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Covid-19 and tenancy agreements: Pity or humanity?

In India, every state has its own mechanism of rent control laws and evolution of this can be traced when the first rent control act was enacted in 1918 immediately after the First World War. These were enacted to provide relief to the tenants against the demand of excessive rent and indiscriminate, inhuman, arbitrary eviction by landlords.

Mohit Singhvi and Himanshu Choudhary

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Housing is one of the quintessential requirements of a human being. The dogma of adequate housing is also a very well renowned one and finds place as part of the right to standard of living in the Universal Declaration of Human Rights, 1948 as well as in the International Covenant on Economic, Social and Cultural Rights, 1966. In the landmark case of Olga Tellis v. Bombay Municipal Corporation, the Hon’ble Supreme Court elaborated on the right to adequate housing, shelter and livelihood being part of the all-encompassing Right to Life under Article 21 of the Indian Constitution. The moot question arises is when a person cannot afford to build a house he has to resort to other options for his housing, one of that is to take it on rent and this concept is known as, ‘Contract of Letting’ wherein the Landlord lets the house to another and allows him to use it for a specific period, in lieu of a certain amount, which is known as, ‘rent’ and are governed by the rent/tenancy/lease agreement. According to the United Nations Human Settlements Programme, nearly 2 million tenants in the world are under duress evicted, rather dispossessed every year, while millions are endangered and threatened with strained evictions. Security of tenure which is the cornerstone of the right to adequate housing, can take a variety of forms, including rental accommodation and as such, it is not restricted to the bestowal of ceremonial permissible title. In the Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, the African Commission on Human and Peoples’ Rights found that even though the right to adequate housing was not explicitly recognized in the Charter, it could be inferred from other rights.

Moving further, it is to be understood that the tenancy agreements in India is governed by the Rent control laws which is within the legislative competence of the states which have absolute power to enact rent control laws having exclusive territorial jurisdiction. In country like India, every state has its own mechanism of rent control laws and evolution of this can be traced when first rent control act was enacted in 1918 immediately after the First World War. The acts were enacted to provide relief to the tenants against the demand of excessive rent and indiscriminate, inhumane and arbitrary eviction by the landlords. Impractical & insufficient provisions contained which could not sustain the pragmatic circumstances led to catena of amendments and postindependence almost every state had adopted its own rent control legislations. The preamble of the legislation is primarily to prevent unreasonable eviction and also to control rent but staring at the present scenario owing to the outbreak of the COVID-19 pandemic and subsequent lockdown which has led to the pity of the tenants, the fact which dawns upon the mind is whether the law needs a throwback or requires to be amended to adduce the humanity angle and looked upon through the angle of the Indian Contract Act, 1872.

The relationship of tenant and landlord is based on an agreement and which is governed by rent laws. Normally, at the time of execution, the contracting parties often settle on the terms and conditions such as monthly rent, security deposit, duration & termination of the agreement to be followed but sometimes performance of the said contract are prevented or affected due to certain unforeseen and erratic circumstances which are beyond the reasonable and judicious control of the parties. Presently, the whole world is facing pandemic outbreak of COVID-19 and resultantly, the Government of India proclaimed lockdown across the nation vide its order dated 24th March of 2020, while exercising its powers under section 10(2) (I) of the National Disaster Management Act, 2005. In light of the said order, regular activities have been at a standstill apart from termination/suspension of various contracts including tenancy agreements.

Lockdown has though played a major role in containing the disease and refraining it from contaminating the millions of persons but have had a gigantic impact on the income sources of countless individuals, industries, business entities as well as the sudden losses of jobs and incomes due to which many households, business owners, micro, small & medium business entities have plummeted and ipso facto are unable to continue paying their rent payments leading to failure to pay rent consequently attracts eviction proceedings. In the present circumstances, it is crucial to find the answer to a question for avoiding plethora of doubts which are answered below: 1. Whether non-payment of rent can be benefited under the provision of Force Majeure Clause?

As defined in Cambridge Business English Dictionary,  «Force Majeure» means, ‘an unexpected event such as a war, crime, or an earthquake’ which prevents someone from acting in consonance with the terms and conditions stipulated in the agreement. Hence, where reference is made to force majeure, the intention is to save the performing party from consequences of anything over which he has no control. A force majeure clause should be construed in each case with a close attention to the words which precede or follow it, and with due regard to the nature and general terms of the contract. The effect of the clause may vary with each instrument depending upon the facts and circumstances of each case. The relevant provision is contained in Section 32 of the Contract Act, 1872.

