The Ordinance to protect healthcare workers has draconian provisions

On April 22, 2020, the President of India, through the power granted to him under Article 123 of the Indian Constitution, promulgated an Ordinance to amend the Epidemic Diseases Act, 1897.

The amendment comes as a response to the multiple incidents of violence against healthcare workers during the COVID-19 pandemic, which led to doctors seeking more protection.

The mainstream reporting has lauded the amendment brought through the Ordinance. Some have even argued that the protection provided through the amendment should be extended post-pandemic as well. However, certain aspects surrounding it have been overlooked by many and need to be analyzed.

For starters, legal safeguards already seem to have existed through provisions of the Indian Penal Code, 1860 (IPC), and Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Acts [MSPMSI Act], in several states, which has similar protections. It is rather the implementation of these laws which was lacking.

Yet, in the celebration of the Ordinance by its proponents, certain draconian and even unconstitutional provisions have been overlooked.

Existing Legal Safeguards

The offences committed against healthcare workers are already covered under Chapter XVI of the IPC. Section 323 provides for punishment for hurt which is imprisonment up to one year and a fine up to Rs. 1000. The offence is non-cognizable and bailable, meaning that the police needs to get an order from the court to start an investigation against the culprits, who have a right to be released on bail. This is understandably problematic in handling instances of violence against medical personnel around the nation.

Besides the offence of causing ‘simple’ hurt, the graver offences such as ‘grievous hurt’ are cognizable and non-bailable, and thus, more effective in dealing with the situation at hand. However, the violence needs to match the threshold of these sections, which might not always be the case.

The MSPMSI Acts already exist in several states. The substantial provisions of this Act as well as the promulgated Ordinance are the same: violence against any healthcare worker is a cognizable and non-bailable offence; and any damage to property can be recovered from the culprit.

The shortfall, admittedly, is that the Act is not enacted nation-wide and there are some states left uncovered. In 2019, a draft bill was introduced to safeguard the rights of healthcare workers. However, the bill is still pending.

Besides the provisions of the IPC above, there are several other sections that prohibit use of violence and provide for strict punishments. For instance, collective use of violence by more than five persons constitutes ‘rioting’.

It could perhaps be argued that the punishments under IPC are inadequate to be an effective deterrent. Still, a pertinent question arises: why add draconian provisions to the Epidemic Diseases Act, rather than fixing the defects in the IPC? Alternatively, why not enact the MSPMSI Act nation-wide (with necessary additions)?

Provisions of the Ordinance

In order to make the punishment stricter and create a sufficient deterrent effect, certain definitions of offences have been inserted in the Epidemic Diseases Act. In addition, the power to investigate and prosecute has also been broadened.

Section 1-A has been inserted to extensively define “act of violence” to include harassment, harm, injury, intimidation, danger, obstruction to healthcare personnel in performing their duties and loss or damage caused to the property or to any documents in the custody of or in relation to healthcare professionals.

The charging section for the offence which covers any act of violence against healthcare workers is Section 3(2). The offence attracts an imprisonment for minimum 3 months, which may go upto 5 years. It also attracts a fine of minimum fifty thousand rupees which can go up to 2 lakh.

Similarly, Section 3(3) provides for punishment in cases where the perpetrator has committed grievous hurt as defined under Section 320 of the IPC. The punishment has been set between a large bracket of minimum 6 months’ imprisonment to a maximum of 7 years. The fine imposed on the guilty perpetrator will be between a minimum of Rs. 1 lakh to a maximum of Rs. 5 lakh.

Both these offences are cognizable and non-bailable. Moreover, the offence must be investigated by an officer who holds the rank of an inspector or above. The investigation of the offence has to be done within a period of thirty days and the trial against the accused has to be conducted expeditiously, with an endeavor to wrap up the inquiry or trial within a period of one year.

Further, Section 3E provides that conviction under Sections 3(2) and 3(3) may result in creating a civil liability on the perpetrator, where they are liable pay a compensation (to be determined by the Court) to the victim, which is in addition to the fine to be paid to the State.

Reverse Burden of Proof: Taking it too far?

