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[COVID-19] Domestic worker through NLU-O Students seeks MEA permission to sue China over suppressed info, delayed response

A representation in this regard was made on Thursday through three students of NLUO, Arkaneil Bhaumik, Shivalika Rudrabatla and Siddharth Jain who have been given the power of attorney.

Bar & Bench

A Kolkata-based domestic worker has written to the Central Government seeking permission to sue China for the spread of the Novel Coronavirus (COVID-19) pandemic.

A representation in this regard was made on Thursday by one, Arata Gupta through three students of the National Law University, Odisha (NLUO) Arkaneil Bhaumik, Shivalika Rudrabatla and Siddharth Jain who have been given the power of attorney.

Gupta has, thereby, urged the Central Government to grant the necessary sanction for the same under Section 86 of the Code of Civil Procedure to file a suit against the Chinese Government, contended to be responsible for the spread of the pandemic, "as during the critical weeks of the outbreak, it suppressed information from the international community, arrested whistleblowers, destroyed crucial medical research and denied human-to-human transmission of the disease despite copious evidence against it."

Referring to a Fox News report, Gupta adds that there is also some evidence that the virus escaped from the Wuhan Institute of Virology, opening the possibility of liability for the escape of dangerous substances. It is argued,

"In any case, the very handling of the situation was negligent as people were allowed free movement for a significant time period without sufficient checks. Consequently, this has caused immense suffering, deaths and economic loss not only in India but the world at large."
Arata Gupta's representation

Gupta asserts that the Central Government is empowered to give such sanction under Section 86 (2) (b) and (d) of the CPC since China has trading activities within India, and on the ground that China has impliedly waived privileges against legal action through its tortious activities.

The representation goes on to contend that even in the realm of International law, "China has no immunity for her tortious acts resulting in human rights breaches."

In this regard, Gupta points out that there are certain fundamental and inalienable principles that find application across jurisdictions.

This includes the rights to life, liberty and security, the right to work in favourable conditions, the right to earn a livelihood with the protection of human dignity, protection against unemployment under the Universal Declaration of Human Rights.

Attention is also drawn to the International Covenant on Economic, Social and Cultural Rights, which Gupta notes also includes the "right to the highest attainable standard of physical and mental health for which all epidemics and other diseases must be prevented and controlled."

To argue that China has breached these human rights, the representation states,

"After the Coronavirus was reported by China on 31 December 2019 to the WHO, the former made little effort to contain the spread of the virus."
Arata Gupta

Relying on various media reports, it is recalled that although around 1.75 lakhs of people had already left Wuhan by January 9 this year on account of the virus, "China’s earliest step of locking down Wuhan was as late as 23 January 2020."

Further, it is noted, "Even the WHO had declared a public health emergency of international concern on 31 December 2019. As of 23 January 2020, flights were operational and on the said date, they were to be merely ‘cut down…when necessary’. As on 17 February 2020, 71,429 cases and 2,162 deaths had been globally reported of which over 70,000 cases were from China."

"There are also reports of a massive cover-up by China by concealing important information and suppressing doctors and journalists who knew about the virus", the representation adds.

"This delayed reaction and likely cover-up by Chinese authorities resulted in such avoidable harm…China’s failure to control and prevent the Coronavirus from spreading is grossly negligent… "
Arata Gupta

Even if is assumed that any immunities were available to China, Gupta asserts that the same were impliedly waived.

"Immunity was waived by China when she acted negligently in handling the largely containable epidemic. Such a waiver would be applicable in India."
Arata Gupta

In this regard, reliance is placed on Article 12 of the UN Convention on Jurisdictional Immunities of States and their Property.

The representation notes that this Article provides that, unless there is a situation of armed conflict, "a State has no immunity before domestic courts of another State when a claim relates to compensation for death or injury caused by its act or omission in the territory of the latter."

It as added further that, in any case, immunity from jurisdiction cannot hinder justice by blocking access to courts and resulting in impunity, particularly given the extraordinary nature of the pandemic. It is argued that even if there exists an immunity for the Chinese Government, the same ought to be set aside so that the right to court access is not denied in such a situation.

"Failure to hold the Chinese government accountable for its tortious acts results in impunity. Indian citizens cannot be left to quietly suffer the consequences of this negligence. Thus, even if there exists immunity, it should not be granted owing to the extraordinary nature of the present situation to ensure that there is access to justice", the representation reads.

In this backdrop, Gupta has urged that the Central Government grant the necessary sanction so that a civil suit can be instituted in India to recover damages from China for its alleged negligence, public nuisance and its absolute liability in the matter.

Read the Representation:

Representation to GOI.pdf
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