However, when no pertinent occurrence/happening is mentioned in a contract, the occurrence of which frustrates the very purpose of the contract, in those circumstances Section 56 of Contract Act, 1872 comes into role, which revolves around the “doctrine of frustration”. Frustration is an English contract law doctrine and is based on the Latin maxim “les non cogitad impossibilia” which means that the law will not compel a man to do what he cannot possibly perform. In common parlance, due to unforeseen circumstances, if it becomes impossible to perform any part of a contract and purpose or foundation of the contract becomes upset, in that situation, the court can grant relief under Section 56 of the Act of 1872. It has been held that ‘where performance is rendered invalid by intervention of law, or where the subject-matter assumed by the contracting parties to continue to exist is destroyed or a state of thing assumed to be the foundation of the contract fails, or does not happen, or where the performance is to be rendered personally by a person who dies or is disabled, the contract stands discharged. Thus, in a nutshell, it can be attributed that, when there is clear averment in the terms of a contract upon which the performance of the contract is dependant, such contract would be governed by Section 32 of the Contract Act, 1872 and when, there is no averment in the contract, such contracts would be governed by Section 56 of the Contract Act, 1872. Another question, which arises while discussing Force Majeure Clause, which is as follows;

2. Whether Covid-19 will be considered as a ‘force majeure’ event & will it be applicable upon tenancy agreements or not?

 At the outset, it is to be understood that COVID-19 pandemic has spread across the globe and resultantly lockdown was imposed in the nation leading to closure of activities which prevented the free flow of cash flows. In India, several State Governments and the Central Government imposed travel restrictions, mandated quarantines, closed district/state borders and business operations, to restrict further outbreak. Not only this, prior to declaration of lockdown, on 19th February, 2020 the Ministry of Finance, Government of India issued a notification clarifying that “corona virus should be considered as a case of natural calamity and force majeure may be invoked, wherever considered appropriate, following the due procedure…a force majeure clause does not excuse a party’s nonperformance entirely, but only suspends it for the duration of the force majeure. The firm has to give notice of force majeure as soon as it occurs and it cannot be claimed ex-post facto…If the performance in whole or in part or any obligation under the contract is prevented or delayed by any reason of force majeure for a period exceeding ninety days, either party may at its option terminate the contract without any financial repercussion on either side”. However, it is to be understood that the aforecaptioned office memorandum is not binding document for the contracting parties, but is advisory/recommendatory in nature. Furthermore, the Ministry of Home Affairs, Government of India vide its notification dated 29th March, 2020 issued guidelines that, “wherever the workers, including the migrants, are living in rented accommodation, the landlords of those properties shall not demand payment of rent for a period of one month…if any landlord is forcing labourers and students to vacate their premises, they will be liable for action under the Act.”

The said guidelines are ambiguous & woolly in nature and seems incomplete in as much as it does not have in its kitty, issues related to commercial establishments and whether the Force Majeure Clause can be invoked in relation to tenancy agreements or not. In such circumstances, there is opacity regarding invoking of the clause by companies in its rental contracts to not pay rent for the entire period of lockdown across the country. Lockdown has affected income sources and resultantly, it has become difficult to afford regular expenses including rental payments but it is not impossible to meet the promises of rental payments and pragmatically it would be difficult to get the benefit of Force Majeure Clause.

After having meticulous deliberation over the primary issues, it is apparently clear that, in the absence of Force Majeure Clause, rationally it is not possible to avail the benefit of suspension of rent but on the other hand, if Clause of Force Majeure is available in the tenancy agreement, onus would be on the tenant/lessee for getting benefit of suspension of rent but chances for exemption are minimal. In support of the said contentions, the precedent of Hon’ble Supreme Court of India can also be referred. In Raichur Matham Prabhakar & Anr. vs. Rawatmal Dugar,  it was held by the Apex Court that “So long as the lessee pays the rent reserved by the lease and performs the obligations cast on him by the contract of lease, he is entitled to hold and enjoy the property without interruption by anyone including the lessor. Under Clause (l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor. There has developed what is known as the doctrine of suspension of rent based on principles of justice, equity and good conscience. If the lessee is dispossessed by the lessor from the leased property, the obligation of the lessee to pay rent to the lessor is suspended.”

