In light of the Hon’ble Prime Minister’s announcement on March 24, 2020 declaring a lock-down in India for 21 (twenty-one) days that emanated from the unfortunate COVID-19 epidemic, the relevant department of the Central Government has issued an order, inter alia, directing the closure of manufacturing facilities, shops and other establishments and prohibiting the provision of services (while providing a few exceptions thereto). In addition to the aforesaid Central Government order, certain other departments of the Central Government and certain State Governments have also issued orders relating to closure and regulation of manufacturing facilities, shops and other establishments and services that have been permitted to continue to function/operate. We have set-out below the key aspects of such governmental orders and the restrictions imposed on facilities, establishments and their operations and provision of services, while not delving into restrictions relating to government operations/activities (except as specifically stated herein), in the form of questions and answers.

The Ministry of Home Affairs, Government of India (“MHA”) vide its order no. 40-3/2020-D dated March 24, 2020 (“Government Order”) has issued guidelines on the measures to be taken by the Government of India and the State Governments (including the concerned ministries/departments) to, inter alia, ensure that manufacturing facilities, shops and other establishments are closed, and services are not provided, other than those exempted, towards containment of unfortunate COVID-19 epidemic.

In furtherance of the Government Order, the MHA has also issued ‘Standard Operating Procedure (SOP) for maintaining supply of Essential Goods’ on March 26, 2020, in terms which the MHA has clarified, inter alia, that constituents of the supply chain dealing with essential goods/commodities and essential services (as specified in the Government Order) are also allowed to operate. Further, the MHA has issued orders dated March 25, 2020 and March 27, 2020 (“Subsequent Orders”) clarifying and/or modifying certain matters in the Government Order. The MHA has further issued a document consolidating the directions/guidelines in the Government Order and the Subsequent Orders. Following the issuance of the Subsequent Orders and the aforesaid consolidated document, the Home Secretary, Government of India has issued certain clarifications on March 29, 2020 in relation to the matters covered in the Government Order and the Subsequent Orders.

It is to be noted that the restrictions stipulated under the Government Order and the Subsequent Orders will remain in force in all parts of India for a period of 21 (twenty) days with effect from March 25, 2020.

The Government Order and the Subsequent Orders stipulate that the following types of facilities, shops and establishments are to be closed, and the following types of services are to be suspended (other than those exempted, as detailed in responses to Questions 4, 5 and 6 below):

Also, please note that social, political, sports, entertainment, academic, cultural, religious functions and gatherings have been barred, and funeral congregations of more than 20 (twenty) persons are also not be permitted.

In terms of the Government Order and the Subsequent Orders, the following commodities/goods are considered essential commodities/goods and the same can be continued to be sold. Accordingly, facilities, shops and establishments selling such commodities/goods are permitted to remain open and continue to operate:

In terms of the Government Order and the Subsequent Orders, the following services, which are considered essential services can continue to be provided:

Please note that in respect of transportation services, (i) transportation for essential goods, (ii) fire, law and order and emergency services, (iii) operation of railways, airports and seaports for cargo movement, relief and evacuation and their related operational organisations, (iv) inter-state movement of goods (essential and non-essential) for inland transport and exports, (v) cross land border movement of goods (essential and non-essential) including petroleum products and LPG, food products and medical supplies, and (vi) intra and inter-state movement of harvesting and sowing related machines like combined harvester and other agriculture/horticulture implements are exempted from the applicability of the Government Order and the Subsequent Orders, and can accordingly continue to operate.

Further, please also note that in respect of hospitality services, (i) hotels, homestays, lodges and motels, which are accommodating tourists and persons stranded due to lockdown, medical and emergency staff, and air and sea crew, and (ii) establishments used/earmarked for quarantine facilities are exempted from the applicability of the Government Order and the Subsequent Orders and can accordingly continue to operate.

Facilities, shops and establishments that are selling/dealing with essential commodities/goods and essential services (as detailed in Questions 3 and 4 above) can continue to be open and operate. Accordingly, the following kinds of facilities, shops and establishments can continue to be open and operate:

It is to be noted that all facilities, shops and establishments allowed to operate under the Government Order and the Subsequent Orders are required to have a ‘shops and establishments’ registration under the concerned State laws.

