BACKGROUND

India has been under a national lockdown from March 25, 2020 – April 14, 2020 in view of the COVID-19 pandemic.

The Disaster Management Act, 2005 (“DMA“) was invoked in India, pursuant to which the National Disaster Management Authority (“NDMA“) can direct the Central Government and State/Union Territory administrations to take effective measures to contain  and counter COVID-19 outbreak. The National Executive Committee (“NEC“) is a high-powered body constituted under the DMA and assists the NDMA in implementation of policies and plans for disaster management.

In exercise of powers conferred under the DMA, the NEC has issued guidelines identifying industries /sectors that are exempted from the lockdown due to their critical / essential nature, and prescribed conditions basis which they will be allowed to operate (“Consolidated Guidelines“). These Consolidated Guidelines have been notified vide order dated March 24, 2020 (“MHA Notification“) issued by the Ministry of Home Affairs (“MHA“).

Over the last 3 weeks and in response to how the circumstances have evolved, multiple addendums have been issued to the MHA Notification as well as Consolidated Guidelines in addition to extension of the nation-wide lockdown until May 03, 2020.

LATEST UPDATE

In connection with extension of the lockdown till May 03, 2020, following important notifications have been issued:

A. Order dated April 14, 2020

A letter has been issued by Home Secretary, MHA to Chief Secretaries of all States/UTs informing them of extension of the lockdown up to May 03, 2020. The said letter is accompanied by an order (No. 40-3/2020-DM-I(A)) dated April 14, 2020 pursuant to which States/UTs have been directed that the lockdown measures contained in the Consolidated Guidelines shall continue until May 03, 2020 (referred as “April 14 Order“).

B. Revised Consolidated Guidelines

On April 15, 2020, the Union Home Secretary (acting as the Chairperson of NEC) has passed an order directing States/UTs to strictly implement the revised Consolidated Guidelines (“Revised Consolidated Guidelines“), as attached to the said order, till May 03, 2020. This order: –

(i) Allows select additional activities with effect from April 20, 2020, subject to
compliance with Revised Consolidated Guidelines;

(ii) Contains the Standard Operating Procedures (“SOP“) to be implemented by all offices/industries/workplaces permitted to operate; and

(iii) National Directives for COVID-19 management to be implemented by District Magistrates across India (“April 15 Order“).

Guidelines versus Directions – It may be noted that the NEC, being the agency responsible to assist the NDMA in implementation of their policies and plans for disaster management, had on March 24, 2020, issued the MHA Notification containing “guidelines” to be followed by various governmental agencies as well as private establishments. The MHA Notification further stated that breach of the Consolidated Guidelines is punishable under Sections 51 to 60 of the DMA and the Indian Penal Code (“IPC“).

Under the DMA however, it appears that while the NEC is authorized to issue either guidelines or directions, a breach of “guidelines” does not seem to amount to an offence punishable under the DMA. Breach of a “direction” of the NEC on the other hand, is clearly punishable under the DMA. This issue could have been subject matter of interpretation.

However, it is clear that the April 14 Order contains “directions” to be followed by governmental authorities and private establishments. It therefore appears that the Revised Consolidated Guidelines would have the force of law being in the nature of “directions” issued by the NEC, breach of which is specifically punishable under the DMA.

Summary of Revised Consolidated Guidelines – w.e.f. April 20, 2020

1. State-specific guidance – Select additional activities will be allowed from April 20, 2020, provided that States/UTs/Districts will operationalize these activities by ensuring strict compliance with the Revised Consolidated Guidelines and SOPs.

While offices, employers, workplaces, factories are required to implement SOPs prior to being allowed to function during the lockdown, we expect that participation of State, district and local authorities will play an important part in the successful ground-level implementation of these Revised Consolidated Guidelines.

2. Enablement not applicable to Hotspots & containment zones – Revised Consolidated Guidelines do not apply in hotspots and containment zones for COVID-19 outbreaks, whereonly Ministry of Health and Family Welfare (“MoHFW“) guidelines will apply. These zones will be demarcated by MoHFW.

3. Continued Prohibition – The following activities will continue to be prohibited:

i. Domestic & international air travel, unless specifically permitted or for security purpose

ii. Train passenger travel, except for security purpose;

iii. Buses & metro;

iv. Inter-State and Inter-district movement of persons, except for medical reasons or for permitted activities (e.g., working in exempted establishment);

v. Taxis and cab aggregation services;

vi. Educational, training, coaching centers;

vii. All industrial and commercial activities, except as specifically permitted;

viii. Cinema halls, malls, religious/cultural functions, sports complex, bars, and similar places;

ix. Hospitality services, unless specifically permitted.

4. No dilution of lockdown conditons – State/UTs cannot dilute these Revised Consolidated Guidelines and are required to strictly enforce them. They can however impose even stricter measures.