The aforesaid ambiguity/ query can also be clarified from the recent observation of the Hon’ble Delhi High Court in Ramanand & Ors. vs. Dr. Girish Soni & Anr., where the Hon’ble High categorically expressed that, “The force majeure clause in the contract could also be a contingency under Section 32 which may allow the tenant to claim that the contract has become void and surrender the premises. However, if the tenant wishes to retain the premises and there is no clause giving any respite to the tenant, the rent or the monthly charges would be payable.”…The Hon’ble High Court also observed that, ‘In view of the above settled legal position, temporary non-use of premises due to the lockdown which was announced due to the COVID-19 outbreak cannot be construed as rendering the lease void under Section 108(B)(e) of the TPA.’

That though the law does not aid the tenants but then the entire philosophy of pragmatic approach to be adapted by the courts are also under dark clouds in as much as if even in these extreme distress and terrible circumstances which is also termed as a pandemic by WHO and a disaster by the Ministry of Home Affairs, the court does not bend towards the needy, the entire notion of justice, equity and good conscience, fails! Arguendo, several leases do not permit tenants to withhold or suspend the payment of rent and dues, regardless of any event. In such cases, the solution can be arrived either by a mutual agreement between the contracting parties or by resorting to concept elaborated in Section 62 and 63 of the Indian Contract Act, 1872.

Concluding Remarks

There is no gainsaying that, due to outbreak of COVID-19 distinct sectors are facing inter alia novel complications, which were never even imagined. The elementary question regarding frustration of tenancy agreements has also raised but after considering pronouncements of the Apex Courts and provisions available in distinct legislations it is apparently clear that, a temporary suspension of business caused by pandemic tenancy agreement would not frustrate the contract. Though it cannot be ruled out or ignored that the pandemic and resultant lockdowns have caused tremendous financial distress and whole nation is travelling through a phase of temporary misery & economy is also at ventilator but the fact remains that the revenue losses alone cannot be the ground for non-payment of rent and also for avoiding the obligations. If the lease agreement itself does not provide for a discharge of payment obligations, it may not be possible for a tenant to refuse payment of rent. Negotiation and mutual consent is the only mode whereby; a tenant can seek waiver of rent. Another side of the story, which cannot be left abandoned, is that, during this span of economic hardships, where it is difficult for tenant to pay the rent, the lessor/landlords are also facing financial crunches.

That it would not be out of place to mention here that when starvation wreaked havoc, the British management often turned a blind eye to the melancholy of citizens, though during this hour of need Indians have once again depicted the sense of responsibility, humanity and generosity and risen to the occasion. The overwhelming and teary stories of the citizens extending assistance and nourishing the poor, with whatever resources they have or could raise gives you goose bumps and this should have touched the sense of hallowed seat of justice too.

As the nation grapple with the economic shutdown leading to halt of earnings and revenues, it could welcome a legislative amendment in the rent control law also to add a feature or a provision of exemption/ deferment from payment of rent during these pathetic times relying upon the law laid down in P G Gupta vs. State of Gujarat & Ors. wherein the Hon’ble Supreme Court held that, the right to shelter in Article 19(1)(g) read with Articles 19(1) (e) and 21 included the right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. In the humble opinion of the authors, the time has come for the courts and the legislators to rethink and revamp the existing laws and philosophy by understanding that the same is related to the fundamental right of housing in order to protect the right of the tenants at least in nastiest times, like these if not forever.

Adv. Mohit Singhvi is founder and head of Singhvi & Co. Adv. Himanshu Chaudhary is Principal Associate.

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Supreme Court upholds cancellation of fair price shop vacancies in West Bengal to implement Food Security Act, “no estoppel against statue”

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The Supreme Court in the case State of West Bengal vs Gitashree Dutta (Dey) observed in view of the implementation of National Food Security Act, 2013 and the court further noticed and dismissed the challenges faced against the cancelation of the declaration of Fair Price Shop vacancies.

