July is almost here, and the autumn semester is not far away. Are we in a position to reopen schools, colleges and universities? What are the implications if we do? Who suffers if COVID-19 attacks campus, and who is responsible if lives are lost?
To open or not to open. Worldwide, this brings together three major crises: a public health crisis, an economic crisis, and the long crisis of higher education. For instance, in the US, due to the high cost of college and the importance of residential education, it is likely that a number of small colleges will go bankrupt, large number of jobs will be lost, and the quality of education will almost invariably suffer. “A kind of a shock therapy,” predicts The Chronicle of Higher Education, “will permanently restructure the higher-education sector.”
Few things in recent history have foregrounded social inequalities as the education sector under the pandemic. Here in India, poor and rural students have suffered the most, lacking the infrastructure to participate meaningfully in online education. In the West, the heads of institutions for racial minorities have championed reopening, pleading that institutions are the safest places for them, as their poor home networks make them more vulnerable to the disease than on campus.
Almost everywhere, education experts have argued that rich and well-prepared students will do fine online, but students from weaker segments of society, including those with poorer academic preparation and lower familiarity with technology, are certain to suffer if on-campus instruction does not resume.
On the other hand, if the campus of a school or college opens and people die from contracting the virus, who holds the legal (to say nothing of the human) liability of such deaths?
The leadership of a number of American colleges are scrambling to get people to sign waivers. However, as the Chronicle has pointed out, this is a fantasy: “No waiver can resolve all those headaches, according to a dozen lawyers who work with colleges.” More than ever, in this circumstance, asking something to sign a waiver is essentially telling them: “I might be doing something that could do you harm.”
Hope Sarah Goldstein, a partner with Bryan Cave Leighton Paisner, told the Chronicle that an employer cannot ask employees to sign away future claims from workplace-related injuries covered by workers’ compensation. Waivers cannot annul liability. On the other hand, a disclosure can raise awareness and underscore communal responsibilities that must be held in a public-health crisis.
What about institutions in India? What are their responsibilities on event of COVID-related fatalities due to virus contracted on a reopened campus?
Dr Abhik Majumdar, a faculty member at the National Law University, Odisha, elaborates on a range of possibilities. The liability of an institution depends on whether or not it reopens following a government order; whether the order in question is mandatory or merely an authorisation given to institutions to reopen at their discretion; and whether the institution is a private or a state body.
If an institution opens contrary to government orders, Prof Majumdar points out, it will attract punishment under Section 3 of the Epidemic Diseases Act 1897, read with Section 188 of the Indian Penal Code 1860. Sections 269 and 271 of the Penal Code might also become applicable in such a situation. It is, however, unlikely to happen, as no institution will be so reckless as to flout governmental orders in the present situation.
It remains important to note, however, that if the government orders educational institutions to open, then liability in case of untoward incidents will lie mainly with the Government. Institutions may incur liability if they fail to adequately provide for safety measures such as dispensing masks, maintaining social distancing, and so forth.
In the last situation, if the government merely permits (as opposed to compelling) institutions to open at their own discretion, the institution becomes liable if their action leads to the spread of the disease and fatalities resulting from the spread. The nature of liability will depend on whether it is a private institute or a state body. In the first case, the institution may incur liability in tort law. It may also be liable under the Epidemic Diseases Act as mentioned earlier, if it is found deficient in implementing appropriate rules. State bodies' liability features an added dimension. Any deficiency on their part cam be construed as a violation of the right to life under Article 21 of the Constitution.
Surabhi Singh, an alum of NLU Odisha and a current LLM student at the University of Toronto points out that under the current legal regime, State institutions run the risk of being sued for a violation of broader constitutional rights as they are an arm of the government, under writ jurisdictions of the Supreme Court as well as the respective High Courts. A writ jurisdiction is broad, and the relief granted by the courts can range from asking the institute to shut in person classes, award compensation to affected students, refund fees etc. “All of this is of course speculative,” she says, “but as a practicing lawyer I can foresee it being asked for from courts.”
However, Singh thinks that this writ-based relief is less likely with private institutions. Also, should some student fall sick and die, there is the risk of being sued for criminal negligence, which can implicate individual administrators of the institute concerned. Tort claims of negligence can also be made by the students who may claim damages. If the infection spreads through food or water, State based laws on food and water safety may apply.
Life, livelihood, and learning – or at least its best practice. It may seem like a lose-lose situation. This is, however, an extended emergency, and in the end, loss of lives that could have been otherwise avoided, will attract the most serious penalty and incrimination. Institutional authorities must keep this in mind as they consider the decision to open campus while the pandemic continues to pose threat to life.
(With research input by Harshita Tripathi)
Saikat Majumdar writes on arts, literature, and higher education, and is the author of several books, including, College: Pathways of Possibility. Views expressed are personal.
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