Coronavirus is a very deadly virus that came into existence in the last month of the year 2019. The consequences of the virus began to come to the fore at the beginning of 2020. By March, the whole world was suffering from the effects of the COVID-19. While the virus was at a nascent stage in India, it unleashed an era of deaths in European countries like Italy, where around a thousand people die of COVID-19 in a day. The Indian government was alarmed by the conditions prevailing in the other countries and imposed a timely lockdown. The lockdown provided ample time to the government authorities to ramp up testing and make arrangements for the infrastructure required in the hospitals to treat the COVID-19 patients.
In such a difficult time, the doctors and other healthcare workers faced harassment from the other sections of society. The Associations of Doctors protested against the harassment that the healthcare workers were facing and appealed to the government to take measures to protect the doctors and other healthcare workers. Realising the gravity of the situation, the central government advised the President to promulgate an ordinance under Article 123 of the Indian Constitution. This ordinance aimed to provide a safe environment and protection to healthcare workers. Later, this ordinance was approved by the Indian Parliament, which later gave birth to the Epidemic Diseases Amendment Act, 2020.
Background and History of Epidemic Disease Act, 1897
After the 1857 revolt, the rule of the East India Company was replaced by the rule of the British government. India came directly under the control of the Crown, and the viceroy was appointed as the Queen's representative in India. From that period, the British used to pass many bills to manage and regulate the affairs of India.
The 19th century is regarded as the age of pandemics. In that era, many epidemics or pandemics outbreaks occurred worldwide, and India was no exception. It is documented that the Bubonic plague broke out in September 1896 in the Bombay presidency. Within a few months, the plague spanned to the rest of the parts of the country. After four months of the plague breakout, Queen Victoria addressed the British Parliament and "directed her government to make the most stringent measures at their disposal for the eradication of the pestilence." This speech promoted the British officials to take some measures to curb the plague.
A week after the Queen's address, John Woodburn introduced the Epidemic Diseases Bill in 1897 in the Council of the Governor-General of India in Calcutta with the aim for the better prevention of the spread of the disease. The bill gives unbridled power to the government officials, and it is said that the "public should trust the government's discretion." The legislature passed the bill within a day and without much deliberation and discussion. Thus on 4th February, the bill became an Act. Earlier, the people of India welcomed the Act. Later they realised that the bill created more problems than solutions. Bal Gangadhar Tilak was one of the first who welcomed the bill and later expressed discontent. Many atrocities were committed in the name of the Act, like forcefully opening the shops and houses of the people, public stripping of men and women for inspection, and rough and ready methods employed by the troops to carry patients and relatives of the patients to the hospital.
Factors leading to the amendment of the Epidemic Diseases Act
India recorded its first coronavirus case in January. The situation was still under control. In March, the coronavirus cases began to rise, and the various state governments began to take steps to halt the spread. On 11th March 2020, Karnataka became the first state to adopt the Epidemic Diseases Act 1897. Later, various states also embraced the Act. On 24th March, Prime Minister Narendra Modi imposed a complete lockdown for 21 days.
In the initial phase of the lockdown, the critical health care workers had to face a lot of stigmatisation and ostracisation. There were also instances where the local people brutally beat the Asha workers who collected the samples for testing. In another instance, the deceased's family member refused to pay for the treatment and harassed the doctor and the staff. It hampers the efficiency and morale of the healthcare workforce to render service to the nation in such times of crisis.
Though various state governments have laws about protecting healthcare workers, they failed to do so. The main problem was that no unique and stringent legislation dealt with the protection of the healthcare workers. The actions that could be taken against these miscreants was under the relevant sections of the Indian Penal Code 1860.
In such a background, the government decided to bring an ordinance to protect the workers. In September, during the Monsoon Session, the Parliament approved the ordinance, and the bill became an Act.
Salient Provisions of the Epidemic Diseases Amendment Act, 2020
In this Act, many new sections and subsections are introduced that are analysed in serial order.
Amendment to Section 1 of the Epidemic Diseases Act, 1897.
In sub-section 2 of Section 1 of the principal Act, the words, figures and letters "except the territories which immediately, before 1st November 1956, were compromised in Part B" shall be omitted. It implies the Act applies to the entire country without any exception.
After section 1 of the Principal Act, a new section named 1A was inserted. This section aims to define various terms used later in the principal Act and the recently introduced Act.
Clause (a) of section 1A defines what an act of violence is.
An act of violence is defined as "any of the following acts committed by any person against a healthcare service personnel serving during an epidemic which causes or may cause." After this sentence, various other acts have been defined by the government. Here, by this sentence, the government wants to warn the people that if anyone tries to harm the healthcare personnel during an epidemic or pandemic, they are liable for punishment.
The government has prescribed various acts within the purview of section 1A of the Act.
It defines the harassment of healthcare personnel during a pandemic. It says that the person who harassed the personnel and caused problems to the personnel to discharge their functions, damaged the personnel's property, and impacted the personnel's living and working conditions; A person who commits such harassment is liable for punishment.
If a person harms, intimidates, or causes danger to the healthcare personnel either within the clinical premise of the personnel or any other place, such a person commits an act of violence against the healthcare personnel.
If a person obstructs healthcare personnel from discharging their duties, either within the premises of the clinical establishment or otherwise, they are liable to be punished.
