28 April 2020 5:38 AM GMT
The recent Epidemic Diseases (Amendment) Ordinance 2020 may be viewed as a by-product of the directions issued by the Supreme Court in a Public Interest Litigation (PIL) filed by a doctor from Nagpur, Maharashtra (Dr. Jerryl Banait v. Union of India). The PIL originally sought availability of Personal Protective Equipment (PPEs) for medical professionals, and subsequently highlighted...
The recent Epidemic Diseases (Amendment) Ordinance 2020 may be viewed as a by-product of the directions issued by the Supreme Court in a Public Interest Litigation (PIL) filed by a doctor from Nagpur, Maharashtra (Dr. Jerryl Banait v. Union of India). The PIL originally sought availability of Personal Protective Equipment (PPEs) for medical professionals, and subsequently highlighted the plight of doctors and nurses due to incidents of violence. This article traces the origin of the Ordinance from the directions of the Supreme Court, moving onto internal Memos of Ministries, and ultimately into the Epidemic Diseases (Amendment) Ordinance, 2020.
Nations across the globe have pushed their economic stability, healthcare sector and legal system beyond unimaginable boundaries to deal with the COVID-19 pandemic. In India, in addition to the hurdle of the pandemic itself, instances of violence against healthcare professionals acted as an impediment to the smooth operation of medical facilities. Healthcare professionals had to turn to existing legislations to seek protection against acts of violence. However, their concerns were not addressed satisfactorily by the law at the time being in force.
Noting the unavailability of effective protective measures for healthcare workers, the Supreme Court in Dr. Jerryl Banait (supra) vide Order dated 08.04.2020 inter alia directed the Governments (Union and States) to provide police security to medical professional working in hospitals where patients diagnosed, or suspected of COVID-19 were housed. The protection was extended to medical staff who would visit places to conduct screening of people. The Court further directed the State to take necessary action against those persons who obstruct medical professionals in the discharge of their duties.
The directions of the Supreme Court prompted the Ministry of Home Affairs to issue a Memo dated 11th April 2020 bearing No. 11034/01/2020-IS-IV, followed by Memo dated 22nd April 2020 bearing No.40-10/2020-DM-I(A) inter alia directing the Chief Secretaries / Administrators of all States / Union Territories to take necessary action to ensure compliance of the abovementioned Order passed by the Supreme Court. In the meanwhile, the Ministry of Health & Family Welfare published Draft Measures for ensuring safety of healthcare workers for COVID-19 services. These measures inter alia provided for human resources management, medical safety, timely payments, psychological support, training/ capacity building, life insurance, etc. for healthcare workers.
The directions and measures issued by the Ministry of Home Affairs and the Ministry of Health & Family Welfare provided a layer of protection to healthcare workers. However, the mistreatment extended to medical professionals called for a more concrete legislation to protect them. On 22nd April 2020, sensing the urgency of the situation, the President of India took recourse of promulgating the Epidemic Diseases (Amendment) Ordinance, 2020 ("2020 Ordinance"), as the Parliament was not in session. The 2020 Ordinance sought to amend the Epidemic Diseases Act, 1897 ("Act of 1897"), and was brought into force forthwith.
Until passing of the 2020 Ordinance, India was hanging on to the 123-year-old unamended Act of 1897. In addition to the Epidemic Diseases Act, provisions of the Disaster Management Act, 2005 were invoked to restrict movement of people, initiate action against rumor-mongers, and provide access to emergency funds.
Prior to the issuance of the 2020 Ordinance, the Prevention of Violence against Doctors, Medical Professional and Medical Institutions Bill, 2018 was introduced on 28th December, 2018, and was pending consideration. Interestingly, another Bill known as the Healthcare Service Personnel and Clinical Establishments (Prohibition of Violence and Damage to Property) Bill 2019 was proposed by the Ministry of Health and Family Welfare, which contained provisions similar to the 2020 Ordinance. The Bill was approved by the Law Ministry, however during inter-ministerial consultations, the Ministry of Home Affairs opined that there could not be a separate legislation to protect the members of a particular profession. In addition to the aforementioned Bills, the States of Assam, Delhi, Gujarat, Kerala, Maharashtra, Orissa, Tamil Nadu and Tripura have passed separate State legislations to protect the rights of healthcare workers.