The bench observed while agreeing to these contentions and therefore allowed the appeal:

While going by the observations of the Division Bench in the impugned judgment, that the State was aware of the 2013 Act while issuing the vacancy notification on 30th April 2014, the said notification cannot be sustained and the notification being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof, there can be no estoppel against a statute. the appellants endeavoured to enforce the statute, The respondent herein being a mere applicant in an unfinalized selection process and when by recalling the vacancy notification it is seen that the respondent has no vested right in his favour to seek

The respondent in an unfinalized selection process has no vested right in his favour to seek continuation of the notified vacancies and further it was contended before the court that there can be no estoppel against a statute as the State endeavoured to enforce the statute while recalling the vacancy notification

Before the Apex Court, the State contended that it was reposed with a responsibility for implementing the 2013 Act which, inter alia, entrusted a responsibility to reform the existing Targeted Distribution System.

Inter alia praying for quashing of the Notification dated 17th August 2015, the respondent filled a writ petition before the High Court of Calcutta. The Writ petition was dismissed by High Court single bench as This notification was issued in the light of implementation of the 2013 Act. the Division bench of the High Court held while allowing the intra court appeal that the State of West Bengal failed to justify the decision to recall the vacancies and that it has acted in an arbitrary and unreasonable manner, and hence, it is being said to quash the Notification dated 17th August 2015. However, no final order appointing the respondent was issued by the State Authority and the application of the respondent was pending before the court. The Food and Supplies Department of the State of West Bengal issued a notification dated 17.08.2015 while cancelling the declaration of vacancies.

The Bench comprising of Justice S. Abdul Nazeer and the Justice Vikram Nath observed that the State endeavoured to enforce the statute and that there can be no estoppel against a statute, while recalling the vacancy notification.

The Food and Supplies Department of the State of West Bengal issued a notification dated 17.08.2015 while cancelling the declaration of vacancies.

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To clear wage arrears of sweepers within 8 weeks, the Supreme Court directs Jammu & Kashmir

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The Supreme Court in the case Dr. Kunzes Dolma and Anr. v. Mehraj-ud-Din Kumar and Ors observed and directed the Union Territory of Jammu and Kashmir to clear the wages of sweeper from March 2015, within 8 weeks as the arrears of sweepers sustaining at a monthly wage of as the minimum wage of sweeper is of Rs. 100/- per month (Rs. 3 per day).

In an order dated May 7, 2016 the LPA was preferred by the Department against which the High Court refused to entertain and passed the impugned order.

the Jammu and Kashmir High Court vide order dated May 7, 2016 confirmed the earlier order and again directed those minimum wages to be paid by the sweeper is to the extent of Rs. 4500 per month. Thereafter the order dated 06.11.2015 was not being implemented However in the contempt petition and since the Contempt Petition was preferred by the sweepers.

On 06.11.2015, the Single Judge of High Court directed in their favor for the release of the unpaid minimum wages.

the part time sweepers with wages of Rs 4500 each which has been done without any approval and authorization from any authority as accordingly in an order passed by the Chief Medical Officer The sweepers were aggrieved by the clubbing of plan grants into non plan which was done on the account.

For challenging the grant of same wage irrespective of the enhancement Part Time Sweepers in different Health Centers in District Kupwara by the then District/Block Level Officers who were entitled to monthly wages @Rs.100/- had approached High Court, a case before Jammu & Kashmir High Court.

It is being noticed by the bench in the impugned judgement that the sweepers continued to be paid meagre wages of INR 100 per month despite of repeated directions.

In an order dated 05.15.2019, the Top Court issued the directions while considering SLP assailing Jammu and Kashmir High Court’s, the top court further observed and refused to entertain the LPA.

The directions issued by the Top Court while considering an order dated May 15, 2019 as in the said order the SLP assaulted Jammu and Kashmir High Court’s while refusing to entertain the LPA furthermore the Court observed that the same was an abuse of the process of law.

In an order dated 15.05.2019, while considering SLP assailing Jammu and Kashmir High Court’s by which it further observed while refusing to entertain the LPA that the same was an abuse of the process of law, the directions issued by the Top Court.

The bench comprising of Justice BR Gavai and the Justice AS Bopanna observed and further directed for paying the monthly payment to the sweepers from the month of May, 2022 and which is to be paid a regularly without any break.

In an order dated 05.15.2019, the Top Court issued the directions while considering SLP assailing Jammu and Kashmir High Court’s, the top court further observed and refused to entertain the LPA.

