The world is grappling with an unknown virus that has escalated to a global pandemic in no time. At the very forefront of this battle against the unknown, are the medical healthcare professionals who have been working relentlessly to treat the rising number of patients across the globe, sometimes even without adequate protective gear[1]. Therefore, it is disheartening when one comes across news regarding them being subject to unprovoked violence from the public[2] in this time of crisis. The need to protect these frontline healthcare professionals was felt strongly by the Indian government in order to ensure seamless treatment of patients during the current pandemic. With these objectives in mind, the President of India on April 22, 2020, promulgated the Epidemic Diseases Amendment Ordinance 2020 (“Amendment Ordinance”), to amend the Epidemic Diseases Act, 1897 (“Epidemic Act”).
The Epidemic Act is a century old and brief (four sections and three pages to be precise) law, which was enacted during the Bubonic plague outbreak in Bombay[3]. It has since been used to curb the spread of diseases and epidemics, for instance, during the outbreak of H1N1 influenza in Maharashtra in 2009[4]. The Epidemic Act was last enforced in 2018 to prevent the spread of cholera in a village in Gujarat[5].
The pre-independence era Epidemic Act was enacted with a very broad, but simply worded objective i.e. ‘for the better prevention of the spread of dangerous epidemic diseases’. Such objective is given effect by way of empowering both the central and state governments to take measures, prescribing temporary rules to be observed by the public at large during the outbreak of an epidemic. The powers under this Epidemic Act can be invoked only when the central or state governments or both are satisfied that the ordinary provisions of law prevailing at that time are insufficient to address the spread of the epidemic at hand.
The need for remodelling the Epidemics Act and introducing an appropriate legislation to deal with an epidemic of the present proportions has not been propagated strongly enough, till date. It is perhaps for this reason that the Public Health (Prevention, Control and Management of Epidemics Bio-terrorism and Disasters bill) 2017 (“Public Health Bill”), which was introduced in 2017 to repeal the Epidemic Act, did not see the light of day and lapsed[6].
And so, it is this archaic Epidemic Act that the central and state governments have had to turn to, in order to deal with the current outbreak of COVID-19. Hence, it does not come as a surprise that certain aspects of the Epidemic Act needed to be revisited in order to bring it in tune with the current times, through central and state ordinances. These ordinances were aimed to ensure that it adequately addresses the issues faced by India, almost one hundred and twenty years after its enactment.
One of the key changes brought about by the Amendment Ordinance is that it introduces and defines the terms ‘healthcare service personnel’, ‘property’ and ‘act of violence’ before stating that “no one shall indulge in any act of violence against a healthcare services professional or cause any damage or loss to any property during an epidemic.”[7]
The Amendment Ordinance provides that if an act of violence results in grievous hurt[8] caused to a healthcare service personnel, then such a person shall be punished with imprisonment for a minimum period of 6 (six) months and maximum of 7 (seven) years, with penalty ranging from INR 1,00,000 (Indian rupees one lakh) to INR 5,00,000 (Indian rupees five lakhs).[9] Whoever commits or abets the commission of violence against a healthcare service personnel, such a person shall be punished with imprisonment ranging from 3 (three) months to 5 (five) years, and penalty ranging from INR 50,000 (Indian rupees fifty thousand) to INR 2,00,000 (Indian rupees two lakhs).[10] Further, such offences shall be cognizable and non-bailable.[11] The penalty provisions prescribed in the Amendment Ordinance are more stringent in terms of years of imprisonment and penalty amount as compared to offences against public tranquility like unlawful assembly, rioting, etc., provided under the Indian Penal Code, 1860 (“IPC”).
The Amendment Ordinance has also expedited the investigation process by the police, which has to be completed within 30 (thirty) days[12] and the burden of proof has also been reversed where the accused will be considered guilty until proven innocent. In cases of damage to property, the compensation payable is twice the fair market value of the damaged property or loss caused, as determined by the court[13]. This is a significant addition since even the IPC does not have any provision for damages to be claimed from a rioter or a member for an unlawful assembly.
