Right to Health — Case Laws
Item
- Title
- Right to Health — Case Laws
- extracted text
-
J
Right to Health — Case Laws
Peer Review : IS*11 Oct 2006.
INTRODUCTION
The Law and the Human Right to Health and Healthcare
Ravi Duggal
Background
The Indian Constitution provides a framework for a welfare/ socialist pattern of
development. While civil and political rights are enshrined as fundamental
rights that are justiciable, social and economic rights like health, education,
livelihoods etc. are provided for only as directive principles for the State and
hence not justiciable. The latter comes under the domain of planned
development, which the State steers through the Five Year Plans and other
development policy initiatives.
Post-independence India adopted a development paradigm that aimed at
creating limited entitlements to a wide range of resources for the underserved
people. But this development paradigm also included a wide array of support
for private capital to flourish. The Indian State almost monopolized
infrastructure development right until the nineteen nineties. While this was
critical to India’s economic development it also contributed substantially to the
growth of private capital. The State also actively participated in the productive
sectors of the economy, especially capital goods industry. This often subsidized
inputs for private sector growth. A good example from the health sector is the
growth of the pharmaceutical industry in India. At one level India’s stance of
process patents helped private formulation units to manufacture patented
drugs and at another level the state actively manufactured basic drugs and
supplied to the private formulation industry at subsidized rates. With this
approach, which kept the public pharmaceutical companies in the red, by late
eighties the public sector drug industry withered away and the private
pharmaceutical industry from India had gained in stature to become global
players.1 Such a process happened across other sectors of the economy.
In the social sector the approach was not very different. Again taking an
example from the health sector - the production of doctors. Right through the
mid-eighties there were only public medical schools and on an average 80% of
those graduating from them, almost entirely at the cost to the public exchequer,
either entered the private economy or migrated abroad. A good example of how
a social investment ultimately benefited private profiteering.
While the development paradigm clearly supported private sector growth, there
was a “social” dimension to it. To take the same two examples, while private
pharmaceutical industry got a lot of subsidy and support for its growth, drug
price control helped keep the drug prices under leash. Similarly, while
production of doctors contributed largely to development of private markets in
the health sector, the government evolved a system of limited entitlements for
healthcare through a primary healthcare system in rural areas, and district and
1 Presently the Indian Pharmaceutical industry manufactures drug formulations to the tune of Rs. 210 billion and of this
exports Rs. 98 billion, which is 47% of total production. The Indian pharmaceutical industry is the 4th largest in the
world and accounts for 8% of world production by volume. (MoCF, 2001)
1
town hospitals and dispensaries in urban areas. While acknowledging this
cc
social” dimension, it must be stated clearly that the development approach was
never rights-based and hence the limited entitlements that were made under
different development programs, including healthcare, had a very limited
impact and this is evidenced through both the large-scale poverty and the low
level of health outcomes that we continue to experience in the country.
While development was planned and directed via the Five Year Plans, it was
clear right from Plan 1 that the planned development was clearly biased in
favour of the economic sectors. The contribution of the Five-year Plans to the
social sectors has been abysmally poor; less than one fifth of the Plan resources
have been invested in this sector. Health, water supply and education are the
three main sub-sectors under social services.
Health care facilities are far below any acceptable human standard. Even the
targets set out by the Bhore Committee on the eve of India's independence are
nowhere close to being achieved. We have not even reached half the level in
provision of health care that most developed countries had reached between the
two world wars. Curative health care services in the country are mostly
provided by the private sector (to the extent of two-thirds) and preventive and
promotive services are almost entirely provided by the State sector.
Planning should have given an equal emphasis to social services, especially
health, water supply and sanitation, education and housing which are
important equalizing factors in modern society. These four sub-sectors should
have received atleast half of the resources of the plans over the years. Only that
could have assured achievement of the goals set forth in the Directive Principles
and helped the creation of a genuine welfare state.
From the above discussion it is evident that the Five year plans, the
cornerstone of the development paradigm, to which large resources were
committed, has not helped uplift the masses from their general misery,
including in the provision of health care. The Five Year Plans at best
contributed in a limited way with a human development approach. The
approach in no way was rights based and the State was not adequately meeting
its constitutional and international treaty obligations.
Within the State’s development strategy the health sector has always been a
weak link. For the political class it had little value because at one level the
private health sector, atleast for non-catastrophic care, was already well
entrenched and was reasonably accessible, and at another level for the poor
masses non-catastrophic healthcare attention was way below in their priority
list, what with the struggle for basic survival. The political class invested in
development where they could maximize their political returns; their concern
was for vote-banks and hence the focus of development programs (not rights)
was in “rural development”, infrastructure development and development
through “reservations”. Rural development programs helped direct agricultural
growth with the goal of achieving self-sufficiency in basic food production
keeping the farming community under the belief that all this was benefiting
them (in reality the middle and the rich peasantry benefited and the small
2
peasantry and landless remained under the illusion that their turn in
development was next), infrastructure development kept the capitalist class
happy as this support helped create space and conditions for their growth, and
the reservation policies appeased the oppressed minorities who are often critical
to the vote-bank kind of politics in India and decisive in swinging votes one way
or the other.
With this kind of a development strategy key social development issues like
health, education, and housing got sidelined and never became “political”
issues which would drive the development strategy. Hence planned
development without a rights based approach can only yield limited results and
outcomes. For issues to become sustainable political agendas, they must be
contextualised in the rights domain. The right to health and healthcare too
cannot be realized through the current development agenda. It has to be
constituted as an independent right, like the right to life in Article 21 of the
constitution of India and/or through a legislative mandate with clear resource
commitments.
The Healthcare System
In the post-colonial period there was no attempt at radical restructuring of
health care services as per the framework provided by the Bhore Committee.
The Bhore Committee recommendations were not transformed into a legal
mandate as was done in Britain where the Beveridge Committee
recommendations were translated into the National Health Services legislation.
On the contrary the aspects that contributed to inequality in health care were
strengthened; as for instance, the production of doctors for the private sector
through state financing, production of bulk drugs to supply at subsidized rates
to
private
formulation
units,
concentration
of medical
services
disproportionately in urban areas, financial subsidies by the state for setting up
private practice and private hospitals, allowing large scale international
migration of doctors and nurses.
All these factors, among others, have
contributed to increased inequality in health care and underdevelopment of
health in India.
The constitution of India has made health care services largely a responsibility
of state governments but has left enough maneuverability for the Centre since a
large number of items are listed in the concurrent list. And this the Centre has
used adequately to expand its sphere of control over the health sector.2 Hence
The Constitutional provisions (Schedule 7 of article 246) are classified into three lists, including a Concurrent list
which both centre and states can govern but the overriding power is with the centre. The list here includes original
entry numbers Central List: 28.Port quarantine, including hospitals connected therewith; seamen's and marine
hospitals 55.Regulation of labour and safety in mines and oilfields State List: 6.Public health and sanitation; hospitals
and dispensaries 9.Relief of the disabled and unemployable Concurrent List: 16.Lunacy and mental deficiency,
including places for the reception or treatment of lunatics and mental deficients 18. Adulteration of foodstuffs and other
goods. 19.Drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium 20A.Population
control and family planning 23.Social security and social insurance; employment and unemployment. 24.Welfare of
labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old
age pensions and maternity benefits 25.Education, including technical education, medical education and universities,
subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.] 26.Legal,
medical and other professions 3O.Vital statistics including registration of births and deaths'
(.http://alfa.nic.in/const/schedule.html)
3
the central government has played a far more significant role in the health
sector than demanded by the constitution. The health policy and planning
framework has been provided by the central government. In concrete terms, the
central government has pushed various national programs (vertical programs
for leprosy, tuberculosis, blindness, malaria, smallpox, diarrhea, filaria, goitre
and now HIV/AIDS) in which the states had little say in deciding the design and
components of these programs. The states have acquiesced to programs due to
the central government funding that accompanies them. These programs are
implemented uniformly across the length and breadth of the country. Then
there are the centre's own programs of family planning and universal
immunization which the states have to implement. Hence, central government
intervention in the state’s domain of health care activities is an important
feature that needs to be considered in any analysis of public health care
services.
The large cities, depending on their population have a few state run hospitals
(including teaching hospitals). At the district level on an average there is a 150
bedded Civil General Hospital in the main district town and a few smaller
hospitals and dispensaries spread over the other towns in the district and
sometimes in large villages. In the rural areas of the district there are rural
hospitals, primary health centers and sub-centers that provide various health
services and outreach services.
Table A shows that for the country as a whole presently there are an estimated
22,000 hospitals (30% rural), 23,000 dispensaries (50% rural) and about 1.5
million beds (21% rural). The rural areas in addition have 23,500 PHCs and
140,000 sub-centers. However, when this data is represented proportionately to
its population we see that urban areas have 4.48 hospitals, 6.16 dispensaries
and 308 beds per 100,000 urban population in sharp contrast to rural areas
which have 0.77 hospitals, 1.37 dispensaries, 3.2 PHCs and 44 beds per
100,000 rural population. The city hospitals and the civil hospitals are basically
curative centres providing outpatient and in-patient services for primary,
secondary and tertiary care. In contrast the rural institutions provide mainly
preventive and promotive services like communicable disease control programs,
family planning services and immunization services; curative care in the rural
health institutions are the weakest component in spite of a very high demand
for such services in rural areas. As a consequence this demand is met either by
the city hospitals or by private practitioners. Medical Education is imparted
largely through state owned or funded institutions at a highly subsidized cost to
the students. There are 195 recognized allopathic medical colleges in the
country producing over 20,000 medical graduates every year; and out of these,
75% are produced in public institutions. However, the outturn from these
institutions does not benefit the public health services because 80% of the
outturn from public medical schools either joins the private sector or migrates
abroad. Here it would be in order to also give a brief description of the private
health sector and health insurance coverage in India.
4
The private health sector in India is very large, perhaps the largest in the world.
In 2002 an estimated 62% of hospitals, 54% dispensaries and 35% of beds were
in the private sector. (Table A) An estimated 75% of allopathic doctors are in
the private sector, about 80% of them being individual practitioners. In the case
of non-allopathic doctors over 90% work in the private sector. Private health
services, especially the general practitioners, are the single largest category of
health care services utilized by the people. It is important to note here that in
addition to persons practicing medicine as private practitioners a large number
of unqualified practitioners also need to be included. Hence, the exact number
of practicing doctors in the country is not known. From available data it is
known that in year 2004 there were over 660,000 registered allopathic doctors
and over 780,000 registered non-allopathic doctors. And out of this total of 1.4
million about 1.2 million are estimated to be in the private sector. Further, in
both rural and urban areas a large number of unqualified practitioners exist
and it goes without saying that they are all a part of the private sector. Beyond
this information very little further knowledge about the private health services
sector is available.
The private health sector, especially the allopathic, constitutes a very strong
lobby in India. There is virtually no regulation of this sector. The medical
councils of the various systems of medicine perform only the function of
registering qualified doctors and issuing them the license to practice. There is
no monitoring, continuing education, price regulation, prescription vetting etc.,
either by the medical councils or the government. The private healthcare sector
is strongly backed by the private pharmaceutical industry (largely
multinational), which again constitutes a very powerful lobby that has kept at
bay any progressive policy initiatives, such as the recommendation of the Hathi
Committee Report.3 Pharmaceutical formulation production in India is presently
worth over Rs. 280 billion and over 98% of this is in the private sector. Thus
together the private health services and the pharmaceutical industry are
organized into a network that is one of the most powerful private health sectors
in the world.
Given this domineering position of the private health sector and the context of
large-scale poverty the health outcomes are not expected to be very good. In
Table A we do see substantial improvements in health outcomes such as IMR,
CBR, CDR and life expectancy over the years but the rank of India globally has
not changed significantly vis-a-vis these indicators. Infact the latest Human
Development Report shows a downward trend in India’s global ranking4. (UNDP,
2003). This climb down and slowing of growth in India’s human development
3 The Hathi Committee's recommendations pertained to removal of irrational drug combinations, generic naming of
essential drugs, development of a National Formulary for prescription practice.
4 India's human development index rank is down from 115 in 1999 to 124 in 2000 and 127 in 2001, though still better
than the 1994 rank ot 138. India is on the fringe of medium and low HDI group of countries. India's improvement in
the HDI in the last 26 years has been marginal from a score of 0.407 in 1975 to 0.590 in 2001 - this works out to an
average increase of 1.7% per annum. The slowing down of growth is shown in the table below: (Source: UNDP HDR,
various years)
1975
1980
1985
1990
1995
2000
HDI score________ _______________
0.407
0.434
0.473
0.511
0.545
0.577
Annual % increase over previous period
1.3
1.8
1.6
1.3
1.1
5
score is perhaps linked to the declining investments and expenditures in the
public health sector (as also the social sectors as a whole), especially in the
nineties. In the mid eighties public health expenditure had peaked because of
the large expansion of the rural health infrastructure but after 1986 one
witnesses a declining trend in both new investments as well as expenditures as
a proportion to the GDP, and as a percent of government’s overall expenditures.
(Duggal et.al., 1995 and Duggal, 2002). In sharp contrast out-of-pocket
expenses, which go largely to the private health sector, have witnessed
unprecedented increases. (See Table A)
Table A: HEALTHCARE DEVELOPMENT IN INDIA 1951-2004
n
i95i 1961 1971 1981 1991 1996
1
Hospitals*
2
Hospital &
dispensary
beds*
2001- Latest**
02
Total 2694 3054 3862 6805 1117 15170 15188 18436 22000
4
30
34
30
34
27
34
32
39
% Rural
75
62
68
68
57
43
%Private
Total 1170 2296 3486 5045 8064 89273 89676 914543 1500000
7
8
09
38
34
55
00
21
23
23
17
35
37
37
32
28
6600 9406 1218 1674 2743 25653 25670 22291
1
5
0
50
40
41
78
69
80
% Rural 79
54
56
57
60
13
% Private
22842
22446
21917
2224
5568
725 2695 5131
3
2792 5119 1310 13493 13637 137311
9
1
98
9
2
% Rural
% Private
3 Dispensaries*
4
PHCs
5
Sub-centres
6
Doctors
7
8
9
1997
23
22
21
21
50
23500
140000
Allopaths 6084 8307 1530 2661 3936 46274 49694 605840 660000
1_
40
5
40
00
0
0
129731 1430000
10801
9200
6653
1846
4500
All Systems 1560
73
0
40
00
00
06
00
880000
805827
1655 3558 8062 1503 3112 56570 60737
Nurses
6
0
35
99
0
4
0
Medical
colleges
Out turn
Allopathy
30
60
98
111
128
165
165
189
20000
Graduates 1600 3400 1040 1217 1393
Postgraduate
397
4
0
0
1396 3833 3139
195
6000
3656
s
10
11
Pharmaceutic Rs. in billion
al production
0.2
0.8
3
14.3
38.4
91.3
104.9
220
280
IMR/000
134
146
138
110
80
72
71
66
65
Health
6
outcomes
CBR/000 41.7 41,2 37.2
CDR/000 22.8
19
15
years 32.0 41.2 45.5
8
2
5
Percent
12
Life
Expectancy
Births
attended by
trained
practitioners
Health
Public 0.22
Expenditure CSO private
Rs. Billion
Health
Public 0.25
Expenditure Private CSO
as percent of
_______ GDP
Health
Public 2.69
Expenditure
as % to Govt.
Total
54.4
29.5
9.8
59.4
27
9
62.4
28.5
33.9
12.5
27
8.9
63.5
25
8.1
64.8
24
8
65
18.5
21.9
50.7 101.6 113.1
8
5
3
82.6 329.0 373.4
1
0
1
0.92 0.91
0.88
1.73 2.95 3.00
211
1100
249
1464
0.89
5.32
0.91
2.88
2.72
2.60
1.08
2.05
6.18
0.71
0.84
1.34
1.56
12.8
6
29.7
0
1.05
2.43
5.13
3.84
3.29
3.35
2.98
2.94
5.40
*Data on hospitals, dispensaries and beds pertaining to the private sector is grossly under reported
and figures for 2001-02 for public facilities also suffers from under-reporting as a number of
states do not send uptodate information. Thus the actual figures should be much higher, and
especially so for the private sector
**Latest years - rounded figures are estimates by author and figures pertain to years 2003/2004
Source : 1. Health Statistics / Information of India, CBHI, GOI, various years; 2. Census of India
Economic Tables, 1961, 1971, 1981, GOI 3.OPPI Bulletins and Annual reports of Min. of
Chemicals and Fertilisers for data on Pharmaceutical Production 4. Finance Accounts of Central
and State Governments, various years 5. National Accounts Statistics, CSO, GOI, various years
6. Statistical Abstract of India, GOI, various years 7. Sample Registration System - Statistical
Reports, various years 8. NFHS-2, India Report, UPS, 2000
7
HUMAN RIGHT TO HEALTH AND HEALTHCARE5
The above review of health and healthcare reveals the failure of the Indian State
to assure health and healthcare as a right. What we see is that some earnest
efforts at the policy level were made but they failed miserably in practice
because of inadequate resource support and a lack of political will to back the
cause of healthcare as a right.
As stated earlier, the Shore Committee recommendations provided a good
beginning to establish health and healthcare in the rights domain. At the same
historical moment Britain had a similar plan and they were able to put it in
place. Of course in Britain’s case there was the working class struggle, which
created the political will within the Labour Party to back this cause. While the
latter kind of support was not there in India, the fervour of a newly Independent
country to radically transform the life-situation of its people was there but this
was not translated into assuring economic and social rights to the people.
The Constitutional and Legal Dimension
India joined the UN at the start on October 30th 1945 and on 12th December
1948 the Universal Declaration of Human Rights was proclaimed and India was
a party to this. The formulation of India’s Constitution was certainly influenced
by the UDHR and this is reflected in the Fundamental Rights and the Directive
Principles of State Policy. Most of the civil and political rights are guaranteed
under the Indian Constitution as Fundamental Rights. But most of the
Economic, Social and Cultural Rights do not have such a guarantee. The
Constitution makes a forceful appeal to the State through the Directive
Principles to work towards assuring these rights through the process of
governance but clearly states that any court cannot enforce them.6
The experience of governance in India shows that both fundamental rights and
directive principles have been used as a political tool. While the fundamental
rights are justiciable, and on a number of occasions citizens and courts have
intervened to uphold them, there have also been numerous instances where
even the courts have failed either because the ruling government has
steamrolled them or the court orders have been ignored by governments. In
case of the Directive Principles it is mostly political mileage, which determines
which of the principles get addressed through governance. For instance, Article
5 The debate on terminology on ‘right to health’ and ‘right to healthcare’ is endless and here we will not get into this
bottomless pit. Suffice to say that right to health is not independent of right to healthcare and hence they must be seen
in tandem. The WHO definition was influenced largely by Sigerist, who argued that state of health is a physical men a
and social condition and '‘health is, therefore, not simply the absence of disease - it is something positive, a joyful
attitude toward life, and a cheerful acceptance of the responsibilities that life puts on the individual (Sigerist, 1941,
p 68) This broad definition, including social well-being is often criticised for being too broad and as a consequence the
concern for access to healthcare is lost. While Sigerist gave this broad definition he also emphasized that healthcare
protection and provision was the right of the citizen and a duty of the state to respect this. The focus in this paper is on
the right to access healthcare and other related rights, and as a consequence health. Hence, the use of the phrase right
to health and healthcare’ in the present paper. For a debate on the definitions and further references see Bngit Toebes,
1998
6 Article 37 pertaining to the application of the principles contained in Part IV of the constitution states, “The
provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these princip es
in making laws”
8
467 has been implemented with a fair amount of seriousness through the policy
of reservations for scheduled caste, tribes and other backward castes/classes
because it is the most powerful tool for success in India’s electoral politics. But
Articles 41, 42 and 47, which deal with social security, maternity benefits and
health, respectively, have been addressed only marginally.
