By Sneha Kalita
In the present scenario of the Covid pandemic, not only India but the whole world is going through an unprecedented upheaval and challenging time, especially in the healthcare system. There has been a crisis in terms of infrastructure, medical facilities, frontline health care workers, medicines, oxygen supplies, and so on. However, it is an underlying fact that the doctors and other medical/paramedical personnel have stood tall in front of the pandemic risking their own lives, and tirelessly worked to save the lives of their countrymen.
The medical fraternity in any civil society has always upheld a very important position wherein they have had the duty and the obligation of treating a person with utmost responsibility and empathy being under every kind of situation. Owing to this selfless duty towards society, they are significantly called frontline warriors. As per the Covid Registry of martyrs report, maintained by the Indian Medical Association (IMA), while 747 doctors succumbed to COVID-19 in the first wave, 748 doctors lost their lives in the second wave,[i] and as per the government data, the total number of persons died due to Covid till 27th of June, 2021 are 3,94,493.[ii]
However, in the present situation of fear, anxiety, and anticipation, cases of healthcare workers being attacked and assaulted have seen an unfortunate increase. And the deleterious effect of such kind of violence/assault against even one single Healthcare worker/ professionals results not only have adverse effects and fear in the healthcare community but also hinders in discharging their duties in serving mankind, especially in this crisis time. Attack on healthcare workers is a universal phenomenon that has attracted the attention of many international agencies. It is submitted that one of the oldest medical journals in the world known as ‘The Lancet’ has stated that “nearly 75% doctors in India have faced either verbal or physical violence during their lifetime.”[iii] A report published by the World Health Organization (WHO) also stated that nearly 600 violent incidents against health facilities in 19 countries took place in the year 2014 and 2015. The World Medical Association through its Chairman stated that “We need to pay more attention to increasing violence in civil situations. Here, there is an urgent need for better protection. Facilities have to be secured against weapons being brought in, especially firearms and knives. Hospitals and clinics must be weapon-free. And in conflict situations, health care personnel and facilities are becoming weapons of war and this must end.”[iv]
The blatant attack on doctors violate their fundamental right to life and impedes upon their personal dignity guaranteed Article 21 of the Indian constitution that guarantees fundamental right to life and liberty to every person. During the timeframe of 2011-2021, almost all the states of the country has seen one or the other such incidents of violence being committed, against the healthcare workers .
It is interesting to note that, out of the 28 States and 8 Union territories ( UTs), in India, only 23 States and 2 Union Territories have their own Acts pertaining to the protection and prohibition of violence against healthcare workers and causing damage to property. However, many of the State legislations provide for a maximum imprisonment of 3 years and a fine of Rs. 50,000 ( Rupees Fifty Thousand ) only. In terms of lowest terms of imprisonment, Madhya Pradesh provides for imprisonment which may extend to 3 months and State of Punjab with imprisonment which may extend to 1 year. And the highest term of imprisonment & fine is prescribed in the State of Arunachal Pradesh which provides for imprisonment of 3 years which may extend to 10 years and fine which may extend to 5 lakhs rupees. Furthermore, There is no provision of fine prescribed in the states of Haryana (though penalty for damage of the property has been prescribed) and Himachal Pradesh . And in the state of Tamil Nadu does not provide any prescribed quantum of fine along with the prescribed punishment . The State of Madhya Pradesh provides for fine which may extend to Rs.10,000 ( Rupees Ten Thousand ). Moreover, the states of Sikkim, Meghalaya, Nagaland, Mizoram and Jharkhand presently does not have its own legislation dealing with protection of healthcare workers from violence and any damage to property to its establishment.
The Epidemic Diseases (Amendment) Act 2020 [which have limited jurisdiction for pandemic times only], the National Disaster Management Act 2005, and the Indian Penal Code 1860, cites few provisions of imprisonment and fine in terms of punishment against any act of violence and attack on healthcare workers, provision regarding non-compliance with orders and different classification and definition of hurt and the punishment provided respectively.
