by- Manvee Kumar Saidha
INTRODUCTION
The intangible offshoots of the pandemic – uncertainty, angst and fear – revealed a rather unflattering side of human nature. While these unprecedented times demanded unity in resistance and action, discord arising out of religion, race and politics (among others) found a way to seep in. The most unfortunate and alarming manifestation of this fear was however the attack against medical professionals. Medical staff across the country were subject to ostracization and were on the receiving end of threats, stigmatisation, evictions and physical assaults. Even Arvind Kejriwal, the Chief minister of Delhi, called out the irony of appreciating the services of frontline workers by clapping in balconies, yet not truly supporting their efforts.
THE PRESENT
While consternation from the pandemic certainly bred disregard, it would be wrong to suggest that it is the only cause to blame. Healthcare workers were prone to violence even before the pandemic. An ongoing study by the Indian Medical Association reported that 75% of doctors in India have faced violence at some point of time in their life. Despite resounding stipulation to establish a uniform law that encourages and/or enforces prevention of such offences, till date, only umbrella statutes and state legislations exist to remedy the offences. Not only do the Criminal Codes and State Legislations present independent shortcomings, but their frameworks are such that they exist in isolation instead of complementing each other.
To elaborate, the practice under the Indian Penal Code, 1860 alongside the Code of Criminal Procedure, 1973 and the Medicare Service Persons & Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, which are the relevant legal safeguards, can be discussed. Approaching courts under the Criminal Codes could be for instances of hurt, grievous hurt, rioting etc., – the shortfall of which is the high threshold of violence required to attract punishment under these provisions. Even from a jurisprudence standpoint, ascertaining liability under criminal law is a more tedious process, since both actus reus and mens rea need to be proved. In a case where a person causes grievous hurt to a nurse, for instance, the act in itself wouldn’t attract punishment. The victim will have to prove intention to cause grievous hurt – which is a subjective, time-consuming and appealable determination. As for the MSPMSI Act, the apparent limitation is that it still hasn’t been enacted in various states, in addition to which it has repeatedly been critiqued for poor implementation and complete exclusion vis-a-vis criminal law. In other words, there is no concurrent provision in the IPC or CrPC, and even filing a case becomes consequently tedious, since the enforcement authorities i.e. police officials are themselves unaware of the state law.
THE ALMOST
To this end, the Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019 was passed in the legislature. Through the Bill, the Ministry of Health and Family Welfare sought to address incidences of violence against healthcare professionals and damage to the property of clinical establishments. Under the draft Bill, all offences were made cognizable and non-bailable, and the punishment for offences similar to those prescribed in the IPC was increased. For instance, while under IPC an individual who commits grievous hurt is punishable with imprisonment of up to seven years, under the Bill, anyone causing grievous hurt to a healthcare service professional is liable to punished with an imprisonment of three to ten years. Despite the draft having received a majority of supportive public comments, the Ministry of Home Affairs outrightly rejected the proposed legislation. The Ministry, during an inter-ministerial consultation, stated that there was ‘no need for a separate legislation to check violence against members of a specific profession,’ and that the IPC and CrPC were sufficient. The Ministry went on to rely on rather insignificant technicalities, such as low availability of ranked-investigating officers, in order to underpin their contentions.
The public comments for the Bill were invited up until September 2019, following which it would have been tabled and passed, if not for the resistance from the Ministry of Home Affairs. This is only to say that the legislation would have induced uniformity in protection and prosecution at an opportune time, and just maybe the situation would have been better. Deliberating upon it is however futile and one can only imagine what could have been… Moving further down the course of events – the healthcare workers continued to be ostracised (as explained above), though the increasing abuse against the doctors finally caught the overdue attention. Preceded by the demand to protect those who were protecting the nation, the President under Article 123 of the Indian Constitution, promulgated an Ordinance to amend the Epidemic Diseases Act, 1897. The Ordinance sought to fix affairs by enforcing provisions to the effect of ensuring timely investigations, widening the reference of offenders, and providing blanket protection to all healthcare workers i.e. including doctors, nurses and ASHA workers, among others.
WHY ALMOST ISN’T ENOUGH
Though technically an ordinance temporarily serves the purpose of an absent or insufficient law, the ordinance amending the Epidemic Diseases Act is a let-down for many reasons. Firstly, there is a considerable decrease in the penalties as compared to what was originally determined under the Bill. For instance, in case of violence (not causing grievous harm) the Bill purported a fine of up to five lakh rupees, while for violence causing grievous harm, the fine was set at the range of two lakh to ten lakh rupees. In the ordinance however, the prescribed fines have been reduced to maximum limits of two lakh and five lakh rupees, respectively. Further, while the Bill provided for a fine of up to five lakh rupees in case of damage to property, the ordinance prescribes a maximum of rupees two lakh as fine for such damage. Sections 3C and 3D of the Ordinance, which provide that the accused will be assumed to be guilty till proved otherwise, pose an additional jurisprudence conundrum. The attempt to deter violent behavior towards healthcare workers may have been overdone by placing the burden of proof on the accused. The provisions provide that the “court shall presume…” against the accused, which is against the general principles of constitutional and criminal law. It was, for instance, observed in Noor Aga vs State Of Punjab & Anr that where the burden of proof is reversed, it is unconstitutional to expect the same standard of ‘beyond reasonable doubt’ to which the prosecution would usually be tested.
Having scrutinised the dubious nature of the Ordinance, attention now needs to be drawn to the most crucial, yet currently latent limitation – the period of enforceability. Despite its shortcomings, the Ordinance constructs a uniform framework for the entire country which is a matter of considerable relief for healthcare workers, especially those working in states that have not passed an MSPMSI Act. However, the provisions are valid only so long as the pandemic, and while it is wanted that the Ordinance continue beyond the pandemic, there has been no official communication to such effect. It also remains unclear as to whether the impact of Covid-19 and the irreplaceable role that healthcare workers played, will open doors to the possibility of the Bill receiving a nod from the Ministry of Home Affairs. In whatever direction the decision heads, the regime of sensitivity trainings should be considered, and healthcare establishments should endeavour to become a safe space for all parties involved.
CONCLUSION
Since the Vedic period doctors have been equated to God, and yet, India affords its healthcare workers one of the most pitiful recompense. India spent only 1.28% of its GDP on public health in 2018. Neglecting this sector burdens stakeholder institutions, while simultaneously causing panic among the public to (resolutely) hold on to the limited resources and progress. In such a setup, it is only obvious that a pandemic will inflate agitation and result in heightened responses. Though non-predictability of human emotion doesn’t justify attacks on any professional, the truth of the matter remains that in addition to the practice itself, the medical staff deals with personal and delicate matters on a daily basis. They therefore unquestionably deserve a separate legislation that would aim at preventing and compensating unfortunate occurrences. An ideal legislation would deter mis-action and incentive positive effort, thereby nudging human behavior in the right direction. With specific reference to India, a separate legislation would also present administrative benefits to the extent of ensuring that every healthcare worker is aware of the authority he/she is entitled to approach; and conversely, an enforcement officer is aware of what is to be done. Accordingly, it is a hope that the Bill is revised, tabled and passed to be enthusiastically enforced.
A single, distinct and comprehensive legislation will erase the need for unnecessary dialogue and delay. Instead of fixing problems through hurried ordinances, a well-debated legislation will prevent and remedy problems. After all, as the doctors’ say – a stitch in time saves nine.
Featured Image: Outsourcing Pharma.
Author:
Manvee Kumar Saidha,
4th year student at School of Law, Christ University.