SALIENT FEATURES OF THE 2020 ORDINANCE
Definitions under the Ordinance -
"Acts of Violence"
The Ordinance inserted Section 1A(a), which provides for an inclusive definition of "acts of violence" in the form of harassment, intimidation, actual harm or injury, or any act that prevents a healthcare professional from discharging his/her duties, either within the premises of a clinical establishment, or otherwise. It includes loss / damage to property and documents in custody of a healthcare professional. These acts of violence are prohibited under the newly inserted Section 2 B.
"Healthcare Service Personnel"
Sub-clause (b) to Section 1A provides a wide scope to the term "Healthcare Service Personnel" to include doctors, nurses, paramedical workers, community health workers, etc., who may come in direct contact with affected patients, and may be at risk of contracting the disease.
Section 1A(c) defines the term property to include clinical establishments, quarantine/ isolation facility, mobile medical units, or any other property wherein a health care service personnel has direct interest, in relation to the epidemic.
Punishment prescribed under the Ordinance –
The Ordinance inserted Sections 3(2) and 3(3) which provide for punishment as under -
Punishment for commission or abetment of an Act of Violence.
Note: This offence is Compoundable u/S. 3B.
Imprisonment for a term of not less than 3 months, which may extend to 5 years
Fine of not less than Rs. 50,000/-, which may extend to Rs. 2,00,000/-
Punishment for grievous hurt caused to a Healthcare Service Personnel.
Note: According to Section 3C, the Court shall presume that the person has committed the offence.
According to Section 3D, the Court shall presume existence of culpable mental state.
Imprisonment for a term of not less than 6 months, which may extend to 7 years.
Fine of not less than Rs. 1,00,000/- which may extend to Rs. 5,00,000/-
Cognizance, Investigation and Trial of Offences: -
Nature of Offence
Section 3A(i) as inserted by the Ordinance provides that the offences u/S. 3(2) and 3(3) shall be cognizable and non-bailable. Consequently, the law shall be set in motion by registration of a First Information Report against the offenders.
The investigation of the offences under this Ordinance shall be conducted by a police officer not below the rank of an Inspector [Section 3A (ii)]. Further, as per Section 3A(iii), the investigation must be completed within a period of 30 days from the registration of the F.I.R. [Section 3A(iii)]
The trial of offences committed under the Ordinance shall be conducted as expeditiously as possible. Further, when the trial is at the stage of examination of witnesses, it shall be conducted on a day-to-day basis till all witnesses have been examined. The provision lays down an upper limit of one year to conclude the trial, with a further extension not exceeding six months at a time. [Section 3A(iv)]
Compensation under the Ordinance:
In case of Hurt/ Grievous Hurt
Section 3E (1) provides that in addition to the punishment prescribed under Sections 3(2) and 3(3), the offender shall be liable to pay compensation for causing hurt or grievous hurt to any healthcare service personnel. Such compensation may be determined by the Court.
In case of damage to Property
Section 3E(2) provides that in case of damage to property or loss caused, the compensation payable shall be twice the amount of fair market value of the damaged property, or loss caused, as may be determined by the Court.
The compensation provided in terms of Sections 3E (1) and (2) shall be recovered as arrears of land revenue under the Revenue Recovery Act 1890, in case of failure to pay the same.
With the increasing amount of pressure on healthcare personnel, their protection takes precedence over other issues. The 2020 Ordinance brings a sigh of relief to such professionals. However, like any other legislation, the true test of the 2020 Ordinance lies in its effective implementation.
 Writ Petition (C) Diary No. 10795 of 2020.