Covid -19 with Update.

Original 19/04/20 Post script 3/05/20

Situation of Covid- 19 is an evolving situation. No one is in position to predict what will be the final picture. Different countries and communities not only have been affected differently by it; they responded to it also differently which shows something about level of prosperity as well as their different attitude towards lives and livelihood. What is correct trade off live and livelihood, what are short and long term consequences on economy; Does short term gain will kill long term opportunities? What about health? Does  focus on Corona will give impetus to overall health care or  in long term we will find increased mortality rate caused by other diseases including higher infant mortality etc. due to malnourishment,  and so on( due to negligence, and depleted resources) are only speculation at this stage. As such comments here are based on what is the present picture and future probability around Mid-April and so use of data is minimised.

If we compare USA and Brazil response as against India’s response, it highlights different risk-taking capacity/attitude of a community or government. USA and Brazil shown high Risk Appetite (indicated economy more important); while India indicated Risk Aversion (indicated life of person is more important). USA not only delayed restrictions but now preparing again to reopen economy at the earliest in spite of large scale devastation caused by Covid-19. There is also news about Haiti (a small country) who has decided to open Textile Mills in spite of known Corona Risk. It shows why someone is at the top of prosperity and another at the bottom (as per, per capita income comparison) of economic development. This also indicates about future also; in a post Corona world, who will quickly march ahead once again. To understand it personally, let us compare a person who deals in Equities (stock market) with another person (to avoid liquidity and security risk) who keeps all money in to saving account of a (Nationalized bank). Such comparison can be made in different context between different states (of India) also, while Himachal Pradesh schools remain open in snow clad “0” degree temperature, in Madhya Pradesh a cold wave (temperature around 9-10 degree) forces closer or at least time changes of schools. Now it is to forecast which person is more likely to be prosperous or which state is likely to be ahead in education. To close the paragraph, one industrialist Rajiv Bajaj and an economist Raghuram Rajan feels such harsh lockdown will make India weak.

(Post script: Now USA death has crossed 1.60 lacs, but there are protests by unemployed citizen to open up economy. Brazil is also experiencing high corona cases.)

There is also comment about how well some countries (let us say India) managed to control Covid-19 as against other countries (more developed countries).But there is a twist in storey, as there seems to be direct correlation between, economic prosperity or integration of a country with world economy and spread of Covid -19. That is why USA, European and East  Asian  countries are in general worst affected countries and African and South Asian countries ( which are at the bottom of economic development or integration) are least affected by Corona 19. This correlation is visible in side India too. Most economically active Mumbai (Maharashtra) is worst affected and Patna (Bihar) is least affected. This division is clearly visible within a state also, just see how western MP is a Red zone (worst affected) and Eastern MP is in green Zone (least affected). So should, we self-congratulate on good management of Corona or introspect about our isolation and ranking in world economy. Further, if we wish to correctly compare our performance and preparedness (against Covid-19) we should compare ourselves with same economic group and more specifically with our neighbouring countries, Bangladesh, Sri Lanka, and so on. Result could be surprising, especially with regard to how they dealt with their internal migrant labourer.

(Post script: This correlation seems to hold well, with Gujrat joining the list of states with large number of Covid 19 cases. MP seems to have controlled the spread, but there are pending cases whose results are yet to come)

Sudden and harshest lockdown announced by India has affected migrant labour (working away from home district or state) most. These labourers migrate to city because in normal times “higher income minus higher cost of living” is a positive number but when income becomes zero, higher cost of living in city force them to head towards village where apart from low cost of living, social security ( of own family ) is available. In the zeal to contain spread of Covid -19, it seems at best; government completely overlooked their problem or at worst government was unaware that such class of citizen do exist in India. That is why, while it arranged planes to bring back stranded citizen from abroad (now some states are planning to bring back stranded students from Kota) and gave more than twenty four notice before shutting down domestic air lines services (for affluent citizens), no such arrangement were made for these labourers (to send them to home state) nor such notice given before shutting down rail and road transport. In contrast Bangladesh and Sri Lanka gave proper notice and time to such labourers to return home before announcing lock down. (This difference in attitude is also noticeable, when we see how govt. and election commission is taking steps, so that NRI can vote in Indian election but no such steps are visible, in spite of “Times of India” raising voice about it, for migrant labourers.) Further, generally these labourers do not have operating bank account or ration card at the place of work to avail concession / relief announced by government. Worst, when they are showing unrest/ anger over arrangement and pressing for return to home, under these conditions instead of taking proper care of them (in spite of Supreme Court intervention), we ( elite) are labelling them as law breaker. But who is at fault? Government who failed to  work as per The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, This is an act of the Parliament of India enacted to regulate the condition of service of inter-state labourers in Indian Labour Law. The Act's purpose is to protect workers whose services are requisitioned outside their native states in India. Whenever an employer faces shortage of skills among the locally available workers, the act creates provision (including registration at host and home state) to employ better skilled workers available outside the state. Many of us are not even aware of this act. Hopefully, politician and policy maker will take lesson from this sad episode (of these labourers) and our political discourse or political economy will change post Covid -19.

