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COVID-19: Who Protects The Protectors?

Introduction.

Change has been the only constant thing in 2020. In December 2019, there was a cataclysmic breakout of a deadly virus called Covid-19. Covid-19 is the acronym for Coronavirus Disease of 2019. In India, a nationwide lockdown was imposed on 24th March 2020. The entire Nation was forced to be indoors but there was one community of people who kept working diligently. Healthcare workers are the real heroes of our society and their protection is of utmost importance. While the doctors and the healthcare staff are striving towards working for the betterment of human life and society, it is the responsibility of the Government to ensure their safety and their protection against any ill actions.

In 2019, we saw a heart wrenching incident in West Bengal. A 75-year-old patient, Mr.Mohammed Shaheed passed away at NRS Medical College, after which the relatives of the deceased were highly upset and alleged that he died due to medical negligence. The relatives attacked and assaulted the doctors and hospital staff. Two intern doctors, Paribaha Mukhopadhyay and Yash Tekwani were grievously injured in these clashes and were admitted to the hospital[1].

The protest spread to the entire nation. People were agitated and doctors didn’t feel safe in doing their jobs anymore. Pursuant to the same, the Indian Medical Association launched a nationwide protest and wrote to the Union Home Minister demanding the enactment of a central law to check violence against healthcare workers. This incident was the inception of the movement where people realized that there’s a dire need of having a separate legislation to protect the doctors.

Existing Laws for Protection of Doctors.

In light of the West Bengal Incident, the Ministry of Health last year proposed the passing of the ‘Health Services Personnel and Clinical Establishments (Prohibition of Violence and Damage of Property) Bill’ which declares acts of violence against healthcare personnels illegal and is punishable with imprisonment up to 10 years and also imposes a fine of up to Rs.10 lakh on those who assault healthcare personnel. However, the Ministry of Home Affairs gave it a thumbs down, stating that there could be no separate law to protect doctors.

In Delhi, there’s the ‘Delhi Medicare Service Personnel and Medicare Service Institution (Prevention of Violence and Damage to Property) Act, 2008’.[2] This declares any act of violence against healthcare personnel and damage to the property in medicare service institutions illegal in the National Capital Territory of Delhi. Section 3 of this Act states that any act of violence against healthcare service personnel or damage to property in a healthcare service institution is illegal. Section 4 of this Act punishes the act of violence under Section 3 with imprisonment up to three years with a fine of Rs. 10,000 or both. The offence under Section 3 is also cognizable and non-bailable. There’s a need for such an enactment in all states throughout the Country.

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On May 3, 2017, a division bench of the Delhi High Court, alarmed by the increasing incidents of violence on doctors, took suo-moto cognizance[3] of a news article in the Times of India titled ‘AIIMS doctors to get self-defense training’ The news report suggested that one in two doctors in public hospitals faced violence. Consequently, notices were issued to the Union of India and the Delhi Government, however, it appears that there has been no progress in the writ petition so far.

In the absence of a Central law on this subject, attention is directed towards the Indian Penal Code. The provisions of the IPC, which covers assaults on public servants are:

  • Section 186: Obstructing Public Servant in the discharge of public functions- This section penalizes the offence of obstructing public servants from discharging their duties and the offenders under this section are punished with imprisonment for a term which may extend to three months, or with a fine which may extend to five hundred rupees, or with both.
  • Section 332- Voluntarily causing hurt to deter public servants from duty- This section penalizes people who commit the offence of hurting public servants obstructing them from doing their duty and such people are punished with imprisonment of  a term which may extend to three years, or with fine, or with both.
  • Section 353: Assault or criminal force to deter public servant from discharge of his duty- Section 353 charges the offence of assaulting or using criminal force against public servants deterring them from their duty and such offenders are punished with imprisonment of a term which may extend to two years, or with fine, or with both.

The common denominator in all the above provisions is the supposition that the victim is a ‘public-servant’ as defined under Section 21 of the IPC. But the issue that stands is that these provisions protect the employees of Public hospitals, but does not provide immunity to the healthcare professionals of private hospitals. For them, therefore, the provisions of simple assaults and hurt may apply, which carry very less stringent punishments.