When we look at right to health and healthcare in the legal and constitutional
framework, it is clearly evident that the Constitution and laws of the land do
not in any way accord health and healthcare the status of rights. There are
instances in case law wherein for instance the right to life, article 21 of the
Indian Constitution, or various directive principles have been used to demand
access to healthcare, especially in emergency situations or references made to
the ICESCR, CEDAW, UDHR etc. See Box 1 for a brief on some of the wellknown cases.
These are exceptional cases, and even if the Supreme or High Courts have
upheld some decisions as being a right, for instance getting atleast first aid in
emergency situations from private clinics or hospitals, or access to public
medical care as a right in life threatening situations, or right to healthy and safe
working environment and medical care for workers etc., the orders are rarely
respected in day to day practice unless one goes back to the courts to reiterate
the orders. Infact, this is often the case even with fundamental rights, which
the State has failed to respect, protect, or fulfill as a routine, and one has to go
to the courts to demand it. For a population, which is predominantly at the
poverty or subsistence level, expecting them to go to the courts to seek justice
for what is constitutionally ordained as a right is unrealistic as well as
discriminatory. Hence, mere constitutional provision is not a sufficient
condition to guarantee a right, and more so in a situation like health and
healthcare wherein provisions in the form of services and commitment of vast
resources are necessary to fulfill the right.
Despite the above, it is still important to have health and healthcare instituted
as a right within the constitution and/or established by a specific Act of
Parliament guaranteeing the right.
Box 1
A review of court cases related to health issues shows that very little has been battled over the
general right ot health and healthcare. The largest chunk of cases refer to negligence in medical
practice and liability related cases under Law of Torts and the Consumer Protection Act. Supreme
Court cases dealing with violation of human rights on health matters have generally used Article
21 - the right to life, as most such cases have been in situations of emergency or extreme distress.
And often in the latter the cases are workplace related for the health and safety of workers or their
right to medical care. Our search generated only one case where for the general population the
right to a functioning primary health centre was obligated by the court (Mahendra Pratap v/s
’Article 46 - Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker
sections. The State shall promote with special care the educational and economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
9
Orissa State). Also there have been a number of cases pertaining to environmental health, like
extracted
pollution of rivers, air etc., which violate preconditions for good health. Below we have
1--------------selected cases that have used the rights perspective on health related matters:
Access to Healthcare
1. Mahendra Pratap Singh v/s Orissa State : Constitution of India, 1950 - Articles 226 and 227 Writ of mandamus - Scope of - Prayer is made for issuance direction to take effective measures
to run Primary Health Centre at Pachhikote. Held, Keeping in view the entire gamut of facts,
considering the public oriented geneson's ad on a conspectus of prevalent scenario direction
issued that the Grama Panchayat would comply the formalities by end of December and
the Secretary - Health would depute a responsible office to visit the building meant tor
hospital and thereafter make suitable arrangement for running the P.H.C. Result - Writ
application disposed of. OJC Nos. 6359 of 1995 Date of Judgment : 29/07/1996 (source
JUDIS Orissa). This is probably the only case in which a judgement on right to health Jor a
general population has been given.
Access to Healthcare by Workers and Right to a Healthy Work environment
1. Bandhua Mukti Morcha v/s Union of India: Constitution of India.-Article
32(1)-Mode
of
interpreting Article 32 and Article 21 Right to life meaning right to live with dignity as in Francis
Mullen v/s Union of India. The petitioner, an organisation dedicated to the cause f release ot
bonded labourers in the country, addressed a letter to Hon'ble Bhagwati, J. alleging: (1) that there
were a large number of labourers from different parts of the country who were working in
some of the stone quarries situate in district Faridabad, State of Haryana under "inhuman and
intolerable conditions; (2) that a large number of them were bonded labourers; (3) that the
provisions of the Constitution and various social welfare laws passed for the benefit of the
said workmen were not being implemented in regard to these labourers The petitioner also
mentioned in the letter the names of the stone quarries and particulars of labourers who were
working as bonded labourers and prayed that a writ be issued for proper implementation of
the various provisions of the social welfare legislations, such as, Mmes Act, 1952 Inter-State
Migrant Workmen (Regulation of Employment and Conditions of Service) Act 19/9
Contract Labour (Regulation and Abolition) Act, 1970, Bonded Labour System Abolition)
Act 1976, Minimum Wages Act, Workmen's Compensation Act, Payment of Wages Ac ,
Employees State Insurance Act, Maternity Benefits Act etc. applicable to these labourers
working in the said stone quarries with a view to ending the misery, suffering and
helplessness of "these victims of the most inhuman exploitation." The Court treated the letter
as a writ petition and appointed a commission to inquire into the allegations made by the
petitioner The commission while confirming he allegations of the petitioner pointed ou in
its report that (i) the whole atmosphere in the alleged stone quarries was full of dust audit was
difficult for any one to breathe; (ii) some of the workmen were not allowed to leave the stone
quarries and were providing forced labour; (iii) there was no facility of providing pure water to
drink and the labourers were compelled to drink dirty water from a nullah; (iv) the laboui
were not having proper shelter but were living in jhuggies with stones piled one upon the other
as walls and straw covering the top which was too low to stand and which did not afford any
protection against sun and rain; (v) some of the labourers were suffering from chronic
diseases; (vi) no compensation was being paid to labourers who were injured due to accidents
arising in the course of employment; (vii) there were no facilities for medical treatment or
schooling. At the direction of the Court, a socio-legal investigation was also carried out and i
suggested measures for improving the conditions of the mine workers. HELD. The S
Government's objection as to the maintainability of the wnt petition under Article 32 of the
10
Constitution by the petitioners is reprehensible. If any citizen brings before the Court a
complaint that a large number of peasants or workers are bonded serfs or are being subjected
to exploitation by a few mine lessees or contractors or employers or are being denied the
benefits of social welfare laws, the State Government, which is, under our constitutional
scheme, charged with the mission of bringing about a new socioeconomic order where there
will be social and economic justice for every one equality of status and opportunity for all,
would welcome an inquiry by the court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the strict sense of the term as defined in
the Bonded Labour System (Abolition) Act 1976 but they are made to provide forced
labour or are consigned to a life of utter deprivation and degradation, such a situation can
be set right by the State Government. Even if the State Government is on its own inquiry
satisfied that the workmen are not bonded and are not compelled to provide forced labour and
are living and working in decent conditions with all the basic necessities of life provided to
them, the State Government should not baulk an inquiry by the court when a complaint is
brought by a citizen, but it should be anxious to satisfy the court and through the court, the
people of the country, that it is discharging its constitutional obligation fairly and adequately
and the workmen are being ensured social and economic justice. Date of Judgement: 16/12/83
(Source: JUDIS, Supreme Court of India). This case might highlight the plight of the stone quarry
workers and their bonded status but such is the working environment of over half the population
of the country.
I. Paschim Banga Khet Mazdoor Samity v/s State of West Bengal: Constitution of India Article
21 and Directive Principles. The Constitution envisages the establishment of a welfare state
at the federal level as well as at the state level. In a welfare state the primary duty of the
Government is to secure the welfare of the people. Providing adequate medical facilities for the
people is an essential part of the obligations undertaken by the Government in a welfare state.
The Government discharges this obligation by running hospitals and health centres which
provide medical care to the person seeking to avail those facilities. Article 21 imposes an
obligation on the State to safeguard the right to life of every person. Preservation of human life is
thus of paramount importance. The Government hospitals run by the State and the medical
officers employed therein are duty bound to extend medical assistance for preserving human
life. Failure on the part of a Government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life guaranteed under
Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed
under Article 21 when he was denied treatment at the various Government hospitals which
were approached even though his condition was very serious at that time and he was in need of
immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed
under Article 21 was by officers of the State in hospitals run by the State the State cannot
avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect
of deprivation of the constitutional rights guaranteed under Part III of the Constitution the
position is well settled that adequate compensation can be awarded by the court for such
violation by way of redress in proceedings under Articles 32 and 226 of the Constitution.
[See : Rudal Sah v. State of Bihar, 1983 (3) SCR 508 Nilabati Behara v. State of Orissa. 1993 (2)
SCC 746: Consumer Education and Research Centre v. Union of India, 1995 (3) SCC 42].
Hakim Seikh should, therefore, be suitably compensated for the breach of his right guaranteed
under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we
fix the amount of such compensation at Rs. 25,000/-. A sum of Rs. 15,000/-was directed to be
paid to Hakim Seikh as interim compensation under the orders of this Court dated April 22,
1994. The balance amount should be paid by respondent No. 1 to Hakim Seikh within one
month. Date of Judgement: 06/05/96 (Source JUDIS, Supreme Court of India). This case
11
reflects the right to health care in an emergency situation and state hospitals are duty bound to
attend immediately to such patients and cannot refuse medical aid.
3. CERC v/s Union of India: Constitution of India Articles 21, 38, 39(e), 41, 43, 48-A. This was
public interest case filed by Consumer Education and Research Centre on behalf of workers in
asbestos mines and industries. The contention was that the employer, the Union government, was
obliged to provide protection against work hazards in such work which causes asbestosis as well
as carcinoma of the lungs. Using the above provisions of the constitution the Court stated that the
employer should have provided protective measures to prevent workers from getting affected by
occupational disease. Justice Ramaswamy held that the right to health and medical care to protect
the workers health and vigour while in service or post-retirement is a fundamental right of a
worker under Article 21 read in conjunction with provisions of Directive principles to make the
life of the workman meaningful and purposeful with dignity of person. He further stated that all
agencies whether the state or private industry is enjoined to take all such action which will
promote health, strength and vigour of the workman during the period of employment and leisure
and health even after retirement as basic essentials to live life with health and happiness. (Source:
1995(3) SCC p 42, as quoted in Toebes, 1998). Another worker's health related judgment
specifying the workers right to health and security.
4. CESC v/s Subhash Chandra Bose: Constitution of India Article 21 and 39 (e), UDHR Article
25 and and ICESCR Article 7(b).This case concerned a litigation between the Calcutta Electricity
Supply Corporation and its electrical contractor over who carried responsibility for the workers
social security - health and occupational hazards. The contractor claimed that its employees had
been employed under the responsibility of CESC and that the employers were covered by the
Electricity Act, which included the liability of providing social security. The Supreme Court
dismissed the claim, that the immediate employer (contractor) had to be held responsible. In a
dissenting opinion Justice Ramaswamy invoked international human rights conventions and
Article 39 of the Directive Principles of the constitution which provides for protection of the
health and strength of workers. He cited Article 21 stating that the right to livelihood springs from
the right to life as set forth in Article 21. He claimed that medical facilities were part of social
security and that the right to health is a fundamental right to workmen. (Source: 1992(1) SCC, p
441 as quoted in Toebes, 1998)
This is perhaps one rare case -with regard to health which has
invoked the international human rights provisions for right to health and healthcare. But it must
be noted that the judgment focused only on this right for the worker and not any citizen.
Ruth Roemer discussing this issue writes, “The principal function of a
constitutional provision for the right to health care is usually symbolic. It sets
forth the intention of the government to protect the health of its citizens. A
statement of national policy alone is not sufficient to assure entitlement to
health care; the right must be developed through specific statutes, programs
and services. But setting forth the right to health care in a constitution serves
to inform the people that protection of their health is official policy of the
government and is reflected in the basic law of the land”. (Hernan L. et.al.,1989)
To take an example, government policy vis-a-vis healthcare services has
mandated entitlements under the Minimum Needs Program started with the
Fourth Five Year Plan, that there should be a civil hospital in each district, a
primary health centre in rural areas for each 20,000 -30,000 population
(depending on population density and difficulty of terrain) and five such units
being supported by a 30 bedded Community Health Centre, a subcentre with
12
two health workers for a rural population unit of 2500-5000 population, and
similarly a Health Post for 50,000 persons in urban areas. But what is the real
situation. Almost every district (except perhaps the very new ones) does have a
civil hospital (and each district did have a civil hospital even during the colonial
period!). The situation regarding PHCs varies a lot across states from one PHC
per 7000 rural population in Mizoram to one per over 100,000 in some districts
of the EAG8 states. The villagers deprived of this entitlement cannot go to the
courts demanding the right to a PHC for their area because such a legal
backing does not exist. Further, in many states where this ratio is honoured for
PHCs or CHCs, adequate staff, medicines, diagnostic facilities, maintenance
budgets are often not available to assure that proper provision of services is
available to the people accessing these services. (MoHFW, 2001) Further still, if
one looks at distribution of healthcare resources across regions, rural and
urban areas, one sees vast discrimination - in metropolitan areas public health
budgets range from Rs.500-1300 per capita in sharp contrast to PHC areas with
only Rs. 40- 120 per capita; urban areas across the country have a bed
population ratio of over 300 beds per 100,000 population in contrast to rural
areas having around 40 beds per 100,000 persons. This is gross inequity but
there is no law presently that can help address this.
Apart from the above a small privileged section of the population, largely what
is called the organized sector, that is those working in government, private
industry and services have some form of health/social insurance coverage,
either through social security legislation like Employee State Insurance
Scheme, Central Government Health Scheme, Maternity Benefit Scheme, and
various other schemes for mine workers, plantation workers, beedi workers,
cinema workers, seamen, armed forces, railway employees etc., or through
employer provided health services or reimbursements. This population
estimated to be about 12% of the country's population might be said to have
right to healthcare, atleast during the working life of the main earner in the
family. Another 1% of the population is covered through private health
insurance like mediclaim (Ellis, Randal et.al, 2000). In these cases entitlement
is based on employment of a certain kind, which provides rights on the basis of
protective legislation that is not available to the general population. While this
is a positive provision, it becomes discriminatory because the entitlement as a
right is selective and not universal.
Hence mere entitlements having basis only in policy or as selective rights does
not establish a right and neither can assure equity and non-discrimination.
At the global level the International Covenant on Economic, Social and Cultural
Rights (ICESCR) mandates right to health through Article 9 and Article 12 of
the covenant:
Article 9
The States Parties to the present Covenant recognize the right of
everyone to social security, including social insurance.
Article 12
8 EAG stands for Empowered Action Group states which include the following: Rajasthan, Madhya Pradesh,
Chattisgarh, Uttar Pradesh, Uttaranchal, Bihar, Jharkhand and Orissa
13
1. The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical
and mental health.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant
mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygiene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions, which would assure to all medical service
and medical attention in the event of sickness.
Also Articles 7 and 11 include health provisions: “The States Parties ...
recognize the right of everyone to ... just and favourable conditions of
work which ensure ... safe and healthy working conditions; ... the right to
...an adequate standard of living.”
India ratified this Covenant way back on 10th April 1979, and having done that
became obligated to take measures to assure health and healthcare (among
others) as a right. As per Articles 2 and 3 of this covenant States ratifying this
treaty are obligated to:
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee
that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would guarantee
the economic rights recognized in the present Covenant to non-nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the
equal right of men and women to the enjoyment of all economic, social
and cultural rights set forth in the present Covenant.
It is now over 25 years since India committed to this treaty. Post-ratification
efforts through the 6th Five-year Plan and the first National Health Policy in
1982 were indeed the first steps in honouring this commitment. As we have
seen above the rural public health infrastructure was expanded considerably
during the first half of the eighties, more resources were being committed to the
14
health sector etc., but somewhere by mid eighties the commitment seems to
have lost ground. In the nineties with the economic crises the public health
sector lost out completely, with the final blow being delivered by the National
Health Policy 2001. Interestingly, the last decade of the 20th century also saw
the declining commitment to Health For All by the WHO, when in the 1998
World Health Assembly it announced its policy for Health for All in the 21st
Century. WHO had started towing the World Bank line from the 1993 WDR
Investing in Health, which asked poor country/developing country governments
to focus on committing public resources to selective care for selected/targeted
populations, and to leave the rest to the market. With inter-governmental
commitment to assure the right to the highest attainable standard of health
waning, it became even more difficult for the Indian State to honour its
commitment to ICESCR in an economic environment being largely dictated by
the World Bank. At another level the Committee of the Economic, Social and
Cultural Rights, which is supposed to monitor the implementation of ICESCR,
has also failed to get countries like India to take measures to implement the
provisions of the ICESCR. India has not even filed its initial report under the
ICESCR.9
There are other international laws, treaties and declarations, which India is a
party to and which have a bearing on right to health. Provisions in most of
these also relate to fundamental rights and directive principles of the Indian
Constitution as well as relate to many policy initiatives taken within the
country.10 See Box 2 for extracts from these laws.
International law apart, as discussed earlier, provisions within the Indian
Constitution itself exist to give the people of India right to healthcare. Articles
41, 42 and 47 of the Directive Principles11 enshrined in Part IV of the
Constitution provide the basis to evolve right to health and healthcare:
41. Right to work, to education and to public assistance in certain
cases: The State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to
education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
Article 51 of the Constitution titled promotion of international peace and security gives assurance that India will
honour its international commitments, including respect for international laws and treaties which it has signed and
ratified - The State shall endeavour to- (a) promote international peace and security; (b) maintain just and honourable
relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organised
peoples with one another; and (d) encourage settlement of international disputes by arbitration”
For instance the impact of CEDAW, Cairo and Bejing Declarations is closely linked to the formulation of a policy on
women and women’s empowerment, and setting up of the national and state Commissions on Women, the Rashtriya
Mahila Kosh and of formulation of many development programs for women like DWACRA, savings and credit
programs etc.. Similarly the various human rights treaties like those dealing with racial discrimination, torture, civil and
political rights etc.and the UNCHR have been instrumental in India setting up the National and State Human Rights
Commissions. The NHRC has presently set up a separate cell to monitor ICESCR as also for right to public health.
The courts are much more aware of and attentive to their obligation to implement socio-economic uplift
programmes and to ensure decent welfare for all. The state has a duty to all citizens to adhere to that part of the
Constitution which describes the directive principles as 'fundamental' to the governance of the country. The courts have
therefore been using the directives as an instrument to determine the extent of public interest in order to limit the
extension of fundamental rights. In doing so they have upheld a number of statutes on the grounds of public interest
which in other circumstances may have been nullified." (De Villiers, 1992).
15
relief: The State shall make provision for securing just and humane
conditions of work and for maternity relief.
47. Duty of the State to raise the level of nutrition and the standard
of living and to improve public health: The State shall regard the
raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and,
in particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health.
Thus social security, social insurance, decent standard of living, and public
health coupled with the policy statements over the years, which in a sense
constitutes the interpretation of these constitutional provisions, and supported
by international legal commitments, form the basis to develop right to health
and healthcare in India. The only legal/constitutional principle missing is the
principle of justiciability. In the case of education the 93rd amendment to the
Constitution has provided limited justiciability. With regard to healthcare there
is even a greater need to make such gains because often in the case of health it
is a question of life and death. As stated earlier, for a small part of the working
population right to healthcare through the social security/social
Box 2
The WHO constitution states the following Principles: Health is a state of complete physical,
mental and social well-being and not merely the absence of disease or infirmity. The enjoyment
of the highest attainable standard of health is one of the fundamental rights of every human being
without distinction of race, religion, political belief, economic or social condition. The health of
all peoples is fundamental to the attainment of peace and security and is dependent upon the
fullest co-operation of individuals and States. The achievement of any State in the promotion and
protection of health is of value to all. Unequal development in different countries in the
promotion of health and control of disease, especially communicable disease, is a common
danger. Healthy development of the child is of basic importance; the ability to live harmoniously
in a changing total environment is essential to such development. The extension to all peoples of
the benefits of medical, psychological and related knowledge is essential to the fullest attainment
of health. Informed opinion and active co-operation on the part of the public are of the utmost
importance in the improvement of the health of the people. Governments have a responsibility for
the health of their peoples which can be fulfilled only by the provision of adequate health and
social measures.- WHO Constitution
"Everyone has the right to a standard of living adequate for ... health and well-being of himself
and his family, including food, clothing, housing, medical care and the right to security in the
event of... sickness, disability.... Motherhood and childhood are entitled to special care and
assistance...." --Universal Declaration of Human Rights, Article 25
"States Parties shall ... ensure to [women] ... access to specific educational information to help to
ensure the health and well-being of families, including information and advice on family
planning.... States Parties shall ... eliminate discrimination against women in ... health care ... to
ensure, on a basis of equality of men and women, access to health care services, including those
related to family planning....; ensure ... appropriate services in connection with pregnancy....