(Post Script: As against India’s Supreme Court, which went by government version, Nepal’s Supreme Court held that Migrant Labour are entitled to return home and it is the question of “Dignity “for them. Further after a delay of almost 40 days, centre has agreed that migrant labour can go home and has allowed point to point “Shramik Trains”. It is debatable point, whether 40 day delay and then return will be good or turn out to be a “catastrophe” like the Sikh devotee returning from Nanded has proved in case of Punjab)  

This bias against a class has been extended to a religion also. Initially no one blamed other for spread of corona, but as situation went out of control, instead of admitting own failures, everyone started blaming other. USA blamed China, Pakistan blamed Shiya community and in India we have Tablighi Jamaat (a sect within Muslims). Without defending Jamat’s negligence and blind faith, exaggeration that without Jamat’s in India and so on is deplorable. No one has questioned why Delhi police (under central govt.), failed to stop congregation (it is reported that as on date of congregation there was no ban on such gathering) or when gatherings were banned why police could not disperse them. Further when positive cases of Jamat were reported as percentage of total positive ( to highlight problem created by them) without telling “total Jamat test out of total test” is at best a statistical error and at worst deliberate attempt to malign one whole community. Sad part is, when solidarity in fight was required, even at official level such game was played (and is being played in spite of Minority Commission’s objection). Ignoring lapses elsewhere and in other religions, the coercive steps like search operation, FIR etc. (one PIL filed in Delhi HC asks for demolition of their HQ at Nizamuddin, Delhi) against members, created suspicion (one message that spread in community: Covid 19 treatment is in fact a conspiracy to eliminate Muslims from India) in community and their going in to hiding or protesting against health workers might have caused more spread of corona then original congregation. From long term perspective such lack of trust between government and a community and between different communities may halt economic development, break social fabric and create internal security problem for India, whose adverse effect may be more damaging than Covid 19.

(Post Script: Our hatred mission against Muslim found back lash in UAE and PM had to tweet that, Covid 19 does not connect with any religion. In USA a watchdog group has clubbed India with Syria like countries for religious bias).  Now, with cases crossing 40thousnad, and likely to be 90^th by 17^th May and ex SC judge etc. becoming victim of Covid 19, how far blaming Jamat was justified ? As it turned out Sikh devotees were also stranded at Nanded, and Govt of Punjab arranged there return and now they are becoming cause of spread of Covid 19 in Punjab.  No adverse comment in TV or FIR against them. To add insult to injury, when Covid 19 freed jamati donated blood for Plasma treatment, no publicity was given to this gesture and when a IAS for pointed out this in a tweet, he has been served a Show cause notice)         

Now, taking in to account economic impact of lock down to contain Covid -19, India has also decided to give some relaxations ( especially in villages) in lock down to start some economic activity. But there seems to be lack of understanding about economy itself. First, our economy is not based on Gandhiji’s “Gram Swarajya”; villages are not isolated independent economic unit. Opening economic (industrial) activity in villages without opening forward and backward linkages does not make any sense. Even MSME are mostly ancillary units for large industrial units and cannot start work unless they get orders from them. In fact (as pointed above) rural areas are spared from Covid -19 just because there is no industrial activity. What construction can take place if cement is not produced and shops are not open to sell it?  Step may have symbolic value and to some extent may impact positively on rural employment (MANERGA ETC). This was from point of view of full production cycle. Similarly, how to produce and what is use of production when it cannot be sold to consumer and thereby cash is generated? (In different context what is use of distributing wheat when facility to convert it in to flour is not available?) Things could have been better, if instead of making artificial rural –urban, essential-non essential and producer- consumer division, economy was opened completely in a geographical area (green zone) large enough to sustain itself completely in short run. 

