Some Thoughts on the Ordinance to Protect Health Care Workers

On 22.04.2020, Ordinance No. 5 of 2020 was passed to amend the Epidemic Diseases Act, 1897. It was a response to the most recent pleas by medical professionals for greater legal protection against physical attacks. I say most recent because this issue has been raised on many a prior occasion, but it only seems to have assumed critical importance for the Union Government now (and saw the results within one day) as doctors threatened not to go to work in the midst of a pandemic.  

Attacking doctors for doing their job is unacceptable and the Ordinance certainly sends out a strong message to anyone who might do so. After all, while regular offences punishable under the Epidemic Diseases Act only attracted punishments of up to six months (at best), the Ordinance has added new offences which carry a jail term of up to five years for standard cases and up to seven years for cases with grievous hurt. There is also a stiff fine and the obligation to pay double the cost of any property damage suffered by the health workers. Surely, anyone would think twice before getting violent with doctors now.

A Temporary Solution

But, before we start high-fiving ourselves on this great new law, let's give it a more careful reading. For starters, this is not a permanent answer to the problem of violence against doctors. The Ordinance will only help doctors if they are working in times of an "Epidemic" as declared under the Epidemic Diseases Act. But, as has been mentioned above, the problem of violence against doctors is one that is not restricted to the extraordinary times we find ourselves in. 

Thus, what we actually have is a very temporary solution to what is a serious and lasting problem. And this temporary solution will become a bigger problem the moment states begin to declare that the Epidemic Diseases Act will no longer be applicable. Then, we will have a strange scenario in which the doctors in some areas will have better "protections" than others.   

The Problem with Criminalising

The fact that doctors and healthcare professionals have been the target of violence across various parts of India is a problem. But passing a law that makes such violence punishable with extremely harsh jail terms and monetary fines is hardly the answer. That healthcare professionals in India have become a soft target for violence suggests many underlying issues. It could reflect a declining trust in doctors. Or even an extreme reaction to doctors' perceived lack of respect for patients, who could be paying through their noses for medical services, and may thus be placed in an already tense situation, both emotionally and financially. 

In the context of Covid-19, the aggressive physical reactions could very well be the consequence of the disinformation that surrounds the disease and the containment measures being adopted to tackle the same. Imagine if you have just got back home after an arduous journey and have, potentially, lost your job because of the lockdown that has forced everyone indoors. You return to a setting where everyone can't stop talking about this virus, but nobody really knows what it does, or what happens to those who are found to be infected. There is no dissemination of verified information about what a quarantine means, or what the conditions of containment buildings are like. Now, if a team of persons flanked by the police come around to "test" you, is it wrong for an individual to try and avoid being tested? 

Criminalising conduct certainly sends a message. But it is a horrific answer to solve a problem that is not entirely of an individual's own making. It might quell incidents of violence against doctors, but it will not help address the mentality which is the cause of such a response. Doing something about the underlying causes would require much more effort than what it takes to simply sign off on a new law. For starters, it would require spending a lot of money on an active information campaign (something that is fairly achievable). In addition to this, it would require a governance of transparency that is open to questions, helps debunk fake news and, ultimately, forces the government to treat its citizens better (perhaps not so achievable given how the Union Government has managed the lockdown so far).  

The Problem with This Manner of Criminalising

Alas, what we are always left with is a law, which brings me to the provisions of the Ordinance. 

The new substantive offence itself is not very problematic. Section 3(2) punishes committing or abetting an "act of violence" against a healthcare service professional. The term "act of violence" goes beyond mere physical attacks and also covers harassment, and "healthcare service professional" goes beyond the medical professionals to all persons empowered under the Epidemic Act to take measures. Where the violence is of the level of causing "grievous hurt" as defined under Section 320 of the Indian Penal Code, Section 3(3) prescribes a harsher punishment. 

