Legally strong e-commerce?

Published On: May 23, 2021 10:19 AM NPT By: Advocate Abesh Adhikari and advocate Krishna Pal

The World Health Organization (WHO) has stated in its press briefings and guidelines that overcrowding is the main reason for the increase in the number of COVID-19 infections, and it is well known that most countries around the world have used e-commerce as a major weapon in the fight against COVID-19. There are many reasons why home delivery is a safer and better option in controlling the pandemic.

The second wave of COVID-19 has taken its toll on all aspects of the Nepali society. The new variants are comparatively more contagious and are drastically affecting South Asia. The second wave has brought in an unprecedented growth in the number of infections per day as well, besides causing record breaking numbers of deaths in Nepal. The government of Nepal has tried to control this pandemic in a conservative way with lockdowns and curfews without the much-needed proactive preventive measures which has become the subject of lots of criticism. The government has failed to execute its action plan based on the science of controlling the pandemic. The principles and science used in the management of new epidemics (Containment, Delay, and Mitigation) of infectious disease doesn’t seem to be the approach of our government. From the first lockdown in 2020, one of the key lessons to break the chain of transmission while keeping the economy afloat should have been promoting e-commerce nationwide instead of shutting them down as a luxury. Instead of policies, we have again become a victim of ‘policing’. 

Why e-commerce?

The coronavirus pandemic has led to a significant increase in economic activities worldwide in a short period. The e-commerce business is one of the many such economic activities. E-commerce business is gaining popularity as it creates jobs, improves productivity and provides alternatives to consumers to order the essentials from the home and get delivered at the home. E-commerce is the best option among all to continue economic activities of the country amidst this pandemic. At present, e-commerce is likely to be an important determinant for Nepal's economic and social development. The e-commerce service has been prioritized by the urban people as an excellent way to avoid the corona virus. The services provided through e-commerce are fast and affordable as well.

Based on technology, data and artificial intelligence, e-business is very different from other businesses, e-commerce is also the first priority among today's consumers, technology-friendly youth, new entrepreneurs, start-ups and newly-established companies. In the short history of e-commerce in Nepal, companies like Daraj, Pathao, Sasto Deal, Foodmandu have been playing a big role in providing essential services, especially among the citizens of urban areas. Although e-commerce does not have a long history in Nepal, it is now very popular in Nepal and has established itself as a solution to the problem of a country like Nepal where many young people have gone abroad for employment.

The World Health Organization (WHO) has stated in its press briefings and guidelines that overcrowding is the main reason for the increase in the number of COVID-19 infections, and it is well known that most countries around the world have used e-commerce as a major weapon in the fight against COVID-19. There are many reasons why home delivery is a safer and better option in controlling the pandemic. The exposure time during the delivery is short. There is no physical contact between the buyer and seller. Social distancing is maintained and cashless transactions are prioritized. Besides avoiding crowd and crowded places, it controls black marketing and there will be ease in contact tracing if anyone is infected. As this will reduce the movement of people and also help the economy of the country. It is necessary for the concerned bodies to create an environment for a smooth flow of e-commerce and home delivery services.

Ongoing disputes

Despite having these benefits, the prohibitory order issued by the district administration offices (DAOs) of Kathmandu, Bhaktapur and Lalitpur has barred e-commerce from operating its services in daytime, limiting its operation from 7 AM to 10 AM. Currently, only food items are allowed to be distributed under e-commerce, while other items are banned. In the previous lockdown, the DAOs formulated guidelines that allowed e-commerce to operate and deliver products and food without any restriction by fulfilling all the COVID-19 health and safety protocols. In the recent prohibitory order, this guideline was not given continuity due to which it has adversely affected online businesses companies and obviously disappointed the general consumers. 

In the present time when schools are running online, corporate houses are working from home, meetings are being conducted online, businesses are being operated through digital means and the work of private and government offices, banks and financial institutions and all other works are being virtualized; only food/medicines/dairy and their supply will not support the concept of breaking the transmission while keeping the economy afloat. However, the ban on non-food items has made it difficult for consumers to procure daily necessities as well as other essentials. 

