Vidhi Centre

COVID-19: Structural Changes Are Needed to Address Violence Against Health Workers

Rather than only limiting responses to punishment and harsher penalties, policymakers must address the underlying structural factors that lead to violence against healthcare professionals.

As Indian healthcare professionals battle the raging COVID-19 pandemic, several media agencies have reported disturbing incidents of violence against healthcare professionals. In Indore, stones were pelted at healthcare workers trying to screen for the coronavirus, while in Hyderabad, a junior doctor was assaulted by relatives of a deceased patient. Similar incidents have been reported in other parts of the country as well.

While the COVID-19 pandemic is admittedly unprecedented, these incidents of violence are themselves not new and are part of a larger pattern that has received widespread media coverage in recent years. The Vidhi Centre for Legal Policy’s research on violence against healthcare professionals analysed 56 such reported incidents of violence between January 2018 to September 2019. In a number of such instances, the death of the patient was an immediate trigger for violence, while aggressive relatives prompted violence in other situations.

A review of Indian studies and academic writing on the issue revealed the crippling lack of infrastructure and personnel to deal with growing numbers of patients, poor quality or complete lack of primary care, leading to overburdening of secondary and tertiary care facilities, and overall poor communication skills as distinct causal factors of violence.

Also Read: India Needs an Urgent Law to Protect All Health Workers From Violence

Turning a crisis into an opportunity for bigger reforms

An immediate response to violence against healthcare professionals is usually prosecution under harsh laws and calls for new laws to deter similar conduct in the future. This response is based on the theory of deterrence which assumes that offenders make rational choices and avoid indulging in certain conduct due to the high costs associated with the consequences.

Deterrence-based reasoning, however, works better when laws are accompanied by efficient enforcement and criminal conduct is premeditated rather than the result of sudden and violent emotions. In India, violence against healthcare professionals occurs in specific contexts and situations and is hardly ever premeditated. Further, the well-acknowledged slow pace of the criminal justice system questions the efficacy of only using criminal laws to address violence in healthcare settings.

In light of COVID-19, the policy-makers are focusing their attention on meeting the immediate needs of healthcare professionals such as supplying adequate personal protective equipment (PPEs) and ramping up infrastructure by increasing isolation facilities and ventilators. However, the crisis presents an additional opportunity to take a long, hard look at Indian healthcare and address many of the systemic issues which have led to violence.

Therefore, rather than only limiting responses to punishment and harsher penalties, policymakers must address the underlying structural factors that lead to violence against healthcare professionals.

Members of Resident Doctors Association of AIIMS wearing bandages on their heads protest to show solidarity with their counterparts in West Bengal. Photo: PTI)

Need for structural changes

While global best practices suggest that several steps can be taken by the healthcare establishments themselves to prevent violence and to provide redress to their employees, hardly any steps are taken in India at the organisational level to prevent and address such violence in healthcare establishments. The World Health Organisation (WHO) recommends that specific obligations should be imposed on healthcare establishments to prevent violence like the elimination of risks of violence, routine assessment of the incidence of violence and its causes, developing policies, plans and monitoring mechanisms to combat violence, setting up adequate mechanisms for reporting.

Post-incident interventions should also be undertaken by healthcare establishments like providing medical treatment, counselling, management support, representation and legal aid, rehabilitation etc. Additionally, having proper grievance redressal mechanisms in healthcare establishments for patients can prevent them from getting triggered.

Further, as healthcare professionals in India are not protected by labour laws, having an occupational health and safety framework in the health sector in India, similar to the US, can go a long way in addressing the issue of violence. In the US, employers including healthcare establishments are liable to provide their employees with a workplace free from recognised hazards likely to cause death or serious physical harm. In addition to violence, this kind of framework will also impose greater accountability on healthcare establishments towards ensuring the safety of healthcare workers in a pandemic when they are exposed to higher risks.

Also Read: At AIIMS, Confusion as Healthcare Workers Asked to Reuse N-95 Masks

As poor communication skills in healthcare professionals have been identified as one of the factors linked to the rise in violence against them, the Indian medical curriculum needs to be reformed to make medical graduates equipped with effective and empathetic communication skills. The medical training curricula should focus on techniques to deal with the grief of the patient’s attendants, socio-political reasons underlying the flareups involving patients and their relatives, and the ability to deal with vulnerable groups such as the victims of sexual abuse and the LGBTQ+ community. Addressing these issues will contribute to preventing the triggering of violence due to the lack of communication skills in doctors. In the context of the current crisis, where doctors may be overburdened even accessible public communication about the pandemic could go a long way in addressing misconceptions.

