This is Part-2 of a report.
“ The Union Cabinet in its meeting held on 22nd April 2020 has approved promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 to protect healthcare service personnel and property including their living/working premises against violence during epidemics. The President has given his assent for promulgation of the Ordinance. The Ordinance provides for making such acts of violence cognizable and non-bailable offences and for compensation for injury to healthcare service personnel or for causing damage or loss to the property in which healthcare service personnel may have a direct interest in relation to the epidemic.”
— Press Information Bureau PIB , Ministry of Health and Family Welfare 22-April-2020 22:14 IST
Thus April 22 was a swift day when Home Minister Amit Shah and Health Minister Harsha Vardhan had a meeting with IMA in the morning, assured the IMA delegation, the IMA by the afternoon withdrew its call for protest, the ordinance was adopted by the Cabinet, and approved by the President, and the above statement was issued by PIB by 10.14 pm same day.
Some sections of media reported that the President approved it on April 23 Thursday. But the above is an official statement. Obviously, things were all ready and formalities completed the same day.
“The current Ordinance is intended to ensure that during any situation akin to the current pandemic, there is zero tolerance to any form of violence…
“Violence as defined in the Ordinance will include harassment and physical injury and damage to property. Healthcare service personnel include public and clinical healthcare service providers such as doctors, nurses, paramedical workers and community health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and any persons declared as such by the State Government, by notification in the Official Gazette.”
“The amendment makes acts of violence cognizable and non-bailable offences. Commission or abetment of such acts of violence shall be punished with imprisonment for a term of three months to five years, and with fine of Rs.50,000/- to Rs.2,00,000/-. In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/-. In addition, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.”
“The Central Government has been given a concurrent role with the State Governments to take any measures …”
(https://pib.gov.in/newsite/PrintRelease.aspx?relid=202493)
The above emphases show the wider scope of the Ordinance. And how the Centre can have a role in states, including those ruled by other parties.
The opening sentence speaks of “ members of healthcare services being targeted and attacked by miscreants…” and “cases of their stigmatization and ostracization and sometimes worse, acts of unwarranted violence and harassment…”
The word miscreants carries a certain connotation in the minds of people who are recently bombarded by media blitz.
However, the reality is : Doctors etc were subjected to abuse, stigmatization and ostracization and sometimes worse, very often by their neighbours and house owners, who are NOT the miscreants that come to the mind of most people.
Such instances were widespread, across the country, caused by decent people, while miscreants were those others actually targeted.
In fact, even before the Ordinance, the alleged miscreants were already subjected to much worse and more draconian measures, including framing cases under section 370 of IPC (attempt to murder, non-bailable), and were booked under NSA in several states, particularly those ruled by BJP.
For instance in UP, where cases and fines were slapped, already in earlier contexts, against whole communities of a locality, including those who were aged above 80, and some who were dead long ago, particularly those of minorities.
The dynamics, details, implications and likely impact of the Ordinance need to be studied.
The text of the Ordinance is not yet available. Legal experts are yet to analyse it : Given the climate of panic, and class and communal bias around Covid-19, any critical analysis is a sensitive job too. However, available bits of information help us to understand the implications.
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Epidemic Diseases Act, 1897 : Brief Review
The 1897 Colonial Act was dug out, to handle the 21st century pandemic, and now this ordinance is by way of an Amendment to that Act. It will therefore be necessary to have a brief review of the Act.
Dr.Rakesh PS, a Kochi-based Specialist in Community Medicine, made a Review of the Act with the title, The Epidemic Diseases Act of 1897: public health relevance in the current scenario. Written in 2016, it is not colored by today’s situation.
It was published in Indian Journal of Medical Ethics, Vol 1, No 3 (NS) (2016) . In the Abstract, he wrote:
It is felt that the Act has major limitations in the current scenario as it is outdated, merely regulatory and not rights-based, and lacks a focus on the people.
In the text, he made a critical review . Some of the points he made, extracts, are given here :
Historian David Arnold called the Act “one of the most draconian pieces of sanitary legislation ever adopted in colonial India” (7) and Myron Echenberg reported in his book that “the potential for abuse was enormous”.
The execution of the Act remained more or less dormant after Independence.
The epidemiological concepts used in relation to the prevention and control of epidemic diseases have also changed over time.
The Epidemic Diseases Act is not in line with the contemporary scientific understanding of outbreak prevention and response, but only reflects the scientific and legal standards that prevailed at the time when it was framed.
