Siddhant Ranjan & Kartikey Gaur
The Ordinance to amend the Epidemic Diseases Act, 1897 highlights the need to bring back discourse on the Draft Bill criminalizing violence against healthcare workers
Doctors are often the targets of violent attacks from aggressors upon failing to save the life of a patient or being otherwise unsuccessful. This opens up doctors to a massive risk owing to the fact that not being able to save or cure patients is also an inevitable part of the profession. A certain lack of trust has developed with respect to widespread malpractice in the medical profession. There are several other reasons as well which have led to a situation wherein doctors are no longer trusted and are in fact blamed. Private hospitals are blamed for wrongdoing for financial gain, whereas government hospitals are blamed for gross inefficiency and incompetence. In fact, such violence can be attributed to a class war. These are obviously deep-rooted issues and will take a long time, perhaps decades, to be resolved. Until then, the responsibility to protect healthcare professionals must fall upon the law. While there do exist laws for the protection of healthcare workers in 19 states, research shows that these laws are ineffective to a large extent. Additionally, it cannot stand that in states which do not have such laws, there is no protection accorded to healthcare professionals. Therefore, a central legislation is the need of the hour.
To that end, the Ministry of Health and Family Welfare proposed a Draft Legislation titled “The Healthcare Service Personnel and Clinical Establishments (Prohibition of Violence and Damage to Property) Bill, 2019” (hereinafter referred to as ‘Draft Bill’). This Bill, however, faced opposition from the Ministry of Home Affairs at the stage of inter-ministerial consultations. Reportedly, MHA was of the opinion that there is no need for separate legislation and that the provisions of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) suffice. Ironically, after just about four months of the MHA rejecting this Bill, during the ongoing COVID-19 pandemic, an ordinance was passed bringing about an amendment to The Epidemic Diseases Act, 1897. This Ordinance enforced similar punishments for violence against healthcare professionals as were proposed by the Draft Bill.
This forces upon us the question as to why healthcare service providers must be accorded such protection in the circumstances surrounding an epidemic alone. Why is it that the provisions of the IPC and the CrPC are deemed to be insufficient only when medical professionals assume a more pronounced and enhanced role?
It is very clear that the Draft Bill sought very similar objectives at a time when the world was yet to experience the COVID-19 pandemic. Bringing in provisions and punishments which remain active only through the course of the pandemic seems like a stop-gap and temporary solution to a long-standing and serious problem. Figures from an IMA study are cause for immense concern. This deadly virus must serve as a reminder for the need to bring back discourse on the Draft Bill.
In order to substantiate the need for a separate legislation, we must first understand how and why the provisions of the IPC are insufficient when it comes to the protection of healthcare professionals from violence.
Section 3(d) of the Draft Bill lists out what violence means for the purposes of the Bill. Looking up all of these offences in the IPC gives an impression that if the victims are healthcare professionals, the quantum of punishment is not proportionate. The punishment for assault or criminal force otherwise than on grave provocation is imprisonment for a mere term of up to 3 months and/or a fine of Rs. 500. Criminal intimidation, which appears to be used frequently against doctors, carries a maximum punishment of imprisonment for up to 2 years and/or a fine. Only if the criminal intimidation is of a more serious nature as described by the IPC in Section 506, does the punishment go up to up to 7 years and/or a fine. Hurt carries imprisonment for up to 1 year and/or a fine of up to Rs. 1,000. Grievous Hurt carries up to 7 years imprisonment and a fine and it increases to up to 10 years only if the grievous hurt is inflicted using a dangerous weapon. It can be seen that the quantum of punishment comes close to or is equal to what was proposed in the Draft Bill only in case of a few offences.
Offences like Hurt, Criminal Intimidation, Assault, Criminal Force, etc. are commonly charged in such cases and none of these is cognizable or non-bailable. This takes away a lot from the deterrent value of the punishments. Section 7 of the Draft Bill proposes that all offences under it shall be cognizable and non-bailable.