Manufacturing activity is not permitted and all industrial establishments are required to close down, other than the following types of units:

In relation to production units requiring a ‘continuous process’, an application needs to be filed with the State Government. At the district level, the application needs to be filed with the jurisdictional District Magistrate or the District Collector (as the case may be). Also, please note that the Principal Secretary of the Ministry of Industries of the concerned State Government also has the authority to review and monitor applications for seeking permission to continue to operate as a ‘continuous process’ production unit.

While the Government Order and the Subsequent Orders do not specify a meaning/definition of ‘continuous process’, we understand that this term refers to a manufacturing process which is in operation all the time (i.e. 24 hours a day) in a production unit for the production of the goods in such production unit, and such which process is strikingly different from a batch-process. Please also note that a ‘continuous process’ appears to be a process which is required to be carried on in a manufacturing facility/production unit to ensure that the production of the concerned commodities/goods is not hindered and if such ‘continuous process’ is impeded or stopped then it would not only affect the production of the concerned commodities/goods but also make it difficult/unviable for the manufacturing facility/production unit to commence the process again.

Yes, the concerned manufacturing unit can procure raw materials that are necessary for the manufacturing activity and can transport the finished commodities/goods. Such transportation may involve intra-city, inter-city in the same State/Union Territory or inter-State movement.

Please also note that the Government Order clarifies that the restrictions under the Government Order and the Subsequent Orders fundamentally relate to movement of people and not to movement of commodities/goods (especially essential commodities/goods as stipulated in the Government Order and the Subsequent Orders).

As regards import of any goods/commodities required for the manufacture of essential goods/commodities (as stipulated in the Government Order and the Subsequent Orders), given that the Government Order and the Subsequent Orders are presently not clear as to the transport of such goods/commodities from the customs authorities to the concerned manufacturing facilities, clarity on the same should be sought from the local/jurisdictional district magistrate in this regard. Having said that, please note that the Subsequent Orders have clarified that customs clearance at ports, airports and land borders is permitted and the concerned governmental authorities can continue to operate. As mentioned in our response to Question 4 above, transportation of essential goods and non-essential goods is also permitted. Therefore, the transport of goods/commodities from the customs authorities to the concerned manufacturing facilities can be construed to be permitted at least for essential goods/commodities, but, as regards non-essential goods/commodities, clarity is required.

Yes, any person violating the Government Order and the Subsequent Orders will be liable to be proceeded against as per the provisions of Section 51 to 60 of the Disaster Management Act, 2005 (“DMA”) and legal action under Section 188 of the Indian Penal Code, 1860 (“IPC”).

Please note that in terms of the relevant provisions of the DMA, the person/entity violating the provisions of the Government Order and the Subsequent Orders can be punishable with fine or imprisonment up to 2 (two) years. Further, in terms of Section 188 of the IPC (dealing with disobedience to an order duly promulgated by a public servant), any person who disobeys a direction given by a public servant shall be punishable with imprisonment up to 1 (one) month or fine up to INR 200 (Rupees Two Hundred) or both and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, the offence will be punishable with imprisonment up to 6 (six) months or fine up to INR 1,000 (Rupees One Thousand) or both.

Yes, certain governmental bodies in various States, including those in the States of Karnataka, Maharashtra, Delhi and Haryana have issued orders directing inter alia the closure of facilities, shops and establishments (and services) additionally (which are generally in line with the broad stipulations of the Government Order and the Subsequent Orders). Please note that some of these orders have been in existence before the issuance of the Government Order and the Subsequent Orders and the duration for which such orders will remain in force may vary from State to State.

While the Government Order and the Subsequent are required to be followed in relation to closure of facilities, shops and establishments (and prohibition on provision of services), depending on the location of such facilities, shops and establishments (and the services being provided), the specific orders issued by the concerned state governmental authorities will also need to be complied with.

This Article has been authored by Aparajit Bhattacharya (Partner), Sharath Chandrasekhar (Partner) and Naren BS (Principal Associate) of DSK Legal. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views and opinions of DSK Legal.