States Parties shall ... ensure ... that [women in rural areas] ... have access to adequate health care
facilities, including information counselling and services in family planning...." —Convention on
the Elimination of All Forms of Discrimination Against Women, Articles 10, 12, and 14
16
"States Parties undertake to ... eliminate racial discrimination ... and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the
law, ... the right to public health, medical care, social security and social services...." —
Convention on the Elimination of All Forms of Racial Discrimination, Article 5
"States Parties recognize the right of the child to the enjoyment of the highest attainable standard
of health and to facilities for the treatment of illness and rehabilitation of health...." -Convention
on the Rights of the Child, Article 24
In the 1977 World Health Assembly member states pledged a commitment towards a health for
all strategy, “.. the attainment by all citizens of the world by the year 2000 of a level of health that
will permit them to lead a socially and economically productive life..” (AL Taylor -Making the
World Health Organisation Work : A legal framework for universal access to the conditions for
Health, American Journal of Law and Medicine, Vol 18 No. 4, 1992, 302). At the International
conference which followed in 1978 at Alma Ata this was converted into the famous primary
health care declaration whereby Governments would be responsible to the people to assure
primary health care for all by the year 2000. Primary health care is “essential health care which is
to be universally accessible to individuals and families in the community in ways acceptable to
them, through their full participation at a cost the community can afford” (WHO, Primary Health
Care, 1978, p. 3) - Alma Ata Declaration on Health For All by 2000
"Health and development are intimately interconnected. Both insufficient development leading to
poverty and inappropriate development... can result in severe environmental health problems....
The primary health needs of the world's population ... are integral to the achievement of the goals
of sustainable development and primary environmental care.... Major goals ... By the year 2000 ...
eliminate guinea worm disease...; eradicate polio;... By 1995 ... reduce measles deaths by 95 per
cent...; ensure universal access to safe drinking water and ... sanitary measures of excreta
disposal...; By the year 2000 [reduce] the number of deaths from childhood diarrhoea ... by 50 to
70 per cent..." — Agenda 21,Chapter 6, paras. 1 and 12
Everyone has the right to the enjoyment of the highest attainable standard of physical and mental
health. States should take all appropriate measures to ensure, on a basis of equality of men and
women, universal access to health-care services, including those related to reproductive health
care.... The role of women as primary custodians of family health should be recognized and
supported. Access to basic health care, expanded health education, the availability of simple costeffective remedies ... should be provided...." —Cairo Programme of Action, Principle 8 and para.
8.6
We commit ourselves to promoting and attaining the goals of universal and equitable access to
... the highest attainable standard of physical and mental health, and the access of all to primary
health care, making particular efforts to rectify inequalities relating to social conditions and
without distinction as to race, national origin, gender, age or disability...." -Copenhagen
Declaration, Commitment 6
The explicit recognition ... of the right of all women to control all aspects of their health, in
particular their own fertility, is basic to their empowerment.... We are determined to ... ensure
equal access to and equal treatment of women and men in ... health care and enhance women's
sexual and reproductive health as well as Health." —Beijing Declaration, paras. 17 and 30
"Women have the right to the enjoyment of the highest attainable standard of physical and mental
health. The enjoyment of this right is vital to their life and well-being and their ability to
participate in all areas of public and private life.... Women's health involves their emotional,
social and physical well-being and is determined by the social, political and economic context of
their lives, as well as by biology.... To attain optimal health, ... equality, including the sharing of
family responsibilities, development and peace are necessary conditions." -Beijing Platform for
Action, para. 89
"Strategic objective ... Increase women's access throughout the life cycles to appropriate,
affordable and quality health care, information and related services.... Actions to be taken: ...
17
Reaffirm the right to the enjoyment of the highest attainable standards of physical and mental
health, protect and promote the attainment of this right for women and girls and incorporate it in
national legislation...; Provide more accessible, available and affordable primary health care
services of high quality, including sexual and reproductive health care...; Strengthen and reorient
health services, particularly primary health care, in order to ensure universal access to health
services...; reduce maternal mortality by at least 50 per cent of the 1990 levels by the year 2000
and a further one half by the year 2015;... make reproductive health care accessible ... to all ... no
later than ... 2015...; take specific measures for closing the gender gaps in morbidity and mortality
where girls are disadvantaged, while achieving ... by the year 2000, the reduction of mortality
rates of infants and children under five ... by one third of the 1990 level...; by the year 2015 an
infant morality rate below 35 per 1,000 live births.... Ensure the availability of and universal
access to safe drinking water and sanitation....” --Beijing Platform for Action, para. 106
"Human health and quality of life are at the centre of the effort to develop sustainable human
settlements. We ... commit ourselves to ... the goals of universal and equal access to ... the highest
attainable standard of physical, mental and environmental health, and the equal access of all to
primary health care, making particular efforts to rectify inequalities relating to social and
economic conditions ..., without distinction as to race, national origin, gender, age, or disability.
Good health throughout the life-span of every man and woman, good health for every child ... are
fundamental to ensuring that people of all ages are able to ... participate fully in the social,
economic and political processes of human settlements .... Sustainable human settlements depend
on ... policies ... to provide access to food and nutrition, safe drinking water, sanitation, and
universal access to the widest range of primary health-care services...; to eradicate major diseases
that take a heavy toll of human lives, particularly childhood diseases; to create safe places to
work and live; and to protect the environment.... Measures to prevent ill health and disease are as
important as the availability of appropriate medical treatment and care. It is therefore essential to
take a holistic approach to health, whereby both prevention and care are placed within the context
of environmental policy...." —Habitat Agenda, paras. 36 and 128
insurance route exists. The fact that this exists shows that for the larger
population too it could be worked out. And that afew people enjoy this privilege
is also a sign of discrimination and inequity, and this violates not only the non
discrimination principle of international law, but it also violates Article 14 of the
constitution, Right to Equality, under the chapter of Fundamental Rights.
With regard to the question of justiciability of international law there is a
problem in India. Like its colonial exploiter Britain, India follows the principle of
dualism. This means that for international law to be applicable in India, it
needs to be separately legislated. Since none of the international human rights
treaties have been incorporated or transformed into domestic laws in India, they
thus have only an evocative significance and may be used by the Courts or
petitioners to derive inspiration from them. (Nariman, 1995) Thus on a number
of occasions many of these human right treaties, which India has ratified, have
been used by the Indian Courts in conjunction with fundamental rights.12
12 In a judgment on sexual harassment at the work place, in which the CEDAW and Beijing Declaration was invoked,
the Supreme Court outlined this approach as follows - Any international convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee (Vishaka v/s State of Rajasthan, writ petition number 66670 of 1992, quoted in Toebes, 1998)
18
While international law may be invoked, as discussed above, the absence of
justiciability is a major stumbling block. International law has its importance in
providing many principles but in India’s case, as we have seen above, there is
substantial leeway within our own legal framework to evolve the right to health
and healthcare. The emphasis needs to shift to critical principles as laid down
in the directive principles and each of these, like health, education, social
security, livelihood, housing etc. so that each of these can be separately
constituted as independent rights. This is the only way of bringing right to
health and healthcare on the national agenda, and of course the support of
international treaties will have their role in cementing this demand.
Framework for Right to Health and Healthcare
We are in an era which is dominated by global capital. The latter is increasingly
taking control of social sectors, where historically the State has played a critical
role. Europe is also facing pressures to retract the socialist measures, which
working class struggles had gained since 19th century. But we are also in an era
wherein social and economic rights, apart from the political rights, are
increasingly on the international agenda and an important cause for advocacy.
Thus health and health care is now being viewed very much within the rights
perspective and this is reflected in Article 12 “The right to the highest
attainable standard of health” of the International Covenant on Economic,
Social and Cultural Rights. According to the General Comment 14 the
Committee for Economic, Social and Cultural Rights states that the right to
health requires availability, accessibility, acceptability, and quality with regard
to both health care and underlying preconditions of health. The Committee
interprets the right to health, as defined in article 12.1, as an inclusive right
extending not only to timely and appropriate health care but also to the
underlying determinants of health, such as access to safe and potable water
and adequate sanitation, an adequate supply of safe food, nutrition and
housing, healthy occupational and environmental conditions, and access to
health-related education and information, including on sexual and reproductive
health. This understanding is detailed below:
The right to health in all its forms and at all levels contains the following
interrelated and essential elements, the precise application of which will
depend on the conditions prevailing in a particular State party:
(a) Availability. Functioning public health and health-care facilities,
goods and services, as well as programmes, have to be available in
sufficient quantity within the State party. The precise nature of the
facilities, goods and services will vary depending on numerous factors,
including the State party's developmental level. They will include,
however, the underlying determinants of health, such as safe and
potable drinking water and adequate sanitation facilities, hospitals,
clinics and other health-related buildings, trained medical and
professional personnel receiving domestically competitive salaries, and
essential drugs, as defined by the WHO Action Programme on Essential
Drugs.
19
(b) Accessibility. Health facilities, goods and services have to be
accessible to everyone without discrimination, within the jurisdiction of
the State party. Accessibility has four overlapping dimensions:
Non-discrimination: health facilities, goods and services must be
accessible to all, especially the most vulnerable or marginalized sections
of the population, in law and in fact, without discrimination on any of the
prohibited grounds.
Physical accessibility: health facilities, goods and services must be within
safe physical reach for all sections of the population, especially
vulnerable or marginalized groups, such as ethnic minorities and
indigenous populations, women, children, adolescents, older persons,
persons with disabilities and persons with HIV/AIDS. Accessibility also
implies that medical services and underlying determinants of health,
such as safe and potable water and adequate sanitation facilities, are
within safe physical reach, including in rural areas. Accessibility further
includes adequate access to buildings for persons with disabilities.
Economic accessibility (affordability): health facilities, goods and services
must be affordable for all. Payment for health-care services, as well as
services related to the underlying determinants of health, has to be
based on the principle of equity, ensuring that these services, whether
privately or publicly provided, are affordable for all, including socially
disadvantaged groups. Equity demands that poorer households should
not be disproportionately burdened with health expenses as compared to
richer households.
Information accessibility: accessibility includes the right to seek, receive
and impart information and ideas concerning health issues. However,
accessibility of information should not impair the right to have personal
health data treated with confidentiality.
(c) Acceptability. All health facilities, goods and services must be
respectful of medical ethics and culturally appropriate, i.e. respectful of
the culture of individuals, minorities, peoples and communities, sensitive
to gender and life-cycle requirements, as well as being designed to
respect confidentiality and improve the health status of those concerned.
(d) Quality. As well as being culturally acceptable, health facilities, goods
and services must also be scientifically and medically appropriate and of
good quality. This requires, inter alia, skilled medical personnel,
scientifically approved and unexpired drugs and hospital equipment, safe
and potable water, and adequate sanitation. (Committee on Economic,
Social and Cultural Rights Twenty-second session 25 April-12 May 2000)
Universal access to good quality healthcare equitably is the key element at the
core of this understanding of right to health and healthcare. To make this
possible the State parties are obligated to respect, protect and fulfill the above in
a progressive manner:
The right to health, like all human rights, imposes three types or levels of
obligations on States parties: the obligations to respect, protect and fulfil.
In turn, the obligation to fulfil contains obligations to facilitate, provide
and promote. The obligation to respect requires States to refrain from
interfering directly or indirectly with the enjoyment of the right to health.
The obligation to protect requires States to take measures that prevent
20
third parties from interfering with article 12 guarantees. Finally, the
obligation to fulfil requires States to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures
towards the full realization of the right to health. (Ibid)
(Further) States parties are referred to the Alma-Ata Declaration, which
proclaims that the existing gross inequality in the health status of the people,
particularly between developed and developing countries, as well as within
countries, is politically, socially and economically unacceptable and is,
therefore, of common concern to all countries. States parties have a core
obligation to ensure the satisfaction of, at the very least, minimum essential
levels of each of the rights enunciated in the Covenant, including essential
primary health care. Read in conjunction with more contemporary instruments,
such as the Programme of Action of the International Conference on Population
and Development, the Alma-Ata Declaration provides compelling guidance on
the core obligations arising from article 12. Accordingly, in the Committee's
view, these core obligations include at least the following obligations:
(a) To ensure the right of access to health facilities, goods and services on
a non-discriminatory basis, especially for vulnerable or marginalized
groups;
(b) To ensure access to the minimum essential food which is nutritionally
adequate and safe, to ensure freedom from hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation, and an
adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined under the
WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods and
services;
(f) To adopt and implement a national public health strategy and plan of
action, on the basis of epidemiological evidence, addressing the health
concerns of the whole population; the strategy and plan of action shall be
devised, and periodically reviewed, on the basis of a participatory and
transparent process; they shall include methods, such as right to health
indicators and benchmarks, by which progress can be closely monitored;
the process by which the strategy and plan of action are devised, as well
as their content, shall give particular attention to all vulnerable or
marginalized groups.
The Committee also confirms that the following are obligations of
comparable priority:
(a) To ensure reproductive, maternal (pre-natal as well as post-natal) and
child health care;
(b) To provide immunization against the major infectious diseases
occurring in the community;
(c) To take measures to prevent, treat and control epidemic and endemic
diseases;
(d) To provide education and access to information concerning the main
health problems in the community, including methods of preventing and
controlling them;
(e) To provide appropriate training for health personnel, including
education on health and human rights. (Ibid)
21
The above guidelines from General Comment 14 on Article 12 of ICESCR are
critical to the development of the framework for right to health and healthcare.
r 1an^Tllndey Xt 1S imPortant t0 emphasise that in the Shore Committee report
ol 1946 we already had these guidelines, though they were not in the 'rights'
language. Thus within the country's own policy framework all this has been
available as guiding principles for now 60 years.
Before we move on to suggest the framework it is important to review where
India stands today vis-a-vis the core principles of availability, accessibility
acceptability and quality in terms of the State's obligation to respect, protect
and fulfill.
In Table A, we have seen earlier, that the availability of healthcare
infrastructure, except perhaps availability of doctors and drugs - the two
engines of growth of the private health sector, is grossly inadequate. The growth
over the years of healthcare services, facilities, humanpower etc., has been
inadequate and the achievements not enough to make any substantive impact
on the health of the people. The focus of public investment in the health sector
has been on medical education and production of doctors for the private sector,
support to the pharmaceutical industry through states own participation in
production of bulk drugs at subsidized rates, curative care for urban population
and family planning services. The poor health impact we see today has clear
linkages with such a pattern of investment:
• the investment in medical education has helped create a mammoth
private health sector, not only within India, but in many developed
countries through export of over one-fourth of the doctors produced over
the years. Even though since mid-eighties private medical colleges have
been allowed, still 75-80% of the outturn is from public medical schools.
This continued subsidy without any social return13 is only adding to the
burden of inequities and exploitation within the healthcare system in
India.
• public sector participation in drug production was a laudable effort but
soon it was realized that the focus was on capital goods, that is bulk
drug production, and most supplies were directed to private formulation
units at subsidized rates. It is true that the government did control drug
prices, but post mid-seventies the leash on drug prices was gradually
released and by the turn of the nineties controls disappeared. Ironically,
at the same time the public pharmaceutical industry has also
disappeared - the little of what remains produces a value of drugs lesser
than their losses! And with this withering away of public drug
production, essential drugs availability has dropped drastically. Another
irony in this story is that while today we export 45% of our drug
1 Compulsory public medical service for a limited number of years for medical graduates from the public medical
schools is a good mechanism to fulfill the needs of the public healthcare system. The Union Ministry of Health is
presently seriously considering this option, including allowing post-graduate medical education only to those who have
completed the minimum public medical service, including in rural areas.
22
1
production, we have to import a substantial amount of our essential drug
requirements.14
• Most public sector hospitals are located in urban areas. In the eighties,
post-Alma Ata and India ratifying the ICESCR, efforts were made towards
increasing hospitals in rural areas through the Community Health
Centres. This was again a good effort but these hospitals are
understaffed by over 50% as far as doctors are concerned and hence
become ineffective. Today urban areas do have adequate number of beds
(including private) at a ratio of one bed per 300 persons but rural areas
have 8 times less hospital beds as per required norms (assuming a norm
of one bed per 500 persons). So there is gross discrimination based on
residence in the way the hospital infrastructure has developed in the
country, thereby depriving the rural population access to curative care
services.15 Further, the declining investment in the public health sector
since mid-eighties, and the consequent expansion of the private health
sector, has further increased inequity in access for people across the
country
• Family planning services is another area of almost monopolistic public
sector involvement. The investment in such services over the years has
been very high, to the tune of over 15% of the total public health budget.
But over and above this the use of the entire health infrastructure and
other government machinery for fulfilling its goals must also be added to
these resources expended. This program has also witnessed a lot of
coercion16 and grossly violated human rights. The hard line adopted by
the public health system, especially in rural areas, for pushing
population control has terribly discredited the public health system and
affected adversely utilization of other health programs. Further, this
program is also gender biased in that it targets only women to achieve its
goal of fertility reduction. The only silver lining within this program is
that in the nineties immunisation of children and mothers saw a rapid
growth, though as yet it is still quite distant from the universal coverage
level.
Then there are the underlying conditions of health and access to factors that
determine this, which are equally important in a rights perspective. Given the
high level of poverty and even a lesser level of public sector participation in
most of these factors the question of respecting, protecting and fulfilling by the
state is quite remote. Latest data from NFHS-1998 tells the following story:
• Piped water is available to only 25% of the rural population and 75% of
urban population
Data on availability of essential drugs show that in 1982-83 the gap in availability was only 2.7% but by 1991-92 it
]1998^aIl0Ped t0 22’3O/o‘ This is Precise|y the period in which drug price control went out of the window. (Phadke,A,
NFHS-1998 data shows that in rural areas availability of health services within the village was as follows: 13% of
villages had a PHC, 28% villages had a dispensary, 10% had hospitals, 42% had atleast one private doctor (not
necessarily qualified), 31% of villages had visiting private doctors, 59% had trained birth attendants, and 33% had
village health workers
It must be noted that coercion was not confined only to the Emergency period in the mid-seventies, but has been part
and parcel of the program through a target approach wherein various government officials from the school teacher to
the revenue officials were imposed targets for sterilization and IDCDs and were penalized for not fulfilling these
targets in different ways, like cuts and/or delays in salaries, punishment postings etc.