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Protection of Healthcare workers vis-à-vis Covid-19.

The world is going through an emergency. We all are at war, but not with a combatant nation, instead with the Pandemic, and the cavalry on the frontline is not our regular militia but our healthcare professionals. The Supreme Court in the case of Banait v. Union of India[4] held that doctors and healthcare professionals are “warriors”.

The harsh reality is that our healthcare professionals are neither sufficiently appreciated nor protected. Stones are pelted at them and they are being spat on by rowdy people who have been defiant from the very beginning. In April 2020, two doctors of Delhi’s Safdarjung Hospital were accused of spreading the Coronavirus disease and were allegedly assaulted by their neighbors. Just a week before that, two doctors and their team were assaulted and pelted stones at, during a screening drive to identify possible Covid-19 patients in Madhya Pradesh’s Indore.[5]  The Supreme Court passed many directions for the government to ensure the protection of doctors and healthcare workers.[6] It ordered the Centre, states, union territories, and police authorities to provide police security to doctors and healthcare staff in hospitals and other medicare places, including quarantine facilities, where patients are diagnosed for  Covid-19.

As a sequel, an ordinance was passed by President Ram Nath Kovind aimed at protecting the healthcare workers. The ordinance not only protects the healthcare personnel, but also those who attack their property. The Ordinance provides for compensation for injury and damage to or loss of property in such cases. The Ordinance makes the omission or abetment to acts of violence punishable with imprisonment of three months to five years and a fine of Rs. 50,000 to Rs. 2 lakh. If the attackers cause grievous hurt, they can be imprisoned for six months leading up to seven years with a fine of Rs. 1 lakh to Rs. 5 Lakh.

Prakash Javadekar, Minister of Information and Broadcasting stated that “the message the government is giving out is very clear. Attacks on doctors and healthcare workers will not be tolerated”. When asked about the ambiguity on whether the immunity provided under the Ordinance is just for the time being or it would extend beyond Covid-19, he said that the Ordinance was approved to amend the Epidemic Diseases Act, 1987 and for now it is a good beginning.

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Conclusion

Though the ordinance provides welcome relief amid the attacks, a more permanent solution for the attacks on doctors is needed. This is an Epidemic Ordinance, thus a short-term solution. The Government has also not made their stand clear on whether this legal protection would be extended after the Pandemic is over. The attacks on doctors are not new, hundreds of cases are pending before the courts. There is a stringent need for having better infrastructure, more recruitment of doctors, and a better health budget. Looking at the condition of our nation right now, where healthcare professionals are the ones who are working day and night to protect society, it increases the demand for having a central protection act for doctors. The question that stares us in our face right now is, ‘Who protects the protectors?’


[1] Wikipedia, 2019 India doctor’s Strike [2019], https://en.wikipedia.org/wiki/2019_India_doctors%27_strike

[2] Delhi Medicare Service Personnel and Medicare Service Institution (Prevention of Violence and Damage to Property) Act, 2008- https://www.indiacode.nic.in/bitstream/123456789/13634/1/delhi_mdicare_service_personnel_and_medicare_service_institutions_%28prevention_of_violence_and_damage_to_property%29_act_2008.pdf

[3] Delhi Resident Doctors, Take Self Defence Lessons, High Court Take Cognizance, https://medicaldialogues.in/delhi-resident-doctors-take-self-defence-lessons-high-court-takes-cognizance?infinitescroll=1

[4] Banait v. Union of India, 2020 SCC online SC 357 (India).

[5] In Covid-19 front line, doctors welcome ordinance to protect them- https://www.hindustantimes.com/india-news/in-covid-19-front-line-doctors-welcome-ordinance-to-protect-them/story-xLMzCvxgTFHUlxwLXlFF2M.html

[6] Id.


Cite this article (The Bluebook 20th ed.)-

Sweety Dutta, COVID-19: Who Protects The Protectors?, Ex Gratia Law Journal, (September 7, 2020), https://exgratialawjournal.in/blawg/covid-and-law/covid-19-who-protects-the-protectors-by-sweety-dutta/.

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Author

Sweety Dutta
Student - Dr. D Y Patil College of Law, Navi Mumbai