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Supreme Court: Asks Comptroller of Examinations to examine students grievances about differences in marks allotted by CBSE exam

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The Supreme Court in the case Jay Dhande & ors vs Union of India & ors observed and directed the Comptroller of Examinations to reconsider grievances of the students and take appropriate decision as there is a difference in marks calculated by CBSE and the respondent School.

It was argued by the school that the CBSE is trying to cover up this inaccuracy and now the CBSE has used the opportunity to put the entire blame on the school.

According to the School Committee, it was submitted that the CBSE portal was an all-inclusive portal and the portal worked as per the algorithm/program as designed by CBSE and if there is a wrong or inaccurate moderation process, the onus and the responsibility of that lies with the CBSE and not the school, according to the School Committee.

Thereafter it was being argued that as per the CBSE instructions, the entire process was done precisely and as now the CBSE is putting the onus of its wrongs on the School as the School had no independent rule either in moderating or assigning the marks.

Further it was argued by the School Committee that the school did not have any power or any option to moderate or assign marks on its own and the school as mentioned in the CBSE portal, the school meticulously followed each and every instruction

It was further argued by the petitioner that the CBSE does not have any authority and the CBSE has changed the marks given by the School and the CBSE has awarded much less marks given by the school

In the present petition the main grievance is that the marks uploaded by CBSE are much less than the marks given by the school whereas the CBSE results that are uploaded reveal by the present petitioner school students is that according to their school, the school allotted them particular marks.

Further it being clarified by bench that it hasn’t expressed any opinion on the contentious issue.

No expressed opinion on the contention issue is being expressed by Bench, as bench clarified

In this case the main dispute is in regards with the marks allotted to the students as per 30:30:40 formula for class X, XI, XII respectively for the 2021 exams, where an alternative assessment is being restored by the Board in lieu of written exams due to.

The bench comprising of Justice AM Khanwilkar and Justice JB Pardiwala has asked to explain the flow of algorithm and software which provides for different deduction of different marks student-wise to take assistance of technical team by the Comptroller of Examination

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Supreme Court: Asks Petitioner On Plea Challenging Talaq-E-Hasan, To Mention Next Week

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The Supreme Court observed the Muslim personal law practice of Talaq-E-Hasan which was mentioned before a vacation bench for urgent listing. A petition was filed before the Supreme Court challenging the Muslim Personal Law Practise.

The petitioner argued before the court that the practise is arbitrary and is a violation of Article 14, Article 15, Article 21 and Article 25 of the Constitution and is therefore unconstitutional as the practise is discriminatory since only men can exercise the same and seeks a declaration. As it is not an essential practice of Islamic faith, according to the petitioner.

the Chief Justice of India NV Ramana had refused to grant urgent listing for the plea on 09.05.2022.

by pronouncing “talaq” once a month for three months, a Muslim man can divorce his wife as per Talaq-E-Hasan.

Ms. Anand submitted that as on April 19, first noticed was issued and Now second notice has been issued and he further submitted that we are challenging the proceedings and hence for Talaq E Hasan, a notice have been issued through lawyer.

The bench led by Justice Chandrachud further remarked that “Why under Article 32?”.

Ms. Anand submitted that the Talaq-E-Hasan was left out and the only issue of Talaq E Biddat was considered was considered in Shayra Bano.

Justice Chandrchud further remarked that there is no urgency and We will keep it on the re-opening day after vacations.

As it will be over, she has received the second notice on 05.19.2022 and on 06.20.2022.

She has received the second notice on May 19 and on June 20 it will be over”

on May 19 and on June 20 she has received the second notice and by the time it will be over as by that time everything third talaq will be given and everything will be over.

The bench led by Justice Chandrachud further remarked that there is no urgency as the first notice issued was on April 19 and wait for a period to come here.

Ms. Anand submitted further submitted that it is about a woman being abused and by reopening everything will be over.

On which Justice Chandrachud further remarked to take his chance and mention it next week.

The Vacation Bench comprising of Justice DY Chandrachud and the Justice Bela Trived contended that the petitioner has received the second notice of talq as the Public Interest Litigation petition filed by Senior Advocate Pinky Anand

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KERALA HIGH COURT: NO QUARRYING OR CONSTRUCTION WORK ON LANDS ASSIGNED FOR CULTIVATION

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The Kerala High Court directed the State Government to take steps for the resumption of such land, notify and exempt the provisions of required and further the court directed that no quarrying activities are permitted on the land assigned for cultivation in the case Raphy John v. Land Revenue Commissioner & connected matter.

