On April 22 came the ordinance from the President of India, approved by the Cabinet, amending the Epidemic Diseases Act, the colonial era law which has been invoked due to the outbreak of COVID19 epidemic. While containing the disease and treating is and should be the primary focus of the government, these are not the only issues that have besieged India since the lockdown.

Issues like dissemination of fake news, attempts to disturb communal harmony, promoting enmity between religions, blatant misinformation pose formidable challenges in the fight against COVID19. Yet, the government has selectively chosen to address one issue, that of violent attacks against on-duty health care workers. There is no denying that health care workers are on the frontline and the most important functionaries during this health crisis and protecting them should be the top priority of the government.

The central government, has, however, gone a tad bit further in doing that by amending the Epidemic Diseases Act via the ordinance route and introducing long prison sentences and hefty fines as punishments for attacks on health care workers.

Section 2B has been inserted which says that, “No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic.”

In section 1A the terms “acts of violence” and “healthcare service personnel” have been defined. While the term “healthcare service personnel” has been defined to include not just primary health care workers such as doctors, nurses and paramedics, but also workers at community level like ASHA workers who are also contributing considerably, and any other person so empowered by the government.

The terms “acts of violence” includes not just causing hurt, but also includes acts of harassment and causing hindrance as well as damage to their property.

These definitions have clearly drawn influence from real incidents that have taken place in various parts of the country where health care workers have been attacked with stones, ambulance drivers have been injured, doctors who come to containment zones to test people for the disease have been chased away. The magnitude of the problem cannot be denied, yet the weightage given to these offences are incongruent with existing criminal laws in the country.

There are two ways of looking at the way the offences have been dealt with. One can say that the hefty fine and the long term of imprisonment can prove to be a serious deterrent to future offenders and the other view point is that it can become a tool of harassment at the hands of law enforcement agencies. Naturally, all acts of violence against health care workers will now be classified under this new ordinance, making it easier for the police to book offenders and take urgent cognizance of such incidents. The same thing happened when lockdown was initiated and government order directed that violators of lockdown be booked under section 188 of the Indian penal Code which has a minor punishment of 1 month of imprisonment and Rs. 1,000 in fine. The police started booking hundreds of people under this section. Albeit, the scope for misuse here is much more since the crime need not be defined very clearly under section 188.

There is also no denying that there is some scope for misuse under the offences defined in the ordinance as well; since a mere act of causing hindrance to a health care worker can also be deemed to be an act of violence, for which the punishment is minimum 3 months and maximum 5 years and fine of at least Rs. 50,000 which may extend up to 2 lakhs.

Additionally, if found guilty by the court, the convict will have to separately pay compensation to the complainant.

In absence of the ordinance, a person committing such an offence of causing “hurt” would be booked under section 323 of the Indian Penal Code – Punishment for voluntarily causing hurt

—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

It is only causing grievous hurt that invites a much harsher punishment even in the IPC. Grievous hurt is defined in IPC to include heinous acts like emasculation, privation of sight, hearing, limbs, disfigurement of face and such other. The punishment for grievous hurt is up to 7 years and fine, which is to be decided as per discretion of the court. On the other hand, punishment for grievous hurt under the ordinance is up to 7 years and the fine ranges from 1 lakh to 5 lakhs, plus compensation as mentioned before.

Clearly, the ordinance has made a less grave offence into a grave offence by according more punishment to just causing hurt. Also, causing hurt is a bailable and non-cognizable offence under the IPC, while it has been made non-bailable and cognizable under the new ordinance, which specifically aims to protect health care workers during this epidemic.

This ordinance may have come as a relief to doctors, nurses and other health care workers who are on the frontline, risking their lives, but it surely is not in tandem with the existing criminal laws in India. Whether the escalation of these offences prove to be deterrent, is something only time can tell.

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The Central government on April 22 promulgated an ordinance to protect and give a sense of security to frontline workers in the fight against COVID19. Since the outbreak of the disease in India, there have been news reports of incidents whereby healthcare workers who are working on the frontlines, are being attacked by locals while they do their duty.

Several such incidents and the growing insecurity amongst the healthcare community prompted the central government to issue this ordinance which is effectively an amendment to the Epidemic Diseases Act; the colonial era law which has been invoked to give special powers to states so that they can combat and contain the epidemic.

The ordinance is called the Epidemic Diseased (Amendment) Ordinance, 2020, which is to be enforced ‘at once’. The amendment has added section 2B to the Act which deals with prohibition of violence against health care service personnel and damage to property. The section reads as follows:

2B. No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic.

The punishment for this act is mentioned in newly inserted section 3(2) which states that whoever commits or abet the commission of act of violence of damage to property will be punished for minimum 3 months and maximum 5 years and fine of at least Rs. 50,000 which may extend up to 2 lakhs.

Further, if any grievous hurt is caused to the healthcare service personnel, then the punishment will be minimum 6 months and maximum 7 years with fine of at least 1 lakh which may extend to 5 lakhs. Additionally, the accused, if convicted, of any of these offences, shall also pay compensation for causing hurt and/or for damaging property.

The definition of ‘act of violence’ and ‘health care service personnel’ is provided in newly inserted section 1A:

a. “act of violence” includes any of the following acts committed by any person against a healthcare service personnel serving during an epidemic, which causes or may cause-          

i. harassment impacting the living or working conditions of such healthcare service personnel and preventing him from discharging his duties;

ii. harm, injury, hurt, intimidation or danger to the life of such healthcare service personnel, either within the premises of a clinical establishment or otherwise;

iii. obstruction or hindrance to such healthcare service personnel on the discharge of his duties, either within the premises of a clinical establishment or otherwise; or

iv. loss or damage to any property or documents in the custody of, or in relation to, such healthcare service personnel.

b. “healthcare service personnel” means a person who while carrying out his duties in relation to epidemic related responsibilities, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease and includes-

i. any public and clinical healthcare provider such as doctor, nurse, paramedical workers and community health worker

ii. any other person empowered under the Act to take measures to prevent the outbreak of the disease of spread thereof; and

iii. any person declared as such by the State Government, by notification in the Official Gazette.

The offences of act of violence as well as causing grievous hurt under this law, have been made cognizable and non-bailable, but compoundable. Which means the person committing these offences can be arrested without a warrant and cannot get bail by default but the complaint can be withdrawn by the complainant. The investigation is directed to be completed within 30 days of registration of FIR and the trial, within one year.

The ordinance is not just about defining offences against health care personnel or destruction of property. It also gives the Central government the power to make regulations to inspect any bus, train, goods vehicle, ship, aircraft and for detention of any person intending to travel or having travelled by these modes.

The complete ordinance may be read here

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