23
•
•
•
•
•
•
Half the urban population and three-fourths of the rural population does
not purify/filter the water in any way
Flush and pit toilets are available to only 19% of the rural population as
against 81% of those in towns and cities
Electricity for domestic use is accessible to 48% rural and 91% urban
dwellers
For cooking fuel 73% of villagers still use wood. LPG and biogas is
accessed by 48% urban households but only 6% rural households
As regards housing 41% village houses are kachha whereas only 9% of
urban houses are so
21% of the population chews paan masaala and/or tobacco, 16% smoke
and 10% consume alcohol
Besides this environmental health conditions in both rural and urban areas are
quite poor, working conditions in most work situations, including many
organized sector units, which are governed by various social security
provisions, are unhealthy and unsafe. Infact most of the court cases using
Article 21 of the Fundamental Rights and relating it to right to health have been
cases dealing with working conditions at the workplace, workers rights to
healthcare and environmental health related to pollution, (see Box 1)
Other concerns in access are the question of economic accessibility. It is
astounding that large-scale poverty and predominance of private sector in
healthcare have to co-exist. It is in a sense a contradiction and reflects the
State’s failure to respect, protect and fulfill its obligations by letting vast
inequities in access to healthcare and vast disparities in health indicators, to
continue to persist, and in many situations get worse. Data shows that out of
pocket expenses account for over 4% of the GDP as against only 0.9 % of GDP
expended by state agencies, and the poorer classes contribute a
disproportionately higher amount of their incomes to access health care
services both in the private sector and public sector. (Ellis, et.al, 2000; Duggal,
2000; Peters et.al. 2002). Further, the better off classes use public hospitals in
much larger numbers with their hospitalization rate being six times higher than
the poorest classes17, and as a consequence consume an estimated over three
times more of public hospital resources than the poor (NSS-1996; Peters et.al.
2002).
Related to the above is another concern vis-a-vis international human rights
conventions’ stance on matters with regard to provision of services. All
conventions talk about affordability and never mention free of charge. In the
context of poverty this notion is questionable as far as provisions for social
security like health, education and housing go. Access to these factors socially
has unequivocal consequences for equity, even in the absence of income equity.
Free services are viewed negatively in global debate, especially since we have
had a unipolar world, because it is deemed to be disrespect to individual
responsibility with regard to their healthcare (Toebes, 1998, p.249). For
17 The poorer classes have reported such low rates of hospitalization, not because they fall ill less often but because
they lack resources to access healthcare, and hence invariably postpone their utilization of hospital services until it is
absolutely unavoidable.
24
instance in India there is great pressure, especially from international donors,
on public health systems to introduce or enhance user fees, because they
believe this will enhance responsibility of the public health system and make it
more efficient (Peters, et. al.). In many states such a policy has been adopted in
India and immediately adverse impacts are seen, the most prominent being
decline in utilization of public services by the poorest. It is unfortunate that the
Tenth Five Year Plan draft document supports raising more resources by
increasing user charges in secondary and tertiary hospitals. It must be kept in
mind that India's taxation policy favours the richer classes. Our tax base is
largely indirect taxes, which is a regressive form of generating revenues. Direct
tax revenues, like income tax is a very small proportion of total tax revenues.
Hence the poor end up paying a larger proportion of their income as tax
revenues in the form of sales tax, excise duties etc. on goods and services they
consume. Viewed from this perspective the poor have already pre-paid for
receiving public goods like health and education from the state free of cost at
the point of provision. So their burden of inequity increases substantially if they
have to pay for such services when accessing from the public domain.
The above inequity in access gets reflected in health outcomes, which too, as we
have seen earlier, reflect strong class gradients. Thus infant and child mortality,
malnutrition amongst women and children, prevalence of communicable
diseases like tuberculosis and malaria, attended childbirth are between 2 to 4
times better amongst the better off groups as compared to the poorest groups.
In this quagmire of poverty, the gender disparities also exist but they are less
sharp than the class inequities, though they exist within each class. Such
disparity, and the consequent failure of the state to protect the health of its
population, is a damning statement on the health situation of the country. In
India there is an additional dimension to this inequity - differences in health
outcomes and access by social groups, specifically the scheduled castes and
scheduled tribes. Data shows that these two groups are worse off on all counts
when compared to others. Thus in access to hospital care as per NSS-1996 data
the STs had 12 times less access in rural areas and 27 times less in urban
areas as compared to others; for SCs the disparity was 4 and 9 times, in rural
and urban areas, respectively. What is astonishing is that the situation for
these groups is worse in urban areas where overall physical access is
reasonably good. Their health outcomes are adverse by 1.5 times that of others
(NFHS-1998)
Another stumbling block in meeting state obligations is information access.
While data on public health services, with all its limitations, is available, data
on the private sector is conspicuous by its absence. The private sector, for
instance does not meet its obligations to supply data on notifiable, mostly
communicable, diseases, which is mandated by law. This adversely affects the
epidemiological database for those diseases and hence affects public health
practice and monitoring drastically. Similarly the local authorities have
miserably failed to register and record private health institutions and
practitioners. This is an extremely important concern because all the data
quoted about the private sector is an under-estimate as occasional studies have
25
shown.18 The situation with regard to practitioners is equally bad. The medical
councils of all systems of medicine are statutory bodies but their performance
leaves much to be desired. The recording of their own members is not up to the
mark, and worse still since they have been unable to regulate medical practice
there are a large number of unqualified and untrained persons practicing
medicine across the length and breadth of the country. Estimates of this
unqualified group vary from 50% to 100% of the proportion of the qualified
practitioners. (Duggal, 2000; Rhode et.al. 1994) The profession itself is least
concerned about the importance of such information and hence does not make
any significant efforts to address this issue. This poverty of information is
definitely a rights issue even within the current constitutional context as lack of
such information could jeopardize right to life.
Finally there are issues pertaining to acceptability and quality. Here the Indian
state fails totally. We have seen earlier that there is a clear rural-urban
dichotomy in health policy; urban areas have been provided comprehensive
healthcare services through public hospitals and dispensaries and now even a
strengthened preventive input through health posts for those residing in slums.
In contrast rural areas have largely been provided preventive and promotive
healthcare alone. This violates the principle of non-discrimination and equity
and hence is a major ethical concern to be addressed.
Medical practice, especially private, suffers from a complete absence of ethics.
The medical associations have as yet not paid heed to this issue at all and over
the years malpractices within medical practice have gone from bad to worse. In
this malpractice game the pharmaceutical industry is a major contributor as it
induces doctors and hospitals to prescribe irrational and/or unnecessary
drugs.19 All this impacts drastically on quality of care. In clinical practice and
hospital care in India there exist no standard protocols and hence monitoring
quality becomes very difficult. For hospitals the Bureau of Indian Standards
have developed guidelines, and often public hospitals do follow these guidelines
(Nandraj and Duggal, 1997). But in the case of private hospitals they are
generally ignored. Recently efforts at developing accreditation systems has been
started in Mumbai (Nandraj, et.al, 2000)20, and on the basis of that the Central
government is considering doing something at the national level on this front so
that it can promote quality of care.
Establishing Right to Health and Healthcare in India
18 A survey in Mumbai in 1994 showed that the official list with the Municipal Corporation accounted for only 64% of
private hospitals and nursing homes (Nandraj and DuggalJ 997). Similarly, a much larger study in Andhra Pradesh in
1993 revealed extraordinary missing statistics about the private health sector. For that year official records indicated
that AP had 266 private hospitals and 11,103 beds, but the survey revealed that the actual strength of the private sector
was over ten times more hospitals with a figure of 2802 private hospitals and nearly four times more hospital beds at
42192 private hospital beds. (Mahapatra, P. 1993)
Data of 80 top selling drugs in 1991 showed that 29% of them were irrational and/or hazardous and their value was
to the tune of Rs. 2.86 billion. A study of prescription practice in Maharashtra in 1993 revealed that outright irrational
drugs constituted 45% of all drugs prescribed and rational prescriptions were only 18%. The proportion of irrationality
was higher in private practice by over one-fifth. (Phadke, A, 1998)
In Mumbai CEHA1 in collaboration with various medical associations and hospital owner associations have set up a
non-profit company called Health Care Accreditation Council. This body hopes to provide the basis for evolving a
much larger initiative on this front.
26
More than half a century’s experience of waiting for the policy route to assure
respect, protection and fulfillment for healthcare is now behind us. The Bhore
Committee recommendations which had the potential for this assurance were
assigned to the back-burner due to the failure of the state machinery to commit
a mere 2% of the Gross Domestic Product at that point of time for
implementation of the Bhore Plan. In the review of the evolution of health policy
we have seen that each plan and/or health committee contributed to the
dilution of the comprehensive and universal access approach by developing
selective schemes or programs, and soon enough the Bhore plan was archived
and forgotten about. So our historical experience tells us that we should
abandon the policy approach and adopt the human rights route to assuring
universal access to all people for healthcare. We are today talking of health
sector reform and hence it is the right time to switch gears and move in the
direction of right to health and healthcare.
The right to healthcare is primarily a claim to an entitlement, a positive right,
not a protective fence.21 As entitlements rights are contrasted with privileges,
group ideals, societal obligations, or acts of charity, and once legislated they
become claims justified by the laws of the state. (Chapman, 1993) The
emphasis thus should not be as much on ‘respect’ and ‘protect’ but on ‘fulfill’.
For the right to be effective optimal resources that are needed to fulfill the core
obligations have to be made available and utilized effectively.
Further, using a human rights approach also implies that the entitlement is
universal. This means there is no exclusion from the provisions made to assure
healthcare on any grounds whether purchasing power, employment status,
residence, religion, caste, gender, disability, and any other basis of
discrimination.22 But this does not discount the special needs of disadvantaged
and vulnerable groups who may need special entitlements through affirmative
action to rectify historical inequities suffered by them.
Thus establishing universal healthcare through the human rights route is the
best way to fulfill the obligations mandated by international law and domestic
constitutional provisions. International law, specifically ICESCR, the Alma Ata
Declaration, among others, provide the basis for the core content of right to
health and healthcare. But country situations are veiy different and hence
there should not be a global core content, it needs to be country specific.23 In
21 In the 18th century rights were interpreted as fences or protection for the individual from the unfettered authoritarian
governments that were considered the greatest threat to human welfare. Today democratic governments do not pose the
same kind of problems and there are many new kinds of threats to the right to life and well being. (Chapman, 1993)
Hence in today’s environment reliance on mechanisms that provide for collective rights is a more appropriate and
workable option. Social democrats all over Europe, in Canada, Australia have adequately demonstrated this in the
domain of healthcare.
A human rights approach would not necessitate that all healthcare resources be distributed according to strict
quantitative equality or that society attempt to provide equality in medical outcomes, neither of which would in any
case be feasible. Instead the universality of the right to healthcare requires the definition of a specific entitlement be
guaranteed to all members of our society without any discrimination. (Chapman, 1993)
Country specific thresholds should be developed by indicators measuring nutrition, infant mortality, disease
frequency, life expectancy, income, unemployment and underemployment, and by indicators relating to adequate food
consumption. States should have an immediate obligation to ensure the fulfillment of this minimum threshold
(Andreassen et.al., 1988 as quoted by Toebes, 1998)
27
India s case a certain trajectory has been followed through the policy route and
we have an existing baggage, which we need to sort out and fit into the new
strategy.
Specific features of this historical baggage are:
• a very large and unregulated private health sector with an attitude that
the existing policy is the best one as it gives space for maximizing their
interests, a complete absence of professional ethics and absolute
disinterest in organizing around issues of self-regulation, improvement of
quality and accountability, and need for an organised health care system
• a declining public health care system which provides selective care
through a multiplicity of schemes and programs, and discriminates on
the basis of residence (rural-urban) in providing for entitlements for
healthcare
• existing inequities in access to healthcare based on employment status,
gender and purchasing power
• inadequate development of various pre-conditions of health like water
supply and sanitation, environmental health and hygiene and access to
food24
• very large numbers of unqualified and untrained practitioners
• inadequate and declining investments and expenditure in public health
• adequate resource availability when we account for out-of-pocket
expenses
• humanpower and infrastructure reasonably
reasonably adequate,
though
adequate,
inequitably distributed
• wasteful expenditures due to lack of regulation and standard protocols
for treatment
To establish right to health and healthcare with the above scenario certain first
essential steps will be compulsory:
• equating directive principles with fundamental rights through a
constitutional amendment
• incorporating a National Health Act (like for example the Canada Health
Act) which will organize the present healthcare system under a common
umbrella organization as a public-private mix governed by an
autonomous national health authority which will also be responsible for
bringing together all resources under a single-payer mechanism
• generating a political commitment through consensus building on right
to healthcare in civil society
• development of a strategy for pooling all financial resources deployed in
the health sector
• redistribution of existing health resources, public and private, on the
basis of standard norms (these would have to be specified) to assure
physical (location) equity
24 Efforts to prevent hunger have been there through the Integrated Child Development Services program and mid-day
meals. Analysis of data on malnutrition clearly indicates that where enrollment under ICDS is optimal malnutrition
amongst children is absent, but where it is deficient one sees malnutrition. Another issue is that we have overflowing
food-stocks in godowns but yet each year there are multiple occasions of mass starvation in various pockets of the
country.
28
While the above are essential steps for establishing right to healthcare they
involve a process that will take some time. As an immediate step, within its own
domain, the State should undertake to accomplish the following:
• Allocation of health budgets as block funding, that is on a per capita
basis for each population unit of entitlement as per existing norms. This
will create redistribution of current expenditures and reduce
substantially inequities based on residence.25 Local governments should
be given the autonomy to use these resources as per local needs but
within a broadly defined policy framework of public health goals
• Strictly implementing the policy of compulsory public service by medical
graduates from public medical schools, as also make public service of a
limited duration mandatory before seeking admission for post-graduate
education. This will increase human resources with the public health
system substantially and will have a dramatic impact on the
improvement of the credibility of public health services
• Essential drugs as per the WHO list should be brought back under price
control (90% of them are off-patent) and/or volumes needed for domestic
consumption must be compulsorily produced so that availability of such
drugs is assured at affordable prices and within the public health system
• Local governments must adopt location policies for setting up of
hospitals and clinics as per standard acceptable ratios, for instance one
hospital bed per 500 population and one general practitioner per 1000
persons. To restrict unnecessary concentration of such resources in over
served areas fiscal measures to discourage such concentration should be
instituted.26
• The medical councils must be made accountable to assure that only
licensed doctors are practicing what they are trained for.27 Such
monitoring is the core responsibility of the council by law which they are
not fulfilling, and as a consequence failing to protect the patients who
seek care from unqualified and untrained doctors. Further continuing
medical education must be implemented strictly by the various medical
To illustrate this, taking the Community Health Centre (CHC) area of 150,000 population as a “health district” at
current budgetary levels under block funding this “health district” would get Rs. 30 million (current resources of state
and central govt, combined is over Rs.200 billion, that is Rs. 200 per capita). This could be distributed across this
health district as follows : Rs 300,000 per bed for the 30 bedded CHC or Rs. 9 million (Rs.6 million for salaries and Rs.
3 million for drugs and other consumables, maintenance, POL etc..) and Rs. 4.2 million per PHC (5 PHCs in this area),
including its sub-centres and CHVs (Rs. 3.2 million as salaries and Rs. 1 million for drugs, consumables etc..). This
would mean that each PHC would get Rs. 140 per capita as against less than Rs. 50 per capita currently. In contrast a
district headquarter town with 300,000 population would get Rs. 60 million, and assuming Rs. 300,000 per bed (for
instance in Maharashtra the current district hospital expenditure is only Rs. 150,000 per bed) the district hospital too
would get much larger resources. To support health administration, monitoring, audit, statistics etc, each unit would
have to contribute 5% of its budget. Ofcourse, these figures have been worked out with existing budgetary levels and
excluding local government spending which is quite high in larger urban areas. (Duggal,2002)
Such locational restrictions in setting up practice may be viewed as violation of the fundamental right to practice
one’s profession anywhere. It must be remembered that this right is not absolute and restrictions can be placed in
concern for the public good. The suggestion here is not to have compulsion but to restrict through fiscal measures. In
fact in the UK under NHS, the local health authorities have the right to prevent setting up of clinics if their area is
saturated.
For instance the Delhi Medical Council has taken first steps in improving the registration and information sysetm
within the council and some mechanism of public information has been created.
29
councils and licenses should not be renewed (as per existing law) if the
required hours and certification is not accomplished
integrate ESIS, CGHS and other such employee based health schemes
with the general public health system so that discrimination based on
e™p.Ioyment status is removed and such integration will help more
efficient use of resources. For instance, ESIS is a cash rich organization
sitting on funds collected from employees (which are parked in
debentures and shares of companies!), and their hospitals and
thTJTTeTed pubrf™8817 under’utilised' The latter could be made open to
•
Strictly regulate the private health sector as per existing laws, but also
make an effort to change these laws to make them more effective. This
will contribute towards improvement of quality of care in the private
sector as well as create some accountability
Strengthen the health information system and database to facilitate
better planning as well as audit and accountability.
Carrying out the above immediate steps will create the basis to move in the
direction of first essential steps indicated above. In order to implement the firststeps the essential core contents of healthcare have to be defined and made
legally binding through the }processes of- the
'
~
first-steps.
The literature and
debate on the core contents is quite vast and--------------from that: we will attempt to draw
out the core content of right to health and healthcare keeping the Indian
context discussed above in mind.
Audrey Chapman in discussing the minimum core contents summarises this
debate, “Operatively,, a basic and adequate standard of healthcare is the
minimum level of care, the core entitlement, that should be guaranteed to all
too^^qT °frSOC;lety: 11 ls the floor below which no one will fall.28 (Chapman,
993)- She further states that the basic package should be fairly generous so
that it is widely acceptable by people, it should address special needs of special
and vulnerable population groups like under privileged sections (SC and ST in
India), women, physically and mentally challenged, elderly etc., it should be
based on cost-conscious standards but judgements to provide services should
not be determined by budgetary constraints^, and it should be accountable to
the community as also demand the latter’s participation and involvement in
monitoring and supporting it. All this is very familiar terrain, with the Shore
Committee saying precisely the same things way back in 1946.
We would like to put forth the core content as under:
Primary care services30 should include at least the following:
activdvTn
L I fhea''hh S,atUS °fthe pe0Ple should be such that the>' can atleast work productively and participate
sa isft basiXman nTdf Th°mmUn,T,"T
" alS° meanS that eSSential healthcare sufficient
involvement. (WHO 1993)
aCCesslble t0 all>an acceptable and affordable way, and with their full
General Comment 3 of ICESCR reiterates this that the minimum core obligations by definition apply irrespective of
the avatlabthty of resources or any other factors and difficulties. Hence it calls for international cooped
developing countries who lack resources to fulfil obligations under international law.
P g
of thTheTih CaStthe curat'veuservjces wil1 of necessity have to be a public-private mix because of the existing hapgage
of the health system we have but this has to be under an organized and accountable health care system
88 8
30
•
•
General practitioner/family physician services for personal health care.
First level referral hospital care and basic specialty and diagnostic
services (general medicine, general surgery, obstetrics and gynaecology,
paediatrics and orthopaedic), including dental and ophthalmic services.
• Immunisation services against all vaccine preventable diseases.
• Maternity and reproductive health services for safe pregnancy, safe
abortion, delivery and postnatal care and safe contraception.
• Pharmaceutical services - supply of only rational and essential drugs as
per accepted standards.
• Epidemiological services including laboratory services, surveillance and
control of major diseases with the aid of continuous surveys, information
management and public health measures.
• Ambulance services.
• Health education.
• Rehabilitation services for the physically and mentally challenged and
the elderly and other vulnerable groups
• Occupational health services with a clear liability on the employer
• Safe and assured drinking water and sanitation facilities, minimum
standards in environmental health and protection from hunger to fulfill
obligations of underlying preconditions of health31
The above listed components of primary care are the minimum that must be
assured, if a universal health care system has to be effective and acceptable.
And these have to be within the context of first-steps and not to wait for
progressive realisation - these cannot be broken up into stages, as they are the
core minimum and hence non-negotiable. The key to equity is the existence of a
minimum decent level of provision, a floor that has to be firmly established.
However, if this floor has to be stable certain ceilings will have to be maintained
toughly, especially on urban health care budgets and hospital use (AbelSmith, 1977). This is important because human needs and demands can be
excessive and irrational. Those wanting services beyond the established floor
levels will have to seek it outside the system and/or at their own cost. However
this does not mean that higher levels of care should not be part of the core
contents. Access to specialist and tertiary services via primary care referral has
to also be made part of the chain without any direct cost to the user.
