Reading time: 8-10 minutes.
Doctors all around the world are fighting the COVID-19 pandemic, putting their lives at risk just like a soldier does at war for his nation, going against the wishes of their family members to ensure that every infected person recovers. In this fight against the global pandemic, doctors have gained massive respect in society for their commitment and dedication to come out of this health crisis. Medical professionals worldwide are facing the heightened risk of infection, anxiety and are being separated from their families but in India, they have to face a unique set of problems along with the existing ones such as harassment, assault, violence, and social ostracism. In this context, the Union Cabinet in its gathering on 22nd April 2020 has given a nod for the promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897, to protect healthcare service personnel and property, including their living/working premises, from violence during epidemics. The Ordinance also provides for compensation for injury and damage to or loss of property in such cases. The President of India has approved the Epidemic Diseases (Amendment) Ordinance, 2020.
Significance of this development
In recent times of the COVID-19 health crisis, doctors and other healthcare service personnel in India are being subjected to violence and abuse as they try to contain the virus. Few examples describing the situation are,
(a) A middle-aged man in New Delhi attacked two doctors who had stepped out to buy fruits, after accusing them of spreading the virus.
(b) In Indore, Trupti Katdare along with her team of public health workers visited a slum to track down a person who had come in contact with a confirmed case of Corona virus. At least 100 people surrounded the team, throwing stones and other objects at them, making them run for their lives.
In response to such attacks against the healthcare service personnel, various states had existing special laws to offer protection to them but these state laws did not cover various offenses under its ambit. They do not cover harassment at home and workplace and are focused more on physical violence only. The penal provisions contained in these laws are not stringent enough to deter mischief mongering.
The present Ordinance makes acts of violence against healthcare personnel or damages to property during an epidemic a cognizable and non-bailable offense. Strong legislation will dissuade unruly elements while emboldening healthcare workers and ensuring their protection is given high priority
Provisions that are amended
The Epidemic Diseases (Amendment) Ordinance, 2020 contains 7 sections while the original act contained only 5 sections.
The ordinance inserts Section 1A in the principal act where it provides a definition clause to reduce the misuse of the act:
- Healthcare Service Personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease, including :
(i) Public and clinical healthcare providers such as doctors and nurses,
(ii) Any person empowered under the Act to take measures to prevent the outbreak of the disease, and
(iii) Other persons designated as such by the state government.
- An act of violence includes any of the following acts committed against healthcare service personnel:
- Harassment impacting living or working conditions
- Harm, injury, hurt, or danger to life
- Obstruction in the discharge of his duties
- Loss or damage to the property or documents of the healthcare service personnel.
- Property is defined to include:
- Clinical establishment
- Quarantine facility
- Mobile medical unit
- Other property in which a healthcare service personnel has a direct interest, in relation to the epidemic.
Amendment of Section 2A which states that “the Central Government may take such measures, as it deems fit and prescribes regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as may be necessary”. Earlier this section included only ships and vessels as modes of transport and it is correct on part of the government to include other modes of travel since over the past century travelling has grown manifold by air, rail and land allowing the government to inspect and detain any person showing symptoms of such disease while he/she uses any of the above aforementioned modes of transport in the newly amended section 2A. Thus the powers of the central government are increased.
New Section 2B inserted states that no person shall indulge in any act of violence against healthcare service personnel or cause any damage or loss to any property during an epidemic.
Amendment of Section 3, adding subsection (2) and (3) to the existing subsection (1) where subsection (2) of the Ordinance prescribes punishment of 3 months to 5 years imprisonment, along with a fine of Rs.50,000 to Rs.2 Lakhs, if a person commits/abets violence against a healthcare service personnel or, damage or loss to any property. Subsection (3) prescribes a punishment of 6 months to 7 years imprisonment, along with a fine of Rs.1 Lakh to Rs.5 Lakhs, if grievous hurt is caused to healthcare service personnel during such an act of violence. The purpose of this amendment is to protect healthcare service personnel by providing them a safe society to work in without any fear.
