Introduction
COVID-19 has created chaos all around the world and has proved to be the biggest challenge in the history of mankind. The Epidemic Diseases Act (the “Act”) being used to keep a check over the spread of the pandemic was archaic and proved to be ineffective in the modern scenario. The Epidemic Disease Act, 1897 was enacted in response to Bombay Plague Epidemic.
Recently there have been acts of violence against healthcare personnel and destruction of property and the Act has failed to deal with such a major issue. Though Disaster Management Act, 2005 which is a recent enactment, was also invoked by the government of India but the same was grossly inadequate to prevent the acts of violence. The Healthcare Service Personnel and Clinical Establishment (Prohibition of Violence and Damage to Property) Bill 2019 is still pending in the Parliament and to prevent the healthcare personnel from going into indefinite strike, the President while exercising his power under Article 123 of the Constitution, on 22nd April 2020 promulgated The Epidemic Diseases (Amendment) Ordinance, 2020 (the “Ordinance”) to make the law in consonance with the prevailing scenario.
Pertaining to developments in science, advancement in technology, education, health, the pre- colonial Act was considered to be archaic and hence the government promulgated the Ordinance to provide protection to the healthcare workers from being assaulted/harassed by any person.
Several state governments on 12th March 2020 invoked section 2 of the Act which provides power to the state government to take such measures or actions as it may deem fit to prevent the outbreak of the disease and to keep the situation under control. As this Act’s application came to the notice of legal experts there has been another demand (apart from healthcare personnel’s demand) to amend/optimize it as per the current unprecedented situation.
Pre and Post Amendment
The law initially consisted of four sections which provided ambit powers to the government to take such necessary steps to control the spread of pandemic.
Section 2 of the Act authorized the State Government to take such measures and prescribe such temporary regulations (by public notice) to prevent the outbreak of ‘any dangerous epidemic disease’ if ordinary provisions of law were found to be insufficient for the said purpose.[i]
Section 2A of the Act empowered the Central Government to inspect ships that left or arrived at any port in India and to detain people if ordinary provisions of law were insufficient to prevent ‘any dangerous epidemic disease’ that threatened India.
Section 3 of the Act makes it a criminal offence to disobey any regulation or order under the Act. This punishment is according to Section 188 of the Indian Penal Code, which provides for a fine of Rs 200 and simple imprisonment of one month for violating an order of a public servant. The penalty of Rs 1,000 and imprisonment of six months can also be imposed, depending on the impact of the disobedience.[ii]
Section 4 of the Act gives protection to officials and/or persons acting under the law.
To meet the unprecedented COVID-19 situation and the long-drawn constant demand from healthcare community some amendments and insertions have been made by the Ordinance.
Section 1A has been inserted which has defined terms like ‘act of violence’, ‘healthcare service personnel’, ‘property’.
Act of violence are acts done by any person against a ‘healthcare service personnel’ during an epidemic. These acts may be in the form of harassment, harm, injury, hurt, intimidation, obstruction in discharge of duties or loss/damage to any documents/property in their custody. Healthcare service personnel is a person who while carrying out his duties in relation to epidemic related responsibilities may come in contact with affected patients and is at risk of being infected and also includes any public and clinical healthcare provider such as doctor, nurse, paramedical worker and community health worker; any other person empowered under the Act to take measures to prevent the outbreak and any person declared as such by the State Government. Property includes a clinical establishment as defined in the Clinical Establishments (Registration and Regulation) Act, 2010; any facility identified for quarantine and isolation of patients during an epidemic; a mobile medical unit; and any property in which personnel has direct interest in relation to epidemic.
Section 2A of the Act has been amended to give the Central government the power to additionally inspect any bus or train or goods vehicle or vessel or aircraft leaving (before just ships) and detain any person related with them. Section 2B of the Ordinance sees the codification of healthcare personnel’s demands. It prohibits the violence against healthcare service personnel and damage to any property.