Further, the Amendment Ordinance provides for a broad definition to the term ‘violence’ to include harassment, affecting the living or working conditions of healthcare services personnel. Thus, bringing under its ambit cases where healthcare personnel are facing stigma due to their work and instances of doctors and nurses being asked to vacate their accommodation or being forcefully vacated[14]. While some of the states like Delhi[15] and Karnataka[16] did come out with strict orders against house owners and landlords for forcing out health professionals from their rented accommodations, practically how much of it was implemented is yet to be fully evaluated.
Since Entry 29 in List III (concurrent list) of Schedule 7 of the Constitution of India deals with ‘prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants’, therefore, both the central government and states have the power to legislate on such issues. Accordingly, a few Indian states[17] have also brought in similar ordinances for amending the Epidemics Diseases Act to deal with the present pandemic and any future epidemics.
The pandemic is temporary (so we all hope) and so the protections under the Amendment Ordinance extended to healthcare professionals would also be temporary. The Amendment Ordinance clearly states the violence or damage is to be ‘during an epidemic’, thus making it highly contextual and limiting to a certain extent. However, instances of violent confrontation between doctors and the public is neither a recent phenomenon nor occurring as a result of an epidemic. There have been studies conducted by various agencies in the past, in 2015[18] and in 2017 (by the Indian Medical Association[19]), which have shown evidence that 75% (seventy five percent) of the doctors have faced violence at their workplace. Thus, the need of the hour is to ensure that the professionals in the healthcare industry are able to carry on their duties seamlessly and without any threat to their being and property, even once this pandemic is a thing of the past. So then, the issue that comes to mind is whether there is a vacuum in the applicable law, to address such incidents or whether the already existing legal framework is adequate to effectively deal with such concerns?
Existing penal provisions in the IPC[20] for protection of public servants against assault can be pressed into action when government healthcare professionals[21] are obstructed from carrying on their duties. There are various penal provisions in the IPC, including for offences against public tranquility[22], hurt/ grievous hurt[23], force/criminal force/ assault[24] and criminal intimidation[25], which make any individual criminally liable for such offences. While the provisions of the IPC are more generic in nature, they can be used effectively against perpetrators of crimes against healthcare professionals.
As stated above, this is not a new phenomenon and therefore, owing to widespread attacks on doctors and other healthcare professionals in the past, several states had enacted the “Medicare Service Persons and Medicare Service Institutions (Prevention Of Violence And Damage To Property) Act” [26] to punish those guilty of attacking healthcare professionals. The statutes enacted by the states (more or less similar to each other) prohibit violence against ‘medicare service personnel’ and damage against ‘medicare service institutions’. The punishment prescribed under the same includes imprisonment ranging from 3 (three) years up to 10 (ten) years and/ or fine up to INR 50,000 (Indian rupees fifty thousand).
However, the lack of awareness in the enforcement authorities and the public of the existence of such legislations and the absence of their linkage with the relevant provisions of the IPC and/or Code of Criminal Procedure, 1973, leads to poor implementation of these legislations[27], consequently affording inadequate protection to healthcare professionals.
In September 2019, a retired doctor was lynched in Assam because he was not present when a tea estate worker died[28]. This was followed by several protests and strikes by doctors all over India and eventually, the Health Services Personnel and Clinical Establishments (Prohibition of Violence and Damage of Property) Bill, 2019 (“Prohibition of Violence Bill”) was introduced in September, 2019[29]. The Prohibition of Violence Bill was ultimately not passed, despite receiving widespread support from the medical community and other stakeholders, as the Ministry of Home Affairs was of the view that the provisions relating to grievous hurt in the IPC Code of Criminal Procedure, 1973, would be enough to address the issue of violence against healthcare service personnel [30].