While the punishments and provisions of the IPC and the CrPC may seem fair and proportionate otherwise, the special circumstances must be recognized if the victims are healthcare professionals. The extraordinary role played by doctors has also been recognised by the Uttarakhand High Court, which took cognizance of the fact that Doctors risked their lives while discharging their duties. The seriousness of the crime itself must be treated as having been elevated in such cases. This is the reason why attacks on healthcare professionals are considered to be aggravating factors in various countries around the world.
In England and Wales, there exists a distinct legislation, ‘Assault on Emergency Workers (2018) Act’, which provides for greater punishment for violence against emergency workers (which includes healthcare workers) by recognising such attacks as aggravating factors.
In Australia, the Sentencing Procedures Act under Section 21A designates any offence committed against healthcare workers as an aggravating factor while sentencing. In addition, the Criminal Code Act Compilation Act 1913 under Section 297 clearly provides for a higher quantum of punishment for Grievous Bodily Harm if committed against healthcare workers. Furthermore, under Section 318 of the same act, there exist provisions which provide greater punishments for Serious Assault against public officers including healthcare workers.
In the USA as well, there is a federal law in the works to protect such interests of healthcare workers. The Bill remains pending at the Senate. Regardless, there do exist numerous state laws to protect healthcare workers. For instance, in the state of Arizona, if an assault is committed against a healthcare worker, it is designated as Aggravated Assault and carries a much higher punishment.
The fact that such varied jurisdictions across the world have identified that violence on healthcare workers does necessitate a greater quantum of punishment, it becomes imperative for us to recognize this as well on a permanent basis instead of just bringing out an ordinance. Adopting this legislation ensures that the laws protecting our doctors are emphatic enough to accord them the protection which their noble profession deserves.
The Draft Bill, in addition to fixing punishments for violence, has also stipulated for compensation to be provided over and above the fine payable. Section 9 of the Draft Bill holds that double the fair price of the damaged property or loss caused is to be paid as compensation. Compensation of Rs. 1 Lakh for causing hurt and Rs. 5 Lakh for causing grievous hurt is also stipulated. This compensation is punitive in nature which adds to the immense deterrent value sought to be added to offences against healthcare professionals. In addition, research also shows that what victims want the most is to receive compensation from the offender himself. None of the existing provisions of the IPC speaks of compensation to the victim at all. The Draft Bill thus purports to provide more than enough reparation to the victims while also extracting a fine and sentencing to imprisonment in case of conviction. Passing an enactment as strong as this one would go a long way to solving the problem.
Another angle which must be examined is that there are certain provisions under the IPC which do protect government doctors to some extent. Sections 186, 332 and 353 are the provisions which work towards protecting public servants from actions or violence deterring them from performing their duties. Government doctors, who are classified as public servants, are covered by these Sections. Section 332 provides for the maximum punishment out of the three aforementioned sections, i.e., an imprisonment of either description for up to 3 years and/or a fine; which is again insufficient. Additionally, it does not seem proper that only government doctors are so protected. Doctors and healthcare professionals working for private hospitals or in private practice are also in need of protection; which the Draft Bill does provide.
Every crime cannot be put on a similar pedestal and nor should they be punished equally. There exists a difference in the quantum of punishment, depending on a variety of aggravating and mitigating factors. Healthcare professionals are an important pillar of our society and they must not remain in fear of suffering at the hands of rogue elements merely on account of doing their job. An obvious knock-on effect of such fear is that students would not want to pursue a career in healthcare. This would consequently lead to degradation in the already below-par health services available in India. Violence against doctors must be discouraged vehemently and adopting the increase in the quantum of punishment among the various other provisions as proposed is the least that can be done.
The authors are second-year B.A. LLB students at the West Bengal National University of Juridical Sciences, Kolkata.
Picture Credits: The Guardian
Click on the book images below to make your Amazon purchases. All affiliate commissions earned are donated to Stranded Workers Action Network.
Categories: Legislation and Government Policy