Over 50 days of the lockdown but the uncertainty on the prospect of ‘going back to normal’ continues to mount. With a view to alleviating concerns of corporate India, the Central and the State Governments have been coming out with a number of guidelines/circulars/orders/SOPs/advisories (collectively referred to as "guidelines”) during this period.
Though the government’s effort to come out with frequent detailed measures and guidelines in such a short span of time certainly needs to be lauded, it also needs to be noted that currently, there are more than 830 notifications pertaining to COVID-19 issued merely by state governments and more than 430 notifications by the Central Government.
In addition to this, district administrations have released guidelines, in some cases almost on a daily basis, in such a hurried manner that it becomes difficult to be abreast of the same. Ahmedabad, for instance, released guidelines almost on a daily basis in the month of May. Similarly Goa has issued more than 185 notifications during the period of the lockdown.
While, no doubt, these guidelines have been issued for a specific purpose, the sheer quantum of these notifications sometimes create their own set of problems, causing operational difficulties for corporations and businesses.
The Conundrum of ‘Essential Goods’
The guidelines, based on the primary distinction of essential and non-essential goods and services, have allowed all the activities relating to essential goods and services and prohibited all the activities which are specifically not allowed. However, as the term “essential goods” has not been defined, the broadly worded guidelines, resulted in a confusion over the scope of “essential goods”.
For instance, the delivery of essential goods by e-commerce was allowed, however, e-commerce companies were quick to raise their concerns over what constituted “essential goods”. Apart from what is specifically allowed it was unclear if clothing, home items, kitchenware, small kitchen appliances and electronics etc were essential goods.
Given that work-from-home is the new normal during the lockdown, concerns were raised to include phones, laptops and accessories etc. under essential goods for the purpose of delivery by e-commerce companies – thankfully they can now deliver non-essential goods as well, but the confusion over this distinction created severe problems during the first three phases of lockdown.
Supply Chain and Movement of Personnel Adding to Woes
Another widely reported concern is regarding the movement of workers/personnel. The incident commanders have been empowered to issue passes for enabling essential movements in their respective jurisdictions.
Despite several advisories by the Ministry of Home Affairs (“MHA”) on the smooth movement of workers/personnel working under essential services, the on-ground implementation of the same has been rather dismal.
On several instances, employees/workers have been detained and/or manhandled despite showing authority letters/passes. More often than not, corporations are facing questions such as whom to approach if their employees are detained.
As ambiguity on the guidelines continued to persist on the ground level, on many occasions, trucks were not allowed without separate passes even though the MHA had clarified the non-requirement of passes on three occasions.
These issues became a serious cause of concerns for corporations to maintain the supply chain and movement of essential goods and services.
Corporations in states like Jharkhand, Uttarakhand and Himachal Pradesh are facing difficulties due to lack of a uniform mechanism of web-portals for guidelines and notifications. The problem increases manifold where access to notifications by the Municipal/Taluka level administration becomes difficult.
Even if they are available, usually, they are in vernacular languages posing extreme difficulties in getting them correctly translated first during the lockdown and then implemented.
Further, district administrations in many parts are not aware of the latest guidelines issued by the Central and the State Governments, though, the situation has improved significantly in the later parts of the lockdown. As we moved from the lockdown 1.0 to lockdown 3.0, the MHA relaxed the guidelines thereby, allowing some industrial, commercial and private establishments to operate. But the district administrations were rather complacent in either implementation of these relaxations or have failed to do so in an orderly manner.
The Police Department, at times, was seen off guard and unaware of the latest guidelines and therefore, conducted themselves, solely on their own judgement. At times lack of clarity over guidelines resulted in poor implementation on the ground.
For example, despite the order vide April 24 by the MHA allowing all shops including neighborhood shops, standalone shops and shops in residential complexes to open, shops remained shut in many parts of the country.
Furthermore, in the absence of a clear policy on the movement of migrants, the situation became chaotic as migrants started leaving for their home states. As a result, despite relaxations in the guidelines to continue certain operations, it became nearly impossible to give effect to such relaxations.
One such example is the continuation of works in construction projects, within the limits of municipal corporations and municipalities, where workers are available on site. Therefore, amidst the migrant crisis, the real estate sector is finding it difficult to function without the availability of labour.
The Way Forward
The period of lockdown has certainly been a difficult time for the corporate sector given the challenges highlighted above as well as employment-related issues while maintaining themselves.
Even now with the new guidelines for lockdown 4.0, where the economy is looking to open and live with COVID-19, it is quite uncertain as to how many months it will take to rebound the revenues pre-COVID-19 era. Clearly businesses cannot simply wake up and start functioning.
In light of this, what will surely help are clear guidelines (with a mention of specific authorities to be approached) so that businesses can get back on their feet without a cloud of ambiguity hanging over their heads. Additionally, a proper briefing of district administrations, police departments and incident commanders post-release of all major guidelines would make the process much more efficient and effective.
Some steps can be taken to ensure clear communication to all relevant concerned: such as one centralised resource for reference to all kinds of issues arising out of COVID-19; and related instruction as well as training modules issued to States and District Administrations – leaving no room for any ambiguous interpretation by authorities and public at large.
Last but not the least, understanding the plight of organizations and working with them in tandem to resolve critical issues faced by them is the need of the hour. It is praiseworthy to see the MHA come up with quick advisories and clarifications addressing concerns brought to its notice. Hopefully, lockdown 4.0 will pave the way for corporate India to reconsolidate and move forward
We cannot lose the sight that the nation has come together and decisions have been taken without following the ancient rule book where a file will be put up with representations and views of all stakeholders, holding meetings, essentially preparing “notings on file” for approvals which would take months. The crisis has certainly opened up efficient and novel ways of working which are here to stay.
(Ashish Prasad is a partner and Rohit Sharma is a senior associate with Economic Laws Practice. Avinash Tripathi is an Advocate on Record, Supreme Court of India and Associate Manager of the Dispute Resolution team at Economic Laws Practice, New Delhi. This is an opinion piece and the views expressed are the authors’ own. The Quint neither endorses nor is responsible for them.)