The Centre, on Wednesday, promulgated an ordinance to amend the Epidemic Diseases Act, 1897 [EDA]to punish those guilty of attacks on doctors and health care workers. It is apparent that the Centre considered the ordinance as a response to the reports of attacks on doctors and health care workers engaged in COVID-related work.
EDA is one of the two principal legislations currently used by both the Central, State and Union Territory governments to fight the pandemic. The other legislation is the Disaster Management Act, 2005.
Although the two legislations have been found to be largely inadequate to meet relevant concerns during a pandemic, the governments have no other choice as attempts to evolve an alternative and robust legislation have yet not yielded results.
The ordinance inserts Section 1A, which defines an “act of violence” against a health care service personnel serving during an epidemic as an act of harassment impacting his or her living or working conditions and preventing him or her from discharging duties. The “act of violence” may also include any harm, injury, hurt, intimidation or danger to the life of such personnel, either within the premises of a clinical establishment or otherwise. The “act of violence” includes obstruction or hindrance to such personnel in the discharge of his or her duties and loss or damage to any property or documents in his or her custody.
The ordinance defines a “health care service personnel” as 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. This, the ordinance says, includes any public or clinical health care provider such as doctor, nurse, paramedical worker and community health worker. The term “health care service personnel” may also include any person empowered under the EDA to take measures to prevent the outbreak of the disease or spread thereof, and any person declared as such by the State Government, by notification in the official gazette.
Section 2 of the Principal Act deals with the powers of State governments to take special measures and prescribe regulations as to dangerous epidemic disease. Section 2A deals with the powers of the Central government. Originally, this provision enabled the Central government to inspect any ship or vessel leaving or arriving at any port and its detention, including persons intending to sail therein or arriving thereby.
The ordinance supplants this entire provision with a new one, giving the Centre extra powers to inspect any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or port of aerodrome, as the case may be , and its detention including its likely and current occupants.
A new provision, Section 2B, has also been inserted, which says that no person shall indulge in any act of violence against a health care service personnel or cause any damage or loss to any property during an epidemic.
Section 3 of the principal Act originally said that any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code. The ordinance retains this, but also seeks to punish those committing or abetting an act of violence against a health care service personnel, or causing damage or loss to any property, with imprisonment for a term that shall not be less than three months, but which may extend to five years. Besides, those found guilty are also liable to pay a fine, which shall not be less than Rs.50,000, but which may extend to Rs.2 lakh.
In addition, the ordinance seeks to punish anyone causing grievous hurt to a health care service personnel with imprisonment for a term that shall not be less than six months, but which may extend up to seven years. The guilty shall also have to pay a fine, which shall not be less than Rs.1 lakh, but which may extend up to Rs.5 lakh.
The ordinance makes these new offences under the Act cognisable and non-bailable. It also requires that any case registered under these new provisions shall be investigated by a police officer not below the rank of Inspector, and that such investigation shall be completed within a period of 30 days from the date of registration of the First Information Report.
The ordinance makes it mandatory for inquiry or trial of such cases to be held as expeditiously as possible by ensuring day-to-day hearing, so as to complete it within a year, which could be extended by six months only for reasons to be recorded in writing.
The problematic part of the ordinance is that Section 3C of the Act, which has been inserted, reverses the presumption of innocence, which is the basis of our criminal jurisprudence, by shifting the burden of proving the innocence on the accused. Section 3D also enables the court to presume intention, motive, knowledge, or belief on the part of the accused to commit the violent act, and the burden is on the accused to rebut it. Section 3D says that the court can declare a fact to have been proven only when it believes it exists beyond reasonable doubt, and not merely when its existence is established by a preponderance of probability.
Section 3E also enables the court to determine the amount of compensation payable by the accused to the health care service personnel. In case of damage to property, the compensation payable shall be twice the amount of fair market value of the damaged property or the loss caused, as may be determined by the court.
The speed with which the Centre has promulgated the ordinance might have been considered necessary to reassure doctors and health care service personnel that the government has taken reports of attacks on them seriously and that those found guilty would not go unpunished merely for want of sufficient legal framework.
However, the ordinance, insofar as it clothes the government with draconian powers without any accountability during the pandemic, may be viewed with concern for its potential to be misused against political opponents or civil rights activists.
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