Therefore it is essential to specify adequate minimum standards of health care
facilities, which should be made available to all people irrespective of their
social, geographical and financial position. There has been some amount of
debate on standards of personnel requirements [doctor: population ratio,
doctor: nurse ratio] and of facility levels [bed: population ratio, PHC: population
ratio] but no global standards have as yet been formulated though some ratios
are popularly used, like one bed per 500 population, one doctor per 1000
persons, 3 nurses per doctor, public health expenditure to the tune of 5% of
GDP etc.. Another way of viewing standards is to look at the levels of countries
that already have universal access systems in place. In such countries one
These services need not be part of the health department or the national health authority that may be created and may
continue to be part of the urban and rural development departments as presently.
31
finds that on an average per 1000 population there are 2 doctors, 5 nurses and
thaT^es^ t Tltal bCdS (OECD’1990’ WHO,1961). The moot point here is
hat these ratios have remained more or less constant over the last 30 years
S°1me S°rt °f an °Ptimum level has been reached. In India with
egard to hospital care the Bureau of Indian Standards (BIS) has worked out
re9UlrementS f°r Personnel> equipment, space, amenities etc.. For
oer 2 7 heZ
X reCO™en^d a ratio of one per 3.3 beds and for nurses one
per 2.7 beds for three shifts. (BIS 1989, and 1992). Again way back in 1946 the
fbout WHhSt^V6?”^^ reasonable levels (which
that time were
1 U eve S m develoPed countries) to be achieved for a national
health service, which are as follows:
• one doctor per 1600 persons
• one nurse per 600 persons
• one health visitor per 5000 persons
• one midwife per 100 births
• one pharmacist per 3 doctors
• one dentist per 4000 persons
• one hospital bed per 175 persons
• one PHC per 10 to 20 thousand population depending on population
density and geographical area covered
• 15% of total government expenditure to be committed to health
care,
which at that time was about 2% of GDP
The first response from the government and policy makers to the question of
using the above norms m India is that they are excessive for a poor country and
we do not have the resources to create such a level of health care provision,
uch a reaction is invariably not a studied one and needs to be corrected. Let
us construct a selected epidemiological profile of the country based on whatever
proximate data is available through official statistics and research studies We
have obtained the following profile after reviewing available information:
•
I
Daily morbidity - 2% to 3% of population, that is about 20-30 million
patients to be handled eveiyday (7-10 billion per year)
• Hospitalisation Rate 20 per 1000 population per year with 12 days
average stay per case, that is a requirement of 228 million bed-days (that
is 20 million hospitalisatio:ms as per NSS -1987 survey, an underestimate
smaller studies give estimates of 50/1000/year or 50 million
,because
.
hospitalisations)
• Prevalence of Tuberculosis 11.4 per 1000 population or a caseload of
over 11 million patients
• Prevalence of Leprosy 4.5 per 1000 population or a caseload of over 4
million patients
• Incidence of Malaria 2.6 per 1000 population yearly or 2.6 million new
cases each year
• Diarrhoeal
diseases (under 5) = 7.5% (2-week incidence)
or 1.8
episodes/child/year or about 250 million cases annually
ARI (under 5) = 18.4% (2-week incidence) or 3.5 episodes per child per
year or nearly 500 million cases per year
32
Cancers - 1.5 per 1000 population per year (incidence) or 1.5 million
new cases every year
• Blindness =1.4% of population or 14 million blind persons
• Pregnancies = 21.4% of childbearing age-group women at any point of
time or over 40 million pregnant women
• Deliveries/Births = 25 per 1000 population per year or about 68,500
births every day
(estimated from CBHI, WHO,1988, ICMR,1990, NICD,1988, Gupta et al 1992
NSS,1987)
•
The above is a very select profile, which reflects what is expected out of a health
care delivery system. Let us take handling of daily morbidity alone, that is,
outpatient care. There are 30 million cases to be tackled every day. Assuming
that all will seek care (this usually happens when health care is universally
available, in fact the latter increases perception of morbidity) and that each GP
can handle about 60 patients in a days work, we would need over 500,000 GPs
equitably distributed across the country. This is only an average; the actual
requirement will depend on spatial factors (density and distance). This means
one GP per about 2500 population, this ratio being three times less favourable
than what prevails presently in the developed capitalist and the socialist
countries. Today we already have over 1,400,000 doctors of all systems
(660,000 allopathic) and if we can integrate all the systems through a CME
program and redistribute doctors as per standard requirements we can provide
GP services in the ratio of one GP per less than 1000 population.
It is evident from the above discussion that the neglect of the public health
system is an issue larger than government policy making. The latter is the
function of the overall political economy.
Under capitalism only a welldeveloped welfare state can meet the basic needs of its population. Given the
backwardness of India the demand of public resources for the productive
sectors of the economy (which directly benefit capital accumulation) is more
urgent (from the business perspective) than the social sectors, hence the latter
get only a residual attention by the state. The policy route to comprehensive
and universal healthcare has failed miserably. It is now time to change gears
towards a rights-based approach. The opportunity exists in the form of
constitutional provisions and discourse, international laws to which India is a
party, and the potential of mobilizing civil society and creating a socio-political
consensus on right to healthcare. All these have to be bundled into a
comprehensive health and healthcare legislation which is able to encompass all
the issues and concerns discussed above.
The Legal Route for Right to Health and Healthcare
Global experience clearly shows that countries which have established
universal access to healthcare have been able to do it with comprehensive
legislation that has organized the healthcare system under a common umbrella
and pooled resources to deliver structured and regulated health services to its
citizens. Legislation covers all dimensions of health and healthcare so that the
issues and concerns highlighted above like access, provision of adequate
infrastructure, discrimination, negligence, malpractices, quackery, healthcare
33
can be taken care of. All the existing laws have been formulated in response to
a specific situation or an issue. There has never been an attempt to legislate
a
comprehensive law covering the major aspects of health and healthcare. The
latter can only emerge from a comprehensive health policy. Historically India
had two opportunities, one in the Shore Committee Report on the eve of
Independence, and the second post Alma Ata when the 1982 National Health
policy was formulated. Both these opportunities to translate the policy into law
were lost because the approach to health and healthcare was a program based
one and not a comprehensive approach to establish universal and nondiscnminatory access to healthcare.
Thus as yet in India there is no comprehensive legislation on health and
healthcare. What we have are laws which cover selective aspects of health and
healthcare and often these violate the principles of universality and non
discrimination. So we have social security laws which protect health interests of
a selected class of the workforce like the Factories Act, the ESIS Act and
aternity Benefit Act, laws to deal with healthcare establishments like the
Hospital and clinical establishment registration acts of different states, laws to
deal with epidemics like the Epidemic Diseases Act, Notifiable Disease Act and
the various state Public Health Acts, laws to prevent quackery, professional
misconduct and malpractice like the Medical Council of India Act, Organ
Transpiantahon Act, laws to assure quality like the Drugs and Cosmetics Act
and the Prevention of Food Adulteration Act, Blood Banks Act, laws to deal with
negligence like COPRA, The MTP Act for abortion, the PNDT Act to prevent sexselective discrimination, laws for environment health like Prevention of
Pollution Act, Biological Diversity Act, Hazardous substances Act, laws for
occupational health like the Workmen’s compensation Act etc. (Can we make an
Annexure listing all possible health and health related legislation, preferably
with annotations??)
The problem with the existing legislation is that it is piecemeal and addresses
its objectives without contextualizing them in the overall context of the human
right to health. They suffice to deal with specific situations or for specific
persons but they don’t have a generic applicability. A review of cases under
these various legislations (see section on case laws) indicates the inadequacies
of these laws from the perspective of rights. As an interim these laws have
served a limited purpose and guaranteed protection when violations take place
These are discussed at length in the subsequent sections dealing with various
case laws. However, these laws do not provide a general right to health and
healthcare and for the latter to happen all these laws have to be brought under
the umbre la of an apex law which mandates the right to health and healthcare
Bus apex law must be contextualized within the framework of the ICESCR and
of theTndm atc nalfctovtenim]ts as wel1 as the provision of the directive principles
5, ^dian Constitution discussed above and must facilitate the organization
system mto a regulated system which is under a public
authority and financed by
- pooling
K., all resources available in the country. To
34
support this legislation a constitutional amendment to establish right to health
and healthcare must also be put in place.
Comprehensive health legislation is absolutely essential to translate policy into
practice. Health legislation reflects and makes explicit the health policy, and
decision making, the crucial act of politics, may remain a dead letter if not
backed up by legislation (WHO, 1988 a). Thus health legislation becomes an
important tool for implementation of health policy and provides the managerial
and administrative basis for the development of health systems. It is this latter
element that is missing in India due to lack of comprehensive health legislation.
What should then comprehensive health legislation include? At the outset it is
important to state that health is a public or social good and hence the role of
the state is very critical. Healthcare is a general public concern and hence
governments are responsible for assuring it and this is best done through a
mandate by law which makes the government accountable for it.
There are two aspects that health legislation has to cover. One is mandating
that health care is a right and a specified mix of health services will be assured
aFper the core contenTTve have discussed in an earlier section. The second
aspect pertains to regulation of the larger healthcare system which includes
private provision of various health and related services. The first one is the
political commitment which translates policy into action and the second is the
functional details of how the system will be controlled and made accountable.
We have already discussed the first aspect earlier and here we would like to
reiterate the importance of universality and non-discrimination as the
foundation principles of health legislation which should assure equity in access,
especially class, caste, gender, differently-abled, geographical and financial
equity. The health legislation will have to also work out the organizational and
financing framework for the entire healthcare systemss. Both public and private
healthcare has to be factored into the universal access healthcare system and
all finances have to be pooled into a common kitty which is administered and
controlled by a multi-stakeholder public authority. The Canada Health Act
which mandates public spending for physician and hospital services is one good
example to learn from. Through this Act, the federal government ensures that
the provinces and territories meet certain requirements, such as free and
universal access to insured health caress. Apart from this Canada also has
other legislation which regulates specific aspects of provisions under the
Canada Health Act.
32 For a framework to operationalise this see Ravi Duggal, 2004
33 There are five main principles in the Canada Health Act: 1. Public Administration: All administration of provincial
health insurance must be carried out by a public authority on a non-profit basis. They also must be accountable to the
province or territory, and their records and accounts are subject to audits. 2. Comprehensiveness: All necessary health
services, including hospitals, physicians and surgical dentists, must be insured. 3. Universality: All insured residents
are entitled to the same level ot health care. 4. Portability: A resident that moves to a different province or territory is
still entitled to coverage from their home province during a minimum waiting period. This also applies to residents
which leave the country. 5. Accessibility: All insured persons have reasonable access to health care facilities. In
addition, all physicians, hospitals, etc, must be provided reasonable compensation for the services they provide.
(http://laws.iusticc.gc.ca/en/C-6/233402.html ; accessed 30-3-2006)
35
_dimension is the second aspect of healthcare legislation and this
as we have seen earlier exists in a piecemeal way. Many of these specific laws
would need to be brought in line with the apex legislation and strengthened
accordingly. As we will see in the section on case laws this is a very wide arena.
Here we will attempt to define the regulatory principles for some critical areas
where regulation has to be established and/or strengthened.
The following suggestions on regulation encompass the entire health sector.
However, they are not an exhaustive list but only some major important areas
needing regulation or where it exists strengthening it.
1.Nursing Homes and Hospitals :
Setting up minimum decent standards and requirements for each type of
unit, general specifications for general hospitals and nursing homes and
special requirements for specialist care, example maternity homes,
cardiac units, intensive care units etc.. This should include physical
standards of space requirements and hygiene, equipment requirements,
humanpower requirements (adequate nurserdoctor and doctonbeds
ratios) and their proper qualifications etc...
■ Maintenance of proper medical and other records which should be made
available
statutorily to patients and on demand to inspecting
authorities.
Setting up of a strict referral system for hospitalisation and secondary
and tertiary care
Fixing reasonable and standard hospital, professional and service
charges.
■ Filing of minimum data returns to the appropriate authorities for
example data on notifiable diseases, detailed death and birth records,
patient and treatment data, financial returns etc..
■ Regular medical and prescription audits which must be reported to the
appropriate authority
Regular inspection of the facility by the appropriate authority with
stringent provisions for flouting norms and requirements
■ Periodical renewal of registration after a thorough audit of the facility
2. Physicians and other medical practitioners :
■ Ensuring that only properly qualified persons set up practice
■ Compulsory maintenance of patient records, including prescriptions,
with regular audit by concerned authorities
■ Fixing of standard reasonable charges for fees and services
■ Regulating a proper geographical distribution
■ Filing appropriate data returns about patients and their treatment
■ Provision for continuing medical education on a periodic basis with
licence renewal dependent on its completion
3. Diagnostic Facilities :
■ Ensuring quality standards and qualified personnel
■ Standard reasonable charges for various diagnostic tests and procedures
■ Audit of tests and procedures to check their unnecessary use
36
Proper geographical distribution to prevent over concentration in certain
areas
4. Pharmaceutical industry and pharmacies :
■ Allowing manufacture of only essential and rational drugs
■ Regulation of this industry must be switched to the Health Ministry from
the Chemicals Ministry
■ Formulation of a National Formulary of generic drugs which must be
used for prescribing by doctors and hospitals
■ Ensuring that pharmacies are run by pharmacists through regular
inspection by the authorities
■ Pharmacies should accept only generic drug prescriptions and must
retain a copy of the prescription for audit purposes
5. Health insurance and third party administration:
■ Health insurance should be allowed only as a not-for-profit sector
■ National and social insurance must be under public authority
■ Premiums must be negotiated through a multi-stakeholder mechanism
■ Insurance coverage must be comprehensive
■ Insurance companies must directly settle claims with hospitals and
physicians
■ Insurance data must be in public domain
■ Individual based exclusions should not be permitted
■ Insurance must also cover preventive and promotive healthcare,
maternity, dentistry and ophthalmic services
Apart from the above there are other areas which regulation has to cover like
patients rights (informed consent, privacy, access to records etc.), complaints
redressal,
reproductive
technologies,
organ
transplantation,
human
experimentation, euthanasia, mental health, disabilities etc. Many of these laws
exist in some way but they need to be linked and brought in line with the apex
legislation which will be formulated within the rights perspective. And finally
regulation has very little meaning if there is no audit
audit agency
agency to
to monitor
monitor what
what is
is
happening.
To conclude, if we want to establish right to healthcare then we have to
transcend the policy route and translate it into a legal route within the human
rights framework. This is the only way to assure political commitment for right
to health and healthcare.
In the subsequent section we present a review of selected case laws which have
used existing legal provisions to establish that health and healthcare is a right
in one way or another. The review and commentary on these case laws should
provide us learnings for our task to formulate comprehensive health legislation
for the future, (to add another para on what is covered in case laws or this
could also go in the preface which also describes the purpose of this volume)
References
Abel-Smith,Brian, 1977 : Minimum Adequate Levels of Personal Health Care, in
Issues in Health Care Policy, ed. John Mckinlay, A Milbank Reader 3, New York
37
AsseSXX™: “oXS'6'”'' "dS’ HUman K8htS "
A global
Bhore Joseph, 1946 : Report of the Health Survey
and Development
Committee, Volume I to IV, Govt, of India, Delhi
b5r-319r9 : BarirC JRecluirements for Hospital Planning CIS: 12433 (Part 1)19883, Bureau of Indian Standards, New Delhi
New DeS '
ReqUirements for a 100 Bedded Hospital, A Draft Report, BIS,
CBHI, various years : Health Information of India, Central Bureau of Health
Intelligence, MoHF&W, GOI, New Delhi
Health
Chapman, Audrey, 1993: Exploring a Human Rights Approach to Healthcare
De vlnie^igf^D SS°tlat Pn f°r tihC Advancement of Science, Washington DC
Th/t h
r
Directive Principles of State Policy and Fundamental RightsThe Indimi Experience, South African Journal on Human Rights 29 (1992)g
Duggal, Ravi Nandraj S, Vadair A, 1995: Health Expenditure Across States
Economic and Political Weekly, April 15 and April 22 1995
vmiX Delir1™" Health SeCtOr in ,ndia - Nato- Tr“ds
’
SSwXR'SUsr“oorati0n Wlt,,0Ut Pla"™d Albion. Econo™
D/iF3?’Ravi 2004: Operationalizing Right to Healthcare
in India, ICFAI Journal
oi Healthcare Law, August 2004, Vol2, No. 3, pgs 13-42
Ellis, Randall, Alam Moneer and Gupta, Indrani, 2000: Health Insurance in
dia Prognosis and Prospectus, Economic and Political Weekly, Jan.22, 2000
IX, various years: Five Year Plans - First to Ninth Planning
Commission, GOI, New Delhi
’ Flanning
vnP/v^B et;ai'.’19^2 ; Basellne Survey in Himachal Pradesh under IPP VI and
m
V/S'’ Indlai1 Instltute of Health Management Research, Jaipur
MfoSt/o? Xtee’ !975h ^°mmttee of Drugs and Pharmaceutical Industry,
Ministry of Chemicals and Petroleum, GOI, New Delhi
Hernan L. Fuenzalida-Puelma/Susan Scholle Connor, eds., The Right to Health
The Right to Health
Pa^"American Health Organization, Scientific Publication No
509, Washington, D.C. 1989)
Fore/ New0^^/^01131 Collaborative Study of High Risk Families - ICMR Task
fvicc, ixew oeini
S. Meteor
“d
M,Cy- °OVt °f ,ndia-
&
»'
N"wDe!hTty S""ey PhaSe i 1’"' ',PS- MinisH °f
Nandraj, Sunil and Ravi Duggal, 1997 • PhvsicAl
(fealth Sector, Radical Journal of Health (New Serie^)
^“icj'SiewTo^ S'“d C“lt”al R181itS “d
" the
•
or
Nh?-2009
18Dr“0NMatiO,]'i,“““b Su™y
India'IIPS. “ombai
GOR New Delhf
y’ MfaiSt'y °f He£dth Ob'1
Welfare,
38
NSS-1987 : Morbidity and Utilisation of Medical Services, 42"d Round, Report
No. 384, National Sample Survey Organisation, New Delhi
NSS-1996 : Report No. 441, 52nd Round, NSSO, New Delhi, 2000
OECD, 1990 : Health Systems in Transition, Organisation for Economic
Cooperation and Development, Paris
Phadke, Anant, 1998: Drug Supply and Use - Towards a rational policy in
India, Sage, New Delhi
Rhode, John and Vishwanathan, H, 1994: The Rural Private PractitionerO,
Health for the Millions, 2:1, 1994
Sigerist, H, 1941: Medicine and Human Welfare, Oxford Univ. Press, London
Simon Committee, 1960: National Water Supply and Sanitation Committee
GOI, New Delhi
Toebes, Brigit, 1998: The Right to Health as a Human Right in International
Law, Intersentia - Hart, Antwerp
UNDP-2003: Human Development Report 2002, UNDP, NY (also years 19902001)
WHO, 1988 : Country Profile - India, WHO - SEARO, New Delhi
WHO, 1988 a: Health Legislation, regional office of Europe, WHO, Copenhagen
WHO, 1993: Third Monitoring of Progress, Common Framework, CFM3,
Implementation of Strategies for Health for All by the Year 2000, WHO, Geneva,
World Bank, 1993: World Development Report 1993: Investing in Health, Oxford’
University Press, New York
39
K'l^p
t
iZ\ M“
->
A^c^f-.
C
,
O
tv^L^-\^<X
J (A^\J
S^V GCvVv^
5
R.
