The Epidemics Diseases (Amendment) Ordinance, 2020: A Primer

INTRODUCTION

The country is going through a difficult time. The dark cloud of COVID-19 pandemic seems relentless and all pervasive. Even though the efforts of the Government are laudable for creating awareness about the virus, there are still certain sections in the society where the rumors weigh more than the awareness about the pandemic. In sections where access to education is sparse, these rumors create panic situations. As such the response towards a collective effort to contain the virus became a casualty.

We have witnessed disturbing footage of medical personnel being chased by unruly mobs. In certain cases, there were grievous injuries to the medical staff and personal. What was their crime? They were present at sites to collect samples and conduct tests to confirm COVID related cases. These are the front line fighters who had courageously ventured into heartlands of COVID-19 hotspots. The State had no option but to step in to protect its front line workers.

India has an Epidemic Diseases Act 1897. It was enacted to enable the government fight the bubonic plague. For the first time an Ordinance was promulgated in the year 2020 to amend sections of the Act as the Parliament was not in session.

What has the Ordinance done?

Ordinance No. 5 of 2020 has brought in several amendments in the Epidemics Diseases Act of 1897 which initially comprised of only 4 sections. The amendments have been brought about in various sections in the parent Act. The definitions of the Healthcare Service Personnel, Property, acts of violence, etc have been introduced. The Ordinance has introduced penal provisions for injuries caused to the Healthcare personnel, damage to the property etc. Furthermore, the Ordinance amends the parent Act to provide for the procedure for trial and quantum of punishment for the offences.

Who are protected under the Ordinance?

Healthcare Service Personnel

The aim and objective of the Ordinance is to protect the team of doctors, medical staff and personnel who are deployed on duty by the government orders to cater to any epidemic related activity.

The Ordinance defined a ‘healthcare service personnel’ under Section 1A (b) to include those such personnel who may come in direct contact with affected patients and are at risk of being impacted by such disease. Such personnel include:

a. any public and clinical health care provider such as doctor, nurse, paramedic worker and community health worker;

b. any other person empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof;

c. any other person declared as such by the State Government, by Notification in the Official Gazette;

Property

The Ordinance further protects property of such personnel under S. 1A(c) which has been defined as under:

a. A clinical establishment as defined under the Clinical Establishment (Registration and Regulation) Act 2010

b. Any facility identified for quarantine and isolation of patients during the epidemic

c. A mobile medical unit

d. Any other property in which healthcare service personnel has direct interest or relation to the epidemic

Acts which are punishable under the Ordinance

The Ordinance defines ‘acts of violence’ under Section 1A (a) being an act against a healthcare service personal serving during an epidemic which causes or may cause:

a. harassment impacting the living or working conditions of such healthcare service personnel and preventing him from discharging his duties;

b. harm, injury, hurt, intimidation or danger to the life of such healthcare service personal, either within the premises of a clinical establishment or otherwise;

c. obstruction or hindrance to such health care personnel in the discharge to their duties, either within the premises of a clinical establishment or otherwise;

d. loss of damage to any property or documents in the custody of, or in relation to, such healthcare

Punishment under the Ordinance

Jail term and fine

The Ordinance mandates under S. 2B that no person shall indulge in any violence against a healthcare service personnel or cause damage or loss to any property during an epidemic.

The Ordinance under S. 3(2) further mandates that whoever commits or abets to commit an act of violence against a healthcare service personnel or damage/ destruction to any property will be punished with imprisonment not less than 3 months which may extend to 5 years and with fine which shall not be less than 50,000 and may extend to 2 lakhs.

Furthermore under S. 3(3) if any person commits an act of violence against a healthcare service personnel and causes grievous hurt as defined under S. 320 of the Indian Penal Code, then that person shall be punished with imprisonment for a term which shall not be less than 6 months but which may extend to 7 years with fine which shall not be less than 1 lakh rupees but can extend to 5 lakh rupees.

It is pertinent to note that the offences under S. 3(2) and S. 3(3) are cognizable and non-bailable.

Compensation

Under S. 7(3E) in addition to the punishment provided for the above offences, the person so convicted shall also be liable to pay, by way of compensation, such amount as may be determined by the Court for causing hurt or grievous hurt to any healthcare service personnel. The compensation must be twice the fair market value of the property or loss occurred.

Upon failure so pay compensation, the amount shall be recovered as an arrear of land revenue under the Revenues Recovery Act 1890.

Investigation and criminal trial

Investigation

If any case is registered under S. 3(2) or S. 3(3), it shall be investigated by a police officer not below the rank of an Inspector.

The Ordinance sets a time limit for the investigation to be completed within a period of 30 days from the date of registration of First Information Report.

Trial

Under S. 3A (iv) the Ordinance mandates that once the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined.

The adjournments if any have to be given for the reasons to be recorded in writing.

The Court must endeavor to ensure that the inquiry or trial is concluded within a period of one year. Provided that where the trial is not concluded within the said period, the judge shall record the reasons for not having done so. However, if the trial is not concluded within one year, the said period ma be extended for any further period but not exceeding six months at a time.

Compounding of offence

For an offence which is punishable under S. 3(2), such offence may, with the permission of the Court, be compounded by the person against whom such act is committed.

For grievous hurt caused to the healthcare personnel, the court shall presume the culpable mental state of the accused unless proved beyond reasonable doubt

The Ordinance mandates under S. 7 (3C & 3D) that where a person is prosecuted for an offence which is punishable under S. 3(3) i.e. grievous hurt, the Ordinance under S. 7 (3C) puts the burden of proof on the perpetrator. The court shall presume that such person has committed such offence unless the contrary is proved. The court shall presume that the perpetrator had the culpable mental state unless proved contrary by such accused on facts. A fact is said to have been proved by the accused which it is proved beyond any reasonable doubt and not just when its existence is established by preponderance of probability.