To cite an example, the Act places too much emphasis on isolation or quarantine measures, but is silent on the other scientific methods of outbreak prevention and control, such as vaccination, surveillance and organised public health response.
The political scenario in the country and Centre-state relationships have changed. The Act of 1897, as such, is not sufficient to deal with the prevention and control of communicable disease in the current situation.
The Epidemic Diseases Act is purely regulatory in nature and lacks a specific public health focus.
It does not describe the duties of the government in preventing and controlling epidemics.
The Act emphasises the power of the government, but is silent on the rights of citizens.
It has no provisions that take the people’s interest into consideration. People-centredness is about considering people’s needs, desires, values, social circumstances and lifestyles, and working together to develop appropriate solutions.
The Act is also silent on the ethical aspects or human rights principles that come into play during the response to an epidemic.
Individual autonomy, liberty and privacy should be respected to the greatest extent possible, even during the enforcement of laws.
It would have been good if the Act stated clearly the situations under which the authorities may curtail the autonomy, privacy, liberty and property rights of the people.
Using a fair process in such situations (eg closing down a hotel) would ensure that officials make impartial decisions and would also help to reduce the community’s misperceptions.
Rather than containing clear executive instructions, the Epidemic Diseases Act is more or less like a guidance document.
It does not mention any scientific steps that the government needs to take to contain or prevent the spread of disease.
In the Conclusion, he wrote :
The Epidemic Diseases Act 1897, which is more than a century old, has major limitations when it comes to tackling the emergence and re-emergence of communicable diseases in the country, especially in the changing public health context.
Over the years, many states have formulated their own public health laws and some have amended the provisions of their epidemic disease Acts. However, these Acts vary in quality and content.
Most are just “policing” acts aimed at controlling epidemics and do not deal with coordinated and scientific responses to prevent and tackle outbreaks.
There is a need for an integrated, comprehensive, actionable and relevant legal provision for the control of outbreaks in India that should be articulated in a rights-based, people-focused and public health-oriented manner.
The draft National Health Bill 2009 is one such proposed legislation, but it is still in its long gestation period and its fate is unpredictable.
DOI: https://doi.org/10.20529/IJME.2016.043
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The present Ordinance was by way of an Amendment to the 1897 Act, which was reviewed above by an expert.
The ordinance, 2020, “manifests our commitment to protect each and every healthcare worker who is bravely battling covid-19 on the frontline,” said PM Sri Narendra Modi : “It will ensure safety of our professionals. There can be no compromise on their safety.”
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Will it really ensure as hoped by the PM?
Nirbhaya Act was deemed an anti-dote to rapes. The culprits were given death sentences (and later executed too) . But even their conviction did not stop even in and around Greater Delhi. did not stop rapes.
There was Disha case in Hyderabad. Instantaneous police encounters took place and were hailed by many. At least one dozen cases of rape, torture and killing were reported from Telugu states alone, after Disha encounters.
We know the age-old SC ST Atrocities Act did not put an end to the related crimes, whose numbers are benumbing across India. In fact, it was more misused than deployed leading to convictions , as admitted by the then CM Mayavati, and recently by the Supreme Court.
We know the Dowry Prohibition Act 1961 did not check the system that today is more brazen than ever, the word dowry deaths making its entry into the legal and criminal vocabulary.
There is no dearth of laws in India, but problems remain unresolved. In fact, draconian laws create and add to the problems on hand.
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Why the Ordinance now ? Violence was quite an old problem!
It is not as if violence against healthcare personnel is new.
75 percent of doctors across the country faced some form of violence, IMA said, in June 2019, but no proper action was then taken. That was long before the Covid-19, the Markaz, and mob attacks etc ascribed now.
Attacks and violence on doctors etc, thus, were not new, nor demands for measures to check them.
In fact, many many strikes by doctors took place across India, and safety and security of doctors was one of the major demands. Most of the times, the strikes were withdrawn, or suppressed, without a proper solution.
And the issue was once again before the Court in June 2019. The Supreme Court however deferred the hearing on a plea seeking protection of doctors in government hospitals, in view of doctors having called off their strike in West Bengal and other states.
Counsel for IMA told Supreme Court in June 2019 that as per a study conducted by IMA, more than 75 percent of doctors across the country had faced some form of violence.
“This study concluded that 50 percent violent incidents took place in the intensive care units of hospitals and in 70 percent of cases, the relatives of the patients were actively involved,” he said.