I will not speak here about the broad discretion on sentencing conferred by the Ordinance, nor the expropriation clause inserted to threaten individuals with seizure of their houses. Instead, my focus is purely on the problems posed by the procedure prescribed for investigating and prosecuting this new offence. 

Of course, such cases are made cognizable and non-bailable, i.e., the police can arrest persons without warrant, and bail is not a matter of right for them. Such powers are too normalised now to raise eyebrows. But, the same cannot be said about Sections 3C and 3D, both of which create presumptions about the illegal conduct in a manner almost entirely ignorant of basic criminal law and procedure.  

Section 3C

Section 3C requires that the court "shall presume" that a person committed the offence in a prosecution brought under Section 3(3) [grievous hurt caused by an act of violence committed against a healthcare service professional]. Yes, this is similar to Section 29 of the Protection of Children from Sexual Offences Act, 2012. It is also similar to the law that Maharashtra had introduced criminalising the possession of beef. But the problem is that in both of these examples (and others), such blanket clauses which effectively shift the entire burden of proving a crime onto the accused have been held unconstitutional. 

Instead, the prosecution has been required to prove certain foundational facts, such as whether or not grievous hurt was actually caused by the accused, after which the accused is required to prove her innocence [discussed in detail here]. Based on these judgments, I would argue that Section 3C should be struck down. Even if it is not, courts rarely convict purely on the basis of this presumption (I say this based on handling / reading judgments in child sexual assault cases), which would render Section 3C ornamental at best. 

Section 3D

What makes Section 3C even more peculiar is Section 3D, which requires that the court shall presume the existence of the culpable state of mind required for committing the Section 3(3) offence fo causing "grievous hurt". As I have explained above, this is the extent to which the reverse burden clauses in other laws have been held to be valid, and one would imagine that even in cases under the Ordinance it is Section 3D which will be more important. 

But, where Section 3D parts with basic criminal procedure is by prescribing that an accused person proves that she did not have any such mental state "beyond reasonable doubt". Normally, this is the standard of proof to which the prosecution is tested in a criminal trial. Is it fair, or constitutional, to require that the accused be tested on the same burden? The Supreme Court unequivocally held in Noor Aga [(2008) 16 SCC 417] that it was not. In Noor Aga, the Court looked at Section 35(2) of the NDPS Act, 1985 which carried similar language and specifically held that the accused could not be required to establish facts by meeting this strict standard. 

It beggars belief that the Union Government would be so unaware of basic criminal procedure, which then leaves two alternatives explaining why the Ordinance has Sections 3C and 3D: (i) it is an open challenge to the legitimacy of the Supreme Court, or (ii) it is a strategic move and the government knows the law, but is still using these provisions which look harsh to score brownie points and spread fear. Both of these two alternatives are extremely distressing. 

Even otherwise, it is not a "zero cost" issue if the government repeatedly passes legislation which is, on its face, contrary to law. For the same battles that were fought earlier must now be fought again. Valuable judicial time and effort, not to mention lawyers' fee, must be spent upon merely restating the law. Passing provisions totally shifting the burden of proof on the accused will lead to the police filing chargesheets within 30 days (as required under Section 3A) with little or not facts in support of their case.

Conclusion

The new Ordinance with its harsh punishments for violence against healthcare service professionals is a great solution for governments which remain non-committal to heavy spending on social justice issues and remain antithetical to values such as transparency in governance through a crisis which has upended the lives of crores of citizens. And even though all that is required in passing a law is putting pen to paper, the Ordinance suggests that the Union Government was either ignorant of existing law or actively chose to ignore it — both of the alternatives equally damning.

Of course, the Ordinance will help prosecute persons who commit violence against doctors. But what the Ordinance has also done is tell the citizens that their fears, apprehensions, and misgivings about Covid-19 — created in no small measure due to the failure of governments to spend money and be transparent — are exclusively their problem. Any untoward (though unjustified) reactions arising as a result will not bring the government to account, but will require the citizen to prover her innocence in court. The Ordinance channels the feeling that the Maharashtra police put across bluntly: there are only two choices, lockdown or lockup.

