The world is going through an emergency. We are at war, albeit not with a combatant nation. We are at war with a pandemic, which has subsumed more than 50,000 lives worldwide. The cavalry on the frontlines is not our regular militia but our healthcare professionals. It is the doctors, the nurses and the hospital support staff that are leading the offence against the pandemic.
The grim reality, however, is that our healthcare professionals are neither adequately appreciated nor protected. News reports tell us that there is not enough PPE (personal protection equipment) for our doctors and nurses. That they are misbehaved with. That they are pelted stones at and spat on by unruly people who were defiant from the very beginning. If this doesn’t enrage the conscience of the nation, nothing probably will.
What are the legal indemnities available against such actions? Why do we not have a separate law criminalising assaults on doctors and healthcare professionals?
Last year, the Ministry of Health, government of India proposed the passing of the ‘Health Services Personnel and Clinical Establishments (Prohibition of Violence and Damage of Property) Bill’, which had contemplated imprisonment of up to 10 years and the imposition of a fine of as much as Rs 10 lakh on those who assault healthcare personnel. It had even attributed a fairly wide definition to healthcare personnel which included, doctors, dentists, nurses and paramedical staff, medical students, diagnostic service providers in a health facility and even ambulance drivers.
This legislation was due to be introduced in parliament in its Winter Session of 2019. However, the Ministry of Home Affairs gave its thumbs down to this proposed legislation, reasoning that there could be no separate law to protect doctors.
However, in Delhi, we do have the ‘Delhi Medicare Service Personnel and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2008′, which is an Act to “prohibit violence against medicare service personnel and damage to property in medicare service institutions in the National Capital Territory of Delhi…”
Section 3 of this Act prohibits any act of violence against medicare service personnel or damage to property in a medicare service institution. Section 2(d) provides an inclusive definition of a ‘medicare service personnel’ which includes inter alia registered medical practitioners, nurses, nursing aids, midwives, paramedical workers, ambulance service providers etc. Section 2(f) defines ‘violence’ to mean ‘activities of causing any harm or injury or endangering life, or intimidation, obstruction or hindrance to any medicare service personnel in discharge of duty in the medicare service institution or damage to property in such institution’.
In terms of Section 4 of this Act, acts of violence under Section 3 are punishable with imprisonment up to three years or with fine of Rs 10,000, or both. The offence under Section 3 is also cognisable and non-bailable. However, it seems that for want of knowledge about this enactment, its provisions are seldom invoked by the Delhi Police.
On May 3, 2017, a division bench of the Delhi high court, alarmed by the increasing incidents of violence on doctors, took suo-motu cognisance of a news article in the Times of India titled ‘AIIMS doctors to get self-defence training’. The news report suggested that one in two doctors in public hospitals face violence. As a sequitur, 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 since.
Therefore, insofar as Delhi is concerned, while we do have a substantive piece of legislation criminalising such assaults, it appears that there is little awareness about its existence. This is inferred from the order dated May 19, 2017, where the Delhi high court asked the government to consider giving wide publicity to the provisions of the enactments.
A similar enactment may or may not be present in other states in the country. Therefore, in the absence of a Central legislation on the subject, attention necessarily would have to be made to the Indian Penal Code to punish such violators.
The provisions of the IPC, which would cover assaults on public servant, would be the following:
- Section 186 : Obstructing public servant in discharge of public functions.—Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
- Section 332 : Voluntarily causing hurt to deter public servant from his duty.—Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for 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.—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
However, the common denominator in all of the above provisions is the supposition that victim is a ‘public servant’ as defined under Section 21 of the Penal Code. While this might be true for employees of public hospitals, the same may not hold true for doctors and healthcare staff who are in the employment of private hospitals. For them therefore, the provisions of simple assault and hurt may apply, which carry significantly less stringent punishments.
In the United Kingdom also, even though there are no separate offence for assaulting a public servant, assaults that are committed on public servants are treated seriously. Paragraph 4.12 (c) of the Code for Crown Prosecutors states: “… A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.” This is reflected in the Sentencing Council’s Definitive Guideline on Assault, in which the fact that ‘Victim was providing a public service or performing a public duty at the time of the offence’ was clearly identified as an aggravating factor.
The sentencing practice in the UK indicates that custody is the appropriate starting point for a person who assaults a public servant. Case examples are the following:
- R v McNally 2000 1 Cr. App. R (S) 533– the appellant was attending a hospital with his son when he became involved in an argument with a doctor and assaulted him with one punch. He had no previous convictions and was charged with ABH. The Court of Appeal held that 6 months’ imprisonment was the appropriate sentence, and reiterated that such circumstances seriously aggravated the offence.
- R v Eastwood  2 Cr. App. R. (S) 72 (at 318)– the appellant was drunk and in A&E when he assaulted a nurse during the course of an X-ray. The nurse suffered torn ligaments in her hand, and he was charged with ABH. The Court found that in such circumstances, the starting point after trial was between 21 – 24 months’ imprisonment with a sentence of 15 months’ imprisonment suitable after guilty plea.
- R v Colin Dickson  EWCA Crim 1826– having regard to the case of McNally and the judgement of Rose LJ on aggravating and mitigating factors for length of sentence, the Court of Appeal considered that the same factors will come into play when determining the appropriate sentence for assaults on police officers. Such are attacks are particularly grave and any attack on a police officer who is carrying out his duty has to be treated very seriously.
- R v McDermott (Victor)  EWCA Crim 1899– assault occasioning actual bodily harm carried out on a member of an ambulance crew. Appellant was attended to by an ambulance crew when found lying in the road and was verbally abusive to the crew who sat him on the ambulance step. He stood up and punched one of the crew in the head, causing his ear drum to rupture. Appellant was drunk at the time and had previous convictions for drink-related offences, including ABH and criminal damage. Appeal against length of the sentence was dismissed – assaults on medical staff and ambulance personnel would frequently merit a custodial term. There had been no personal reason for the assault, alcohol was an aggravating, not a mitigating feature. 15 months’ imprisonment was appropriate in all the circumstances.
However, in the UK too, there is the similar problem of distinction between professionals engaged in public healthcare and those engaged in private healthcare. While the former is clearly an aggravating factor for sentencing, the latter may not be.
This unwarranted distinction by itself is a prime reason why an umbrella legislation for the protection of all healthcare staff, be it public or private, needs to be brought in at the earliest. The draft proposed by the Ministry of Health seems to be a balanced draft and had already passed the rigours of public consultation. It is now incumbent upon the Ministry of Home Affairs to reconsider its earlier stance and usher the passing in of this key piece of legislation.
The imminent need for such a legislation would, in my opinion, justify taking the ordinance route to bring it into immediate enforcement, as well. After all, the question that stares us in the face today is, ‘Who will protect the protectors?’
Rushab Aggarwal is an advocate at the Supreme Court of India and the Delhi high court. He can be contacted via email on [email protected].