New Section 3A complements the strict nature of the crimes committed by prohibiting the accused from pleading bail as a matter of right and allowing the police to arrest him without a warrant. Briefly, it talks about cognizance, investigation, and trial of offenses. This section categorizes the offenses committed under sub-section (2) and (3) of Section 3, as introduced by the Ordinance, to be cognizable and non-bailable. Cases registered under the Ordinance will be investigated by a police officer, not below the rank of Inspector. The investigation must be completed within 30 days from the date of registration of the First Information Report (FIR). The inquiry or trial should be concluded within one year. If it is not concluded within this time period, the judge must record the reasons for the delay and extend the time period.
However, the time period may not be extended for more than six months at a time.
When prosecuting a person for causing grievous harm to healthcare service personnel, the court will presume that person is guilty of the offense, unless the contrary is proved.
The new Section 3B provides for compounding of offenses, with the permission of the court, committed under sub-section (2) of Section 3, as introduced by the Ordinance.
The new Section 3C creates a presumption against the person accused of committing an offense under subsection (3) of section 3, as enacted by the Ordinance unless it has been proven otherwise.
Newly inserted Section 3D presumes against the culpable mental state of the accused, unless the contrary is proved for the offenses committed under sub-section (3) of Section 3. Definition of culpable mental state in the ordinance includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
Newly inserted Section 3E is about compensation person convicted of offenses under the Ordinance will also be liable to pay to the healthcare service personnel if convicted for an offense under subsection (2) or (3) of section 3 of the Ordinance. Such compensation will be determined by the court. In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the court. If the convicted person fails to pay the compensation, the amount will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.
Objectives and purpose of the amendment
The main objective of this Ordinance is to give confidence to our healthcare workers who have developed a sense of fear because of repeated instances of attacks by the people of India. The government has shown its commitment to medical professionals through this amendment since through the implementation of this Ordinance, they have intended to ensure that during any situation akin to the current pandemic; there is zero-tolerance to any form of violence against healthcare service personnel and damage to property.
The general public fully cooperated with healthcare personnel and expressed their gratitude in a very organized manner several times during the past month. Nevertheless, some incidents of violence have taken place which has demoralized the medical fraternity.
Thus these stringent provisions become the need of the hour and act as effective deterrents to any such incidents of violence.
Though the government has tried its level best to provide security and protection to medical professionals with the implementation of this ordinance, however, this attempt will be successful only if there is no misuse of this Ordinance Act. The police personnel should not misuse their authority and position. They should not register FIRs according to their will and the ordinance act should be implemented as it is prescribed by the government. Same rules apply to the government since it has a considerable amount of power to regulate this law. One important analysis is that this ordinance does not mention the rights of people i.e. how they are to be ethically treated if quarantined since at many places, patients are not being provided with basic facilities like food, water, etc. and are being ill-treated by the police and staff which has led to people hiding their symptoms of corona due to fear of ill-treatment away from home. These are some issues that still need to be addressed.
The effort to protect the healthcare community from harassment and violence is commendable. The central government has done exactly what was needed to be done to instil confidence within the healthcare community so that they are able to perform their duties to their optimum best without any fear of social savagery. The ordinance does act as a deterrent to the miscreants and they will think twice before committing any crime against the healthcare community.
The only thing to look out for is the loophole of this ordinance and that the powers at various authoritative levels are not misused. This is a very crucial time the world is going through and to control this health crisis, doctors, governments, citizens, and policemen all have to work in harmony.
Helen Keller once said, “Alone we can do so little; together we can do so much.” Thus it will be the combined efforts of everyone which will help us fight this health crisis.
Author: Tanusha Tyagi from Vivekananda Institute of Professional Studies
Editor: Arya Mittal from Hidayatullah National Law University, Raipur.