(Many industries including Maruti said, we cannot start production unless whole production chain and show rooms for consumers are opened)

Last point in short, with whole focuses on Covid19 and economy collapsing; what will be the effect on mortality rate due to other diseases? Already there is appeal that patients should, wait, general practitioners have stopped seeing patients, and government has to invoke ESMA (Essential Services Maintenance Act), to call doctors and paramedical staff to report for duty. Hospitals are insisting that before any treatment is started patient should get report on Covid 19. In long run with reduced income and medical help, infant mortality malnutrition etc. is bound to go up. Can it increase school dropout rate and increase child labour? We need to investigate these issues and do (social) research on these subjects.

(Post Script: With lower deaths being reported as compared with same period last year, worry proved to be wrong, at least in short run. Does it means, medical intervention affects patient adversely or with family members being at home etc., patient feels mentally at ease and that improves his condition ?)  

To conclude, the world will not be the same after COVID-19. We must understand in spite of artificial national barrier, division of religion and so on we are all part of one human community. Going further human too are not isolated creature they are part of whole eco system. We are sailing in a single boat, and cannot feel safe when another fellow passenger is drilling a hole in the boat. We cannot be complacent and /or satisfied with the fact that he is drilling hole in his area, I am not bothered. Negligence will cause whole boat to sink.

Humanity will have to find newer ways of dealing with public health emergencies, considering the developed countries of the West are the worst affected despite their state-of-the art health infrastructures. The United States, in particular and all of us in general must realise that excessive expenditure on the war against terror was flawed and misdirected. Internally, too we need to come out of our comfort zone, better understand suffering and need of silent lower strata (instead of vocal cry-babies), work for more cohesion in society and so on.  Will we be able to seize this moment of crisis in to an opportunity like we did in 1991. Can we change Agriculture sectors restrictive practices in force when food grains were in short supply? Will we change labour laws to enhance productivity, can we stop present game “Profits are Private, Losses are Public” played by industrialist. Can we impress upon borrower that “Banks are extending Loans and not participating in Equities”. Lastly can we have political leadership/ class that actually lead the masses and not follow them? We need “New ideas” to be sold not the ideas that are “Saleable”.

If this change happens India has new future, a break from past, else, we are back to square one with a lower trajectory. Choice is ours.

( Post Script: As of now there is no indication that policy makers are preparing anything like 1991 changes to deal with crisis. Only incremental and adhoc decisions are being announced. See the case of Migrant labour, movement first allowed by Bus then train. Easy option of extending lock down is taken, probably still India is not ready to manage Covid 19 post lockdown. If this continues we may go 21 years back in prosperity not because of Covid19 , but because of measures taken to contain it.)  

Beyond the Rule of Law.

Like the history, which is written and reaches us through victorious party, law of the day/ land, too reflect the equilibrium point between different stakeholders of the society. These stake holders can be ruler-ruled, different genders, caste, economic class or political ideology, and so on. And if, based on power equation, this equilibrium is not just or natural, which is generally the case; rules made out of it will not be just. Further, the ^“Rule of Law” which is interpreted or assumed ideally as law being above everyone and to be applied to everyone, irrespective of rulers or ruled and   no one can grant exemption to the application of the law and so on, is generally not found in practice anywhere. Thus before we sing in praise of “Rule of Law” or condemn the action of a section of society that is not obeying “Rule of Law”, we have to examine (above) two aspect of “Rule of Law”. One whether it is just and second whether assumptions made there in are followed in practice or not. If “Rule of Law” fails either of the condition then “Rule of Law” cannot be said to be the ultimate solution for wellbeing of human kind. Then, “Rule of Law” is not enough; we need “Rule of Justice”.

Before that, to understand spirit behind it, let us understand how concept of “Rule of Law” has evolved through ages,. The development of the legal concept of “Rule of Law” can be traced through history to many ancient civilizations. In the West, the ancient initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.  However, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.  For him it is more proper that by “Rule of Law” law should govern than any one of the citizens. Upon the same principle, if it is necessary to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws. The Roman statesman Cicero said- "We are all servants of the laws in order to be free." Under the Roman Empire, the sovereign was personally immune, but those with grievances could sue the treasury. In China, during the 3rd century BC, members of the school of legalism  argued for using law as a tool of governance. But they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law.  The difference (between two) ... is that, under the “rule of law”, the law is pre-eminent and serve as a check against the abuse of power. While, under “rule by law”, the law is a mere tool for a government, which suppresses in a legalistic fashion. In contrast, Daoism rejected “rule by law” in favor of a natural law that even the ruler would be subject to. In Islamic system rule of law was formulated in the seventh century, so that no official, not even the Caliph, could claim to be above the law. In India, in spite of general hereditary Monarchy structure found everywhere, we find mention of some Republics also. 

