This article is written by Yash Singhal, from Vivekananda Institute of Professional Studies, New Delhi. This article aims to deal with the aspects of the Ordinance and how it prevents the spread of epidemics while protecting healthcare service personnel from acts of violence.
Article 123 of the Indian Constitution provides the President of India with the supreme power to promulgate an ordinance in absence of the Parliament. The power is available in only special cases, where the Parliament is not in session and it’s necessary for immediate action to be taken in that regard. The Epidemic Diseases Act, 1897 is the principal Act for the purpose of this article.
The Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated by following one such procedure to tackle the immediate cause of preventing the spread of novel coronavirus pandemic at the earliest while safeguarding the medical staff from any acts of aggression. It has been understood that these professionals are the ones risking lives with their duty to treat the infected patients without considering the social distancing principle to avoid contacting viruses.
What are the amendments enacted in the Ordinance? How do these amendments make this legislation efficient? Was there any need for the Ordinance with Epidemic Act, 1897 already existing? All of these questions have been answered in detail in this article.
Why do we need this ordinance?
The novel coronavirus pandemic has raised major concern over the health of every individual across the world. The virus transmits through human contact and hence, the social distancing theory is to be followed by each person in India. The health workers have been in the middle of the situation since its inception. They have been catering to the health concerns of every infected person, along with regular carrying out of tests to know who is infected.
They are in direct contact with the patient while providing treatment or conducting tests. They cannot restrict human contact to prevent themselves from getting infected. The Prime Minister, while acknowledging the sacrifices of these medical workers, addressed them as health warriors. They were also appreciated by the citizens through an act of banging utensils to show solidarity with them. This ordinance was passed keeping the interests of these health warriors in mind.
Details of the Ordinance
The ordinance has been named as ‘The Epidemic Diseases (Amendment) Ordinance, 2020’ by the government. It was promulgated on April 22, 2020, by the President of India. It has been passed in lieu of the existing century-old Epidemic Act which was considered outdated to cater to the current requirements. This ordinance is a step by the government to prevent the spread of the epidemic diseases, protect the health workers from all sorts of harassment and assault from the public.
Amendment to Section 1 of the Epidemics Act, 1897
Section 2 of the Amendment Ordinance has amended Section 1(2) of the Epidemics Act, 1897 to increase the scope of the jurisdiction of the Act. The omission of a certain clause took place from the principal Act regarding Part B states recognised before 1st November 1956.
Definition of the terms
Section 3 of the Amendment Ordinance states about the insertion of Section 1A to the principal Act. This section provides definitions of various terms for the purpose of the Amendment Act. Act of violence has been identified as an act of aggression against any health care service personnel serving during an epidemic.
There have been specific acts categorised under this ‘act of violence’, such as (i) harassment, (ii) harm, injury, hurt, intimidation or danger, (iii) obstruction in the discharge of duties, (iv) loss or damage to any property or documents in the custody of these workers.
The definition of ‘health care service personnel’ has been covered as someone carrying out his duties in regard to epidemic related responsibility, have the threat of direct contact with infected patients and at the risk of getting impacted by such disease. The people considered as healthcare service personnel are also provided in this provision, such as (i) public and clinical healthcare providers, (ii) any person empowered to take steps to prevent the outbreak, (iii) people declared as one by the state government.
Central Government powers
Section 4 of the Amendment Ordinance has amended Section 2A of the principal Act. It deals with the powers of the Central Government while enumerating areas where they can take measures, as it deems fit in relation to the Act. The government can regulate:
- Inspection of any ship, aircraft, bus, train or vessel leaving or arriving,
- Detention of any person intending to travel from the port, land port or aerodrome.
Protection of healthcare personnel
Sections 2B and 3 of the principal Act provides provisions to protect healthcare personnel during an epidemic and damage to property. Section 2B has been inserted in the principal Act under Section 5 of the Ordinance and Section 3 has been amended by Section 6 of the Ordinance. It specifies that no person can (a) commit or abet the commission of an act of violence, (b) abet or cause damage or loss to property.
Punishment for offence
Section 6(3) of the Ordinance states that the violation of this provision is punishable with imprisonment from three months to five years along with fine between fifty thousand to two lakh rupees. In case, the act of violence causes grievous hurt, the person committing the offence shall be imprisoned for a period between six months and seven years along with a fine between one lakh and five lakh rupees. The offences are cognizable and non-bailable under Section 3A(i) of the principal Act that has been inserted under Section 7 of the Ordinance.
Section 3A(ii) of the principal Act states that all the offences under the Act would be investigated by a police officer, not below the rank of an Inspector. The investigation shall be completed within a period of 30 days from the date of registration of the First Information Report under Section 3A(iii) of the principal Act.