He sought to depute government-appointed uniformed security personnel at all government hospitals across the country for ensuring the safety and security of doctors.
Mr. Srivastava,(Counsel for IMA) also sought a direction to the government to formulate guidelines to ensure the safety of doctors.
A Bench of Justices Deepak Gupta and Surya Kant said there was no urgency in the matter as the strike had been called off. It, however, noted that the issue of providing security to doctors was a “serious” one and needed a holistic view.
“Now the strike is over, we are not going to pass any order. We listed the matter for today due to urgency,” the Bench remarked, while posting the case for hearing by an appropriate bench.
“Can we direct state to deploy police force, [when] we don’t know the strength. It’s like saying there should not be any murder,” the Bench said adding, “We know it is a serious issue, but we can’t provide protection to doctors at the cost of other citizens. We have to take a holistic picture”.
(The Hindu, June 18, 2019)
Doctors too were suppressed, including by ESMA
Strikes by doctors were suppressed, even by invoking ESMA
PM Modi was pledging “no compromise” on ensuring the safety of a healthcare sector. But earlier also, attacks on doctors was raised; there were strikes in many states on that issue. Many times they were ignored, withdrawn, or suppressed, sometimes using police force and even by ESMA. And that happened not only earlier, but also during NDA-1, and in BJP ruled states too, as in Haryana during 2017.
For instance, in June 2015 there was a strike by doctors in Delhi.
Essential Services Maintenance Act (ESMA) was clamped against nearly 15,000 resident doctors who were on strike.
According to the doctors, the government has failed to fulfil their demands regarding which they earlier had written to Prime Minister Narendra Modi and the Union Health Minister.
Resident doctors have been on an indefinite strike demanding adequate life-saving drugs, security at workplace, fixed duty hours and timely payment of their salaries. The doctors on strike are from 20 hospitals run by the central and Delhi governments and municipal corporations. (News18, June 23, 2015)
Many conflicts arose for want of adequate medicines, lab and other facilities, and over-stressed doctors with no limit on working schedules.
Same report says:
The Supreme Court on Tuesday deferred the hearing on a plea seeking protection of doctors in government hospitals, in view of doctors having called off their strike in West Bengal and other states.
A Bench of Justices Deepak Gupta and Surya Kant said there was no urgency in the matter as the strike had been called off. It, however, noted that the issue of providing security to doctors was a “serious” one and needed a holistic view.
“Now the strike is over, we are not going to pass any order. We listed the matter for today due to urgency,” the Bench remarked, while posting the case for hearing by an appropriate bench.
“Can we direct state to deploy police force, [when] we don’t know the strength. It’s like saying there should not be any murder,” the Bench said adding, “We know it is a serious issue, but we can’t provide protection to doctors at the cost of other citizens. We have to take a holistic picture”.
Behold, ESMA was invoked against doctors even after Covid!
But now there is the pandemic Covid, it may be argued. But ESMA was invoked citing Covid itself.
In the charged and biased atmosphere today, it needs to be recalled that ESMA was invoked to prohibit strikes by doctors etc., even after Covid arrived, in several states by several ruling parties. Doctors protesting lack of safety devices were threatened by invoking ESMA.
The Centre, with the no compromise and zero tolerance policy it claims, did not question ESMA being invoked against doctors etc.
Chattisgarh and Tripura ruled by BJP did on March 28 and April 9 respectively. AP led by YCP invoked it on April 3. In MP Congress govt was toppled and replaced by a BJP govt on March 23. One of the first things by the new govt led by Shivraj Singh Chouhan was to invoke ESMA on April 8. In fact, in MP seven doctors and three Nursing tutors were booked under ESMA.
Despite the 1897 Act, already in force, and despite attacks and harassment of doctors, reported by that time, ESMA was invoked, including against healthcare personnel, as mentioned above.
“It will ensure safety of our professionals”, said the PM about the Ordinance.
But many conflicts, including with patients, arise because of prevailing conditions in hospitals. The safety and security of doctors can not be handled merely by police measures and ordinances.
For example, in the midst of the battle against Covid, right in Delhi, the situation was bad, as was the case with AIIMS, ranking-1 in India, and was represented to the Govt. On April 10, 2020, almost 70 days after the first case in India (Jan 30, in Kerala), the situation was as follows :
Dr Srinivas Rajkumar, general secretary of the Resident Doctors’ Association at the All India Institute of Medical Sciences (AIIMS), Delhi, draws attention to the shortage at the premier hospital.