In modern times (1215 A.D.), Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates  to back the Rule of Law, preserving ancient liberties by (accepting) “Magna Carta ( Libertatum)” (in Latin and meaning  Great Charter of Freedom) in return for exacting taxes. This foundation (give and take principle between ruler and ruled) of a constitution was later carried into the United States’ constitution also. Further, Samuel Rutherford in the title Lex Rex (1644) Latin for "the law is king", gave the principle theoretical foundations to concept, subverting the traditional formulation Rex Lex ("the king is law").  Further John Locke in his Second Treaties of Government (1690) wrote “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it”. Later the influence of Britain, France and the United States contributed to spreading the principle of the “Rule of Law” to other countries around the world.

                                        

The concept of “Rule of Law” have also been properly defined by the Oxford English Dictionary as: The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes. It stands in contrast to the idea that the ruler is above the law, for example by “Divine Right”. It means, no man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.

Thus what is meant by the “Rule of Law” as evolved over time and defined in dictionary is ruler is guardian and servant of law. Rules are made by Consent of (ruled) and trust put upon ruler (by ruled), and law of nature is the ultimate guide (of governance). Based on it several meaning of rule of law follows and these are, one that no person or government is above the law. It also means that no government or its officials can enforce laws that are unfair or unjust. Rule of law should help to guarantee adherence to the beliefs of the sovereignty of law, impartiality before the legislation, accountability to the law, fairness in the administration of the law, the division of powers, assistance in decision-making, legal confidence, absence of arbitrariness-procedural and legal etc. Further, what are/should be the objective of “Rule of Law” in a country? They are to keep the peace in a country, shaping moral standards, promoting social justice, facilitating orderly change, providing a basis for compromise and lastly to help in facilitating a plan.  So, to put in practice above rules and achieve objectives, conventionally there are three branches of government in each polity that makes up the nation.  These are the legislature, the executive and the judiciary. In a country of parliamentary democracy, the judiciary is independent of the other two branches; the executive is dependent on the legislature. Whereas the legislature enacts law, the judiciary interprets law and the ultimate power of enforcement of the law (as moderated by legislator and judiciary) lies in the hands of the executive. Under this arrangement arbitrary use of power by the executives is tantamount to challenging the concept of the rule of law.

Now, if we evaluate our constitution, legislative rules, procedural rules and interpretative rule, against the basic ideals, objective and functions of “Rule of Law” we find some aberrations and lacuna in enactment of most of laws including constitution. I am not saying they are good or bad, desirable or not desirable, just evaluating them based on concept of “Rule of Law”.  Before, that context of enacting constitution and related laws should be understood. India got independence from British in 1947. That time India was mostly governed by independent princely states or princely states under British rule. Thus Indian ruler as well as ruled (in spite of 90 year direct British rule), was far away from the concept of “Rule of Law”. King was believed to be incarnation of “GOD” (Divine Right), and above the law or the way Plato had advocated King to be. Society in large believed in Tulasidas’s (mis) quote “समरथ को नहीं दोष गुसाईं” (powerful has no fault) and was divided based on caste, region and so on. However, the Constitution of India intended for India to be a country governed by the rule of law. It declared that the constitution shall be the supreme power in the land and provided for separation of power among three arms of governance. The legislature and the executive shall derive their authority from the constitution. Ideals of “Rule of law” were also given impliedly in the preamble and such concept is enshrined in Part III (Fundamental Rights) of the Indian Constitution.

Now evaluation, first take the constitution itself, by way of affirmative action, it provides for reservation ( in education and employment) for some caste, freedom of religious practices, different personal laws for followers of different religion, protection to aborigines from outsider and so on. So, basic premise that all are equal before law itself is not met here, in fact it throws light on basic equilibrium or compromise of power (as written in the introduction of article and mentioned elsewhere that compromise being as one of the objective of good law) of different stakeholder of a group “We People” called “India” at the time of independence. Further, although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, in practice the more text in the constitution has given the greater opportunity to the judiciary to exercise judicial review. Thus, the rule of law or rather the Constitution [is] in danger of being supplanted by the “Rule of Judges”. Further, ancient prejudices, social and political bias (including  continuation of laws made of British for Colonial India) have been still present in the three branches of government, and justice has been processed formally according to the law but in fact more closely aligned with royalist and colonist principles that are still advocated in the 21st century.  Below I elaborate it in detail.

