Sakshi of PRS Legislative Research discusses the government's ordinance-making power in the context of the National Food Security Ordinance in an Indian Express opinion editorial. On Wednesday, the Union cabinet approved the food security ordinance. The government has already introduced a National Food Security Bill in Parliament in December 2011. Parliamentary consideration on the bill has been initiated with the standing committee submitting its recommendations and the government proposing amendments to the law. After being listed on several occasions for discussion, members of Parliament began debating the bill in the last few days of the 2013 budget session. In spite of all this, the government has chosen to promulgate an ordinance. In all likelihood, Parliament will reconvene in a few weeks for the monsoon session. In this context, it would be useful to understand the ordinance-making power of government and its usage in the recent past. Under the Constitution, the power to make laws rests with the legislature. The executive has been given the power to make laws when Parliament is not in session and "immediate action" is necessary. In such scenarios, the president can issue an ordinance on the advice of the executive, to have the same effect as an act of Parliament. In the 1980s, the Supreme Court was confronted with a case where a state government repeatedly re-promulgated ordinances that had lapsed in previous assembly sessions. This led the SC to examine the ordinance-making power of government. The SC reasserted the constitutional principle that the primary law-making power rests with the legislature and not the executive. The executive is only given the legislative power to issue an ordinance to meet an "emergent situation". Such a situation arose in 2011 when, given that students were awaiting their degrees on the completion of their course, the government issued an ordinance to grant IIIT-Kancheepuram the status of an institute of national importance so that students could be awarded their degrees. Data over the last 60 years indicates that the highest number of ordinances, 34, were passed in 1993. Over the 15th Lok Sabha (2009-2013), there have been 16 ordinances, indicating a decline in the number of ordinances being issued every year. Once an ordinance is framed, it is to be laid before Parliament within six weeks of its first sitting. Parliament is empowered to either choose to pass the ordinance as law or let it lapse. Once the ordinance is laid in Parliament, the government introduces a bill addressing the same issue. This is typically accompanied by a memorandum tabled by the government, explaining the emergent circumstances that required the issue of an ordinance. Thereafter, the bill follows the regular law-making process. If Parliament does not approve the ordinance, it ceases to exist. The drafters of the Constitution created this check on the law-making power of the executive to reinforce the notion that law-making will remain the prerogative of the legislature. Earlier this year, in the aftermath of the Delhi gangrape, public pressure led the government to appoint a three-member committee under the late Justice J.S. Verma to suggest changes to laws relating to crimes against women. An amendment bill had already been pending in Parliament. In spite of this, the government brought in the Criminal Law Ordinance, giving effect to some of the committee's recommendations. Once Parliament reconvened, the government introduced a fresh bill replacing the ordinance, seeking to create more stringent provisions on matters related to sexual offences. It passed muster in both Houses. While the Criminal Law Ordinance is an illustration of an ordinance successfully passing through Parliament, there are examples of ordinances that have lapsed because they were not approved by Parliament. In 2004, a week after the winter session ended, the government issued an ordinance to give the Pension Fund Regulatory and Development Authority statutory powers as a regulator. Due to political opposition, the ordinance lapsed and, subsequently, the bill lapsed at the end of the 14th Lok Sabha. The government re-introduced it as a bill in 2011, which is currently pending in Parliament. Although the government has used its power to issue a food security ordinance, the law guaranteeing this right will have to stand scrutiny in Parliament. What remains to be seen is how Parliament debates the right to food in the upcoming monsoon session. That should give us some food for thought. For an analysis of the National Food Security Bill, refer to Sakshi's blog post here.
Amidst news reports of violence against healthcare workers during the spread of the COVID-19 pandemic, the Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated on April 22, 2020. The Ordinance amends the Epidemic Diseases Act, 1897. The Act provides for the prevention of the spread of dangerous epidemic diseases. The Ordinance amends the Act to include protections for healthcare personnel combatting epidemic diseases and expands the powers of the central government to prevent the spread of such diseases.