Lx-uoj
P O CUv<H^
- ■
•^^rL'Cvyi <c^
p^yCc
Ss
kA^^v^Le^d
<^A Ck<s4^S 6v7\ .”
Y>7^ c
^4/17
t*
x^u. f
P^Vyvthx
'Sa^xI-^a j
C^y\ ■
.
■”
^'Vj j
Ta;
^.Vk ^^1^ 4>
KJ"' J^r^Tb^
\
cexc^
^dLAX
(UCx^u
S ■ K ■
9
C£SC ,
4vi <j
£c •-
60^?
Xz^xA* akv’A-C
RIGHT TO HEALTH & PUBLIC HEALTH CARE
A. INTRODUCTION
Article 21 of the Constitution, a fundamental right reads: “No person shall be
deprived of his life or personal liberty except through procedure established by law.”
Till the 1970s by and large the courts had interpreted ‘life’ literally i.e. right to exist.
It was in late 1970s onwards that an expanded meaning started to be given to ‘life’*
Over the years it has come to be accepted that life does not only mean animal
existence but the life of a dignified human being with all its concomitant attributes.
This would include a healthy environment and effective health care facilities. Today,
therefore, the fundamental right to life is seen in a broader context.
‘Right to health' is inseparable from ‘right to life’, and ‘right to medical facilities’ as a
concomitant of ‘right to health’ is also part and parcel of right to life. Life is not mere
existence but a life of dignity, well-being and all that makes it complete. In a welfare
state, the corresponding duty to the right to health and medical facility lies with the
State. The ‘Directive Principles of State Policy’, Chapter IV of the Constitution lays
down guiding principles to be followed in formulating its policies. Traditionally these
principles unlike the Fundamental Rights were held as not enforceable in courts of
law, but in light of the enlarged meaning of‘life’, they have assumed an enforceable
form.
The relevant provisions of Constitution that cast a duty on State to ensure good health
for its citizens are:
Article 38. State to secure a social order for the promotion of welfare of people1) State shall strive to promote the welfare of people by securing and protecting
as effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.
2) State shall, in particular, strive to minimize the inequalities in income, and
endeavor to eliminate inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of people residing in
different areas or engaged in different vocations.
In other words, no person will be deprived of a healthy life because he cannot afford it.
State must provide facilities that an economically better off person can afford out of
his own pocket.
Article 39. Certain principles of policy to be followed by State- The State shall, in
particular, direct its policy towards securinge) that health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
f) that children are given opportunities and facilities to develop in a healthy
healthy manner
manner
and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
Section 47. Duty of State to raise the level of nutrition and the standard of living and
to improve public health-
“The State shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the consumption
except for medical purposes of intoxicating drinks and of drugs which are injurious to
health.”
To begin with, the right to health as a fundamental right grew as an off shoot of the
environmental litigation. Undoubtedly right to environment was crucial because a
polluted environment affects public health. Pollution free environment
as a
fundamental right presupposes right to health as a fundamental right. Logically, the
explicit recognition of the fundamental right to health should have preceded the
fundamental right to good environment. However, the development of jurisprudence
in this branch has been reverse. To begin with, right to decent environment was
recognized and from that followed the right to public health, health and health care.
Secondly, the right to health care has also been debated by the courts in the context of
rights of Government employees to receive health care. A number of observations of
the Court concerning the importance of these rights are to be found in cases dealing
with denial or restriction of health care facilities for Government employees.
While dealing with the issue of fundamental right to health and health care the Courts
have also dealt with specific categories such as under trials, convicts and mentally ill
persons. The Courts have recognized that mere imprisonment will not deprive a
person of right to health and health care.
B. CASE LAW CONCERNING FUNDAMENTAL RIGHT TO HEALTH AND
HEALTH CARE
In one of the earliest public interest litigations handled by the Supreme CourtMunicipal Council, Ratlam Vs. Vardhichand & Ors,1 the Municipal Corporation was
prosecuted by come citizens for not clearing up the garbage. Municipal Corporation
took up the plea that it did not have money. While rejecting the plea, Justice Krishna
Iyer observed: “The State will realize that Article 47 makes it a paramount principle
of governance that steps are taken for the improvement of public health as amongst its
primary duties.”
Finally, in 1991, in C.E.S.C. Ltd. Vs. Subhash Chandra Bose the Supreme Court
relied on international instruments and came to the conclusion that right to health is a
fundamental right. It went further and observed that health is not merely absence of
sickness. It observed:
“33. The term health implies more than an absence of sickness. Medical care
and health facilities not only protect against sickness but also ensures stable
man power for economic development. Facilities of health and medical care
generate devotion and dedication to give the workers' best, physically as well
as mentally, in productivity. It enables the worker to enjoy the fruit of his
labour, to keep him physically fit and mentally alert for leading a successful
1 1980 Cri LJ 1075)
economic, social and cultural life. The medical facilities are, therefore, part of
social security and like gilt edged security, it would yield immediate return in
the increased production or at any rate reduce absenteeism on grounds of
sickness, etc. Health is thus a state of complete physical, mental and social
well being and not merely the absence of disease or infirmity. In the light of
Arts. 22 to 25 of the Universal Declaration of Human Rights, International
Convention on Economic, Social and Cultural Rights, and in the light ofsocio
economic justice assured in our Constitution, right to health is a fundamental
human right to workmen. The maintenance of health is a most imperative
constitutional goal whose realisation requires interaction by many social and
economic factors. ”
In CERC Vs. Union of India" the Supreme Court was dealing with the rights of
workers in Asbestos manufacturing and health hazards related to it. The case is
discussed m detail in the chapter on occupational health. However, the relevant
observations of the Court concerning fundamental right to health are worth noting::
“20 Social justice is dynamic device to mitigate the sufferings of the poor,
weak, Dalits, Tribals and deprived sections of the society and to elevate them
to the level of equality to live a life with dignity of person. Social justice is not
a simple or single idea of a society but is an essential part of complex of social
change to relieve the poor etc. from handicaps, penury to ward off distress
and t0 make ^heir life livable, for greater good of the society at large. In other
words, the aim of social justice is to attain substantial! degree of social
economic and political equality, which is the legitimate expectations. Social
security, just and humane conditions of work and leisure to workman are part
of his meaningful right to life and o achieve self-expression of his personality
and to enjoy the life with dignity, the State should provide facilities and
opportunities to them to reach at least minimum standard of health, economic
security and civilised living while sharing according to the capacity, social and
23 Article 38(1) lays down the foundation for human rights and enjoins the
State to promote the welfare of the people by securing and protecting, as
effectively as it may, a social order in which justice, social, economic and
political, shall inform all the institutions of the national life. Art. 46 directs the
State to protect the poor from social injustice and all forms of exploitation.
Article 39(e) charges that the policy of the State shall be to secure "the health
and strength of the workers". Article 42 mandates that the States shall make
provision, statutory or executive "to secure just and humane conditions of
work". Article 43 directs that the Slate shall "endeavour to secure to all
workers, by suitable legislation or economic organisation or any other way to
ensure decent standard of life and full enjoyment of leisure and social and
cultural opportunities to the workers". Article 48-A enjoins the Slate to protect
and improve the environment. As human resources are valuable national assets
for peace, industrial or material production, national wealth, progress, social
stability, descent standard of life of worker is an input. Art. 25(2) of the
universal declaration of human rights ensures right to standard of adequate
2 1995 3 SCC 42
J /x
living for health and well being of the individual including medical care,
sickness and disability, Article 2(b) of the International Convention on
Political, Social and Cultural Rights protects the right of worker to enjoy just
and favourable conditions of work ensuring safe and healthy working
conditions.
26. The right to health to a worker is an integral facet of meaningful right to
life to have not only a meaningful existence but also robust health and vigour
without which worker would lead life of misery. Lack of health denudes his
livelihood. Compelling economic necessity to work in an industry exposed to
health hazards due to indigence to bread-winning to himself and his
dependents should not beat the cost of the health, and vigour of the workman.
Facilities and opportunities, as enjoined in Article 38, should be provided to
protect the health of the workman. Provision for medical test and treatment
invigorates the health of the worker for higher production or efficient service.
Continued treatment, while in service or after retirement is a moral, legal and
constitutional concomitant duty of the employer and the State. Therefore, it
must be held that the right to health and medical care is a fundamental right
under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and
make thelife of the workman meaningful and purposeful with dig-nity of
person. Right to life includes protection of the health and strength of the
worker is a minimum requirement to enable a person to live with human
dignity. The State, be it Union or State Government or an industry, public or
private, is enjoined to take all such action which will promote health, strength
and vigour of the workman during the period of employment and leisure and
health even after retirement as basic essentials to live the life with health and
happiness. The health and strength of the worker is an integral facet of right to
life. Denial thereof denudes the workman the finer facets of life violating Art.
21. The right to human dignity, development of personality, social protection,
right to rest and leisure are fundamental human rights to a workman assured
by the Charter of Human Rights, in the Preamble and Arts. 38 and 39 of the
Constitution. Facilities for medical care and health against sickness ensures
stable manpower for economic development and would generate devotion to
duty and dedication to give the workers" best physically as well as mentally in
production of goods or services. Health of the worker enables him to enjoy the
fruit of his labour, keeping him physically fit and mentally alert for leading a
successful life, economically, socially and culturally. Medical facilities to
protect the health of the workers arc, therefore, the fundamental and human
rights to the workmen.
'll. Therefore, we hold that right to health, medical aid to protect the health
and vigour of a worker while in service or post retirement is a fundamental
right under Article 21, read with Articles 39(e), 41, 43, 48A and all related to
Articles and fundamental human rights to make the life of the workman
meaningful and purposeful with dignity of person.”
Similarly, in State of Punjab Vs. Mohinder Singh Chawla3, the Supreme Court
observed:
It is now settled law that right to health is an integral to right to life.
Government has constitutional obligation to provide the health facilities If the
Government servant has suffered an ailment which requires treatment at a
specialised approved hospital and on reference whereat the Government
servant had undergone such treatment therein, it is but the duty of the State to
bear the expenditure incurred by the Government servant. Expenditure, thus,
incurred requires to be reimbursed by the Slate to the employee. The High
Court was, therefore, right in giving direction to reimburse the expenses
incurred towards room rent by the respondent during his stay in the hospital as
an inpatient.”
Also, the Andhra Pradesh High Court observed:
“Protection of the environment is not only the duty of the citizens but also the
obligation of the State and its all other organs including the Courts. The
enjoyment of life and its attainment and fulfillment guaranteed by Article 21
of the Constitution embraces the protection and preservation of natures gift
without which life cannot be enjoyed fruitfully. The slow poisoning of the
atmosphere caused by the environmental pollution and spoliation should be
regarded as amounting to violation of Article 21 of the Constitution of India, It
is therefore, as held by this Court speaking through P.A, Choudary, J., in T.
Damodar Rao and others v. Special Officer, Municipal Corporation of
Hyderabad, AIR 1987 AP 171, the legitimate duty of the Courts as the
enforcing organs of the constitutional objectives to forbid all actions of the
State and the citizens from upsetting the ecological and environmental balance
In Virender Gaur v. Slate of Haryana, 1995 (2) SCC 577, the Supreme Court
held that environmental, ecological, air and water pollution, etc., should be
regarded as amounting to violation of right to health guaranteed by Article 2!
of the Constitution. It is trite to state that hygienic environment is an integral
facet of the right to healthy life and it would not be possible to live with
human dignity without a humane and healthy environment. In Consumer
Education and Research Centre v. Union of India, (1995) 3 SCC 42, Kirloskar
Brothers Ltd. v. Employees' State Insurance Corporation, (1996) 2 SCC 682=
AIR 1996 SC 3261, the Supreme Court held that right to health and medical
care is a fundamental fight under Article 21 read with Article 39(e), 41 and 43
In Subhash Kumar v. State of Bihar, AIR 1991 SC 420 = (1991) I SCC 598,
the Supreme Court held that right to pollution-free water and air is an
enforceable fundamental right guaranteed under Article 21. Similarly in
Shantistar Builders v. Narayan Khimalal Totame, (1990) 2 SCJ 10 = AIR 1990
SC 630 = 1990 1 SCC 520, the Supreme Court opined that the right to decent
environment is covered by the right guaranteed under Article 21. Further, in
Mehta, M.C.v. Union of India, (1987) 4 SCC 463 = AIR 1988 SC 1037, Rural
Litigation and Entitlement Kendra v. State of U.P., AIR 1987 SC 359,
Subhash Kumar v. State of Bihar (supra), the Supreme Court imposed a
3 1997 2 SCC 83
I
positive obligation upon the State to take steps for ensuring to the individual a
better enjoyment of life and dignity and for elimination of water and air
pollution. It is also relevant to notice as per the judgment of the Supreme
Court in Vincent Panikurlangara v. Union of India, AIR 1987 SC 990 - (1987)
2 SCC 165, Unnikrishnan, JP v. State of A.P., AIR 1993 SC 2178 - (1993) 1
SCC 645, the maintenance and improvement of public health is the duty of the
State to fulfil its constitutional obligations cast on it under Article 21 of the
Constitution.”4
The Allahabad High Court held":
“ 5. In our opinion, the allegations in the petition are serious.. The Supreme
Court in Consumer Education and Research Centre and others v. Union of
India and others. 1995 (3) SCC 42 and in State of Punjab and others v.
Mohinder Singh Chawla and others. 1997 (2) SCC 83. has held that the right
to health is a part of the right to life guaranteed by Article 21 of the
Constitution. It is indeed true that most of the Government Hospitals in
Allahabad are in a very bad shape and need drastic improvement so that the
Public is given proper medical treatment. Anyone who goes to the
Government Hospitals in Allahabad will find distressing sanitary and hygienic
conditions. The poor people, particularly, are not properly looked after and not
given proper medical treatment. Consequently, most people who can afford it
go to private nursing homes or private clinics. There are many complaints that
the staff of the Government Hospitals are often in collusion with the Doctors
who run private nursing homes, and deliberately do not look after the patients
who come to Government Hospitals so that they may be driven to go to private
nursing homes, and they often advise patients to go to a particular nursing
home. All this needs to be thoroughly investigated. This is a welfare State, and
the people have a right to get proper medical treatment. In this connection, it
may be mentioned that in U.S.A, and Canada there is a law that no hospital
can refuse medical treatment of a person on the ground of his poverty or
inability to pay. In our opinion. Article 21 of the Constitution, as interpreted in
a series of judgments of the Supreme Court, has the same legal effect.
Violation of Article 21 by State will give rise to a claim under public law remedy.6
State is also vicariously liable for acts of its agents or police or Government hospitals.
Poonam Sharma v. Union of India7 dealt with statutory duty of police and
government hospitals. Petitioner’s husband who had met with an accident was taken
in custody by the Police as they suspected him of drunken driving. The deceased had
suffered one inch cut on his head and he was taken to a government hospital for first
4 T. Ramakrishna Rao Vs. Hyderabad Urban Development Authority decided on 20.7.2001
5 In S.K.Garg Vs. State of U.P. decided on 21.12.98
6 There are two kinds of civil remedies, viz., public law and private law remedy. Private law remedy
involves action under torts or contract, whereas in the former, the claim is against the State for a wrong
committed by it or persons acting under it. Both remedies exist independent of each other. For instance,
in an incident of medical negligence by Government doctors, a cause of action may be instituted by
invoking writ jurisdiction of SC or HC under Articles 32 & 226, respectively. Simultaneously
aggrieved person will also be entitled to pursue civil law remedy in torts or contract against individuals
before either Consumer courts or civil courts, (refer chapter on medical negligence)
7 AIR 2003 Delhi 50
aid. The Government doctor stitched up the wound and prescribed brufen tablets
I hereafter Police charged him under the Motor Vehicles Act and put him behind bars.
At night deceased complained of severe headache and he was taken back to the same
doctor who gave the deceased some more brufen tablets and sent him back without
examining him. Next day he was released on bail. When the condition of deceased
deteriorated, his relatives took him back to the same hospital. The hospital took XRays and CAT scan that showed brain hemorrhage, and he was immediately referred
to a specialist hospital but succumbed to his injuries at the time of admission
Petitioner invoked writ jurisdiction of High Court under Article 226 and sought relief
against the alleged negligence on part of the Government Doctor and police that
caused the death of Petitioner’s husband.
P
High Court held that the instant case was not of an error of judgment as within a few
hours patient was brought back complaining of severe headache yet no further
tieatmcnt was given. A citizen of India is entitled to preservation ofhis life not only at
the hands of the police authorities, but also at the hands of the public authorities
h°Spital authorities having regard to the extended scope of
r icle 21 oj the Constitution. Every doctor at the government hospital having regard
to the paramount importance of preservation of human life is under statutory
o igation to extend his services with due expertise. Hence, Respondent was directed
to pay Rs.2 lacs as compensation under Public Law for violation of fundamental
rights of Petitioner’s husband with liberty to file appropriate suit for damages.
In Ram Datt Sharma’s case8 the Rajasthan High Court dealt with responsibility of
railways in providing health care facilities to its passangers. The complaint was that
neither in the trains nor on the platforms were adequate medical facilities provided
winch caused tremendous hardship to commuters, especially in long distance trains.
he Court held that right to health care is a fundamental right of citizens including
passangers and made the following directions:
"(i) Instructions shall be issued by Railway Board to Zonal Railway to keep
reserve a Coupe' offour births in long distance train that shall carry sign
board 'MEDICAL FACILITIES' with symbol ofRed Cross. Visible symbol of
Red-cross shall also be displayed out side the compartment. Team ofone
Medical Officer, one made nurse and one attendant shall board train and
travel in it After a distance of500 Kms. or as directed by the Railway Board
the team already travelled shall be replaced by another team The Coupe’
shall be equipped with Oxygen Cylinder, life saving drugs and injections.
(ii) In every compartment of train, it shall be prominently notified that
Medical Compartment is attached with the train to provide medical assistance
8 AIR 2005 RAJ 317
doctor and complaint book is
to the passengers free of cost by a comipetent
1
available with the Train- GUARD.
(Hi) Due publicity that Medical facilities are available to the passengers in all
the long distance trains, shall be given on all the Platforms. This information
shall also be displayed on national Television and broadcast on All India
news papers.
Radio. People of Country shall also be made aware through the newspapers.
(iv) Chemist facilities shall be provided on the station premises keeping in
mind the quantum ofpassengers traffic.
(v) The Union of India and Railway Board shall ensure compliance of this
order within sixty days from today. "
C. CASES ON RIGHTS OF GOVERNMENT EMPLOYEES TO RECEIVE
HEALTH CARE:
In State of Punjab v. Mohinder Singh Chawla9 the Respondent was suffering from
heart ailment which required replacement of two valves in the heart. Since the facility
for such treatment was not available in the State hospital, State Medical Board granted
permission for treatment in AIIMS, New Delhi. Later the Respondent approached
concerned authorities for reimbursement of medical expenditure. The Appellants
rejected the claim to the extent of expenditure on room rent paid to the hospital
because of a change in the State policy for employees and ex-employees that excluded
expenses incurred on diet, stay of attendant and stay of patient in hotel/hospital. Thus
the issue before SC was the extent of State’s responsibility to provide medical
facilities to its employees. The State justified its policy on the ground that the
ancillary expenses saddled it with needless heavy burden that limited its capacity to
provide treatment for general patients.
Supreme Court held that rent of room for in-patient is an integral part of expenses
incurred on medical treatment, therefore, cannot be excluded. Though Court agreed
that greater allocation was required to be made for general patients, it was State s
constitutional obligation to bear the expenses for the government servant while in
service or after retirement.
Surjeet Singh v. State of Punjab10 dealt with a situation where according to
Respondent State’s health policy, in circumstances where the state-run hospitals
lacked expertise to treat a specific ailment, its employees and ex-employees could
receive medical treatment in hospitals other than the Government hospitals specified
in the policy for treating such ailment, and they would be entitled to reimbursement.