Let us for a moment assume that these highly stringent measures are the need for the hour. Let us even assume that the punishments imposed are not excessive in nature against the prescribed offences. We may conclude that everything in the Ordinance seems to reasonably work towards creating deterrence, until one reaches Sections 3C and 3D.

The provisions may remind you of Alice and Wonderland’s infamous quote “the hurrier I go, the behinder I get”.

In a hurried attempt to safeguard the rights of the healthcare workers, the government has crossed the line of progressive legislation and has landed the Ordinance in draconian territory, so much so that it might fail Constitutional tests.

The Ordinance could have been the first step towards ensuring protection to healthcare workers permanently – even beyond the pandemic. Instead, what the government has created is a clone of already existing and repealed draconian laws by inserting a reverse onus clause.

Section 3C of the amended Act states that an accused who is being prosecuted for an offence under Section 3(3) (grievous hurt to healthcare workers) will be presumed to be guilty of the offence, unless proved otherwise by the accused-defendant.

Section 3D makes things worse. Sub-section 1 of Section 3D states that the culpable mental state of the prisoners will be presumed to exist in prosecutions related to Section 3(3). For an accused-defendant to rebut these presumptions, they would have to prove it “beyond reasonable doubt”, as per Sub-clause 2 of section 3D.

Clearly, Section 3C and 3D put the accused person in an alternative universe of criminal law. The provisions are a deviation from the principles of criminal law. For example, a prosecution for an offence under Section 320 IPC would generally require the prosecution agency (State) to establish a case against the accused. The legal burden for the State to make a satisfactory case would be to prove all the accusations against the accused beyond reasonable doubt.

That is to say, the story put by the prosecution is the only legitimate and provable story and there is not a shred of doubt that the accused has committed the offence. In addition, while establishing a case against the accused, it is incumbent upon the prosecution to prove the existence of mens rea or criminal intent. The Ordinance flips the principles of criminal law on its head.

A conjoint reading of Sections 3C and 3D make it impossible for a defendant to have a fair defence. The minute a person has been an accused, he has to prove his innocence, negate an inference of his criminal intent, and prove all accusations against him beyond reasonable doubt. Apart from accusing a person, the prosecution’s role has been boiled down to a mere spectator – while they watch the circus of reverse-onus unravel.

Both the Sections (3D and 3C) seem to be unconstitutional. Stringent legislations like Narcotics Drugs and Psychotropic Substances Act (NDPS) have similarly drafted reverse-onus clauses. However, the same are not as regressive as the one brought in the Epidemic Diseases Act.

To put things into context, let’s visit the landmark judgment of Noor Aga v. State of Punjab – where the reverse onus clause of NDPS Act was challenged.

Section 35 of the NDPS Act and Section 3D of the Epidemic Diseases Act are similarly worded. The Supreme Court in Noor Aga held that the initial set of facts have to be proved by the State, and only then would the presumption come into the picture. The State further must prove these initial facts beyond reasonable doubt. Once these initial facts have been proven, the burden will be on the accused to prove their innocence. The judgment further goes on to say that the burden of proving innocence by the accused has a threshold of preponderance of probability – a legal threshold which is far lower than one of “beyond reasonable doubt”.

Clearly, Section 3D(2) does not follow this approach. The section requires proving any fact in court with the threshold of “beyond reasonable doubt”. This means that not only must an accused negate the accusation of the State, he needs to be prove that he could not have committed the crime at all. Section 3D (2) thus appears to be flying directly in the face of the Noor Aga judgement.

The Ordinance is therefore an addition to a long list of draconian laws which are in force. Besides creating a deterring effect against a possible perpetrator, it might empower the State to use the Ordinance as a tool to curb free speech. Obviously, with time, the provision might be challenged for its unconstitutional nature.

Recently, the CPM has demanded the withdrawal of the two draconian provisions of the Act. The Ordinance is a glaring example of the mindset of the government with respect to its view on the well-enshrined ideas of liberty laid down in the Indian Constitution.

[One of the authors is law researcher currently working in the Delhi High Court. The co-author is a Lawyer practising in Delhi High Court and lower courts]