Resumption Of Physical Classes Amidst Covid-19 Outbreak-A critical analysis via the prism of Torts

The COVID-19 pandemic has taken a toll on most sectors, with the education industry being no exception. To contain the spread of the virus, policy declarations across Nation-States prohibited public gatherings, resulting in the physical closure of schools, colleges, and universities. In India, education saw an online shift when the government ordered the physical closure of all educational establishments in the country. Naturally, to make education accessible, the University Grants Commission (UGC) expeditiously provided guidelines regarding the substitution of physical classrooms with a safe alternative to online shift. While these recommendations fostered the learning abilities of those economically well-off, this cannot be said for the plethora of students who did not have access to similar resources. Nonetheless, it was an extremely crucial step taken by India to contain the virus and prevent deaths of millions of students and teaching staff.

The news of educational institutes planning to resume their physical classes rooted in financial motivations has come as a shock to students and their families. This predicament also invites a fascinating question- who will be liable if students catch the Coronavirus due to such resumption? This article analyses the possible liabilities of educational institutions in such cases and enlists the possible causes of action that can lie against them in accordance with the Law of Torts.

NEGLIGENCE

The one evident liability which would be the first to be filed by the infected children and their guardians would be the tort of Civil Negligence. Negligence arises when there is a breach of a duty of care towards a person to whom that duty is owed, which causes injury to that person. The college’s duty of care to its students is easy to establish because the concept of in loco parentis has always been prevalent in India. This states that just as in a filial relationship, the relationship between a university and its students is also related to the welfare of students who rely on the college for their safety. Deficient or negligent action on the part of the university failing to take the necessary precautions needed to prevent the spread of the Coronavirus would result in the breach of the duty of care owed by that university. Such actions can include the failure to implement appropriate social distancing on campus, lack of proper sanitation of classrooms, lack of protective gear worn by college staff, etc. Finally, the injury that occurs as a result of this breach would be students catching Covid-19, which would harm their physical and mental health. Apart from this clear analogy, the precedent case law of MS Grewal And Another V. Deep Chand Sood And Others, where Dalhousie Public School was named one of the offenders for the negligent death of students and thus was liable to pay damages, will also strengthen the claim of negligence if there appears to be such physical injury due to the resumption of classes.

RECKLESSNESS

With the number of cases rising exponentially and the virus’ surmounting threat, the potential risks of re-opening educational institutions are well-known. The fact that universities will open up despite knowing the risk of their actions clearly demonstrates universities' conscious disregard of the damage they could cause, thus making them liable for the intentional tort of recklessness. Recklessness is understood as “the state of mind accompanying an act that either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists despite such knowledge.” Recklessness, unlike negligence, carries more liability because the defendant here has full knowledge that their actions will result in harm, but they still perform the act disregarding the consequences. This can be directly correlated to the possible resumption of physical classes by educational institutes. The case of Jacob Mathew V. State of Punjab & Ors. has already established that even if such reckless acts may not amount to criminal liability, it indeed will amount to the civil liability incurred by the tort of recklessness.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

The pandemic and the subsequent lockdown have not only resulted in physical disruptions but have also caused strenuous mental ailments. In a healthy functioning democracy, schools, universities, and the State should prevent the causation of such distress to its pupils. Thus IIED is the tortious remedy available to the students as well as their parents if the recognised authorities fail to provide said prevention. The concept of IIED states that “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm”. The concept of IIED becomes crucial in today’s scenario. If the universities compel students to attend physical classes, due to which they might catch the Coronavirus, it will be extremely detrimental to the physical and mental health of the students and their families. This may lead to initial shock, anxiety, panic attacks, long-term depression, etc. In such a scenario, the educational institutions and the State must pay the damages incurred by the physical harm. In the same vein, they would also have to compensate for the severe mental affliction that the disease will continue to bring.

ABSOLUTE LIABILITY

Schools and institutions’ arbitrary and reckless opening of their doors to physical classes should even amount to Absolute Liability, which is well-established in M.C. Mehta vs Union Of India

Absolute Liability is generally incurred upon enterprises that are indulged in ‘abnormally dangerous’ (or ultrahazardous) activities. Such activities necessarily involve a risk of harm to others that cannot be eliminated by the general exercise of reasonable care, which would be the case in the resumption of physical classrooms. The application of Absolute Liability would result in any reasonable care the university may exercise immaterial and will thus lead to the compulsory payment of damages, inconsequential of whether the educational establishment maintained a reasonable degree of care or not.

ADDITIONAL LIABILITY FOR STATE INSTITUTIONS

Auxillary liability can be located in cases concerning government-affiliated educational institutions under Article 12 of the Constitution. This is because if they are found negligent or reckless, they will have also violated the Right to Health, recognised as a fundamental right under Article 21 of the Indian Constitution. This right places the onus on the State to prevent the spread of diseases among the people. While guaranteeing fundamental rights like these via writ petitions, Indian courts enjoy a vast jurisdiction without any predisposition to minimise public endangerment. While in the case of M. Vijaya vs. Chairman And Managing Director, Singareni Collieries Co. Ltd., Hyd., it was established that the onus for safety is higher on hospitals; courts may also impose damages on educational institutions in a similar fashion if they fail to provide adequate protection to their students, as reaffirmed by the UGC. This builds up pressure for both the State and the courts to compulsorily exercise their inherent powers to prevent any casualty owing to the physical resumption of classes.

CONCLUSION

As COVID-19 continues its tirade against the nation, the decision to re-open educational institutions can have perilous consequences. Thus, Indian educational establishments, alongside the Central and State governments, should understand and exercise precautionary principles before they recall students on campus. In the unfortunate event of any student being infected on campus, the university's position would be unwarrantable. Additionally, state institutions bear an additional risk of facing writ petitions for the breach of Article 21. Therefore, universities, schools, and governments must rethink and reassess whether the resumption of the physical classes would be a wise decision when our country is on the brink of the third wave of this deadly pandemic.