The Kerala Government recently enacted an amendment to the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act that prohibits violence against healthcare service persons and seeks to prevent damage and loss to property in health care service institutions.
Now, Shashi Tharoor, Member of Parliament from Thiruvananthapuram, is moving a similar legislation as private members’ Bill in Parliament, nicknamed Vandana Das Bill.
These legislation are unnecessary and in certain respects negate equality before law, enshrined in the Constitution.
It is notable that the Centre had proposed a similar legislation in 2019. However, after obtaining public opinion, the Ministry of Health and Family Welfare decided to dump the legislation. The Home Ministry, during inter-ministerial consultations over it, had stated that there cannot be a separate legislation to protect members of a particular profession, according to news reports in 2022.
Dismissing the need for a separate law to check violence against members of a specific profession, the Home Ministry said there should be no specific law for a particular profession, and the Indian Penal Code and Criminal Procedure Code were sufficient to deal with it.
It noted that over the time, members of other fraternity like lawyers and police might also demand for an exclusive law to safeguard their interests.
Though the Ministry did not say so, other groups such as journalists too could make such demands.
On a higher pedestal:
The enacted and proposed legislation place health service persons on a distinct legal position higher than the ordinary citizens. This is similar to prescriptions in Manusmriti that granted Brahmins elevated legal status. Indian Constitution does not recognise such treatment. In normal jurisprudence, a crime committed under emotional stress attracts lower punishment than a pre-meditated crime.
The parent Kerala Act was enacted back in 2012, following protests by doctors. The present amendment was to enhance period of imprisonment and fine and include more categories of health care personnel under the protection of the law. They included security personnel who, in many cases, are outsourced by the hospitals. There is also the provision that the offender shall pay the health care service institution twice the amount of purchase price of medical equipment damaged and loss caused to the property as compensation. It is not clear why the health care service institution should get such a compensation which is not available to other institutions. Even if old or non-working equipment is damaged, it may be possible to recover such damages and this could lead to misuse of the legislation.
It is notable that the Kerala Amendment (enacted as an Ordinance with Bill to replace it before the Kerala Assembly now) was brought against the background of tragic murder of a young doctor Vandana Das at Kottarakkara Taluk Hospital by a patient, brought in by the police. The motive was not clear and it was suspected that the assailant was mentally unstable or addicted. The only thing was that the crime took place in a hospital.
Dr. Tharoor also cites this incident in his statement of objects and reasons for his Bill. The narrative is bogus. Dr. Tharoor is just cashing in on the protests by doctors and public sympathy for the family of the deceased. The incident took place basically because the police, security staff or others failed or did not care to restrain the attacker who was using just scissors for the attack. It was not related to an issue over treatment.
Enforcement is the key
Legislators often propose special legislation and enhanced punishment, for crimes that attract public protests or concern, to deflect attention from failures on the enforcement front. Though the Kerala Act was in force since 2012, it is said that hardly any successful prosecution had taken place so far, and the cases of violence against health personnel are on the increase. So, the political ploy to neutralise public concerns is to bring new legislation or increase of the quantum of punishments. Examples to this are the Goonda Act and modification of the law and quantum of punishment for sexual violence against women. However, goondaism or violence against women has not come down.
Exploitation of patients
Violence against hospital staff have increased against the background of increasing exploitation of patients by hospitals. If indeed special legislation is needed for healthcare personnel, what the government and Dr. Tharoor should answer is why similar special legislation is not being proposed for protection of patients also. Recently, the High Court had ordered arraignment of several doctors after the court found evidence that a patient was left to his death by the doctors for harvesting of his organs.
It is not easy for patients or their relatives to bring doctors to book in such cases or medical negligence. In this case, it became possible because a doctor came forward to exposes that and several other cases. The number of cases he is citing is not small.
A patient in ICU or in the operation theatre is highly vulnerable. Enhanced punishments had been specified for sexual crimes by those in authority. Is not similar provisions needed in the case of doctors and nurses too for wilful negligence or trafficking in human organs, stem cells or embryos?