“We have been protesting the non-availability of PPEs and masks at AIIMS ever since infected patients began coming in,” he says.
Dr Rajkumar explains the complexity of the situation: “The issue is that while isolation wards may have been equipped with masks and PPEs, the emergency department has to make do with whatever is at hand.
Yesterday, a patient with a bleed in the brain came to the hospital only for us to find out that he was Covid-19 positive. Whoever was on duty had to be quarantined for 14 days.
This puts additional stress on our front-line healthcare workers. It is akin to sending soldiers to war armed with lathis instead of proper ammunition.”
(It is in such cases, patients as well as doctors get into stress, outbursts and abuses. Occasionally it leads to violence too.)
The Association has written to the prime minister for adequate supply of PPEs and masks, but is yet to receive a response.
Meanwhile, doctors in AP report the enactment of ESMA (Essential Services Maintenance Act), which empowers the police to issue a warrant against doctors who refuse duty citing shortage of PPEs.
Pawan (name changed), a Hyderabad-based doctor, says, “While every hospital administration says they’re prepared, the truth is that no one had stockpiled for this emergency and we are facing an acute shortage.
A week ago, Telangana had less than 20 Covid-19 patients and now we have over 400. While the chief minister announced that 1.5 lakh PPEs were being made available, the ground reality is that we don’t have the supply yet.
As a result, doctors are exposed and working 14-day shifts followed by 14-day quarantine.”
Healthcare workers who highlight the risks do not have it easy. Dr Indranil Khan, an oncologist based in Kolkata, who had drawn attention to the PPE shortage in government medical colleges on Twitter, was questioned by the police and slapped with an FIR.
“I had to go through the ordeal of petitioning the High Court for reporting the sorry state of my colleagues. No one is criticising the government, everyone wants the best in this situation.
If we don’t protect our front-line workers, how are we going to be able to battle the pandemic?”
Says Dr Rajkumar, “Private hospitals have been successful in acquiring kits for their staff since they don’t have to comply with price capping. Government hospitals face the brunt of the shortage, but most patients come here as these are the centres designated for Covid-19 patients.”
Last week, doctors of Safdarjung Hospital in Delhi put up a notice asking for donations of PPE kits, masks and sanitisers.
Dr Sunil Chugh, cardiologist and private practitioner in Udaipur, Rajasthan, says that in these difficult times, medical equipment such as ventilators and protection kits have to be acquired at sky-high rates to protect staff.
“The products are being sold at triple to 10 times the cost in the black market. As we struggle to bear the cost at a time when earnings are low, members of the general public have begun acquiring these items, adding to the shortage.”
During a press conference, Lav Agarwal, joint secretary in the health ministry, addressed the shortage of protective equipment and claimed that supplies were easing up. ..
The country had enthusiastically responded to the prime minister’s call to applaud the brave work done by front-line healthcare workers. The ground reality is far from ideal though.
It is easier to issue the Ordinance, all in one day. But the problems raised by the doctors are yet to be resolved. Thus them doctors’ safety and security, even from physical attacks, lies more in resolving problems than police methods.
Any scope for arbitrariness?
All laws have scope for misuse, and pliable officers and judges are there , as experience shows. This will be no exception. In fact, the way it was rushed in shows the same. One can glean some aspects.
The Health Ministry said that the existing state laws – several states have enacted special laws to offer protection to doctors – do not have such a wide sweep and ambit.
They generally do not cover harassment at home and workplace and are focused more on physical violence only, it said.
Violence, as defined in the ordinance, will include harassment and physical injury and damage to property, said the Ministry. And harassment has wide connotations and interpretations.
Health Ministry said in a statement, adding that commission or abetment of such acts of violence will be punishable ….
Abetment is too loose a term. And the scope can be quite wide. More so when the offences areto be investigated by an officer of the rank of inspector, a low-end officer who works under lot of political and administrative pressures, and hence pliable.
Offences will be investigated by an officer of the rank of inspector, who is a low-end officer more vulnerable to pressures, within a period of 30 days, and trial has to be completed in one year, unless extended by the court for reasons to be recorded in writing.
Is the ordinance meant only for the present Covid-19?
The current ordinance is intended to ensure that during any situation akin to the current pandemic, there is zero-tolerance to any form of violence against healthcare service personnel and damage to property, the Health Ministry said in a statement.
