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A law to protect the protectors

This article has been written by Prasad Hedge of Gujarat National Law University, Gandhinagar.

Introduction

When a nation faces a threat to its existence, it fights back as a unified being. The Covid-19 crisis is one such threat that has brought many nations down on its feet. It is arguably the biggest threat that nations have faced in the past few decades. It is so because it not only impacts human life and the economy but also depicts the sorry state of affairs how grave poverty and unemployment are, especially in the subcontinent. In these challenging circumstances, India has managed to emerge as a global leader in taking resilient measures to face the pandemic and has set an example to the outside world.

However, in this time of distress, the nation’s healthcare workers such as the doctors, nurses, paramedical staff, hospital staff, etc are our soldiers on the frontline, guarding us against the onslaught of the deadly virus. It is disheartening to see that although the lives of our healthcare workers are at threat, they continue to serve the nation round the clock. There have been reports surfacing on the media about heinous acts of abuse and physical violence on the healthcare workers who are selflessly discharging their responsibilities.

Past Instances of Violence

There have been numerous instances of verbal and physical violence which have been reported. In the Ranipur area of Indore, healthcare workers were attacked by a mob of angry locals which resulted in injuries to two women doctors. In a similar incident in Bareilly, a team of Auxiliary Nurse-Midwives (ANM) was attacked by a 42-year-old man. This is not all, ASHA workers (Accredited Social Health Activists) deputed by the Karnataka Government were attacked in the Sadiq layout area of Bangalore. These incidents show that the lives of health care workers are at threat even during these critical times.

Another challenge looming large is the disposal of bodies of the health care workers who succumb to the deadly virus. The Hon’ble Supreme Court in Paramanand Katara v. Union of India has held that a right to dignity is not only available to a living person but is also applicable to his dead body. The court held that a right to decent burial is a part of Right to life (Article 21) of the Constitution. However, a shameful incident occurred on 19th of April, 2020 when Dr Simon Hercules, a Neurosurgeon passed away fighting the corona pandemic. A few locals denied a decent burial by pelting stones on the ambulance which was carrying his body. His family was also attacked which made them unavailable when the last rites of Mr Hercules was performed.

The Ordinance

In order to tackle the extra-ordinary circumstance, the Cabinet approved an ordinance under Article 123 of the Constitution to amend the Epidemic Diseases Act, 1897 (the Act). The ordinance has made an attack on medical staff and causing of hindrance in peaceful burial a punishable offence with imprisonment ranging from 3 months to 5 years and fine ranging from INR 50,000 to INR 2 Lakh. A noteworthy provision is that the investigation into the offence is to be completed within “30 days”. Court proceedings are also to be disposed of within twelve months. Further, in case of damage of property, the miscreants would have to pay double the market cost of the damaged assets. An important aspect to be noted here is that “public health” is traceable to Entry 6 of List II which is a state subject matter to legislate upon as per Schedule 7 of the Constitution. However, as per Article 253 of the Constitution, the parliament has the power to make laws for any part of India in order to implement a decision taken by an International body. In this case, it is the decision of the World Health Organization which has declared the Covid-19 as a global pandemic. Therefore, the parliament has the legislative competence to amend the Act.

Position in other Nations

It is interesting to note that, such offences are punishable across other jurisdictions in the world. In The United Kingdom, prevention of a lawful and decent burial of a human body is an offence under the Common law and is punishable with life imprisonment or fine or both. Such offences are known as offences against public morality and policy. Further, paragraph 4.12 (c) of the Code for Crown Prosecutors states “a prosecution is also more likely if the offence has been committed when a victim was at the time a person serving the public.” Even the Sentencing Council’s Definitive Guideline on Assault, states that ‘Victim was providing a public service or performing a public duty at the time of the offence’ is clearly an aggravating factor. In Canada, Article 182 of the Canadian Criminal Code punishes a miscreant who “improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not”, for a maximum period of five years.

The English Courts have also stepped up at the right time and provided relief to the doctors. A few case examples are as follows. The Court of Appeal in R v. Parry (1986), punished the appellants for an offence to prevent the burial of the deceased. In R v. Hunter (1974), a Queens Bench of the UK also upheld the same. In R v. McNally (2000), the Court of Appeal upheld the Appellant’s sentencing of imprisonment since he had physically assaulted a doctor on service. In R v. McDermott (2006), the appellant was slapped a 15-month imprisonment sentence for physically assaulting an ambulance crew member. Finally, in R v. Eastwood (2002), the Court of Appeal upheld a twelve-month imprisonment sentence for violence against nurses and paramedical staff too.

Conclusion

The present ordinance was the need of the hour since the war against the pandemic has already cost the world about 5 lakh lives. The war can be won only when our cavalry i.e., health care staff are adequately protected. The law might work as an effective deterrent and would also instil a sense of confidence in our health care professionals. However, before we thank the Government over the new law, it is important to note that firstly, the ordinance is not a permanent solution. The law will only protect doctors who are working in times of an epidemic. But, the problem of violence faced by doctors is not restricted only to such extraordinary times. A peculiar circumstance might occur if a few states decide to make the Act inapplicable. This would result in doctors of a few states having better protection than others. Secondly, frequent violence against doctors might show declining trust in doctors. The law might reduce the violence but might not solve the root of the issue i.e., distrust. Lastly, the offence is a non-bailable one, which means that bail is not available as a right and the burden to prove that the offence is not committed, is on the accused. Therefore, the new ordinance with its noble intentions comes with its own drawbacks.

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