Having said the above, there is no doubt that the Amendment Ordinance ought to be used widely in order to protect the lives of frontline healthcare service personnel who are at the forefront protecting lives of millions of patients during this current epidemic. However, the protection that needs to be accorded to healthcare professionals cannot be relegated to the background post this pandemic and hence there is room for relevant state governments to consider and give effect to certain changes, for example, by creating a linkage between the already existing state legislations, which were enacted with the objective to prevent such occurrences, and IPC or the Code of Criminal Procedure, 1973. This would ensure that the enforcement authorities would be able to take effective measures and lodge complaints adequately under the relevant sections when approached by any medical professional for safeguarding their safety. Alternatively, the government may consider enacting a central legislation that will operate as an umbrella legislation to address the said issues and result in a more effectively implemented law.
The best interests and safety of medical healthcare professionals are not to be side lined, either during an epidemic or otherwise — this is a matter of fact and can hardly be refuted by any. This epidemic and our fight against it have only made this more evident and therefore, the relevant agencies of the government, both at the state and central level, should work together to create a robust and effective implementation strategy across the board.
* The authors would like to thank Anuradha Mukherjee, Partner for her valuable inputs
[1] ‘Two doctors injured in Madhya Pradesh after healthcare workers, civic officials attacked by Indore mob’ Firstpost, April 02, 2020, available at http://www.firstpost.com/health/two-doctors-injured-in-madhya-pradesh-after-healthcare-workers-civic-officials-attacked-by-indore-mob-8219621.html, accessed on April 28, 2020 at 12 pm.
[2] Doctors come under attack in India as Coronavirus stigma grows’, Bloomberg, April 13, 2020, available at http://www.bloomberg.com/news/articles/2020-04-13/doctors-come-under-attack-in-india-as-coronavirus-stigma-grows, accessed on May 05, 2020.
[3] ‘A 123-year-old law, once used to imprison freedom fighters, is India’s primary weapon against coronavirus’ QZ, March 23, 2020, available at http://qz.com/india/1820143/india-battles-coronavirus-with-british-era-epidemic-diseases-act/, accessed on April 29, 2020 at 4 p.m.
[4] ‘Epidemic Diseases Act: What it means’ Economic Times, August 05, 2009, available at http://economictimes.indiatimes.com/epidemic-diseases-act-what-it-means/articleshow/4859450.cms?from=mdr, accessed on April 29, 2020 at 4 p.m.
[5] ‘A 123-year-old law, once used to imprison freedom fighters, is India’s primary weapon against coronavirus’ QZ, March 23, 2020, available at http://qz.com/india/1820143/india-battles-coronavirus-with-british-era-epidemic-diseases-act/, accessed on April 29, 2020 at 4 p.m.
[6] ‘Moily asks government to revive lapsed public health emergency Bill through Ordinance to tackle COVID-19’ The Hindu, April 09, 2020, available at http://www.thehindu.com/news/national/moily-asks-government-to-revive-lapsed-public-health-emergency-bill-through-ordinance-to-tackle-covid-19/article31300396.ece accessed on April 29, 2020 at 4 p.m.
[7] Section 5 of the Amendment Ordinance.
[8] As defined in Section 320 of the Indian Penal Code, 1860
[9] Section 6(3) of the Amendment Ordinance.
[10] Section 6(2) of the Amendment Ordinance.
[11] Section 7 of the Amendment Ordinance.
[12] Section 7 of the Amendment Ordinance.
[13] Section 7 of the Amendment Ordinance.
[14] ‘Amidst COVID-19 outbreak, landlords ask doctors, nurses to vacate houses; govt warns owners’ Deccan Herald, March 25, 2020, available at http://www.deccanherald.com/national/amidst-covid-19-outbreak-landlords-ask-doctors-nurses-to-vacate-houses-govt-warns-owners-817435.html, accessed on April 28, 2020 at 12 pm.
[15] Government of National Capital Territory Of Delhi Health And Family Welfare Department, Order dated March 24, 2020 directing relevant authorities to directed to take strict penal action against landlords/house-owners who are forcing healthcare personnel to vacate their rented accommodation. Available at http://health.delhigovt.nic.in/wps/wcm/connect/95096c804dacdc9595abf7982ee7a5c7/oLand.pdf?MOD=AJPERES&lmod=276494546&CACHEID=95096c804dacdc9595abf7982ee7a5c7, accessed on May 05, 2020.
