The following piece by C V Madhukar appeared in the September,2011 issue of Governance Now magazine. The debate in Parliament in response to the recent Anna Hazare led agitation demanding a strong Lok Pal Bill was a fine hour for the institution of Parliament.  What was even more important about the debate is that it was watched by thousands of people across the country many of whom have lost faith in the ability of our MPs to coherently articulate their point of view on substantive issues. Of course, in many cases some of these impressions about our MPs are largely formed by what the media channels tend to project, and without a full appreciation of what actually happens in Parliament.  There is now a greater awareness about an important institutional mechanism called the standing committee, and other nuances about the law making process. The Lok Pal agitation brought out another important aspect of our democracy.  There are still many in India who believe that peaceful protest is a powerful way to communicate the expectations of people to the government. Our elected representatives are prepared to respond collectively when such protests are held.  There is a negotiated settlement possible between the agitating citizens and our political establishment within the broad construct of our Constitution.  All of this means that the safety valves in our democracy are still somewhat functional, despite its many shortcomings. But the way the whole Lok Pal episode has played out so far raises a number of important questions about the functioning of our political parties and our Parliamentary system.  A fundamental question is the extent to which our elected MPs are able to ‘represent’ the concerns of the people in Parliament.  It has been obvious for some time now, that corruption at various levels has been a concern for many.  For months before the showdown in August, there have been public expressions of the disenchantment of the people about this problem.  Even though several MPs would say privately that it is time for them to do something about it as elected representatives, they were unable to come together in a way to show the people that they were serious about the issue, or that they could collectively do something significant about the problem.  The government was trying in its own way to grapple with the problem, and was unable to seize the initiative, expect for a last minute effort to find a graceful way out of the immediate problem on hand. In our governance system as outlined in our Constitution, the primary and most important institution to hold the government accountable is the Parliament.  To perform this role, the Parliament has a number of institutional mechanisms that have evolved over the years.  The creation of the CAG as a Constitutional body that provides inputs to Parliament, the Public Accounts Committee in Parliament, the question hour in Parliament are some of the ways in which the government is held to account.  Clearly all of these mechanisms together are unable to adequately do the work of overseeing the government that our MPs have been tasked with.  But it is one thing for our MPs to be effective in their role holding the government to account, and a very different thing to come across collectively as being responsive to the concerns of the people. For our MPs to play their representation role more convincingly and meaningfully there are certain issues that need to be addressed.  A major concern is about how our political parties are structured, where MPs are bound by tight party discipline. In a system where the party leadership decides who gets the party ticket to contest the next election, there is a natural incentive for MPs to toe the party line, even within their party forums.  This is often at the cost of their personal conviction about certain issues, and may sometimes be against what the citizens could want their representatives to do. Add to this the party whip system, under which each MP has to vote along the party line or face the risk of losing his seat in Parliament.  And then of course, if some MP decides to take a stand on some issue, he needs to do all the research work on his own because our elected representatives have no staff with this capability.  This deadly cocktail of negative incentives, just makes it very easy for the MP to mostly just follow the party line.  If the representation function were to be taken somewhat seriously, these issues need to be addressed. The 2004 World Development Report of the World Bank was focussed on accountability.  An important idea in the report was that it was too costly and inefficient for people to vote a government in and wait till the next election to hold the government accountable by voting it out for the poor governance it provides.  That is the reason it is essential for governments and citizens to develop ways in which processes can be developed by which the government can be held accountable even during its tenure. The myriad efforts by government such as social audits, monitoring and evaluation efforts within government departments, efforts by Parliament to hold the government accountable, efforts of civil society groups, are all ways of holding the government to account.  But over and above accountability, in an age of growing aspirations and increasing transparency, our MPs must find new ways of asserting their views and those people that they seek to represent in our Parliament.  This is an age which expects our politicians to be responsive, but in a responsible way. Even as the Lok Pal Bill is being deliberated upon in the standing committee, civil society groups continue to watch how MPs will come out on this Bill.  There are plenty of other opportunities where MPs and Parliament can take the initiative, including electoral reforms, funding of elections, black money, etc.  It remains to be seen whether our MPs will lead on these issues from the front, or will choose to be led by others. This will determine whether in the perception of the public the collective stock of our MPs will rise or continue to deplete in the months ahead.

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 against a healthcare service personnel is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees.     (Act of violence includes harassment, hurt/harm, and damage to property)
  • Violence against a healthcare service personnel, is punishable with imprisonment between six months and five years, and a fine of up to five lakh rupees.     (Act of violence includes harassment, hurt/harm, and damage to property)
  • Causing voluntary hurt is punishable with imprisonment up to one year, or with fine up to Rs 1,000, or both.

Violence causing grievous harm

  • Violence against a healthcare service personnel causing grievous harm is punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees.
  • Violence against a healthcare service personnel causing grievous harm is punishable with imprisonment between three years and ten years, and a fine between two lakh rupees and ten lakh rupees.
  • Voluntarily causing grievous hurt is punishable with imprisonment up to seven years, and a fine.

Damage to property

  • Damage or loss to any property during an epidemic, is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees. 
  • Damage or loss to any property of a clinical establishment, is punishable with imprisonment between six months and five years, and a fine of up to five lakh rupees.     
  • Loss or damage to the property worth Rs 50 or more is punishable with imprisonment up to two years, or fine, or both.

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.