Doctors' strike: West Bengal already has laws to deter violence against medicos, Mamata-led govt needs to implement them

The protest started by the junior doctors in all state-run medical institutions in West Bengal, after two of their colleagues were assaulted by a mob at the NRS Medical College and Hospital in Kolkata on 10 June, 2019, has grown and gathered momentum over last one week. Not only has it garnered support from the senior doctors and the medical community across the country, but it has also raked up the issue of the efficacy of laws preventing such violence on health professionals.

In a country like India, the poor doctor-patient ratio and the substandard infrastructure in state hospitals often contribute to less-than-desirable treatment quality. The junior doctors, who are more accessible to the patients and their relatives, often become the victims of the ire of the aggrieved parties. A study by the Indian Medical Association (IMA) reported that about 75 percent of the doctors in India have faced violence at some point in time. There are laws providing recourse against doctors and hospitals in case of medical negligence. However, mob justice (sometimes accompanied by media trial) often takes precedence such situations.

After the NRS incident, Dr Harsh Vardhan, the Union Health Minister, wrote a letter to the chief ministers of all the states urging them to take strict action against any person who assaults doctors. He also referred to a letter dated 7 July 2017 sent by the Union Health Ministry to all the states, containing a recommendation of an inter-ministerial committee. It suggested the state governments should enforce relevant provisions of Indian Penal Code (“IPC”) / Code of Criminal Procedure (“CrPC”) and also provisions of specific state legislation and to enact such legislation wherever they are lacking.

In a country like India, the poor doctor-patient ratio and the substandard infrastructure in state hospitals often contribute to less-than-desirable treatment quality. The junior doctors, who are more accessible to the patients and their relatives, often become the victims of the ire of the aggrieved parties. AFP

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A copy of draft legislation titled “The Protection of Medical Service Persons and Medical Service Institutions (Prevention of Violence and Damage or Loss of Property) Act, 2017” (“Draft Act of 2017”) provided by the Indian Medical Association was also circulated to all the states vide the 2017 letter.

It is interesting to note that at least nineteen states, including West Bengal, already have in place state legislation aimed to deter and curb violence against health professionals and damage of medical institutions. The West Bengal Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act was enacted in 2009 (“WB Act of 2009”). States like Delhi, Maharashtra, Tamil Nadu, Gujarat and others have also enacted similar laws primarily between 2008 and 2013.

The primary features of the West Bengal Act of 2009 are as follows:

• Any act of violence against medicare service persons or damage to property in a medicare service institution is prohibited;
• Such act of violence or damage to property shall be cognizable and non-bailable offence;
• Offender shall be punished with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees;
• Additionally, the offender shall be liable to pay compensation for the damage or loss caused to the property, as determined by the court; and,
• The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law.

If a person or group of persons afflicts violence on health professionals or damage hospital properties, such actions can be deemed to be offences already defined under the existing laws (hence the provision in the West Bengal Act of 2009 that the provisions in the Act are in addition to any other law). Depending upon the fact of the matter, provisions for offences like assault, voluntarily causing hurt or grievous hurt, unlawful assembly, rioting, wrongful restraint/confinement, criminal force, criminal trespass, etc. can be imposed under the IPC. Therefore, at best, the WB Act of 2009 adds an extra period of up to three years to the offender’s term of imprisonment, if proven guilty, in addition to the punishment prescribed under IPC.

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The contents of the specific laws passed by the other states are broadly along the same lines, though there are some differences. For example, Tamil Nadu has the maximum term of imprisonment among other states, which ranges from three years to ten years. IMA's Draft Act of 2017 purportedly proposes imprisonment of up to seven years. It also apparently suggests setting up a committee to aid and advise victims of medical negligence and punishment for failure to report any offence against a health professional or institution. However, for all intent and purpose, it remains a slightly modified version of the legislation already adopted by nineteen states.

Reports in the media over the years suggest that violence against healthcare professionals has continued unabated all across the country, even in states where specialised laws are in effect. In my experience as an advocate, while advising hospitals and other healthcare service providers over last one decade, I have realised that often the law enforcement agencies are unaware of this specific legislation and are quite reluctant to implement them, even when these are brought to their attention.

In India, whenever there is a public outcry against any form of crime, there is a demand for specialised laws prohibiting such crime. However, we need to understand that what we lack are not laws, but the effective implementation of the existing laws. The NRS incident happened in West Bengal in spite of the WB Act of 2009 being in place. Reuters

Recently, demands have surfaced from some quarters to enact a central legislation to prohibit violence against health professionals. However, we need to realise that this is primarily a law and order issue. The Constitution of India provides ‘public order’, ‘police’ and ‘hospital’ in the State list (i.e. List II of Seventh Schedule), on which only the State governments can legislate.

In any case, we need to realise that the law enforcement agencies will finally be working under the aegis of the state governments (except in a place like Delhi) while enforcing both State and Central laws.

Therefore, the responsibility of maintaining law and order, in general, and preventing violence against doctors and health professionals, in particular, ultimately rests with the state government. Enactment of specialized legislation for this purpose may be advisable for States lacking such legislation. However, the situation in West Bengal clearly demonstrates that the mere existence of specialized legislation is inadequate if the enforcement of existing laws by the concerned State government is not timely and effective.

The current impasse in the NRS issue demands that the West Bengal government shows the right administrative will not only to restore justice in the current crisis but also deter any future miscarriage of justice.

The author is an advocate and co-founder of Ashlar Law, a commercial law firm