However, India in the present scenario needs a uniform Central Legislation which addresses the pertinent issue and provides preventive security systems and all such measures and the compensative mechanism by the Government along with stringent punishment both in terms of imprisonment and fine, which may eventually deter such acts of violence. And with proper provisions to deal with such acts, it is also important to declare all Healthcare Establishments/ Centres as protected zone/areas and competent security mechanisms with an SOS button to tackle such distress situations.. Also as distress relief measures, there should be a Compensation Mechanism for granting compensation to the family of the deceased healthcare Professionals/workers and such others or victim Health workers by the Government / or concern the authorities as a result of such kind of violence/ assault. Protection and prevention from violence against Professional Healthcare/ Healthcare Workers & all Para medical Workers raise an issue concerning preserving the Human Rights & Fundamental Rights of the healthcare Professionals/ personnel and such others healthcare community enshrined in article 21 and 41 and all the relevant International Covenants to which India is a signatory member. There is a need to evolve an effective and balanced grievance & rescue mechanism system for both health workers & the patients & their attendants (in the form of grievance/ complaint & rescue desk ) in every healthcare/ clinical establishment and facilities to intervene immediately to address the problem/ dispute from both the sides so as to prevent any unavoidable dispute or disturbances resulting to such kind of assault, violence or public lynching and also seeking guidelines in the form of directions regarding granting of compensation to the family of the deceased healthcare workers or victim Health workers by the state government / or concern authorities as a result of such kind of violence/ assault.
India is a member of the World Health Organization (WHO) and has an legitimate and ethical obligation to implement the WHO’s guidelines for addressing workplace violence in the healthcare sector in its domestic legal regime. The WHO published a report titled “Framework Guidelines for addressing Workplace Violence in Health sector”[v] in 2002 and has formulated extensive guidelines with the objective- “to provide general guidance in addressing workplace violence in the health sector. Far from being in any way prescriptive, the Guidelines should be considered a basic reference tool for stimulating the autonomous development of similar instruments specifically targeted at and adapted to different cultures, situations and needs.” Similarly, in a study of customary international humanitarian law conducted by the ICRC ( ), the Rule 25 stated that – “Rule 25: Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.”
Conclusion
The whole world in this global pandemic has seen a situation and is going through it for which they could have never prepared themselves for. India, being a country with enormous population and limited health infrastructure, has been hit by it hard. As a result, the healthcare workers have bear the brunt of it the most. In such situation also, they have been providing their relentless and selfless duty to the mankind. Thus, any violence and assaults on them for matters on which they have no control, complicates the situation and relationship. It causes a greater harm. Therefore, it is the duty of the State to ensure their security and ensure their fundamental rights, especially those enshrined in Articles 19, 21 and 47. Human rights are to be respected and be equal for everyone. The duty they owe towards their patients shall be carried efficiently and same shall be for the patients to avoid indulging in such activities of violence, whether during or after the pandemic gets over. It high time that ,India needs a substantive Central legislation to deter, prevent and control and have compensative mechanism to deal with such kind of such incidents in the future. And to ensure a safe working environment for the healthcare professional/ Medicare Service Persons( which include Doctors, Nurses, Para-medical persons, nurses and midwives any other worker employed and working in Medicare Service Institutions and its staff members ) and prevent damage to property of healthcare establishments & others.
Sneha Kalita is an Advocate-On-Record, Supreme Court of India, assisted by research associate Advocate Bristi Rekha Mahanta
[i] State wise Covid Registry maintained by the IMA of martyrs doctors
[ii] https://www.mohfw.gov.in/
[iii] https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(17)31142-X.pdf
[iv] https://www.hindustantimes.com/india-news/world-medical-association-highlights-attacks-on-indian-doctors-report/story-E5lI8VmQ29lljcz36 ALK2O.html
[v] https://apps.who.int/iris/bitstream/handle/10665/42617/9221134466.pdf