On April 22, the Epidemic Diseases (Amendment) Ordinance was published in the Gazette of India in the name of the President of India. The main purpose of the amendment, as put out by the government, is to deal with cases of violence against medical personnel. The ordinance in Amendment 2b states, "No person shall indulge in any act of violence against a health care personnel or cause any damage or loss to any property during an epidemic."
This is unexceptionable. The outrageous attacks on health personnel in different parts of the country need to be dealt with. These attacks constitute the dark side of what has generally been an outstanding response from the people of India to follow the instructions in spite of great personal difficulties and suffering caused by the sudden imposition of the lockdown.
The attacks have taken different forms from suspicion, social ostracism, hostility to outright assault such as in the Moradabad case when mobs including women climbed onto roofs, throwing stones at a health team come to inquire about a family suspected of having the virus.
Here in the capital, doctors and nurses even of the prestigious AIIMS faced hostility and threats from landlords and housing societies warning them not to go to work or face eviction; two women doctors were accused of spreading the virus and attacked by a man in their neighborhood when they went to buy groceries; in Surat, Gujarat doctors and medical personnel were similarly obstructed, with a female doctor being quoted as saying that she was stopped at the entrance of her apartment building by other members who threatened her; in Hyderabad's Gandhi Hospital, doctors felt so threatened that it required the Chief Minister's intervention to ensure their security; in Indore, there was a terrible attack on health workers; in rural India, Accredited Social Health Activists, the ASHAs, mandated to visit at least 40 houses a day to ascertain any sickness, have sometimes had to confront outright opposition.
Stones were thrown at health workers in Indore
In a representative case in Anantnag, Kashmir, an ASHA worker, Parveena, was attacked brutally with an axe, requiring ten stitches on her head, because she had dutifully reported that a person in her village had arrived from outside the state.
Instead of respecting and felicitating these frontline fighters who risk their own lives in public service, some people see them as dangerous carriers of the disease. Such attitudes stem from selfishness among sections of the well-off and educated, or among common people, prejudice, ignorance, fear driven by fake and scary messages on social media and WhatsApp, creating an environment leading to such attacks. Whatever the explanation, nothing can justify such behavior.
The amendment to the Act seeks to deal with these different types of attacks. The definition of violence through Section 1A is quite wide and includes (1A 1) "harassment impacting the living and working conditions of health service personnel" (2) harm, injury, hurt, intimidation or danger to the life of health service personnel (3) obstruction or hindrance to such health care personnel in discharge of duties (4) loss or damage to property or documents in the custody of or in relation to such personnel."
Punishment can range from a minimum of three months to five years with a fine ranging from fifty thousand rupees to two lakhs. For a grievous injury, the punishment is from a minimum of six months to seven years and a fine from a minimum of one lakh rupees to five lakhs.
The amendment makes both these sections cognizable and non-bailable, notwithstanding provisions for bail in the CrPC for similar offences - for example, intimidation. In addition, the amendment through Sec 3C and 3D shifts the burden of proof for offence of grievous injury defined in the ordinance to the accused. In India's legal framework l, even in cases of murder, the accused is presumed to be innocent but in the ordinance, that principle is nullified.
This is a classic example of authoritarian thinking. The police are given a deadline of a month to complete an investigation and experience shows that to produce results, people are picked up randomly without evidence and charged with the offence. But in other such cases, bail is available when the prosecution cannot prove the presence or participation of the person at the scene of the offence; under Section 3C of the ordinance, everyone picked up will be presumed guilty. In addition, under Section 3D, it will be presumed that the accused person was in a mentally culpable state. This gives the police enormous powers to make any group of people en masse as accused without any checks and balances.
A doctor in Madhya Pradesh fractured his arm when he was attacked on duty
So through this ordinance, we have a framework of a set of wide/ranging offences from intimidation to grevious injuries, all non-bailable notwithstanding that in the CrPC, some of the offences defined are bailable. To top it all, the principle of jurisprudence that the accused is innocent unless proven guilty is scrapped under this act.
There is wide public support for measures to punish those who attack our health personnel. Each one of us stands with our doctors, nurses, para medical workers, ASHAs, staff and all those in the frontline of the fight to make India safe from the coronavirus. But a few of the sections in the ordinance are questionable, draconian and could easily be misused for targeting and harassment. At least Section 3C and 3D should be reconsidered and removed till parliament has the opportunity to discuss all the sections of the ordinance before it can become a law.
It is also worth recalling that the main act itself, the Epidemic Diseases Act, was enacted by the British in 1897 to give the colonial regime extraordinary powers to deal with the bubonic plague epidemic which had hit Bombay and the surrounding region in the last years of the nineteenth century. The Act had nothing about the duties and responsibilities of the Raj towards health workers or citizens in general. Nor did it have any mention of the rights of health workers or citizens. It was based on the principle of coercion, not cooperation. History has recorded the large numbers of excesses indulged in by the colonial regime against citizens under the Epidemic Diseases law, including the harassment of women.
Over a century later, this Act still remains as it was and is now being used as one of the main laws along with the Disaster Management Act as the legal framework for the actions of the central government. This also needs consideration. For example, with the experience of the COVID-19 epidemic, provisions that legally bind a government to provide equipment and make all necessary arrangements for our health personnel may be necessary. We should consider a more relevant legal framework rather than a 100-year-old colonial law to deal with epidemics which unfortunately are becoming more frequent.
In conclusion, the ordinance, while affording protection for health personnel also raises many disturbing questions. The way it is framed creates a real danger of it being misused for purposes other than the interest of health personnel in whose name the ordinance has been enacted.
Brinda Karat is a Politburo member of the CPI(M) and a former Member of the Rajya Sabha.
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