It was being contended that through the rule the authorities had made a conscious decision not to grant or renew any quarrying lease if the land was assigned for a specific purpose. The revenue authorities would be incapacitated from verifying if the land was assigned for cultivation as the appellants had argued that if quarrying permits are sought for such lands. The amendment was brought in since it was impossible to distinguish between assigned lands in an appeal moved by the State while citing and the week after the judgment was delivered and lands sold to third parties, The impugned decision was, however, put on hold by the Court.

It was mandate by the impugned rule made that for granting or renewing any quarrying lease a Certificate is required from Village Officer and if such lands are assigned for any specific purpose, the village officer has to certify it.

It was being observed by the bench led by a Single Judge that since a quarrying lease was executed by the State and the bench further stated that the State has given sanction to conduct quarrying on assigned land, it can be presumed

In January 2018, the bench comprising of Single Judge had interfered with the amendment in the Kerala Minor Mineral Concession Rules brought in by the State to prevent quarrying on assigned lands and then sold it to third parties through assignees.

once an application for the same is received, the State may take a decision on the land classification, in furtherance with the decision made.

The order issued by the Revenue Department barring other constructions on agricultural land shall be strictly enforced was also being emphasized by the Bench And it has also been established under the Kerala Land Assignment Rules, 1964 and that there will be a violation of the Land Acquisition Act if there are any other construction activities on assigned lands and that assigned lands could not be used for any other purpose.

It has also opined that the Revenue authorities are empowered to take action to suspend all quarries that are currently operating on such lands the Court all the work assigned on lands including the other constructions and has also stayed of all resorts and petrol pumps while emphasizing that quarries are not allowed on such land.

A division bench comprising of Justice S. Manikumar and Justice Shaji P. Chaly, while ruling a single Judge Decision, in a batch of petitions moved by filed by the quarry owners and the Stated related to quarrying in lands assigned for rubber cultivation at the State’s capital.

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DIGITAL TRACKER WATCHES AND THE SURVEILLANCE CONUNDRUM: A DAILY DEHUMANISATION OF INDIA’S MUNICIPAL WORKERS

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The issue around digital privacy, or rather the lack of it, has been a hot topic of debate in India and has even made its way to the Parliamentary lobbies. In India, personal data is collected and stored by various merchants, big tech companies and other entities through the innumerable digital applications and devices that people use. From digital payment and ecommerce applications to social media platforms, personal data collection and storage is happening en masse, all while individuals still scramble to understand its repercussions. What’s worse — this personal, often sensitive information including financial and medical records, of millions of Indians is available for sale online through “data brokers” who have put a price tag to these records.

WHAT’S HAPPENING WITH MUNICIPAL WORKERS IN INDIA

Going a step further, there is an urgent need to look into this invasion of digital privacy from the lens of India’s municipal workers. Over the past few years, there have been several news pieces buried amid the bulk of eye-catching headlines, about municipal workers across several Indian cities being made to wear smartwatches to track their daily working hours. As per news reports, municipal corporations in cities like Nagpur and Chandigarh have made it mandatory for sanitation workers to wear GPS-enabled watches that are used to monitor their arrival at work, attendance record, number of hours clocked at work and the end of their shifts. The reports suggest that some of these watches have in-built cameras and microphones to allow the supervisors to monitor them by the minute. To make things worse, any discrepancy in the recorded number of hours at work is reportedly manifesting itself in the form of workers’ salary deductions. Thus, workers have been protesting the use of these digital trackers as being humiliating and violating their privacy in the garb of improving work efficiency.

INFRINGEMENT OF WORKERS’ RIGHT TO PRIVACY

The fact that sanitation workers are often unaware of the ramifications of surveillance of this kind, as is enabled by these digital trackers, goes to show how their informed and aware consent is not likely sought while implementing this technology. In this case in particular, the employer being the State, these rules amount to digital snooping on citizens by a government. This form of a ‘surveillance state’ directly impinges on citizens’ right to privacy, a fundamental right that flows from Article 21 of the Indian Constitution (K.S. Puttaswamy & Anr. v. Union of India & Ors.). While one can argue that this right is not absolute and there can be certain grounds for restricting the same (legitimate state interest, necessary and proportionate to achieve the interest, among other things), this is a justification that would hold up when a comprehensive and well-defined legislation is in place to regulate the collection and storage of such personal data of citizens.