Section 3A(iv) of the principal Act has provided the procedure for the trial of offenders under the Act. It states that a trial shall take place as efficiently and quickly as possible. In matters of examination of witnesses, when once begun shall be continued from day to day until all the witnesses present have been examined. This practice continues unless the court finds the adjournment of the same to be necessary for reasons to be recorded.
The trial needs to be completed within a year. When the trial is not concluded within the period of one year, the Judge shall record reasons for non-completion of the same. The said period can be extended on the discretion of the judge, where reasons have to be recorded in writing. The extension cannot exceed six months at a time.
Section 3B of the principal Act (inserted by Section 7 of the Ordinance) provides provisions for the composition of certain offences where the offences committed under the Act have to be compounded by the person against whom such act of violence has been committed, with the discretion of the court.
Section 3C of the principal Act, which has also been inserted by the Ordinance under Section 7, deals with presumption as to certain offences under the Act. In cases, where any person is prosecuted for committing an offence punishable under the provisions of the Act, the presumption by the Court would be that such person has committed such offence. The burden of proof lies on the accused to prove his innocence.
Presumption of mental state
Section 3D of the principal Act and inserted by the Ordinance deals with the clause regarding the presumption of the culpable mental state of the offender under this Act. An offender is required to have a culpable mental state, where the Court is tasked with the presumption of such a mental state of the accused. The accused can claim defence by proving the contrary that he does not have any such mental state with respect to the act charged as an offence.
Section 3E of the principal Act, that has been inserted by the promulgation of the Ordinance, states the provisions for compensation to the aggrieved party under the Act for acts of violence against them. The punishment has already been provided in the Act but to guarantee additional protection, the person convicted shall also be liable to pay compensation. The amount is determined by the court for causing hurt or grievous hurt to any healthcare service personnel.
In cases of damage to property or loss caused, the compensation payable is twice the amount of market value of the property destroyed, as determined by the court. If the convict fails to pay the compensation under the provisions of the Act, the amount can be recovered as an arrear of land revenue under Revenue Recovery Act, 1890.
Analysis of the Ordinance
The Epidemics Act, 1897 is century-old legislation which does not contain provisions to tackle the recent novel coronavirus pandemic which has claimed numerous lives and spreads with human contact. The current situation has never been witnessed in the past which has been evident by the nationwide lockdowns in almost every country across the world. It is an uncommon situation wherein the principal Act had 5 sections only and the Amendment Ordinance contains 7 sections.
The Ordinance is a measure towards providing stricter punishments for those who harass, assault or hurt the healthcare service personnel. The Ordinance has been successful in defining the acts that constitute acts of violence under this Act against the health care service personnel and damaging or loss of property by these acts. There have been supporters of the Central Government’s decision to not include healthcare service personnel within the scope of public servants in Section 21 of the Indian Penal Code, 1860, to prevent the applicability of more stringent existing penal provisions. The offences committed under this Act have been considered lower in intensity than those committed against the public servants, with the punishment for causing grievous hurt voluntarily to a public servant detering him from his duty under Section 333 of Indian Penal Code being imprisonment for ten years along with fine and on the other hand, it is seven years imprisonment for causing grievous hurt to healthcare personnel under this Act.
It is an established fact that the best form of deterrence in society is to have stricter punishments for that particular offence that is committed the most. This being the rationale behind the promulgation of this ordinance, it has identified various forms of offences committed against those who risk their lives to protect other citizens from the spread of epidemics. The respect for the sacrifices of these people among the citizens needs to be maintained, even if it’s through legal sanctions against those violating the provisions.
The fair chance of trial is provided to the accused under the doctrine of rule of law that states that every individual prosecuted for any offence shall be given a fair chance to prove its innocence. The accused will have the right to prove the contrary to the presumed fact of his guilt. The burden of proof, under this Act, lies on the accused to be in solidarity with the accusations of the nobel healthcare service personnel. It is a step towards a positive change in society regarding the spread of epidemics in emergency situations and the perspective revolving around those who stand at the frontline of these epidemics.
There have been critiques contending that the detention under this Act, of those leaving or arriving in the territory of India, would be in violation of Article 19(1)(d) and Article 21 against the right to freedom of movement and right to life and personal liberty respectively. It has to be noted that all fundamental rights are subjected to reasonable restrictions that can be imposed by the public authorities within the procedure established by law. The detention clause is well within the reasonability of the restriction imposed by the Central Government to prevent the spread of the epidemic in the country.
The government recognised the need to introduce legislation to regulate the spread of Epidemics and protection of medical practitioners from all sorts of acts of violence. The Epidemics Act, 1897 lost its relevance in the current situation due to the extremity of the pandemic and lack of provisions in the Act to deal with it effectively. The Ordinance was promulgated to cater to the rising concerns while laying down efficient provisions. It has dealt with every aspect of the spread of the epidemic and ways to restrict it while not compromising on the safety of the healthcare service personnel.
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