

“The disease mitigation measures imposed by many nations have also resulted in significant income reductions, increased unemployment, and disruption in the demand and supply chain of the world which in turn has impacted world trade negatively.”

A report from UNCTAD (2020), indicates the list of most impacted world economies due to covid-19. European Union (EU), the United States of America, and Japan are the most impacted economies by the covid-19 according to that report.

UNITED NATIONS CONVENTION ON CONTRACTS FOR INTERNATIONAL SALES OF GOODS(UNCISG)

Vienna Conventions is also known as UNCISG. It came into force in year 1988 after 9 countries ratified the treaty. By 2020, 94 countries had ratified the treaty and were following the standards set by it.[1]

“International Institute for the Unification of Private Law (UNIDROIT) and United Nations Commission on International Trade Law (UNCITRAL)” became the basis for UNCISG. While drafting the UNCISG, drafters took inspiration from both the treaties to make a comprehensive document which beneficial for the entire world and represented the needs of the world without any kind of discrimination or biases. 

UNCISG aims to have uniform rules and regulations regarding international trade all over the world. It aims to promote free trade between countries by trying to remove any legal barriers.

Countries have various benefits of joining UNCISG. Since all the member countries are being regulated by the same rules and regulations it becomes easy for the contracting parties to interact and even if one party to the contract is at the position of domination, it cannot dominate because similar rules apply to both the parties.

Also, it saves a lot of time for parties as they have to follow already made rules and regulations and don’t have to sit and frame new rules and regulations. Hence, saving a lot of time and effort.

Also, countries having distinct economies and economies at a distinct stage of development (developed, developing, and underdeveloped) are a part of UNCISG, all opinions and issues get highlighted.

CLAUSE OF FORCE MAJEURE

“Force Majeure” is a French word that means “greater force”. It can be defined as a contractual term that exempts the party from performing the contractual obligations, they owe to each other if an event beyond their control occurs, and that event makes it impossible for the parties to perform their duties.

FORCE MAJEURE CLAUSE IN INDIA

Although the clause of force majeure is not expressly mentioned in the Indian Contracts Act,1872.

But according to the Hon’ble Supreme Court of India, it comes under the ambit of “Section 32 of the Indian Contracts Act,1872.[2] Section 32 of the Indian contract Act talks about Contingent contracts. This was held by Supreme Court in the case of Energy Watchdog vs Central Electricity Regulatory Commission.”

Force Majeure can be broadly used in two contexts:

  1. Natural Events
  2. Political Events

NATURAL EVENTS: These kinds of events may include ‘Act of God’ like Tsunami, floods, drought. In these circumstances, it becomes difficult for the parties to complete their contract hence Force Majeure clause applies here.

POLITICAL EVENT: Political Events include, events like Civil unrest, genocide, wars, etc. Also, in all these circumstances it becomes difficult for the parties to contract to fulfil their mutual obligations towards each other.

Therefore, this clause of ‘force Majeure is very important and useful for the businessman as it allows them to breach the contract without entering into any kind of liabilities or facing any kind of loss or damages provided the situation arisen is out of their control.

ARTICLE 79 OF UNCISG

Article 79[3] of UNCISG though does not mention the term ‘force Majeure explicitly but according to Article 79: “a party is not liable for a breach of any of his obligations if he can show that the breach was caused by an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the contract’s conclusion, or to have avoided or overcome it, or its consequences.”

Therefore, four necessary conditions are to be fulfilled to be termed as an ‘impediment’:

  1. A particular event beyond his control
  2. The event was not reasonably expected/ foreseeable
  3. The particular event could not be avoided
  4. A certain kind of reasonable relationship exists between the party’s non-performance and that particular event.

COVID-19 AND FORCE MAJEURE CLAUSE OF UNCISG

Covid-19 is going to fulfil the first two of the criteria i.e., covid-19 was beyond anyone’s control and was not reasonably expected. But the non-fulfilment of the contract due to covid will depend upon case to case and a universal policy cannot be implemented. 

Although, it might be true that because of travel barriers and travel restrictions imposed by various countries in the form of lockdowns and shutting down of borders, the contracts may have been hampered. But these four mentioned conditions are not objective and are subjective to different interpretations. Therefore, all the contracts may not completely be absolved from the liability but certain contracts may be depending upon the facts of that particular contract.[4]

CONCLUSION

In summary, those involved in International Trade activities should be aware that “Article 79 of the CISG may not be sufficient to protect them from trouble and hardship.” In these difficult times, general contract terms written by reputable international organizations can be used to protect their interest. Stakeholders “should not, however, consider these common contract clauses as a complete solution to their problems.” “The parties are advised to seek legal advice and to write down their clauses of force majeure.”

ENDNOTES

  1. International Sales of Goods and related transaction, https://uncitral.un.org/en/texts/salegoods
  2. Section 32, Indian Contracts Act,1872
  3. Article 79, UNCISG
  4. COVID-19 Force Majeure under UNCISG, https://www.jurist.org/commentary/2020/05/gizem-alper-force-majeure/

This article is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.