EXISTING LEGAL FRAMEWORK ON PERSONAL DATA PROTECTION

At present, the only legislation that to some extent deals with the handling of personal data of individuals is the Information Technology (IT) Act, 2008, and the subsequent rules framed by the government. However, the coverage of this law is very limited in that it does not apply to collection and use of personal data by various entities (Section 43A of the IT Act 2000 recognises personal data dealings by a ‘body corporate’ and the compensation in that regard). It primarily focusses on information security as opposed to personal data protection. There exist other sectoral, subject-specific laws that regulate data dissemination in the respective segments, however, these are very narrow in their scope of protection. Further, while the Privacy Rules 2011 define what comes under the meaning of personal information and sensitive personal data, but how far the data collecting entities adhere to compliance standards and rules on storage and disclosure, grievance redressal and user safety is a big question mark.

The Personal Data Protection Bill, 2019, can be viewed as a step in the direction of chalking out the contours of digital privacy and collection, storage and dissemination of personal data of individuals in India. To begin with, the bill seeks to define what all would come within the ambit of ‘personal data’, and would govern the processing of personal data by governments, Indian and foreign companies. This is especially significant as it would plug the gaps that exist in the IT Act and rules subsequent thereof. Further, it would also outline the rights of individuals with respect to their personal data and the remedies available. However, it has been in the pipeline for some time, with objections having been raised over several aspects of the proposed law.

THE WHYS AND HOWS BEHIND THIS DIGITAL SURVEILLANCE

The recent mandate by city municipal corporations requiring workers to wear the digital trackers (Human Efficiency Tracking Systems, as they’re being referred to) takes on another hue when viewed from the lens of worker exploitation. Reports suggest that the trackers are being used to map the daily hours of every employee, and failure to wear the watch at all times or getting disconnected could result in salary deductions. Also, in the event of device malfunction, the workers would have to bear the brunt of the pay cut despite having clocked their daily hours. How and when such grievances would be addressed and dealt with is not very clear. Thus, workers’ woes take a backseat in the productivity and efficiency-focused surveillance work environment. Since municipal workers and sanitation staff employed by city corporations are usually not very tech-savvy or comfortable with tech-based gadgets, they are wary of how the system works. It can result in unnecessary anxiety regarding loss of earnings due to technical glitches.

Another issue is the alleged in-built cameras and microphones in these trackers. For workers who are not very well versed in such gadgets, the fear of being watched constantly could be debilitating, more so in the case of female workers. Their movement at work is tracked down to minutes, even seconds, linking the same to productivity targets and goals. Failure to meet these targets and minute-to-minute monitoring requirements could lead to reduction in the month-end salary payments. Automated workplace management is a concern that is prevalent across countries, and a parallel can be seen in the surveillance systems implemented by tech giant Amazon at its warehouses across the United States. The hazards of this surveillance system, like higher rate of injuries at workplace or even leaving workers without bathroom breaks, is similar to what is being witnessed in the case of India’s digitally-tracked municipal workers. The only major difference in the above-mentioned sets of scenarios is the place of occurrence and the entity engaging in worker surveillance. In India, the State is the data collector, often times undertaking this feat with the help of a third-party IT services firm. This makes the workers’ situation more precarious as their personal, sensitive information could be easily accessible to such contractual firms, especially in the absence of a data privacy law to regulate the same.

With increasing technological advancement and innovation, the cost of such surveillance methods has dropped, thus making it easier and more convenient for employers to adopt and implement. In contrast, this weakens the position of workers and the unions advocating for them as there is limited knowledge and legal recourse in this regard.

CONCLUSION

Thus, these GPS trackers are problematic on various fronts- they infringe individual privacy, operate in regulatory grey areas (as there is no proper oversight) and finally and most importantly, they constantly dehumanize the workers by treating them in a manner similar to bonded labour and robots. The human element of taking into account genuine issues being faced by employees or the context as to why they may not have been available on the tracking systems throughout the day (like poor internet connection, device malfunction, etc.) is completely ignored and disregarded.

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