Reversing Burdens and the Bombay High Court's Beef Ban Verdict

[A modified version of this post first appeared on the Indian Constitutional Law & Philosophy Blog]

The Bombay High Court decision in Shaikh Zahid Mukhtar v. State of Maharashtra was delivered on 06.05.2016. It determined various constitutional challenges to the Maharashtra Animal Preservation (Amendment) Act, 2015. The Constitutional questions decided by the decision of Justice Oka has been done by the Indian Constitutional Law & Philosophy Blog already. Consideration of the issues discussed by the separate opinion of Justice Gupte was left, which is what I seek to address. Justice Gupte tackles Section 9-B of the Amendment Act [hereafter, the Act], which reads:

“In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions of this Act, the burden of proving that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act, shall be on the accused.”

The separate opinion struck down Section 9-B of the Act as unconstitutional. In this comment, I first give a basic introduction to reverse burden (or reverse onus) clauses, moving on to discuss the specific reasoning adopted in the Separate Opinion for holding the provision unconstitutional.

An Introduction on Reverse Burdens

Ordinarily, in criminal cases the burden to establish the guilt of an Accused rests on the state. This dovetails with the essential principle of every Accused having a presumption of innocence in her favour. Over time, though, many statutory inroads have been made into this principle. Beginning with requiring an Accused to establish certain facts (evidential burdens), today there are several instances of Accused persons requiring to establish innocence itself (legal burdens). The Supreme Court held these clauses to be constitutional even where they impose legal burdens, in Noor Aga v. State of Punjab [(2008) 16 SCC 417]. This blog discussed reverse onus clauses earlier, here and here.

Consider an example from the Narcotic Drugs & Psychotropic Substances Act, 1985 [hereafter, NDPS Act]. This employs two reverse onus clauses. Section 54 of that Act creates a presumption that the Accused is guilty of an offence, if she fails to ‘satisfactorily account’ for possession of contraband. Section 35 states that in a prosecution under the NDPS Act, it would be presumed that the Accused has the ‘culpable mental state’ necessary for the offence.

How these operate was clarified by the Supreme Court in Inder Sain v. State of Punjab [(1973) 2 SCC 372, a case under the old Opium Act, 1878]; Noor Aga v. State of Punjab [supra]; Dharampal Singh v. State of Punjab [(2010) 9 SCC 608]; Bhola Singh v. State ofPunjab [(2011) 11 SCC 653]. According to these decisions, the prosecution must prove initial facts – there was contraband, and it was in the conscious possession of the Accused – which creates a presumption of guilt, shifting the burden on the Accused to rebut that presumption. Note, though, that the prosecution is not required to prove that the Accused was knowingly in possession of the contraband itself. For instance, in Dharampal, 65 kg of Opium was recovered from the boot of the car owned and driven by the Accused. The prosecution was not required to prove that the Accused knew that the boot had the contraband. The presumption was cast as soon as the prosecution proved the material was contraband, and that it was in the boot of the car owned and driven by the Accused. It was now on the Accused to rebut this presumption.

The Separate Opinion’s Analysis of Reverse Burdens

At the outset, I must applaud the opinion for having extensively discussed the issue of reverse burdens. The vociferous opposition initially faced by these clauses across the common-law world has certainly shifted to a resigned acceptance in light of the perceived needs of law enforcement. However, we are now in a time when legislatures resort to such egregious provisions at the drop of a hat, exhibiting a numbness to the severe curtailment of liberties they entail. Parts of the opinion specifically address this problem, as Justice Gupte attacks the very need of having such a clause while dealing with a substance such as beef, which, as admitted by the state, carries no intrinsic harm or threat to society as opposed to say drugs [Paragraph 215, Pages 235-236].