However, such employees and ex-employees were required to make a prior
application to a Board constituted to decide upon if the treatment was available in
Respondent State hospitals. Such advance notice applied even to emergency cases.
The instant appeal arose out of refusal to reimburse expenditure incurred abroad at the
rate of one of the hospital identified under the State Health Policy for open heart
9 (1997) 2 SCC 83
10 (1996) 2 SCC 336
surgery. Appellant’s case was that on a personal visit abroad, he suddenly fell ill and
had to undergo open heart surgery at a very short notice, therefore, could not comply
with the clauses under State health Policy on requisite intimation.
Supreme Court held that Appellant had the right to take steps in self-preservation. He
does not have to stand in queue before the Medical Board. The State cannot insist that
its employees should be treated only at a recognized Government institution when
state policy permits treatment in private hospitals earmarked for it. Therefore, a
government employee can claim reimbursement at such rates as are applicable to the
identified private hospitals.
In Devindar Singh Shergil v. State of Punjab11 dealt with a retired government
employee. The Appellant, a retired government official, who had approached
Postgraduate Institute of medical Sciences (PGI), Chandigarh for kidney treatment,
was declined admission as no accommodation was available. Due to malignant
growth of kidney, Appellant immediately left for UK and got himself treated. Later he
filed his claim for reimbursement of the entire amount but the medical Board
sanctioned an amount that would have been incurred if the Appellant was treated at
PGI, which equaled to Rs. 20,000/-.
Supreme Court dealt with the issue ‘as to why the petitioner should not be reimbursed
for medical expenses to the extent of the expenditure which may have been involved
for his treatment/operation if carried out in any of the recognized institutions/hospitals
in India’. Since IIMS was one such recognized hospital under the State Policy,
Supreme Court held that Appellant was entitled to reimbursement at AIIMS rate and
further, as an admitted fact, if the Appellant would have been treated in India he
would have been entitled to reimbursement of expenses on medical consumable,
pharmaceutical items, therefore, he would also be entitled to reimbursement of such
expenditure. Respondent State was directed to pay Rs.22,000 as per AIIMS rates for
surgery and Rs.73,000/- for expenditure incurred on medicines.
In State of Punjab v. Ram Lubhaya Bagga12 though the Supreme Court observed
that the State had an obligation to provide health care facilities to government
employees and to citizens, the State: was obliged to do so only to the extent its
financial resources permitted this.
The State Health Policy for its employees and ex-employees promulgated in 1991
provided reimbursement of medical expenses incurred either in earmarked hospitals
or at other hospitals, at the rate prevailing in such specified hospitals.13 This policy
imposed heavy financial burden of State and they issued a new policy under which
there was no impediment or procedural hurdle in receiving treatment at any hospital
but the reimbursement of medical expenses was to be restricted to such rates as fixed
by the Director, Health & Family Welfare, Punjab for similar treatment or the actual
expenditure, whichever was less. The instant petition was filed challenging the change
"(1998) 8 SCC 552
12 (1998) 4 SCC 117
In Surjeet Singh case, Appellant was reimbursed at the rates of AIIMS even though he was treated
abroad; or in Devindar Singh Shergil case, where the Appellant was reimbursed at the rate prevailing at
A MS even though there were other hospitals specified in State Health policy that were cheaper than
r
AlllVlo
I
IQ - I
09842
in State policy for reimbursement of medical expenses incurred by its serving and
retired employees.
The Appellants justified the change on the ground that under the earlier policy bulk of
the budget was spent on a few elites for such treatments like heart ailment etc. to the
detriment of a large number of other employees as the State was not in a position to
reimburse them out of the remaining funds. Hence the facility of reimbursement of
full charge at designated hospitals was withdrawn.
SC held that Court cannot question the propriety of a policy decision unless it is
arbitrary and violates any constitutional rights. So far as the constitutional obligation
of State, it must provide for basic infrastructure for maintaining and improving public
health. State renders this obligation by opening Government hospitals and health
centres, but in order to make it meaningful, it has to be within the reach of its people,
as far as possible, to reduce the queue of waiting lists, and it has to provide all
facilities for which an employee looks for at another hospital. At the same time no
State has unlimited resources to spend on any of its project. That is why it approves
its projects to the extent it is feasible. The same holds good for providing medical
facilities to its citizens including its employees. Provisions of facilities cannot be
unlimited. It has to be to the extent finances permit. Article 41 of the Constitution also
acknowledges the limited means of State to serve the public and states that the State
shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases
of unemployment, old age, sickness and disablement, and in other cases ot
undeserved want. Hence, the principle offixation or rate and scale under the new
policy was justified and could not be held as infringing ‘right to life
K.P. Singh v. Union of India14 was a case filed by retired government employees
against the procedural difficulties in Central Government Health Scheme (CGHS) for
pensioners to receive timely treatment and reimbursement of expenditure incurred on
such treatment. The Petitioners grievances were:
,
For the purpose of reimbursement of claims relating to medicine that were
outside the CGHS formulary, CGHS beneficiaries other than retired government
employees and freedom fighters could procure such medicines directly from a
registered chemist and claim reimbursement on the strength of a filled-in pro forma ot
the service head of their respective ministry, department or office. While ini case ot
retired beneficiaries under the Scheme, such medicines had to be indented by the
CGHS dispensary concerned. The indentation process was tedious and time
consuming hence the medicines could not be taken in time.
Secondly, a beneficiary of the Scheme would receive reimbursement only at a
rate approved by the CGHS however such rates were not updated from time to time.
Further rates of CGHS did not consider that in some towns or cities, like that ot the
petitioner, there were no government hospitals therefore, retired employees had no
option but to receive treatment at private hospitals that were expensive and a heavy
burden on their meager pockets.
SC directed Respondents to issue circulars to the effect that in case of emerge y,
medicines that are outside the CGHS formulary could be obtained immediately from
the local chemist concerned on the basis of an authority slip from the CMO in-charge
14 (2001) 10 SCC 167
of the CGHS dispensary. However, SC refused to grant any relief vis-a-vis the rate of
reimbursement as it was not within its power to dictate policy to State, though it may
direct the State to review its rates and issue appropriate directions.
In Kamlesh Sharma v. Municpal Corporation of Delhi15 the case was filed against
the order of the Respondent by which it rejected the Petitioner’s claim for
reimbursement of expenditure incurred on medication for her husband. Petitioner’s
husband was earlier a Government servant and covered by the State Health Policy and
was being treated at one of the hospitals earmarked under the said policy. During the
course of treatment certain medicines were urgently required which were out of stock
and therefore, were purchased by the Petitioner from outside. Petitioner was not
reimbursed for the medicines purchased from outside. Respondent justified the
impugned order on the ground that it was government policy to provide medicine to
its pensioners but not to reimburse for purchases made from outside. The office order
on which Respondents relied read as:
‘All medicines etc. including diagnostics facilities as is required for treatment of
patients (pensioners and their families) will be provided free of charge at the
Hospitals/Dispensaries
However, in no case reimbursement of expenditure
incurred by a pensioner on treatment will be made.’
The policy of Respondent to the extent it refused reimbursement was challenged as
being unreasonable and arbitrary, and liable to be struck down as unconstitutional.
High Court held the policy to the extent it refuses reimbursement as unconstitutional.
However it also clarified that its order should not be understood as whittling down the
right of the Respondents to frame or formulate a policy including one providing
restriction or ceiling on reimbursement of expenses as long as the said policy is not
violates Articles 14 & 21.
In other words, Courts cannot adjudicate on the propriety of government policy unless
it is discriminatory or violates right to life. Judiciary cannot step into the shoe of
Government and issue policies. Court will refuse to entertain matters that are solely
filed on the basis that a more beneficial policy could have been issued.
D. CASES ON RIGHTS OF PRISONERS/DETENUS:
In Rama Moorthy’s case the Court observed that Society has an obligation towards
prisoner s health for two reasons: firstly, the prisoners do not enjoy the access to
medical expertise that free citizens have. Their incarceration places limitations on
such access, choice of physician, modes of taking second opinion, and access to any
specialist. Secondly, because of the conditions of their incarceration, inmates are
exposed to more health hazards than free citizens. Prisoners therefore, suffer from a
double handicap. 6
In Marri Yadamma v. State of Andhra Pradesh17 the deceased was an under trial
who died of‘congestive cardiac failure’. The petition was filed by his spouse alleging
negligence on part of the jail authorities and jail doctor in not providing appropriate
treatment on time or referring to a specialist to determine the root cause of the ailment.
15 Delhi HC dt 3/10/2002
'6 Rama Murthy v. State of Karnataka (1997) 2 SCC 642
17 AIR 2002 AP 164
The deceased was in the jail for a span of nearly six months during which he
complained of abdominal pain, giddiness, vomiting etc. No effort was made to
diagnose the cause of the deceased condition. On 25/1/1995 he complained of acute
abdominal pain and was admitted from in the jail hospital. On 29/1/1995 he was
shifted to a Government hospital where he breathed his last on 30/1/1995. The post
mortem report showed that left and right lungs were congested and pleural cavities
were normal, heart was massively thickened and the aortic valves were fibrosed,
aoratic opening was dilated and stomach was found empty. The cause of death was
noted as due to congestive cardiac failure associated with aortic valve disease.
High Court observed that the condition of the deceased at the time of his death were
such that could have developed over a period of time and not immediately. Thus, it is
abundantly clear that no care or caution was taken by the Respondents to get the
deceased examined by a Surgeon or a specialist, even though he was complaining of
ailments very often. Further, High Court expressed doubt over the genuineness of the
medical record maintained by the jail hospital. If the cause of death of the deceased
was congestive cardiac failure associated with aortic valve, then deceased must have
complained about some form of heart ailment one or two months prior to his death.
As the jail authorities had suppressed original records the same remained a question.
High Court stated that on arrest prisoner merely loses his right to free movement. His
all other rights including right to medical treatment remains intact and it cannot be
violated. The jail authorities had infringed fundamental right of the deceased therefore
the State was liable to compensate his widow as a public law remedy for an amount of
Rs.2 lacs.
In Noorunissa Begum v. District Collector, Khammam18 the Petitioner’s husband
died in jail due to negligence on part of jail authorities in providing timely medical care
and attention. On an inquiry it was found that few days prior to the death, he had
complained of chest pain and on the fatal day when he collapsed there was a delay of
nearly four hours to arrange for escort to take him to a government hospital. There was no
hospital or medical facility within the jail premises.
Jail authorities defended allegations of negligence in discharge of their duty on the
ground that under Andhra Pradesh Prisoners (Attendance in Court) Rules, 1977, no
prisoner could be taken out of prison without armed police escort, and that the delay in
shifting the deceased to the hospital was due to delay in arranging armed police force
escort.
High Court reiterated the law laid down by Supreme Court in Parmanand Katara case
wherein it was stated that no state action or provision of law can intervene in ensuring
timely treatment a person in need of medical care, and held jail authorities negligent and
State liable to pay Rs. 1,50,000/- as compensation to the Petitioner.
Further, High Court also directed State to consider the proposal to include Rule 10-A in
Andhra Pradesh Prisoners (Attendance in Court) Rules, 1977 that had been pending
before it, and decide upon it within a time frame.19 Rule 10-A read as:
18 APHCdt. 27/6/2001
19As a rule, power of judiciary cannot stretch into the arena of legislature. It cannot direct
Parliament or state legislature to pass enactment, however, in the instant case High Court
acted to the contrary. The fact that the proposal of Inspector-General of Prisons and
Director of Correctional Services, Hyderabad was already in existence to insert Rule 10-A,
gave legitimacy to the directions of High Court. In the absence of the same and in
‘Escort for persons confined in a prison requiring treatment in a hospital outside the
prison, and from such hospital to the prison, shall be undertaken by the police. If such a
prisoner is admitted as in-patient in any hospital, his custody during the period of such
confinement shall be undertaken by the police.’
In Directorate of Enforcement v. Ashok Kumar Jain20 the Court held that the
Police is as much under a statutory obligation to preserve the life of persons under its
custody by ensuring medical care and treatment, and taking into account the condition
of their health. However, the right of such persons cannot be used as shield to hinder
police investigation.
In the instant Appeal, documents were recovered from the possession of Respondent
that showed there was a gross violation of Foreign Exchange Regulation Act.
Respondent sought anticipatory bail to avoid interrogation on the ground that he
suffered from serious heart condition and produced medical records to support his
plea. High Court passed a conditional order stating that iin case the Directorate
considers custodial interrogation of the Respondent necessary, it should approach the
Director, AIIMS to constitute a Board of cardiologists to examine the Respondent,
and if the said Boardforms an opinion that custodial interrogation is not feasible in
that event it will be open to the officials to interrogate him under the care of doctors
at AIIMS. ’
Appellant challenged the condition imposed upon it by the High Court. Supreme
Court held that High Court was wrong in imposing conditions on the Directorate
regarding the manner in which interrogation of the Respondent was to be modulated.
‘Wo doubt investigating officials of the Enforcement Directorate are duty-bound to
bear in mind that Respondent has put forth a case of delicate health condition. They
cannot overlook it and they have to safeguard his health while he is in their custody.
But to say that interrogation should be subject to the opinion of the cardiologists of
the AIIMS and that the officials of the Directorate should approach the Director of
AIIMS to constitute a Board of Cardiologists to examine the Respondent etc. would,
in our opinion, considerably impair the efficient functioning of the investigating
authorities under FERA. The authorities should have freedom to chalk out such
measures as are necessary to protect the health of the person who would be subjected
to interrogatory process. They cannot be nailed to fixed modalities stipulated by court
for conducting interrogations. ”
D.K. Basu Vs. State of West Bengal21 is a landmark case on rights of arrestees. The
Supreme Court prescribed a number of guidelines to be mandatorily followed
concerning arrested persons. Two of these directions pertained to health. The Court
observed:
The anestee should be subjected to medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health services of the concerned
State or Union territory, Director, Health Services shall prepare such a panel
for all Tehsils and Districts as well.”
consideration of the limitation ofjudicial review, it is unlikely High Court would have
passed such an order.
20 (1998) 2 SCC 105
21 AIR 1997 SC 610
n /
E. CASE LAW CONCERNING MENTALLY ILL PATIENTS:
In the case of Death of 25 chained inmates in Asylum fire in TN., in Re. v. Union
of India22 the issue of rights of inmates of mental asylum was raised. This petition
sought directions for implementation of provisions of Mental Health Act, 1987 to
prevent another mishap of the kind in mental asylum in Tamil Nadu.
In light of the provisions of Mental Health Act, Supreme Court issued following
directions for its implementation:Every State and Union Territory must undertake a district-wise survey of all
registered/unregistered bodies, by whatever name called, purporting to offer
psychiatric/mental health care. All such bodies should be granted or refused licence
depending upon whether minimum prescribed standards are fulfilled or not. In case
licence is rejected, it shall be the responsibility of SHO of the concerned police station
to ensure that the body stops functioning and patients are shifted to government
mental hospitals.
Chief Secretary or Additional Chief Secretary designated by him shall be the
nodal agency to coordinate all activities involved in implementation of the Mental
Health Act, 1987, the Persons with Disabilities (Equal Opportunities, protection of
rights and full participation) Act, 1995 and National Trust for Welfare of Persons with
Autism, Cerebral Palsy, mental Retardation and Multiple Disability Act, 1999. He
shall ensure that there are no jurisdictional problems or impediments to the effective
implementation of the three Acts between different Ministries or Departments. At the
Central level, Cabinet Secretary, Government of India or any Secretary designated by
him shall be the nodal agency for the same purpose.
The cabinet Secretary, Union of India shall file an affidavit in SC within one
month from the date of this order indicating:
a) The contribution that has been made and that is proposed to be
made under Section 21 of the 1999 Act which would constitute
corpus of the National Trust.
b) Policy of the central Government towards setting up at least one
Central Government-run mental hospital in each State and union
Territory and definite time schedule for achieving the said
objective.
c) National policy, if any framed under Section 8(2)9b) of the 1995
Act.
d) In respect of the States/UT that do not have even one full-fledged
State Government-run mental hospital, the Chief Secretary of the
State/UT must file an affidavit within one month from date of this
Order indicating steps being taken to establish such full-fledged
State Government-run mental hospital in the State/UT and a
definite time schedule for establishment of the same.
e) Both Central and State Governments shall undertake a
comprehensive awareness campaign with a special focus to educate
people as to provisions of law relating to mental health, rights of
mentally challenged persons, the fact that chaining of mentally
challenged persons is illegal and mental patients should be sent to
doctors and not to religious places for treatment.
22 2002 3 SCC 31
Every State shall file an affidavit stating:
Whether the state Mental Health Authority under Section 3 of the 1987 Act
exists in the State and if so, when was it set up.
If it does not exist, the reason thereof and when such an Authority is expected
to be established and operationalised.
The dates of meetings of those Authorities, which already existed, from the
date of inception till date and a short summary of the decisions taken.
A statement that the State shall ensure that meetings of the Authorities take
place in future at least once in every four months or at more frequent intervals
depending on exigency and that all the statutory functions and duties of such
Authorities are duly discharged.
The number of prosecutions, penalties or other punitive/coercive measures is
taken, if any, by each State under the 1987 Act.
In the case of Peoples’ Union of Civil Liberties v. Union of India23 a public interest
litigation was filed against the Government for backing out of a project to build a
psychiatric hospital-cum-medical college in Delhi. The plan had been approved but
when it was found that over Rs. 40 crores would be the expenditure, Delhi
Administration expressed its inability to fund such a project and Central Government
refused to take its responsibility.
Supreme Court held that setting up of a psychiatric hospital in the capital city was
necessary. Once land has been earmarked and on principle a decision taken that
hospital should be shifted and part of it should be converted into a teaching institution
while the other part should be a hospital, funding should not stand in way of locating
such a hospital, ft may be difficult to fund such a huge amount in a year unless this is
taken up as a continuous project spread over a period the hospital contemplated can
certainly be brought into existence. Hence, the Central Government and Delhi
Administration were directed to recommence and finish the project.
F. CONCLUSION
Fundamental right to health and health care has been recognized by the Supreme
Court. This is a major leap. But there are limitations. First, fundamental rights are
available only against the State and not against private individuals. Second, the State
is required to enforce this fundamental right subject to financial availability' However,
within this framework citizens have been using the fundamental right to get better
facilities from State hospitals, cast obligations on State doctors and on custodial
institutions. Prisoners and mentally ill have been held to be equally endowed with this
right. The growth of environmental litigation in India is premised on the recognition
of right to health as a fundamental right.
A negative fundamental right casts an obligation on the State not to act in a manner
which would deprive a citizen of her fundamental right. On the other hand, a positive
fundamental right would mandate the State to take proactive measures to fulfill its
obligation. Time has come for the Courts to recognize that right to health and health
care is a positive fundamental right which cannot be contingent upon the financial
capacity of the State.
"3 Decision of the Supreme Court given on 12/11/1991
DRUGS & PUBLIC HEALTH
c
b
A, INTRODUCTION
Access to cheap drugs is an essential aspect of right to healthcare. There are two
major laws which govern these aspects.
1. Drugs and Cosmetics Act, 1940
2. Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954
Apart from this of course is the Patents Act and its recent amendments which
increasingly play an important part in making right to health substantial for the people.
Essentially the expectation from the legislation is that it should ensure supply of
cheap and sufficient drugs as also protect persons against spurious and harmful drugs.
Universal health care and access to health care requires affordable drugs. Besides, the
drugs need to easily available and of good quality. They should neither be spurious or
damaged. They should be able to achieve what they claim to be doing. Drug Price
Control Orders issued from time to time seek to ensure that prices of essential drugs
are kept under check and within easy reach. Unfortunately since the Indian
Government zealously undertook the path of liberalization and privatization the Drug
Price Control Orders have been whittled down and the prices of many affordable
drugs have been allowed to spiral. Challenge to this is pending in the Supreme Court
and the outcome is awaited.