Another factor that has contributed to violence in recent incidents and has come in the limelight in the current COVID-19 crisis is the breakdown of trust between the healthcare system and the patient population. For instance, COVID-19 has highlighted concerns regarding access to ventilators and prohibitive costs in private hospitals. These correspond to identified reasons which include high cost of procedures, medication, and hospital stay; inconsistent quality of treatment based on patient’s ability to pay; perceived corruption of the doctor-pharmaceutical company nexus, among others. This highlights the urgency of rehauling the regulation and governance of healthcare in India to ensure accessibility and greater accountability on the part of healthcare establishments, both public and private.

Turning our attention towards these structural issues in the long term will not only address the problem of violence in healthcare settings but will also help build trust in doctor-patient relationships. The COVID-19 pandemic is an opportunity to think deeply about these issues.

Akshat Agarwal and Shreya Shrivastava are research fellows at the Vidhi Centre for Legal Policy. Views expressed are personal.

Centre’s New Rules for Appointing Income Tax Tribunal Members Are Still Problematic

The changes made to the ITAT under the new rules seem to blatantly ignore the principles iterated by the Supreme Court in a number of cases.

The politics of how members are appointed to India’s legal tribunals has always been a contentious issue.

Independence of the judiciary and separation of powers have been held to form part of the basic structure of the Indian Constitution. Considering tribunals perform the functions earlier performed by courts, the Supreme Court has held that such tribunals must also possess a dominant judicial character like courts and adhere to the principles of separation of powers.

Thus, tribunals in India are mandated to be similar to courts in terms of appointment and removal procedures, qualification of members, etc.

Last year, the Supreme Court struck down rules on the qualifications, appointments, removal, and remuneration of members to various tribunals formulated under Section 184 of the Finance Act, 2017, as being violative of the principle of separation of powers, and ordered the government to formulate new rules in strict adherence with the principles laid down by it.

Accordingly, on February 12, new rules were notified. However, the changes made to the Income Tax Appellate Tribunal (ITAT) under the new rules seem to blatantly ignore the principles iterated by the Supreme Court in a number of cases ranging from L. Chandra Kumar v. Union of India in 1997, to Rojer Mathew v. South Indian Bank in 2019.

In the erstwhile rules struck down by the Supreme Court last year, the search-cum-selection committee constituted for the purposes of appointing members of the ITAT – other than for the post of president and vice president of the tribunal – consisted of a minimum of two, and a maximum of four representatives from the government as opposed to just one judicial member.

This arrangement was held to be a direct contravention of the doctrine of separation of powers and an encroachment on the judicial domain. The Supreme Court went on to categorically hold that a committee constituted for the purposes of appointing tribunal members must be dominated by judicial members and not representatives from the government. Despite this, the new rules envisage an equal representation with two judicial members and two representatives from the government, without codifying a method of resolution in case of a tie between the members with judicial members voting alike.

Supreme Court. Photo: PTI

In order to ensure compliance with the Supreme Court’s directives, the judicial members must have the power to outvote government representatives in such situations, to ensure judicial dominance in the appointment process. However, equal representation is unlikely to be viewed by the courts as a means to achieve the desired outcome. While the new rules empower the search-cum-selection committee to formulate its own procedures, and this anomaly could be rectified therein by providing the judicial member with a casting vote in case of a tie. However, it remains to be seen how the search-cum-selection committee acts in this regard.

The composition of the ITAT has been retained from earlier with a president, a vice president, judicial members and accountant members. While the Supreme Court has held that judicial members should be given preference for appointment to the posts of president and vice president, the new rules mandate only the president to be a judicial member and the search-sum-selection committee has discretion over appointing either a judicial member or an accountant member as the vice-president. Thus, the search-cum-selection committee must be mindful while filling up the vacancy for the post of the vice-president, and only resort to appointing an accountant member as the vice president in cases where a suitable judicial member cannot be appointed.

Further, the new rules identify the eligible pool of candidates fit for appointment as judicial members of the ITAT. These include district judges with 10 years of service, members of the Indian Legal Services, and advocates with 25 years of standing. The Supreme Court has time and again held that the members of the Indian Legal Services are not fit for appointment as judicial members of any tribunal. However, the government seems to have failed to comply with this direction of the Supreme Court.

Furthermore, the apex court has categorically held that advocates having 10 years of standing, and district judges with five years of experience are perfectly eligible to be appointed as judicial members of tribunals. Despite that, the eligibility for appointment of advocates as judicial member of the ITAT has been increased, and for district judges, the threshold is above the minimum standard set by the Supreme Court.