Who is considered a healthcare service personnel under the Ordinance?
The Ordinance defines healthcare service personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic such as caring for patients. They include: (i) public and clinical healthcare providers such as doctors and nurses, (ii) any person empowered under the Act to take measures to prevent the outbreak of the disease, and (iii) other persons designated as such by the respective state government.
What is considered an ‘act of violence’ under the Ordinance?
An ‘act of violence’ includes any of the following acts committed against a healthcare service personnel: (i) harassment impacting living or working conditions, (ii) harm, injury, hurt, or danger to life, (iii) obstruction in discharge of his duties, and (iv) loss or damage to the property or documents of the healthcare service personnel. Property is defined to include a: (i) clinical establishment, (ii) quarantine facility, (iii) mobile medical unit, and (iv) other property in which a healthcare service personnel has direct interest, in relation to the epidemic.
What are the offences and penalties outlined under the Ordinance?
The Ordinance specifies that no person can: (i) participate in or commit an act of violence against a healthcare service personnel, or (ii) participate in or cause damage or loss to any property during an epidemic. A person committing these two offences is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees. However, for such offences, charges may by dropped by the victim with the permission of the Court. If an act of violence against a healthcare service personnel causes grievous harm, the person committing the offence will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees. All offences under the Ordinance are cognizable (i.e., a police officer can arrest without a warrant) and non-bailable.
Do healthcare service personnel that face violence get compensation?
Persons convicted of offences under the Ordinance will be liable to pay a compensation to the healthcare service personnel whom they have hurt. Such compensation will be determined by the Court. In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the Court.
What protections did healthcare service personnel have prior to the promulgation of this Ordinance?
Currently, the Indian Penal Code, 1860 provides for penalties for any harm caused to an individual or any damage caused to property. The Code also prescribes penalties for causing grievous hurt i.e., permanent damage to another individual.
The Ministry of Health and Family Welfare had released a draft Bill to address incidences of violence against healthcare professionals and damage to the property of clinical establishments in September 2019. The draft Bill prohibits any acts of violence committed against healthcare service personnel including doctors, nurses, para medical workers, medical students, and ambulance drivers, among others. It also prohibits any damage caused to hospitals, clinics, and ambulances.
Table 1 compares the offences and penalties under the Ordinance, the draft Bill, and Indian Penal Code, 1860.
Table 1: Offences and penalties with regard to violence against healthcare service personnel
|
Offences and Penalties |
Epidemic Diseases (Amendment) Ordinance, 2020 |
Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019 |
Indian Penal Code, 1860 |
|
Violence
|
|
|
|
|
Violence causing grievous harm |
|
|
|
|
Damage to property |
|
|
|
Sources: Epidemic Diseases (Amendment) Ordinance, 2020, Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019, and Indian Penal Code, 1860; PRS.
Are there provisions for the safety of healthcare service personnel at the state level?
Several states have passed legislation to protect healthcare service personnel. These states include: Andhra Pradesh, Arunachal Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Gujarat, Haryana, Karnataka, Kerala, Maharashtra, Manipur, Odisha, Punjab, Rajasthan, Tamil Nadu, Tripura, Uttarakhand and West Bengal.
Most state Acts define healthcare service personnel to include registered doctors, nurses, medical and nursing students, and paramedical staff. Further, they define violence as activities causing harm, injury, endangering life, intimidation, obstruction to the ability of a healthcare service person to discharge their duty, and loss or damage to property in a healthcare service institution.
All state Acts prohibit: (i) any act of violence against healthcare service persons, or (ii) damage to property in healthcare service institutions. In most of these states, sf a person partakes in these prohibited activities, he/she is punishable with imprisonment up to three years and a fine of up to fifty thousand rupees. However, in certain states such as Tamil Nadu the maximum prison sentence may be up to ten years.
For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.