Moving on to considering the opinion more substantively. Justice Gupte bases his attack upon Articles 14 and 21 of the Constitution of India. After citing various decisions, both Indian and foreign [Paragraphs 202-212, Pages 210-231], Justice Gupte arrives at the following four-fold test for considering the validity of any reverse onus clause [Paragraph 213, Pages 231-232]:

1. Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
2. Does the proof of these balance facts involve a burden to prove a negative fact?  
3. Are these balance facts within the special knowledge of the accused?
4. Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?

The First Condition restates that the provision must require basic facts to be established by the prosecution before talk of any presumptions and reversing burdens. This must bear enough of a ‘probative connection’ with the presumption sought to be drawn. Going back to the example of Dharampal above, we can usefully juxtapose it with the decision in Bhola Singh. In the latter, the Supreme Court set aside the conviction for a co-owner of a truck which was caught transporting contraband based on the presumption. The Supreme Court held the presumption was not attracted, as the prosecution didn’t prove any basic facts connecting the Accused with the contraband. The prosecution didn’t show the Accused knew how his truck was being used by the contractor, let alone him knowing that the truck was being used to smuggle contraband.

From this, the Second and Third Conditions address the kind of facts that are to be presumed. The idea behind this is an understanding that reverse onus clauses only make sense where the issue is lying within the ‘special knowledge’ of the Accused or to prove ‘negative facts’. ‘Negative facts’ are the existence of permissions such as licenses or tickets, which play a role where offences rely on the inexistence of these permissions. ‘Special knowledge’ is a reference to mental states of an Accused. This is trickier. Any culpable mental state will always be a matter for the ‘special knowledge’ of an Accused, inviting the argument that in every trial the burden must be on the Accused to disprove intention after the prosecution establishes the physical act. Enter, the fourth condition, which places the handbrake on extending such logic too far. It reminds us of the fundamental David v. Goliath nature of the contest though, and how difficult it is for an Accused to find and present evidence to establish his innocence beyond his own word for his deeds.

Overall, then, there is little to disagree with the framework Justice Gupte establishes for evaluating reverse onus clauses in his separate opinion. The first and fourth conditions are the actual ‘tests’ upon which the reverse onus clause will be tested. If you clear the first test, the framework requires determining what kind of presumption is placed on the Accused, before considering whether placing such a presumption is unduly burdensome and oppressive. Considering there is no such clear test available in judicial decisions at present, it is a welcome contribution which should prove helpful in providing a systematic consideration of the various reverse onus clauses we have at present, and are bound to have in the future.

Applying the Tests to Section 9-B of the Act

Section 9-B is meant to apply to every offence under the Act, i.e. offences under Sections 5, 5-A, 5-B, 5-C, 5-C and 6:

• Section 5 makes it an offence to slaughter cows, bulls, or bullocks in any part of Maharashtra;
• Section 5-A makes it an offence to transport and/or export cows, bulls or bullocks (or cause to, or offer to do so) within or outside Maharashtra in contravention of the Act or with knowledge that the animal will, or is likely to be, slaughtered;
• Section 5-B makes it an offence to purchase/sell/otherwise dispose of cows, bulls or bullocks (or offer to do so), knowing or having reason to believe the animal will, or is likely to be, slaughtered;
• Section 5-C criminalized possession of the flesh of a cow, bull or bullock slaughtered in contravention of the Act;
• Section 5-D criminalized possession of the flesh of a cow, bull or bullock slaughtered outside Maharashtra;
• Section 6 regulated the slaughtering of cows, bulls or bullocks and made it an offence to slaughter such animals without obtaining a certificate.

The obvious problem with Section 9-B is its broad and indiscriminate phrasing, placing the burden upon the Accused for proving every ingredient of the offence. In order to make the section apply to all offences in the Act, it burdened the Accused with proving “that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act.” The basic fact concept would require the State to at least prove that the cow or flesh in question was slaughtered, transported, exported, sold or purchased. It would also require that a connection be drawn between that cow or flesh in question and the Accused. Section 9-B allowed the prosecution to get away without doing anything, violating the very basic First Condition.

