The Central government has today promulgated an Ordinance to amend the Epidemic Diseases Act, 1897 to make attacks on doctors and healthcare workers a cognizable and non-bailable offence.
Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19
Why Now ?
- During the current COVID-19 pandemic, there have been instances of the most critical service providers i.e. members of healthcare services being targeted and attacked by miscreants, thereby obstructing them from doing their duties.
- This has led to cases of their stigmatization and ostracization and sometimes worse, acts of unwarranted violence and harassment.
- Such a situation tends to hamper the medical community from performing their duties to their optimum best and maintaining their morale, which is a critical need in this hour of national health crisis.
Why an Epidemic Diseases Act, 1897 Ordinance ?
- Several States have enacted special laws to offer protection to doctors and other medical personnel in the past.
- However, Covid-19 outbreak has posed a unique situation where harassment of the healthcare workforce and others working to contain the spread of the disease has been taking place at all fronts, in various places including even cremation grounds.
- The existing state laws do not have such a wide sweep and ambit.
- They generally 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.
Promulgation of an Ordinance
- In this context, the Union Cabinet has approved promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 to protect healthcare service personnel and property including their living/working premises against violence during epidemics.
- The President has given his assent for promulgation of the Ordinance.
Highlights of The Epidemic Diseases (amendment) Ordinance, 2020.
- The Ordinance provides for making such acts of violence cognizable and non-bailable offences and for compensation for injury to healthcare service personnel or for causing damage or loss to the property in which healthcare service personnel may have a direct interest in relation to the epidemic.
- Violence is defined in the Ordinance will include harassment and physical injury and damage to property.
- Healthcare service personnel include:
- Public and clinical healthcare service providers such as doctors, nurses, paramedical workers and community health workers;
- Any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof;
- and any persons declared as such by the State Government, by notification in the Official Gazette.
- The penal provisions can be invoked in instances of damage to property including a clinical establishment, any facility identified for quarantine and isolation of patients, mobile medical units and any other property in which the healthcare service personnel have direct interest in relation to the epidemic.
- Commission or abetment of such acts of violence shall be punished with imprisonment for a term of three months to five years, and with fine of Rs.50,000/- to Rs.2,00,000/-.
- In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/-.
- In addition, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.
- Offences shall be investigated by an officer of the rank of Inspector within a period of 30 days, and trial has to be completed in one year, unless extended by the court for reasons to be recorded in writing.
- Looking at the interventions required during the current Covid-19 outbreak, the Central Government has been given a concurrent role with the State Governments to take any measures that may be needed to prevent the outbreak of an epidemic or the spread thereof. In addition, the scope of inspection of vessels arriving or leaving the country has been enlarged to include road, rail, sea and air vessels.
- Presumption of Guilt in Grievous Hurt Cases
- Generally, in criminal law, the burden of proof is on the prosecution to prove beyond reasonable doubt that a person has committed a criminal offence.
- By reversing this burden of proof, the ordinance will require those tried in grievous hurt cases to prove, beyond reasonable doubt, that they did not commit the offence, or did not have the required mental state to do it.
- One argument can be will after the vulnerable and marginalized.
Way Forward :
- The health workforce are our frontline soldiers in battling the spread of Covid-19. They put their own lives at risk in order to ensure safety of others.
- It is hoped that this Ordinance will have the impact of infusing confidence in the community of healthcare service personnel so that they can continue to contribute to serving mankind through their noble professions in the extremely difficult circumstances being witnessed during the current Covid-19 outbreak.
Some thoughts and Questions on The Epidemic Diseases (amendment) Ordinance, 2020:
- It is the ‘Certainty, Not Severity of Punishment Deters Crime’ It is not severity of sentence but certainty of punishment that deters crime. Do you Think this ordinance will be implemented effectively?
- When rule of law looses its respect in any direction it impacts us in myriad ways !
- Quick decisions by government will boost the morale of the Health service personnel, but infrastructural support is even more essential ?
- It’s only temporary and applies during epidemics … need long term and permanent act ?
- Behavioral changes and awareness ?
- Awareness about stigmatization and believing fake news and superstitions.
- We cannot one side encourage superstitions and fake news and on other hand believe people to not do bizarre stuff .
- He didn’t deserve this: Chennai doctor shares trauma of having to bury friend who was denied burial by mob
- Eg: AYUSH Ministry validating COVID-19 ”cure” relayed to Goa teacher via apparition! (I hope it’s fake news)
- Please add more dimensions !
- Section 2 (c) of the Criminal Procedure Code, 1973 defines Cognizable offences.
- Cognizable offence/case means a case in which, a police officer may arrest without warrant, as per the First Schedule of the Criminal Procedure Code, 1973 or under any other law for the time being in force.
- Cognizable offenses are usually offenses which are serious in nature.
- For cognizable Offences, a Police Officer can take cognizance without permission or order from the Magistrate.
- If among two or more offences one offence is cognizable then the whole case shall be deemed to be a cognizable case.
- Cognizable offences are offences for which punishment is imprisonment for 3 years or more.
Ordinance making powers of the President (Read Laxmikanth)
- Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.
- An Ordinance may relate to any subject that the Parliament has the power to legislate on.
- Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists.
- Thus, the following limitations exist with regard to the Ordinance making power of the executive:
- i. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
- ii. Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.