Above: A central medical team checking swine flu patients at Gandhi Hospital in Hyderabad/Photo: UNI
Both Sections 269 & 270 deal with negligent and malicious acts likely to spread infections that are dangerous and courts have adjudicated on such cases in the past
By Dr KK Aggarwal
As swine flu cases swamp hospitals in Delhi and Rajasthan, one wonders why some of these infected patients aren’t wearing masks. This would definitely bring down the spread of this disease which can assume dangerous proportions. The law, in fact, has provisions in this regard under Sections 269 and 270 of the Indian Penal Code.
Similarly, take the case of tuberculosis (TB). Prime Minister Narendra Modi had vowed to wipe out TB from India by 2025. In order to do so, the government even announced stringent steps, including jail terms for doctors, hospital staff and chemists if they failed to report TB cases. The ministry of health and family welfare, in a notification, had said that clinical establishments (hospitals and clinics in all recognised systems of medicine), doctors, chemists and druggists “shall notify every tuberculosis patient to the local public health authority” in a prescribed format.
TB, drug-resistant TB and extremely drug-resistant TB (XDR) are highly contagious diseases. Once a person develops XDR, it may be difficult to treat him. Today, two percent of primary cases of TB are drug-resistant. The solution lies in early reporting and fully supervised treatment. Not taking treatment after you know that you are infected can be dangerous for society.
Under the notification concerned, state tuberculosis officers and district tuberculosis officers are responsible for implementation of the notification in their areas of jurisdiction and to ensure that follow-up action is taken by local public health staff on receipt of information about such patients through a hard copy or through an online application named Nikshay. These actions include visiting the patient at home; counselling him and his family members; ensuring treatment adherence and providing follow-up support, etc. The law, therefore, has provisions for checking the spread of TB and makes the patient, doctor and public health caregivers accountable.
Let us understand the implications of Sections 269 and 270, IPC, and their use in non-TB public health situations. For application of these two sections, one needs to demonstrate that the person knew about the possibility of infection and yet did not act or take precautions. For the application of either, development of the disease is not a must.
The law is clear on such issues. Section 269, IPC, deals with a “negligent act likely to spread infection of disease dangerous to life”. It says: “Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
Section 270, IPC, deals with a “malignant act likely to spread infection of disease dangerous to life” and says: “Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
These laws should also be applied by the police to make our country Swachh Bharat. These can be enforced for various acts such as public spitting, dumping garbage on the road, urinating and defecating in the open, not wearing face masks in public when suffering from swine flu, medical establishments not making masks available at the registration counter and not implementing infection control precautions, the government not handling air pollution and allowing water to stagnate, leading to the spread of mosquito-borne diseases.
Such issues have come to various courts. On October 1, 2001, a case came up before the Delhi High Court relating to hospital infection leading to abortion. In this case, Dr. Meeru Bhatia Prasad vs State, High Court judge SK Agarwal allowed the trial court to go ahead with trial formalities under Section 269 against the doctor on the plea that the needle used in an amniocentesis procedure caused infection and the subsequent abortion.
Today, we know that there is a 10 percent chance of getting hospital acquired infections and therefore, all precautions must be taken by hospitals. They should have an infection control department, and consent from the patient must include the possibility of acquiring secondary infections.
In Sanjay Goel vs Dongsan Automotive India Pvt. Ltd., the Madras High Court on August 5, 2016, handled a case of contaminated effluents and dust particles from a factory being thrown into neighbouring land, harming the health of people and allowing breeding of mosquitoes. The Court said that there was a prima facie case under various offences, including Section 269, IPC.
But can adulterated paneer be challenged under Section 269, IPC? The Punjab and Haryana High Court in Shiv Kumar vs State of Punjab on September 12, 2008, said it couldn’t as adulteration was distinct from fake or infected paneer. Also, can an HIV-positive person marrying an HIV-negative person attract Sections 269 and 270? Again, the answer is no if the marriage was with a willing partner as decided by the Madras High Court in P. Ravikumar vs Malarvizhi on February 17, 2011.
In a similar case, the Bombay High Court on February 1, 1974, said in Ramkrishna Baburao Maske vs Kishan Shivraj Shelke that if a commercial sex worker suffering from syphilis communicates the disease to another person during sexual intercourse, she is not liable to punishment under Section 269.
Looking at these judgments, it is obvious that Sections 269 and 270 can be the answer to many issues plaguing society. If we can demonstrate that there was a negligent act by an individual, establishment or government which is likely to spread infection dangerous to life and no precautions were taken, we should exercise our rights using the provisions of Section 269 of the Indian Penal Code.
—The writer is president, Heart Care Foundation of India, and president-elect, Confederation of Medical Associations of Asia and Oceania