Justice Gupte, however, begins by specifically looking at the possession offences under Section 5-C and 5-D of the Act through the lens of the Second Condition [Paragraph 214, Pages 233-235. After immediately concluding that the Accused could never establish the ‘negative fact’ of the flesh not being that of a cow or bull, Justice Gupte immediately also concludes that the Accused could never establish that the flesh was obtained in contravention of the Act to begin with, and immediately thereafter concludes this violates his Fourth Condition of oppression. At the end of these assertions, he states that it would be easier for the State to prove these foundational facts, and absence of any such requirement was itself a problem. While having created a clear four-fold test, Justice Gupte doesn’t maintain these neat distinctions in his scrutiny of the provision on its anvil. The confusion is apparent in the Paragraph, and blunts what would have otherwise been a forceful criticism of the provision.

These objections were in some measure expected by the State. As recorded in the Separate Opinion, the Advocate General for Maharashtra conceded Section 9-B would apply only after the prosecution established certain initial facts. At one point, it is recorded how the Advocate General interpreted Section 9-B to apply only to create a presumption after every physical act had been established. This interpretation would have meant Section 9-B operated to presume that the concerned physical act – transport/export/possession etc. – was done knowing that it was contrary to the Act.

This would have made Section 9-B akin to those clauses which presume the existence of the mental state, considering it to be within the ‘special knowledge’ of an Accused. However, as Justice Gupte rightly noted, “Constitutionality cannot be a matter of concession by the State at the hearing” [Paragraph 215, Page 235-236]. Justice Gupte doesn’t stop there, though, and then proceeds to attack the ‘special knowledge’ justification offered by the Advocate General [Paragraphs 216- 217, Pages 237-240]. As I mentioned above, it is here that Justice Gupte criticizes the usage of reverse burden clauses in this context of possessing cow meat, citing the inherently harmful nature of substances such as narcotics which can warrant possession-based presumptions. This is critical, and exposes future legislation employing reverse burdens with possession based offences to closer scrutiny under Article 14 of the Constitution.

The Opinion then moves to Section 5-A and 5-B. Section 9-B would have placed the entire burden on the Accused, which was naturally unsustainable. A version that kicked in only to create a presumption that the Accused had knowledge that the offending acts of transport/export/sale/purchase would lead to slaughter or were otherwise in contravention of the Act was also found unsustainable. The basis for this conclusion was an insufficient connection existed between the prosecution proving the physical acts and the ultimate presumption of knowledge (violating the First Condition). The offence was purely based on knowledge, and presuming that very ingredient would subject the Accused to oppression (violating the Fourth Condition). Section 9-B was unconstitutional when applied together with Sections 5-A and 5-B as well.

Lastly, Justice Gupte arrives at Sections 5 and 6, which were present before the Amendment. The analysis is crisp as it is brief – Sections 5 and 6 read with Section 9-B would involve a presumption of foundational facts, which would render its use unconstitutional for a violation of his First Condition.

What to Expect Now?

Newspapers have already reported that the State of Maharashtra plans to challenge this decision in the Supreme Court. A part of me hopes this happens, as it would enable the Supreme Court to, hopefully, endorse the exposition of the Separate Opinion on reverse onus clauses. The test created is clear, and potentially allows for greater clarity in examining these provisions which currently abound our statute book. In its current form, Section 9-B is far too broad to be considered sustainable. One would assume that the chances of the Supreme Court overturning the verdict are unlikely.

The higher probability is of a modified Section 9-B emerging from the Maharashtra legislature, incorporating the position espoused by the Advocate General during the hearing before the Bombay High Court. A version of Section 9-B which explicitly places an initial burden on the prosecution would then place the focus squarely on the other condition created by Justice Gupte, of such a provision placing an Accused under oppression and undue hardship. That consideration, whenever it does happen, will prove to have a lasting impression on how reverse onus clauses are viewed in our criminal justice system.