Section 3 of the Act has been amended to penalise acts of violence against healthcare personnel and damaging property. As per Section 3(2) of the Ordinance committing or abetting acts of violence against personnel, damage or loss to any property will attract fine within Rs 50,000-2,00,000 and imprisonment not less than three months but which may extend to five years. And as per Section 3(3) of the Ordinance any act of violence which causes grievous hurt (as per Section 320 IPC) shall be punishable with imprisonment of not less than six months but which may extend to seven years and fine within Rs 1,00,000-5,00,000.
Further, five new sections have been inserted which are 3A-3E. Sec 3A(i) of the Ordinance makes offences mentioned in section 3of the Act as cognizable and non-bailable. It also prescribes an investigation to be done by a police officer not below the rank of Inspector. Section 3B of the Ordinance allows a case under section 3(2) of the Act to be compounded with the permission of court. Section 3C of the Ordinance presumes the person accused under section 3(3) of the Act to be guilty unless the contrary is proved. It is a valid defence that accused did not had the culpable mental state but the same needs to be proved beyond reasonable doubt and until that there is presumption of culpable mental state for offence under section 3(3) of the Act. Notwithstanding court’s power to compound the offence, compensation shall be payable in case of damage to property and ‘shall be twice the amount of fair market value’ and recoverable ‘as an arrear of land revenue under the Revenue Recovery Act, 1890’ (Section 3E).
Analysis
The authors seek to analyse the impact of the Ordinance in future. There is no doubt that this ordinance will keep the morale high of frontline workers during this pandemic. Section 3(2) makes acts of violence against healthcare personnel and loss/damage to property punishable with a maximum of five years of imprisonment and Rs 2 lakh fine whereas under Section 3(3) it is seven years and five lakh rupees if ‘grievous hurt’ is caused to them. An important feature of this ordinance which appears to have escaped public attention and acclaim is the amendment to Section 2A which now empowers the Centre to inspect and detain any bus or train or goods vehicle or aircraft, or any person intending to travel therein, besides the pre-existing powers in regard to any ship or vessel. Further, section 3A in the Ordinance is another welcome change that provides and efficient time-bound investigation and trial of offences punishable under section 3(2) and 3(3).
Sections 3C and 3D pose a serious hurdle against presumption of existence of facts under Evidence Act. Section 3C brings in the element of presumption that the person being prosecuted for causing grievous hurt under Section 3(3) ‘has committed the offence, unless the contrary is proved’. Section 3D allows the court to presume culpable mental state of accused in case of grievous hurt and if a defence to the contrary is to be taken the same needs to be proved beyond reasonable doubt and not just showing a preponderance of probability.
Ordinance is left handicapped by absence of law under Entry 81 List 1 (i.e. Inter-sate migration, Inter-state quarantine) as threat of this pandemic’s spread has seen large scale reverse-migration (from work to home) of the labour force across the country. If unchecked, the untiring efforts of our nation to control this pandemic may turn out to be futile.
Conclusion
Ordinance has been promulgated by the government at a crucial time when acts of violence committed against healthcare workers and they threatened to go to strike if laws relating to their safety are not enacted immediately. It is a welcome step by the government and one can hope that the ordinance is converted into an Act so the healthcare workers can work harder without fearing for their lives. It remains to be seen whether The Healthcare Service Personnel and Clinical Establishment (Prohibition of Violence and Damage to Property) would be passed by the Parliament to ensure the safety of healthcare workers.
[i] Swagata Yadavar and Apoorva Mandhani, Modi govt is using two laws to tackle coronavirus spread. But one of them needs changes, ThePrint, (23rd March, 2020), https://theprint.in/theprint-essential/modi-govt-is-using-two-laws-to-tackle-coronavirus-spread-but-one-of-them-needs-changes/386052/
[ii] Ibid
This article is written by Naman Sharma & Piyush Agrawal of HNLU, Raipur.
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