In democracy a basic tenant is, 50.1% people can make rule for 100% people and then it is declared “Law of The Land” and whether rest of 49.9 % agrees about it or not is immaterial, this is so even when subject matter is related to 49.9 % people themselves. Further in parliamentary democracy, like us, where “First Past The Post” system have been adopted, legislator having 50.1 % number do generally have only 30-33 % population’s (voter) support. Thus in practice “Rule of Legislator” becomes “Rule of (minority) Majority”.  Next in line comes is “Procedural Law or Administrative Law” which are enacted to enforce legislative law and here in the name of implementing “Rule of Law”, most elements anti thesis to “Rule of Law” are introduced and justified. These are, Discretion (it supplants the rule of law, remember 2G and Coal allotment cases), Privileges (No accountability of MPs for what is spoken in side Parliament etc), Exemptions (see long list of exemptions on Toll Booth) and so on, so better term them “Law of executive”. Last is “Interpretive Law”, these are the judgments pronounced by judiciary while reviewing a law or deciding a dispute and become “Law of the Land”. But these are affected by leaning or bias of individual judges and are never consistent over a period of time or by different judges. Thus as said above interpretive law in fact becomes “Law of Judges” and speaking against them is “Contempt of Court”. Again, Laws (due to reasons stated above) may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional (as passed by legislator and implemented by executive within the powers delegated to them) as to justify the Judges in refusing to give them effect. It is worth to be mentioned that all these aberrations occur when the administration in the governmental branches suffer from non-accountability & non-answerability, corruption, nepotism and favouritism(remember the case of Jamat Congregation, where no one seems accountable or answerable how this allowed to be happened and whole burden and accusation is passed on citizens ). And these have the detriment which ultimately results in the vicious circle of “Tyranny of Law ( elected)” and “Violation of rule of law” in a particular State.

So far we have discussed that the way laws are framed, interpreted and implemented, many thing goes wrong with rule of law. Further “Rule of Law” has two aspects, “Letter” and “Spirit”. “Letter” means what is written in it and “Spirit”   what is the intention of law, what it intends to achieve and so on? Ruler and Ruled both may seem to follow “Letter” of law but breaking the “Spirit” of law. There are battery of advocates and chartered accountants whose value depends upon the way they find out loop holes in laws. A few well known cases will explain this situation. First, Demonetization of 2016, where in against the government’s initial estimate that Rs. 3.4lac crore worth notes will not return to banking system, people ( with help of banker or bankers having closed the eye) devised ways and means to deposit all the money. Take another case of Hanging of Murderers of Nirbhaya Rape case. While legal remedies as well as “law of hanging together” is there to protect individuals from injustice from irreversible action, they or their advocates cleverly used all the legal remedies one by one and with maximum interval to delay execution of judgment. Next, take our Anti Defection Law to prevent “Aya Ram Gaya Ram” culture in politics. But look at the way political parties have come up with idea of getting resignation of ruling party MLA to lower effective strength in state assembly, resulting in their own strength becoming majority and in turn present majority government is toppled. For example in a legislator house if total  strength is 100,with 51 ruling party and 49 opposition party MLA, just getting resignation of 3 ruling party MLA( by any means)  changes the scene as effective strength  becomes 97, ruling party 48, opposition party 49 and so government changes.  And In neither case any violation of any law can be found.

Thus, even just viewing society as static (not changing with time) we observe that ruler is turning “Rule of Law” in to “Rule by Law” (exempting self). Ruled (citizen), observing the ruler ( not obeying law) and finding rules unjust, either find loop holes in it or directly violet the same. But due to technology, economic and social changes, society is always in dynamic condition and basic equilibrium of stake holder itself changes over the time. This necessitates change in law. Under the circumstances if “Rules” do not find new equilibrium amicably, we find unrest and unsolved issues in society, Anna Hazare Movement, Naxal problem, Maratha /Jat reservation issues (reservation issue aroused due to decline in Agriculture as against other sector) and so on all indicate the requirement to change the law.

Thus, we conclude that “Rule of Law”, (which is better than and has replaced ancient concept of “Rule by King”), as practiced is not achieving its basic objective of peace and harmony in society. Thus praising Rule of Law or condemning breaking of Rule of law is not justified and sufficient. Presently it seems to have lost its sanctity among ruler as well ruled and we may be inching towards anarchy of law. In fact, we need to evaluate “Rule of Law”   based on concept of Natural Law. And we need “Rule of Justice” based on Natural Laws. It will enhance peace and harmony in socity. It will promote moral behaviour. It is important for citizens, as otherwise they wish to escape from motherland. It is important to foreign investors ( to be interested in India) too and for economic development of country. Its spill over will enhance prospects for related values such as democracy and human rights.  Without good governance and a strong commitment to the rule of justice, development would be difficult if not impossible. Change of mind state and attitude is urgently required.