Damage or loss to any property or document in healthcare personnel's custody about the discharge of the duty. This Act is also included in the definition of the act of violence.
Clause (b) of Section 1A defines the healthcare personnel and who comes under the preview of "healthcare personnel."
It defines healthcare personnel as "a person who while carrying out his duties about the epidemic relation responsibilities, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease and includes-"
The clause says that doctor, nurse, paramedical doctor and community health worker are to be included under the meaning of healthcare personnel. Healthcare personnel include persons empowered under the Act to take measures and those notified by the state government in the Official Gazette.
Clause (c) of Section 1A lays out what things are included under the definition of the property.
The property includes clinical establishment defined under the Clinical Establishment (Registration and Regulation) Act, 2010.
Any facility used to quarantine the people.
Any property which has the direct interest of the healthcare personnel about the epidemic
After section 2A of the principal Act, a new section 2B was inserted: Prohibition of violence against healthcare service personnel and damage to property; it states that "No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic."
Section 3 of the principal Act is renamed as the 3(1), and two new sub-sections, 3(2) and 3(3) are inserted.
Section 3(2) defines the punishment for the person who commits or abets an act of violence or causes damage or loss to the property. The term of imprisonment "shall not be less than three months, but which may extend to five years and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakhs."
Section 3(3) prescribes punishment for the person who commits a crime of grievous hurt against any healthcare personnel. Grievous hurt is defined under Section 320 of the Indian Penal Code.
As per this subsection, the accused "shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with a fine, which shall not be less than one lakh rupees, but which may extend to five lakhs."
After section 3, five more sections are inserted: 3A, 3B, 3C, 3D, and 3E. These come under the title "Cognisance, investigations and trial of the offences."
Section 3A of the Act defines the nature of the offences mentioned under 3(2) and 3(3) and defines the investigation procedure. It says that the offences under subsections 3(2) and 3(3) are cognisable and non-bailable. Cognisable offences are those offences for which police do not require any warrant or permission from the court to start the investigation and arrest the accused. Non-bailable offences mean that the bail can only grant the accused bail. Bail is subjected to the discretion of the court. It lays down that the investigation shall be investigated by the police officer, not below the rank of an inspector. An investigation shall be completed within thirty days of the registration of the First Information Report. It is mentioned in the section that the case proceedings will take place as soon as possible. It also mandates that once the process of hearing the testimony of a witness begins, the same shall continue on a day to day basis. The courts have the power to adjourn the process, but they have to provide a reasonable explanation for doing so. An "endeavour shall be made to ensure that the inquiry or trial is concluded within one year." It also says that if the trial is not completed within the prescribed period, the judge would have to record the reason for the same. The period cannot be extended to more than six months at a time.
Section 3B is the composition of certain offences.
As per this section, the accused can compound the case with the victim, but the court's permission is necessary. "With the permission of the court, be compounded by the person against whom such an act of violence is committed." Compoundable offences mean the complainant can compromise with the accused and agree to drop the charge.
Section 3C is a presumption as to specific cases.
Under this, the court shall presume that the person who has been accused is guilty of committing the offence. The concept of innocent until proven guilty is being reversed under the said Act.
Section 3D is the presumption of culpable mental state.
As per this section, the court presumes the existence of the mental state on the part of the accused. It will be the accused's responsibility to prove that he does not possess the culpable mental state. Here a culpable mental state may include "intention, motive, knowledge of the fact and the belief in, or for a reason to believe, a fact". In this section, to be "proved" means to be proved beyond a reasonable doubt.
Section 3E is the compensation for acts of violence.
In this section, it is ordained that the victims are entitled to get compensation from the culprit. It says that the "person so convicted is liable to pay, by way of compensation, such amount, as may be determined by the court." If the culprit damaged the victim's property, he is liable to pay double the value of the property damaged. Upon failing to pay the compensation, "such amount shall be recovered as an arrear of land revenue under the Revenue Recovery Act 1890."
Conclusion and Suggestions
The coronavirus pandemic has wreaked havoc on the entire world. To fight the pandemic, the Indian government has enforced the Epidemic Diseases Act, 1897. The intention of enforcing the Act was to control the spread of the disease. This Act gives some extraordinary power to the government officials to maintain public order and keep a check on the activities of the people. When the government found loopholes, it brought an ordinance to make specific changes in the Act to address such loopholes. When the Parliament met, it approved the ordinance, which is how the Epidemic Diseases Amendment Act, 2020, came into effect. The intention for bringing the amendment act was to protect the healthcare personnel. It might be the intention of the government that the amended Act might act as a deterrent. However, the root causes for such problems were not addressed in the amended Act. The Act has many provisions which are ambiguous and are subject to different interpretations. The interpretations of these clauses will vary from judge to judge. There will be no uniformity regarding the meaning of the clauses.
The government has passed the Act but has taken no steps to ensure that the Act gets implemented in letter and spirit. The police officers can misuse this Act to punish the innocents, and there is also the possibility that the cases might not get registered due to much corruption prevailing in the country.
Overall, the intention of the Epidemic Diseases Amendment Act is good, and if the Act gets implemented without any misuse, then surely India will win her war not only with the COVID-19 pandemic but also on other pandemics which may arise in the future, literal or figurative.