5. Select additional activities allowed from April 20, 2020: The Revised Consolidated Guidelines allow for certain sectors / establishments to operate, such as: –

i. Health services, including hospitals, nursing homes, clinics, chemists, medical / pathology labs, collection centers, medical research labs, veterinary hospitals, telemedicine facilities, manufacturing units of drugs / pharmaceuticals / medical devices and their packaging material, raw materials and intermediates, construction of medical/health infrastructure. Private establishments who support provisioning of essential services or COVID-19 containment efforts, like diagnostics, home care providers, supply chains for hospitals are allowed.

ii. All agricultural/horticultural activities, including farming, entities engaged in
procurement of agricultural goods, APMC mandis, manufacturing of
fertilizers/pesticides/seeds, inter/intra-State movement of harvesting and sowing related machines.

iii. Fishery operations including marine/inland aquaculture activities until cold
chain/marketing stage, movement of fish/shrimp/feed and workers engaged in the same.

iv. Plantation activities for tea, coffee and rubber with up to 50% workforce. Processing, packaging, marketing, sale of tea, coffee, rubber, cashew, with maximum of 50% workers.

v. Financial sector, RBI, RBI regulated financial markets and entities such as National Payments Corporation of India, Clearing Corporation of India Limited, payment system operators, primary dealers, bank branches/ATMs as per normal working hours, IT vendors for banking operations, banking correspondents (“BC“), cash management agencies, Insurance Regulatory & Development Authority of India, insurance companies, SEBI and capital and debt market services. Local authorities will make security arrangements for staff of banks/BCs to ensure law and order and social distancing.

vi. Social sector including operation of homes for children, disabled, senior citizens, disbursement of pension and provident fund services provided by Employees Provident Fund Organisation.

vii. Public utilities such as operation of oil and gas sector, generation and transmission of power, utilities in water, sanitation and waste management sectors, telecom and internet services.

viii. Goods & Cargo – Movement, loading, unloading of goods & cargo is permitted, either inter/intra-state. All goods traffic is permitted to ply, including through railways, airports, seaports and ICDs.

Movement of trucks is permitted with 2 drivers and 1 helper with the driver having a valid license. Movement of empty trucks is also permitted. Shops for truck repairs are permitted to operate.

ix. Supply of essential goods – All facilities involved in supply chain of essential goods (including manufacturing, wholesale, retail of such goods, physical stores & through e-commerce) are allowed to operate without any restriction on timing or closure provided they follow social distancing measures.

x. Select commercial & private establishments are allowed to operate including entities engaged in IT and ITES with up to 50% strength, data /call centers for Government activities, e-commerce companies, courier services, cold storage and warehousing services, private security agencies, facility management services for office/residential upkeep, hotels/lodges only if accommodating stranded tourists/medical staff, self-employed persons such as electricians, IT repairs, plumbers etc.

xi. Industries/industrial establishments – Industries operating in rural areas are allowed to operate. Manufacturing & industrial establishments in SEZ, EOU,industrial townships are allowed to operate provided that the staff stays at the premises or nearby and SOP on social distancing is followed.

Manufacturing units for essential goods (including drugs, pharmaceuticals and medical devices), IT hardware and packaging material are also permitted to operate.

xii. Construction – The Revised Consolidated Guidelines allow for construction of roads, irrigation projects, buildings and all kinds of industrial projects in rural areas or projects in industrial estates. Construction of renewal energy projects is permitted.

xiii. The guidelines further permit continuation of works in construction projects within municipal limits where no workers are required to be brought in from outside and workers are available on site.

xiv. Movement of all personnel travelling to workplace and back in exempted sectors mentioned above will be permitted.

6. Standard Operating Procedures (“SOP“) – All industrial and commercial establishments,workplaces, offices, are required to implement the SOPs provided under the Revised Consolidated Guidelines, subject to which they can continue or commence operations.Compliance will be verified by State/UT authorities from time to time, and State/UT specific advisories will also be relevant. In summary, they provide as under: –

i. All areas in the premises, including the vehicles and machinery, are required to be disinfected completely;

ii. Transportation facility to be provided for workers coming from outside. Vehicles shall operate only at 30%-40% capacity;

iii. Mandatory thermal screening of everyone entering and leaving the workplace and sanitizers to be provided;

iv. Medical insurance for workers will be mandatory;

v. Staggered working hours and shifts;

vi. Large gatherings and meetings of more than 10 people to be discouraged, and seating to be done at least at a distance of 6 feet;

vii. Not more than 2 – 4 persons to be allowed in lifts or hoists and use of staircases to be encouraged;

viii. Spitting will be prohibited;

ix. Ban on non-essential visitors; and

x. List of nearby hospitals and clinics that treat COVID-19 to be made available at the workplace.

7. National Directives for COVID Management – All District Magistrates in each State will implement national directives for COVID-19 management, annexed to the Revised Consolidated Guidelines. These include directives for public spaces, workplaces and manufacturing establishments and broadly require: –

i. Mandatory wearing of masks in public and workplaces;

ii. All persons in charge of public places, workplace and transport shall ensure social distancing as per MoHFW guidelines;

iii. No organization of public place shall allow gathering of more than 5 persons;

iv. Strict ban on sale of liquor & tobacco;

v. All workplaces to have arrangements for temperature screening, sanitizers;

vi. Workplaces to have 1-hour gap between shifts, and stagger lunch break amongst staff;

vii. Persons above 65 years, persons with co-morbidities, and parents of children below 5 years may be encouraged to work from home;

viii. Use of Aarogya Setu to be encouraged for all employees (public/private);

ix. Workplaces to be sanitized between shifts;

x. Large meetings to be prohibited;

xi. In manufacturing units, no overlap of shifts, staggered canteen lunch, intensive communication and training on good hygiene practices.

8. Penalties: Any violation of the Revised Consolidated Guidelines, SOP and National Directives for COVID-19 management will be punishable under applicable provisions of the DMA, IPC and other applicable laws.

Authors:
Rachit Bahl, Partner
Aprajita Rana, Partner