While previously, advocates having 10 years of experience were eligible for appointment as members of the ITAT, this limit has now been changed to 25 years of standing experience, thereby narrowing the pool of candidates eligible for appointment as judicial members. This seems odd, given that on several occasions, the government has expressed its concern over its inability to find enough qualified members from the judiciary to be appointed as judicial members of a tribunal.

While the new rules suffer from lesser anomalies than the version struck down by the courts last year, some irregularities as identified persist nonetheless. Considering it is an age-old issue which has seen multiple litigations, the government needs to step up and fix these anomalies before it is dragged to courts again.

Nikhil Kapoor is a research fellow with the Tax Law Vertical of the Vidhi Centre for Legal Policy. The views expressed in this article are personal.

In India’s Right to Privacy, a Glimpse of a Right to be Forgotten

While Justice Kaul’s opinion identifies a ‘right to be forgotten’, India’s upcoming data protection framework needs to resolve a number of hurdles before we carve out such a right.

It’s clear that there’s still a lot more legal work to be done before India can have a workable right to be forgotten. Credit: Reuters

The landmark right to privacy judgment delivered by the Supreme Court in Justice Puttaswamy v. Union of India is significant for a lesser known holding – the right to be forgotten.

The concurring opinion delivered by Justice Sanjay Kishan Kaul affirmed the ratio of the case, namely that right to privacy is a fundamental right and not merely a common law right. It went a step further and identified the right to be forgotten, in physical and virtual spaces such as the internet, under the umbrella of informational privacy. The right to be forgotten puts individuals in control of the information they put out, and to seek erasure of data concerning them. Kaul stated, “The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the Internet”. This ties into his reasoning that the public does not have a claim to access all truthful information.

The ambit of the envisaged right to be forgotten would not be absolute extending to an unqualified erasure of history. The opinion subjects it to restrictions on the basis of a) other fundamental rights (especially freedom of speech and expression) b) compliance with legal obligations (such as taxes) c) public interest d) public health e) archiving f) scientific, historical or statistical research and g) defence of legal claims. Individuals would be enabled to control dissemination of their information in physical and virtual spaces. Recognising that people may make mistakes in the past which should not be held against them through the digital footprint left behind, Justice Kaul seeks to bolster the ability of the right to privacy to nurture the ability to evolve.

The court places reliance on the 2016 European Union Regulation (Article 17) that created the right to erasure.

However, any attempt to carve out a right to be forgotten would need to be cognisant of several caveats. In the absence of a data protection law in India, many of these concerns would remain unresolved and dependent on ad-hoc judicial attention of the courts. First, even accounting for the restrictions outlined by Kaul, what would be the ambit of a proposed right to be forgotten? Would it only remove a search result from a search engine, or the very source itself? For instance, in a recent Karnataka high court judgment (Sri Vasunathan v. Registrar), the remedy was extended only to copies of the order yielded on an internet search. It did not erase certified copies of the order on the high court website. This is a limited right to erasure via delinking, and not a broader right to be forgotten. Kaul’s judgment does not appear to account for this distinction.

Second, the conceptual thicket is aggravated by the lack of dedicated statutory provisions in the IT Act, 2000 and the IT Rules, 2011. Rejecting a request for erasure, the Gujarat high court (Dharamraj Dave v. State of Gujarat) pointed out the petitioner’s inability to establish which provisions of law were attracted and how the uploading of the concerned judgment constituted a violation of Article 21. Even though section 69A of the IT Act and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 hold relevance, there is a dearth of clarity about the parameters of an individual’s right to be forgotten and what restrictions can be imposed on the same.

These statutes only relate to virtual information and do not extend to physical spaces as envisaged by Kaul. Furthermore, in what manner would the right to be forgotten apply to public figures such as politicians and actors?

The lack of a legal framework in the form of a data protection law addressing the issue has meant that the right to be forgotten, in the nascent form it exists at present, is primarily enforceable by approaching the court. Alternatively, an individual can resort to requesting the search engine to take down the contentious result. Google has a case to case mechanism for the same. In the former route, the courts are entrusted with ad-hoc resolution of a probable ‘right’ whose content is nebulous. In the latter, adjudication of fundamental rights, incursions on free speech and public access to information are left to the good sense of a private entity.

As India awaits a data protection law, calls for the right to be forgotten must acknowledge the hurdles in its path. The pronouncement of a fundamental right to privacy does not resolve them.

Sohini Chatterjee is Research Fellow, Vidhi Centre for Legal Policy.