Force Majeure: Scapegoat for BJP’s Failures?

Force majeure, a legal term currently in sharp focus in the context of the COVID-19 pandemic, is likely to metamorphose as the latent theme of the Bharatiya Janata Party (BJP) as it begins putting the objective of winning elections above matters that logically require prioritising. 

This legal idiom, over which a debate is raging, in context of defaulting on commercial and business contractual commitments, will likely be implicitly pushed, albeit in a vocabulary comprehensible to ordinary people, to cover up the Centre's failures in Covid management.

Globally, businesses have been severely impacted in fulfilling contractual obligations and are invoking force majeure to suspend or cancel, partially or in whole, the contract. Even the Indian government has permitted companies in select sectors to treat business disruption from the novel coronavirus as 'force majeure'. 

On May 13, Union Finance Minister Nirmala Sitharam announced that the Union Housing Ministry had directed all state governments and those of UTs along with sectoral regulatory authorities, to treat Covid-19 as force majeure.

A common clause in most contracts, force majeure, is defined legally as "an event or effect that can be neither anticipated nor controlled." Such a clause normally spells out specific circumstances or events, which would qualify as force majeure events. The most common situation among which is listed, especially in India, is "acts of God". 

Undefined in most parts of Indian statutes, save partial reference in the archaic Indian Contract Act, 1872, the term force majeure or 'act of God' sits in comfort alongside the Indian belief in fatalism, that everything is preordained and certain sufferings are beyond the management capacity of any government or leader.

While comparisons mustn't be drawn between governments and business enterprises and the relationship between the State and its citizens is certainly not contractual, undoubtedly welfare expectations increase in moments of personal and social crisis—be it due to natural calamities or epidemics. 

In a tactical ploy, Prime Minister Narendra Modi, in order to safeguard his government from people's ire because of its numerous shortcomings during the pandemic, repeatedly stressed how every country was affected by the Covid-19 pandemic and how governance is crippled globally. Yet, he made no comparison of responses of different regimes with his own steps. 

Furthermore, instead of addressing the rising number of cases chiefly due the haphazard implementation of lockdown, the emphasis of the regime's publicity machinery has been on claiming that numbers would have been 'much higher', but for the government's 'timely' (sic) action. 

Undoubtedly, this government faltered at every step, failed to anticipate the turn of events, did inadequate planning and has been tight-fisted when its actions should have been formulated by a large heart. On the one hand was the blundering response to the medical challenge, and on the other was the absent State in the face of the humanitarian crisis as a result of the Centre's failure in anticipating the migrant workers' decision to return home. Quite simply, the Centre failed miserably on both fronts.

With this as a backdrop, it is important to examine if the 'missing' State and absence of its welfare arm would have a negative impact on the prospects of the BJP. The party's efforts to ensure that there is no negative fallout from the hardships faced by people, has two main thrusts: the first which reworks the concept of force majeure, and the second focuses on old themes of social polarisation and rehashed welfarism.  

With its first-ever virtual rally, where the lead speaker was Union Home Minister Amit Shah and not the current party president, JP Nadda, the BJP formally launched its campaign for the Bihar Assembly elections. These have to be completed by November 29, by when the new state Assembly must be constituted. The question is what is the plank from which BJP leaders would seek another mandate for the Bihar government where it is in alliance with the Janata Dal (United) under Nitish Kumar's leadership?

While this task would not be undertaken from the formal platform, a systemic campaign is likely to be waged to convince people to accept the hardships faced were in their destiny and that the government did every bit it could have for the people. 

From the thrust of Amit Shah's speech and the special 23-page booklet prepared for every party spokesperson, it is evident that the emphasis is on exaggerating government's steps during the pandemic and showcasing welfare schemes launched between 2014-19, while simultaneously publicising the contentious political steps taken since Modi secured a renewed mandate in May 2019.

The booklet which lists 21 points and five broad 'facts', has called the government's response to the pandemic as "pro-active and alert". In addition, it terms the ill-planned national lockdown as "Modi's forward looking step" which "helped India tackle the challenges put forward by the coronavirus effectively (sic)”. 

Furthermore, the BJP is merely repeating the figures of monies allocated for various schemes and programmes while sidestepping if these provisions are sufficient for people to get back on their feet and recover losses of unpaid wages and a stagnant economy.

BJP’s foot soldiers can be expected to campaign among people that Covid-19 was an 'act of God' but despite this, the government ran 3,840 special labour trains in 25 days to transport 52 lakh migrant workers and so on. But the 'real campaign' will be the familiar theme of social polarisation. This has been kept alive even since March with large scale arrests, chargesheets and cases registered against activists and even journalists to subdue voices critical of government action.

In this, all the government's contentious and contested decisions last year—amendment of UAPA, passage of law criminalising instant divorce among Muslims, revoking Jammu and Kashmir's statehood and diluting Article 370, passing the Citizenship Amendment Act and also facilitating the start of construction of the Ram temple in Ayodhya—are being listed as principal achievements which warrant another term for the BJP and its coalition partner.

Not just Bihar, these will be the principal focal points of the BJP's political campaign whether it is election time or not. The last bit in this campaign is further publicising of the latest catchphrase coined by the prime minister: Atmanirbhar Bharat (Self-reliant India). Regardless of the fact that this is not even a half-baked idea, there is going to be no stopping the BJP machinery from drumming that this will enable the construction of a Shreshtha Bharat (Great India). 

The writer is a journalist and author. His first book was The Demolition: India at the Crossroads. His latest book is The RSS: Icons of the Indian Right. The views are personal.

Also read: Can the Personal Be Political Again?