[16]Karnataka – Health and Family Welfare, Govt. of Karnataka Order for Landlords and House Owners dated March 26, 2020, available at http://karunadu.karnataka.gov.in/hfw/kannada/nCovDocs/Order-Landlords%20and%20House%20Owners%20(26-03-2020).jpeg and http://karnataka.gov.in/common-2/en, accessed on May 05, 2020.
[17] Some of the state legislations include, The Rajasthan Epidemics Diseases Ordinance, 2020, the Karnataka Epidemic Diseases Ordinance, 2020, the Kerala Epidemic Diseases Ordinance, 2020, the Uttar Pradesh Public Health and Epidemic Disease Control Ordinance, 2020.
[18] ‘Over 75% of doctors have faced violence at work, study finds’ Times of India, May 4, 2015, available at http://timesofindia.indiatimes.com/india/Over-75-of-doctors-have-faced-violence-at-work-study-finds/articleshow/47143806.cms, accessed on May 05, 2020.
[19] According to a 2017 study by the Indian Medical Association, over 75 per cent of doctors have faced violence at work and 56.5 per cent had thought of hiring security at the place of their practice. ‘Doctors deserve dignity, security as they risk their lives during the pandemic’ The Indian Express, April 29, 2020, available at http://indianexpress.com/article/opinion/columns/coronavirus-lockdown-doctors-safety-healthcare-workers-attacked-siddharth-kapila-6383707/, accessed on May 05, 2020.
[20] Sections 186, 332 and 353 of the Indian Penal Code, 1860
[21] Section 21 of the Indian Penal Code, 1860 includes ‘officers of the Government whose duty it is to protect public health, safety or convenience…’ in the definition of public servant.
[22] Sections 141-147 of the Indian Penal Code, 1860
[23] Sections 319 to 326 of the Indian Penal Code, 1860
[24] Sections 349 to 352 of the Indian Penal Code, 1860
[25] Section 503 read with Section 506 of the Indian Penal Code, 1860
[26] See, the Delhi Medicare Service Personnel and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2008, The Assam Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage To Property) Act, 2011, The Karnataka Prohibition of Violence Against Medicare Service Personnel and Damage to Property in Medicare Service Institutions Act, 2009, The Maharashtra Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage or Loss to Property) Act, 2010, The Tamil Nadu Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage or Loss of Property) Act, 2008.
[27] ‘There is a law to protect doctors from assault but this is why it doesn’t work’ The Print, June 14, 2019, available at http://theprint.in/india/there-is-a-law-to-protect-doctors-from-assault-but-this-is-why-it-doesnt-work/250217/, accessed on May 27, 2020.
[28] ‘21 Arrested For Mob Killing Of 73-Year-Old Doctor At Tea Estate In Assam’, NDTV, September 02, 2019, available at http://www.ndtv.com/india-news/21-arrested-for-allegedly-killing-doctor-of-tea-estate-in-assams-jorhat-2094093 , accessed on May 05, 2020.
[29] The Prohibition of Violence Bill prescribed a maximum fine of 10,00,000 (Indian Rupees ten lakhs) and imprisonment of up to 10 (ten) years in case of grievous hurt caused to a healthcare services personnel
[30] ‘MHA rejects proposed legislation to protect doctors from assault’ Economic Times, January 17, 2020, available at http://economictimes.indiatimes.com/news/politics-and-nation/mha-rejects-proposed-legislation-to-protect-doctors-from-assault/articleshow/73330302.cms?from=mdr , accessed on April 29, 2020.
This post is written by the authors in collaboration with our Guest Authors – Ashish Karamchandani, Senior Advisor at FSG and Abhishek Khanna, Senior Consultant at FSG _ _ _ _ _ _ _ _ _ _ _ _ ...
21st July 2020The Covid-19 pandemic has wreaked havoc on mankind, infecting well over 13 million, and claiming over half a million lives. It has also severely impacted economies across the world. Our healthcare inf ...
20th July 2020