Real solutions to the problem are elsewhere:
Address the basic, systemic problems of the healthcare system
Raise awareness, dispel any myths and misconceptions
Police methods can not solve the problem. Emphasis should be elsewhere.
Vikram Thaploo, chief executive of Apollo Telehealth, was nearer the truth when he said after the ordinance was issued :
“The government must also accord a high degree of priority to providing protective gear and equipment to all healthcare workers to protect them against the disease.
“At the same time, it is equally important to socially engage with people, raise awareness about the disease and dispel any myths, and misconceptions about it.”
There indeed were a few deaths of doctors and nurses in the present context, and all of them were because the required facilities and protective gear were missing.
No one died in attacks on them, though some were harassed and injured by mob violence, and by police at least in a few cases.
And many attacks were because of, as CEO of the reputed Apollo Telehealth pointed out, misinformation, rumours, myths, and misconceptions that aggravated panic among people, including those highly educated.
One form of harassment and stress the health-care providers were exposed to, across India, were ostracization and threats of eviction by house owners, all of them of educated middle classes. They were not miscreants, as they are understood.
The Chennai incident of April 19-20 that just preceded the ordinance also occurred in a middle class locality where the co-residents opposed the dead body of the doctor Simon Hercules being brought to his own home! And being buried in the cemetery there.
That was by the citizens of a city he served for decades, not by any foreigners or those instigated by them. There was a crowd ready to oppose, not just in one place but two cemeteries.
The frenzied crowd was upto one hundred, they were not a few miscreants. Incidentally, this heinous incident was being projected in the media, that day, April 22, even as the Ordinance was in the making.
In early March, the Director-General of the WHO had commented that stigma, “to be honest, is more dangerous than the virus itself.”
His statement was made when reports of racism towards the East Asian communities had started growing across the Western world.
In India it took the form of communal virus.
Ordinances and punitive measures can not undo this ignorance, backwardness, stigma, fake news. Nor the communal virus.
Satvik Varma, an Alumni of Harvard Law School, and an advocate based in New Delhi wrote in a comment :
“ What history also tells us is that the only solution is to break the cycle and stop engaging in dissemination of misinformation.
“ But unlike ever in the past, as a society, we are addicted to social media and therefore need to exercise even greater caution and resist the urge to ‘forward’ that unconfirmed news alert which we receive.”
Reality is : today the venom is no more limited to social media. It is very much there in the mainstream media, even in official government briefings. It is one factor behind the violence.
And the self-righteous Arnab Goswamy resigned on April 21 from the Editors’ Guild, accusing it of hypocrisy, and compromise on editorial ethics. Senior Editor Rajdeep Sardesai tweeted : “ Arnab did not attend a single meeting of the Guld in 12 years; never participated in any discussion, or stood up when journalists were assaulted/killed”
It was the likes of him who frenzied up people, and violence was spawned. Next day, he was hailing the Ordinance claiming it would put an end to all violence against doctors, presumably by conspirators and anti-nationals, as he called them. He shouted : Your game is over!
But the Supreme Court on April 13 refused to give an interim order to restrain fake and brazenly venomous news, that was leading to violence as argued by the petitioners in a PIL, saying the Court can not curb media freedom!
All these, including the Ordinance, are part of one narrative. In such a climate, no law, no ordinance can realize the professed goals.
The doctors wrote to the Home Minister a month ago
The Modi government however was not prompt in taking the measures, some doctors said. They recalled the letter, of March 24, by AIIMS Delhi Resident Doctors’ Association.
The Ordinance : Is it going to solve the problem?
There was no dearth of laws at the Centre and in the states too to handle any eventuality. But they did not come to the rescue of the doctors, who have been complaining, for years, on security and protection of doctors. It was long before the Covid. There were strikes too by doctors. And doctors were punished for that.
In fact, in the current context, several arrests were made; NSA and Section 307 of IPC (attempt to murder) were threatened, and also used against some Muslims who allegedly assaulted and abused the doctors. It was as if only muslims were indulging in the offence.
There are no reports to show that such provisions were used against those of other religions too, though similar incidents were there, though reported only in limited numbers.
Even this issue of attacks on doctors was given a communal twist by the media, and by the government, at the behests of the ruling party as can be seen in many instances.
Just reviewing a few incidents of attacks on doctors would be enough to understand the same. But that would be a story by itself. The moral? Such problems can not be addressed by the Ordinance.
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