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COVID-19 and Ordinances for protection of healthcare workers: The Constitution has the last word

The article discusses the legal aspects in the background of the several incidents of attacks on healthcare service personnel involved in the work of Covid-19 from across the country.

Raghavendra S Srivatsa

The COVID-19 pandemic has thrown up vexing issues, the most serious and pressing being protection of frontline healthcare workers and prevention of attacks on them by unruly elements.

Several such incidents have been reported from across the country. One incident that was widely reported was from Bangalore on the April 19, 2020 (the Padarayanapura incident). The incident put pressure on the Karnataka government to introduce a suitable law to provide for offences and strict punishment and stringent action against the offenders.

In that background, the Governor of Karnataka promulgated the Karnataka Epidemic Diseases Ordinance, 2020 on April 22. Prior to that, exactly on the same lines, the Governor of Kerala had promulgated the Kerala Epidemic Diseases Ordinance, 2020.

While the Karnataka Ordinance stemmed from the developments in the state, it may be serendipitous that the President of India promulgated the Epidemic Diseases (Amendment) Ordinance, 2020, on the same day.

The need to have a stringent law declaring zero tolerance to any form of violence against healthcare service personnel and damage to property was the driving force behind the Ordinance.

While serious deterrents have been built into the Central Ordinance, the State Ordinances provide for offences in very broad and general terms, and for very mild penalties. On a comparative analysis of the State Ordinances and the Central Ordinance on the anvil of the constitutional scheme of legislative powers, several inconsistencies emerge. The end result will be, happily, that the stricter law made by the Centre will prevail.

While COVID-19 Regulations were framed by several states under the Epidemic Diseases Act, 1897, the Kerala and Karnataka Ordinances seek to “unify and consolidate the laws relating to the regulations and prevention of epidemic diseases” in the respective states.

In that endeavour, the Epidemic Diseases Act, 1897 has been declared to be inoperative in the said two states. An analysis of the two Ordinances gives rise to an interesting constitutional issue of repugnancy between a state law and an existing law or a law made by the Parliament.

As regards the State Ordinances, the question of legislative competence therefore arises in this context, because the phrase “Epidemic Disease” is not used in any of the three lists in the Seventh Schedule of the Constitution.

The phrase is also used in Entry 6 of List II (State List), which confers legislative powers on the states in respect of “public health and sanitation; hospitals and dispensaries”. The exclusive legislative powers of the states appear to be only in respect of “public health”, which has been defined in very broad terms and does not necessarily deal only with epidemic diseases, let alone a pandemic.

The definition of “public health” is in very broad terms [Ashok Lenka v. Rishi Dikshit]. The legislative entry in Entry 6 of the State List is in general terms, and the legislative entry in Entry 29 of State List is in specific terms, which deals with an infectious and contagious disease.

Entry 29 of the Concurrent List reads: “Prevention of the extension from one State to another of infectious or contagious diseases or tests affecting men, animals or plants”.

It is the accepted principle that a general entry in one of the lists will yield to a specific entry (Professor Yashpal v. State of Chhattisgarh).

The interplay between state laws and any existing law or a law made by Parliament on a subject in the Concurrent List is provided for in Article 254. Suffice it to say, that if there is any repugnancy between these laws, the law made by Parliament or the existing law shall prevail, and the law made by the State Legislature shall, to the extent of repugnancy, be void.

Given the constitutional framework within which laws can be made by the states and the Union, there surely appears to be repugnancy between the State Ordinances and the Epidemic Diseases Act, which is a Central legislation of the pre-constitutional era and therefore an “existing law”.

It is evident that the avowed object sought to be achieved by the Kerala and Karnataka Ordinances is directly relatable to the legislative field enumerated in Entry 29 of the Concurrent List. That field is already occupied by the Central Law.

Under the State Regulations, sealing of state borders is one of the aspects addressed. It may be recalled that in the wake of the COVID-19 outbreak, Karnataka sealed the Kasargod border opening into Kerala. The two states were entangled in litigation which reached the Supreme Court and was, happily, resolved amicably. There is evidence, intrinsic and extrinsic, that the states were actually dealing with the subject in Entry 29, List III.

In this context, it is noteworthy that the Epidemic Diseases Act provides only the bare framework and empowers the state and Central governments to take special and extraordinary measures to prevent the outbreak and spread of any epidemic disease. Section 3 of the Act provides that any person disobeying any regulation or order made under the Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code. No further provisions were made.

The Central Ordinance seeks to address this crucial aspect of the matter while also further elaborating on the powers of the Centre under Section 2A to keep pace with times.

Offences under the Central and State Ordinances

With a laudable object, the Central Ordinance provides for offences of violence against a healthcare service personnel and causing damage or loss to any property during an epidemic.

“Acts of violence” against healthcare workers are not limited to mere physical harm, but extend to causing harassment to healthcare service personnel, obstructing such personnel, or causing loss or damage to any property or document in the custody of healthcare service personnel.

Without getting into the nitty-gritties, it may be stated that the Central Ordinance provides for stringent punishments, both of imprisonment and of fines. There is a minimum term of six months and a maximum of seven years' imprisonment. The minimum fine is Rs. 50,000 and the maximum is Rs. 5,00,000. The offences are made cognizable and non-bailable and a presumption is raised that the accused has committed the offence under Sec.3(3), unless the contrary is proved. Compensation of twice the amount of the loss/damage is also payable in addition to undergoing the penalty.

It is thus apparent that the Central Ordinance prescribes stringent penalties and swift prosecution while placing reverse burden on the accused. This is actually the need of the hour and is a welcome step in deterring cynics from attacking selfless COVID warriors in the performance of their duties.

In contrast, the State Ordinances provide for offences in very broad terms. There is no elucidation of the exact nature of offence and the penalties provided are extremely mild and lenient. The Kerala Ordinance provides for imprisonment which may extend to two years or with fine which may extend to Rs.10,000/- or with both. The Karnataka Ordinance provides for imprisonment for a term which may extend to three years and with a fine which may extend to Rs.50,000/-. No minimum term of imprisonment or minimum amount of fine is prescribed by either State.

The Karnataka Ordinance incorporates two aspects of the Central Ordinance, namely, prescribing a minimum term of imprisonment for causing loss or damage to public or private property, and providing for payment of compensation of twice the amount of damage or loss. In respect of the other matters enumerated under the Presidential Ordinance, there are inconsistencies and the Karnataka Ordinance is repugnant to the Central Ordinance. The most striking aspect of repugnancy is that both the Kerala and Karnataka Ordinances make the offences thereunder cognizable and bailable.

It is clear that the Central Ordinance will prevail over the Kerala and Karnataka Ordinances. The salutary purpose underlying the issuance of all these Ordinances is the same – protection of frontline COVID warriors and deterring unruly elements from attacking such frontline warriors. The pressing need is best served by incorporating strong deterrents as has been done in the Central Ordinance.

While the legislative attempts of the states may be well-intentioned, they lack the necessary sting to drive home the strong message. The State Ordinances were actually unnecessary. The Karnataka Ordinance appears to be a knee-jerk reaction.

Thankfully, the Central Ordinance will prevail and the stricter offences, stringent procedure, and penalties prescribed therein will operate across the country. It is heartening that the constitutional scheme has paved the way for such primacy. The robust constitutional machinery saves the day and at the end of the day, the Constitution has the last word.

The author is an Advocate-on-Record in the Supreme Court of India.

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