For the first time, the Healthcare Service Professional and Clinical Establishments (Prohibition of Violence and Damage to Property) Draft Bill addressed violence against healthcare professionals at the national level.It criminalised both the commission and incitement to commission of violence against healthcare professionals and damage to the property of clinical establishments.
However, it never saw the light of the day. The bill was stalled, citing reasons that the existing provisions under IPC already covered the elements of ‘violence’ as defined in the Draft Bill.
The 2020 Amended Act defines ‘acts of violence’ committed by any person against the healthcare service professional serving during an epidemic as one, which may cause, harassment, hurt, injury, a hindrance to services, damage to property or documents in custody.
The statute also defines ‘health care professional’ and ‘property’, providing a wide ambit for better protection. Section 2B provides that no person shall indulge in any act of violence against a healthcare service professional or cause any damage or loss to any property during the epidemic.
Section 3(2) provides punishment for commission or abetment of commission of an act of violence. Section 3(3) deals with committing an act of violence against a healthcare service professional, causing grievous hurt as defined in section 320 IPC. Section 3A of the statute provides that the inquiry or trial must conclude within a year.
If not concluded within the given time period, the judge must record the reasons for the delay and extend the time period accordingly. However, this period may not be extended for more than six months at a time.
When prosecuting a person for causing grievous harm to a healthcare service professional, the Court will presume that person is guilty of the offence unless the contrary is proved. In any prosecution for an offence under Section 3(3) requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state. Still, it shall be a defence for the accused to prove that he had no such mental state with respect to the Act charged as an offence in that prosecution.
In addition to the punishment provided for an offence, the person so convicted shall also be liable to pay, by way of compensation, as may be determined by the Court for causing hurt or grievous hurt to any healthcare service professional.Moreover, in case of damage to any property or loss caused, the compensation payable shall be twice the amount of fair market value of the damaged property or the loss caused.
The Need For A Balanced Approach: Analysing The Existing Laws For Violence Against Health Care Professionals
Ordinances are valid only for a few months. When it is not in session, the parliament has six months to pass any immediate legislative as needed.
The Epidemic Diseases Ordinance 2020 was converted into an Amendment Act in September 2020. Strict laws under the Ordinance, given the medical emergency that the country faced during the pandemic, might be reasonable. However, making it a law, in general, could do injustice to a common person.
The Amendment was enacted to curb multiple incidents of violence despite us having the IPC provisions and the Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Acts or the MSPMSI Acts in several states. Even though the provisions therein are similar to the existing statutes. The same was justified to counter the need for proper and stricter implementation of such laws. Even though the provisions therein are similar to the existing laws.
Section 3C and 3D of the Act provides for ‘presumption to be guilty of the offence unless proved otherwise by the accused defendant’.
Section 3D states that the culpable mental state of the prisoners will be presumed to exist unless disproved. As per sub-clause 2 of Section 3D, the same has to be proved ‘beyond reasonable doubt’.
These regressive clauses seem unfair and draconian. Presumption mixed up with such a high degree of proving innocence may lead many innocents behind bars. Similar provisions exist under the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act), wherein the initial set of facts must be proved by the prosecutor initially, instead of completely shifting the entire burden to the accused under the Epidemic Diseases (Amendment) Act.
Though the Act has not come into force in every state yet, the concern is genuine.
Besides, despite the amendments, the Act has serious limitations. One that cannot be overlooked is that the principal Act is more than a hundred and twenty years old. And it does not address the current issues, including- the dangerous epidemic diseases, global connectivity, closed urban spaces, greater migration, new communicable diseases and affected population across different age groups.
It could be why the IMA has urged Amit Shah to ratify a uniform, effective and comprehensive law against such violence on the health care workers. It can’t be said enough, India needs a modern framework to tackle a pandemic of this scale.
Oppressive measures under the Epidemic Amendment Act can worsen the situation by creating a sense of disaffection and resentment among people. Passing legislation like these to protect the health care workers might end up hurting many innocents.
There can always be ways to have a balanced approach to deal with these issues. For instance, in Abdul Naser v. State of Kerala, the High Court of Kerala discussed what is already provided under the state legislation. While considering the application for anticipatory bail, the Court observed that three factors must be considered in such cases.
- The nature and gravity of the injury, if any, sustained by the doctor/hospital employee.
- The extent of damage, if any, caused to the property.
- The circumstances under which the acts of violence were committed.
These factors can help take a holistic view of the offence committed by the accused by providing provisions for anticipatory bail, which is one of the most crucial remedies. The same provides an outline that could be implemented to omit any vagueness and imbibing reasonability.