The definition of essential items is currently unclear, and does not meet international standards. Stationery, laptops, tablets, notebooks, books that students need for online classes are not included in the essential items. Corporate employees who now work from home may need mobiles, chargers, laptops, connectivity and other essential household items. But, all this, too, has also not been included in the list of essential items. Food cooked from restaurants is also essential for many but it is not taken into consideration.  E-commerce should be allowed to deliver every product, as it is essential. It should not be the government which decides and defines what is essential and what is not. Rather essentials are subjective in nature.  

The main reason behind the prohibitory order is to break the chain of the corona pandemic by reducing the crowds through banning various non-essential activities. It has already been proved that online shopping and e-commerce business are the best method to break the chain from the first phase of the lockdown. Even though such e-commerce companies provide services as per government-mandated criteria and support the vision of the government, the role of e-commerce companies was neglected and ignored in this prohibitory order. Police have started holding those providing such services based on the “orders” of the District Administration Office stating that the risk of spreading the virus has increased by the door-to-door delivery service providers. A group of e-commerce companies handed over a memorandum to Kathmandu Chief District Officer Janak Raj Dahal in protest of the arrest. However, the joint forum of e-commerce and online delivery service operators has stated that their demand has not been met with a positive response.

International practices

Considering the needs of the general consumers, e-commerce has started getting priority in the global market. This has not only reduced the risk to consumers from the corona virus pandemic, but also saved time and made work easier. E-commerce is now well established in the international market. E-commerce services are now given high priority in various Asian and European countries including Singapore, Pakistan, China and Bangladesh. The Indian government has issued a statement announcing a statewide shutdown, directing e-commerce to continue. Similarly, in the UK, in the first phase of the Covid-19 pandemic, food, medicine and clothing were initially given priority, but other items were considered, and the UK's rules were revised to provide most of the services through those companies.

American consumers spent more than $800 billion online in 2020, which is 44.0% up from 2019, according to the Digital Commerce 360 analysis. Southeast Asia saw a 63 percent increase, $300 billion in e-commerce in 2020 compared with 2019, according to a survey by Google, Singapore's Temasek and consultancy firm Bain & Co. India’s e-commerce market is growing by 84 per cent to $111 billion by 2024 as it gains from demand created by the coronavirus pandemic’s impact.


Now, the only question is when the authorities made a guideline on allowing e-commerce to deliver their services during the first lockdown, why is it contradicting its own decision by not allowing their services during the second wave? It is the duty of the government to protect its citizens. During the historical pandemics before COVID-19, e-commerce services were not available in countries like ours but times have changed. Allowing e-commerce business will help protect the right to food and the rights of the consumer guaranteed by the Constitution of Nepal. Allowing e-commerce will not adversely affect the objectives of the government, rather it will support the objectives. 

For the purpose of protecting the fundamental rights of Nepali citizens, a writ petition was filed demanding an interim order to amend the prohibitory order issued by District Administration Office and allow operation of any e-commerce services amidst the pandemic using preventive measures such as social distancing, use of mask, sanitizer and PPE. The demands also include formulating a new law or guidelines to operate e-commerce during future pandemics keeping negative aspects of e-commerce business in mind. As of now, the Supreme Court has issued a show cause order to the government and called the respondents for a discussion in the interim order. 

The court has to look at this petition in a broader spectrum. Even though there is a threat to the delivery man, e-commerce companies have themselves come forward to provide services to the people as their social responsibility. These actions from the e-commerce businesses are not coming in the perspective of growing the business but for breaking the chain of coronavirus. The court, government, and people need to understand that the risk of the pandemic will be reduced and it will assist the government in controlling the pandemic while running the economic activities. People should be able to buy food and other essentials when they are confined inside their houses. The District Administration Office should not take a policy of stopping the e-commerce business while the food management company under the ministry itself is providing online services to the people at the time of lockdown. Thus realizing the importance of the e-commerce business, the authority (DAO) and Department of Industry, Commerce and Supplies should enable e-commerce to continue to deliver their services in the current dreadful scenario so that there would be less number of people coming into physical contact which would certainly help break the chain of the terrible virus and could save many innocent lives. 

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