Also the Indian Patents Act ensured availability of cheap generic drugs by adopting
the product rather than process patent and further having relaxed provisions
considering compulsory licensing and import substitution. Of course, since India
signed the TRIPS Agreement the Patent Act has been amended to do away with
substantially many of these protections. Thus in future cheap generic drugs will
become very difficult to access. The changes are too judge the judicial responses to
them but looking at the trends of the judiciary it is very likely that the access drugs
will be limited.
The other aspect concerns the responsibility of public hospitals in giving free or
subsidized drugs to patients. Even here, the State has been over a period been weaning
away from its responsibility with reduced investment in healthcare and consequently
drugs and increased user charges.
Drugs and Cosmetics Act regulates the quality of drugs, its manufacture, distribution
and sale. Quality control in drugs is sought to be ensured through licensing and
supervision procedures. A large number of judgments pertain to conditions of
licensing and revocation of licenses.
Chp IV deals with the manufacture, sale and distribution of drugs. Section 16
stipulates that for the purpose of the said Chapter, expression ‘standard quality’ in
relation to a drug means that the drug should comply with the standard set out in
Second Schedule. Section 17 of the Act defines ‘Misbranded drugs’; Section 17-A
Adulterated drug’; and Section 17-B spurious drugs.
S.17. Misbranded Drug:-for the purposes of this Chapter, a drug shall be deemed to
be misbranded-
HL- /i
(a) If it is so coloured, coated, powdered or polished that damage is concealed or if it
‘L
t0 appear °fbetter or greater therapeutic value than it really is; or
(b) p it is not labeled in the prescribed manner; or
(c) If its label or container or anything accompanying the drug bears any statement
destgn or device which makes any false claim for the drug or which is false or
misleading in any particular.
7
ternfd’tote adulterated
°f
Chapter’ a druS shal1 be
(a) If it consists in whole or in part, of any filthy, putrid
or decomposed
substances; or
(b) If it has been prepared, packed tor storedJ not under sanitary conditions
whereby it may have been contaminated with filtht or whereby it may have
been rendered injurious to health; or
(c) If its container is composed, in whole or in part, of any poisonous
or
delete nous substances which may render the contents injurious to health- or
(d) Ijit bears or contains, for purposes ofcolouring only, a colour other than one
which is prescribed; or
flt c°ntains any harmful or toxic substance which may render it injurious to
health; or
f) If any substance has been mixed there with so as to reduce its quality or
strength.
Section 17B. Spurious Drugs- For the purposes of this Chapter,
a drug shall be
deemed to be spuriousfa) If it is manufactured under a name which belongs to another drug; or
(b) If it is an imitation of or is a substitute for, another drug or resembles another
drug in a manner likely to deceive or bears upon it or upon its label or
container the name of another drug unless it is plainly and conspicuously
marked so as to reveal its true character and its lack of identity with such
other drug; or
(c) If the label or container bears the name of an individual or company
purporting to be the manufacture of the drug, which individual or company is
jictitious or does not exist; or
(d) If it has been substituted wholly or in part by another drug or substance; or
(e) If it purports to be the product of manufacture of whom it is truly a product.
Section 18. Prohibition of manufacture and sale ofcertain drugs and cosmetics- From
such date as mci
i y he
1 ' fixed
' ’ by
' the
’ State
~
Government by notification in the official
Gazette in this behalf, no person shall by himself or by any other person on this
behalf-
(a) Manufacture for sale or for distribution, or sell, or stock or exhibit or offerfor
sale, or distributei)
Any drug which is not of a standard quality, or is misbranded,
adulterated or spurious;
*
H)
Hi)
Any patent or proprietary medicine, unless there is displayed in the
prescribed manner on the label or container thereof the true
formula or list of active ingredients contained in it together with
the quantities, thereof;
iv)
V)
Any drug which by means of any statement, design or device
accompanying it or by any other means, purports or claims to
prevent, cure or mitigate any such disease or ailment, or to have
any such other effect as may be prescribed;
*
Vi)
Any drug or cosmetic in contravention of any provision of this
Chapter or any rule made there under;
(b) Sell or stock or exhibit or offer for sale, distribute any drug or cosmetic which
has been imported or manufactured in contravention of any of the provisions
of this Act or any rule made there under;
(c) Manufacture for sale orfor distribution, or sell, or stock or exhibit or offerfor
sale, or distribute any drug or cosmetic, except under, and in accordance with
the condition with the conditions of a licence issued for such purpose under
this Chapter
Provided that nothing in this section shall apply to the manufacture, subject to
prescribed conditions, of small quantities of any drug for the purpose of
examination, test or analysis:
Providedfurther that the Central Government may, after consultation with the
Board, by notification in the Official Gazette, permit, subject to any conditions
specified in the notification, the manufacture for sale or for distribution, sale
stocking or exhibiting or offering for sale or distribution of any drug or class
of drugs not being ofstandard quality.
Sections 20 & 21 contemplate appointment of Government Analysts & Inspectors,
respectively by the Central and State Government to execute the purposes of the Act.
Inspector has various powers including that of inspection, taking samples of any drug
and cosmetic, examination of any records, registers or documents et al, and search and
seizure.
Section 27 prescribes penalty for manufacture, sale etc., of any drug which is
adulterated or spurious or any drug used by any person for or in the diagnosis or
prevention of any disease or disorder, which is likely to cause death or is likely to
cause such harm to the human body, which would amount to grevious hurt within the
meaning of Section 320 IPC, punishable with imprisonment for a term which may
extend up to a term of life and with fine.
The other aspect concerns what is known as ‘magic remedy’ i.e. persons making
flimsy claims that they have remedy for a disease which is otherwise not curable or
remedies which do not really fall into any known scientifically tested categories.
The Act specifies two kinds of offences: advertisement of drugs for diseases specified
in the Act, or rules that are made under the Act, and advertisements that are
misleading about the nature, cure and any other material particular of the drug so
advertised.
Section 3: Prohibition of advertisement of certain drugs for treatment of certain
diseases and disorder
Subject to the provisions of this Act, no person shall take ‘‘any part in the
publication of any advertisement’ referring to any drug in terms which suggest or
are calculated to lead to the use of that drug for-
I
(a) procurement of miscarriage in women or prevention of conception in
women; or
(b) maintenance or improvement of the capacity of human beings for sexual
pleasure; or
(c) correction of menstrual disorder in women; or
(d) diagnosis, cure, mitigation, treatment or prevention of any disease,
disorder or condition specified in the Schedule, or any other disease,
disorder or condition specified in the Schedule, or any other disease,
disorder or condition (by whatsoever name called) which may be
specified in the rules made under this Act:
Provided that no such rule shall be made except(i) in respect of any disease, disorder or condition which requires timely
treatment in consultation with a registered medical practitioner or for
which there are normally no accepted remedies, and
(ii) after consultation with the Drugs Technical Advisory Board constituted under
the Drugs and Cosmetics Act, 1940 and, if the Central Government considers
necessary, with such other persons having special knowledge or practical
experience in respect of Ayurvedic or Unani systems of medicines as that
Government deems fit.1
Section 4: Prohibition of misleading advertisement relating to drugs
Subject to the provisions of this Act, no person shall take any part in the publication
of any advertisement relating to a drug if the advertisement contains any matter
which(a) directly or iindirectly gives a false impression regarding the true character of
the drug; or
(b) makes a false claim for the drug; or
(c) is otherwise false or misleading in any material particular.
B. Case Law
a. Spurious and Dangerous Drugs
S.R. Pvt. Ltd v. Prem Gupta, Drug Controller (India) New Delhi2 was a case
dealing with ban on spurious drugs. The petition challenged the order of Central
Government under S. 26-A of the Drugs and Cosmetics Act, 1940 whereby it banned
the manufacture and sale of the fixed dose combination steroids.
Section 26-A of the Act empowers the Central Government to prohibit in public
interest the manufacture, sale or distribution of any drug if it is satisfied that the use of
such drug is likely to involve any risk to human beings or it does not have the
therapeutic value claimed or purported to be claimed in it.
The Act provides for the constitution of ‘Drugs Technical Advisory Board’ to advice
Central and State Government on any matter tending to secure uniformity throughout
the country in the administration of the Act. The Board is to comprise of persons with
expertise in drugs along with representations from Central and State Government. The
ban on fixed dose combinations of steroids was imposed after consultation with the
Technical Advisory Board.
The issue before HC was whether the Central Government had acted arbitrarily or the
opinion tendered by the Board was arbitrary and without substance. HC held that the
advice tendered by the Board consisting of experts, who have special knowledge and
Section 5 applies to advertisement of magic remedies mutatis mutandis
2 AIR 1993 P&H 28
experience in respect of different kinds of drugs, and the opinion formed after due
exchange of views in itself ensures that the opinion given by the Board has a rational
basis and suffices for Central Government to issue notification in exercise of its
power under S.26-A of the Act. When such a high powered body consisting of experts
arrives at such a decision after due consideration and exchange of views, we have to
presume that the advice tendered is good in the absence of any basis to characterize it
as arbitrary. In this case there is no material or basis to discard the opinion formed
and the advice tendered by the Board. Therefore, as the Central Government has
exercised its power under S. 26A of the Act on the advice tendered by the board, we
are unable to agree that the impugned notification is illegal, arbitrary or violates of
Articles 14 and 19(g) of the Constitution.
The Court therefore concluded that when the State acts on the recommendation of an
expert body and prohibits a particular drug or combination, the Court will not
ordinarily interfere in such a decision.
A similar situation arose in
Laxmikiint v. Union of India3 where the Central
Government in exercise of its powers under Section 33EE of the Act banned in public
interest the manufacture and sale of all Ayurvedic drugs licensed as
toothpaste/toothpowders containing tobacco.
Appellant contended that they used only 4% of tobacco and there was no conclusive
evidence to show that such a minute quantity could pose threat to health, and even
members of the Advisory Board under the Act held divergent views on it, therefore,
such ban was arbitrary and violated their right to carry on trade.
Supreme Court held that Central Government in consultation with Ayurvedic, Siddha
and Unani Drugs Technical Advisory Board, an Expert Body constituted under
Section 33D of the Act, had arrived at a conclusion that tobacco contained
carcinogenic elements therefore its use should be banned. A similar view was
expressed in an International Conference held at AIIMS, New Delhi in collaboration
with WHO. Hence, the Court held that even though the ban offends the right to carry
on trade, it is justified in public interest and falls under Article 19(6) of the
Constitution being a reasonable restriction on right to carry on trade or business.
In Bharat Biotech International Ltd. V. A.P. Health and Medical Housing and
Infrastructure Development Corporation4 WHO pre-qualification was made an
eligibility criterion for tender for supply of Hepatitis-B drugs. This was challenged as
arbitrary and with the intent to exclude competition in favour of one manufacturer.
HC evaluated the provisions of Drugs and Cosmetics Act to determine if it provided
an efficient machinery to ensure standard quality of drugs or if WHO pre-qualification
actually set higher standards, which would justify the impugned decision. High Court
concluded that the State had failed to establish that WHO adopts any standards which
are higher than the standards adopted by the Indian Law for assessing the quality of
the product. It held that the Indian Laws are very stringent in ensuring high standard
of drugs but have been futile because of laxity on part of State in enforcing the law.
Instead of rectifying the implementation of the Act, State cannot seek shelter in such a
manner.
Definition of Drug
3 SC dt. 11/4/1997
4 AP HC dt. 10/12/2002
Cadila Pharmaceuticals Ltd. V. State of Kerela5 was a case which dealt with
e inition of the term drug. Under the Indian legal system drugs cannot be
manufactured without a license. Licensing provisions are meant for ensuring quality
and content. It is in the interest of manufacturers to avoid taking licenses as then
anything can be sold without there being quality control. Thus many ingestibles are
given fancy names in order to claim that they are not “drugs”. Petitioner manufactured
EC 350 (Vitamin E & C) capsules and Cecure (Multi-vitamin capsules) which were
sold in market through medical shops as ‘Dietary supplements’. The issue before the
Court was whether vitamin capsules fall under the definition of ‘drugs’ under the
Drugs and Cosmetics Act and therefore, required license.
Section 3(d) of the Act defines Drugs which definition includes(i)
all medicines for internal or external use of human beings or animals and
all substances intended to be used for or in the diagnosis, treatment,
mitigation or prevention of any disease or disorder in human beings or
animals, including preparations applied on human body for the purpose of
repelling insects like mosquitoes;
(ii)
such substances (other than food) intended to affect the structure or any
function of the human body or intended to be used for the destruction of
(vermin) or insects which cause disease in human beings or animals, as
may be specified from time to time by the Central Government’ by
notification in the Official Gazette;
(iii)
all substances intended for use as components of a drug including empty
gelatin capsules; and
(iv)
such devices intended for internal or external use in
in the
the diagnosis,
diagnosis,
treatment, mitigation or prevention of disease or disorder in human beings
or animals, as may be specified from time to time by the Central
Government by notification in the Official Gazette, after consultation with
the Board.
Petitioner contended that the vitamin capsules in question were for general well-being,
and not a cure or prevention
prevention of
of any
any disease
disease or
or disorder.
disorder. Therefore,
Therefore, it
it did
did not
not fall
fall ’
within ‘drugs’ within the meaning of S.3(d)(l).
High Court disagreed with the submission of Petitioner that the two products in
question are not part of any treatment of disease or disorder. It stated that the vitamin
capsules in question were not used by any person as a general dietary supplement.
Vitamin deficiency in human beings may result in certain diseases beings. In such
cases doctors prescribe these vitamin capsules of a definite dosage which mitigates or
prevents such diseases. These vitamins capsules therefore squarely fall within the
definition of ‘drugs’ under the Act.
Similarly, in Chimanlal v. State of Maharashtra6 the issue before the Supreme
Court was whether ‘absorbent cotton, wool, roller bandages and gauze’ are drugs
under the Act. Supreme Court held that the definition of ‘drugs’ in S.3(d) of the
Drugs Act is comprehensive enough to cover not only medicines but also substances
intended to be used for or in treatment of diseases of human beings. ‘Absorbent cotton,
wool, roller bandages and gauze’ are substances used for or in treatment of disease,
5 AIR 2002 Kerela 357
6 AIR 1963 SC 665
%
and hence are ‘drugs’ for the purposes of the Act. The main object of the Act is to
prevent sub-standard drugs, presumably for maintaining high standards of medical
treatment. That would certainly be defeated if the necessary concomitants of medical
or surgical treatment were allowed to be diluted.
Sale and Stocking of Drugs
In Holy Cross Hospital v. State of Kerela7 the Petitioner was a charitable hospital
that stocked medicines for its patients. The petition challenged the order of Drug
Controller enforcing the system of Drugs Licence to Petitioner’s hospital. Section 18
of the Act states that sellers, stockiest and persons similarly situated are obliged to
secure license before stocking drugs. Charitable hospitals were earlier exempted from
this requirement but through an amendment this exemption was withdrawn and this
was challenged.
Government of India via its G.S.R. 812(6) dated 14.11.1994 continued the exemption
only in favour of registered medical practitioners, and hospitals/dispensaries
maintained or supported by Government or local authorities.
The High Court, however, held that the broad classification between private or
charitable hospitals and hospitals/dispensaries under the supervision of Government
or local medical bodies was valid and there was nothing unconstitutional in requiring
private hospitals to get license for stocking drugs.
In the case of Kasim Bhai v. State8 the accused was the owner of a medical shop
that was duly licensed. However he was charged with:
i)
possession of drugs covered by Schedule H without having a qualified
man under whose supervision sale of such drugs could be executed; and
ii)
he was found in possession of and exhibiting for sale expired penicillin
ointment.
RulellO Sub-rule 9 of Rule 65 of Drugs and Cosmetics Rules reads ‘Substance
specified in Schedule H, and preparations containing such substances, shall not be
sold by retail except on and in accordance with a prescription of a registered
medical practitioner provided that no prescription shall be required for sale or
supply to a registered medical practitioner, hospital, infirmary, or an institution
approved by an order of a licensing authority.’
High Court held that Sub-rule 9 referred to sale of drugs specified in Schedule H
whereas charges against the accused were for storage of such drugs and not for sale of
these drugs. Hence he was absolved of his first charge. As regards the second charge,
it was contended by the accused that there was nothing on record to show that the
Penicillin tubes were kept in the shop or were exhibited there for purpose of sale.
High Court however did not accept this defense and held that when a particular
medicine is kept in the shop there will be a presumption that it is there for the purpose
of sale unless that presumption is rebutted by the accused.
Swantraj v. State of Maharashtra9 was an important case concerning storage of
drugs in transit. The Appellant had a wholesale dealer license to stock drugs at
7 Kerela HC decided on 25/2/2002
8 AIR 1956 Allahabad 703
Bombay and a further license to distribute the drugs through the motor van
throughout the territory of the State of Maharashtra. Appellant booked certain drugs
to distribute in the licensed area. The van which was to receive the stock was held up
for a few days. The delivery was received by one of the partners of the Appellant-firm
who temporarily stored the drugs in the godown of a local drug dealer to load the van
as and when it arrived. The charge against the Appellant-firm was that it did not have
the license to stock the drugs at the latter place, therefore they acted in contravention
of the provision of Drugs and Cosmetics Act, and were liable for punishment under
8.27(b).
The issues before the Supreme Court were:
1. Whether temporary deposit of drugs in a place outside Bombay for which
place Petitioners had no license to stock goods, amounts to stocking for sale or
distribution (for which license is required)?
2. Whether stocking with the purpose of selling the drugs at another and not from
the place of stocking requires license? In other words, whether it can be
inferred that drugs stocked are stocked for sale?
Supreme Court interpreted Rules 61 & 62 so as to draw the conclusion that the Rules
specify the forms that may be issued and the content and purpose thereof. There is no
scope of reading anything into it. The Rules do not cover storage in transit. Storage in
transit must also be licensed so that medicines do not suffer in the process.
The Appellant pleaded that license should not be insisted upon for every place of
make-shift storage in far-flung areas. Supreme Court stated that the paramount
purpose of regulation through licensing is to set in motion vigilant medical watch over
maintenance of the standard quality of drugs and medicines and verification of its
expiry date and spuriousness of the products. If godowns, temporary stores ad depots
can remain unlicensed, they escape official attention and can deteriorate into pool of
dubious or deceptive drugs harmful to society. Every place where storage for sale is
made must be licensed.
The second issue was whether goods stored in transit will be considered at stocked for
sale. Supreme Court held in the affirmative after relying on the ‘Doctrine of mischief
which states that such interpretation of a statute must be upheld that serves its purpose
even if by doing so some persons’ interest is wrongly affected so that mischief by
those who would use any other judicial interpretation to serve their purpose in
contravention to the general object of the statute is avoided.
SC thus concluded:
1) Licences under Rules 61 & 62 proviso will extend to grant of licences for
wayside depots or ‘emergency stores’ or ‘vehicles’, but every storage for sale
must have license.
2) License permitting sale by a vehicle cannot automatically cover cases of
‘emergency storage’ or storage in transit. The words of Section 18(c) & Rule
62 are mandatory being plain and admitting no exceptions.
3) Applying the mischief rule of interpretation, storage even though for a short
spell or on ad hoc basis and without intent to sell at that place but as a part of
the sale business comes within the scope of‘storage for sale’ in Section 18(c)
& Rule 62.
9 (1975) 3 SCC322
In Sagar Medical Hall v. State of Bihar10 a petition was filed against the order of
State Government restraining the Regional Licensing Authorities from issuing or
renewing license for wholesale and retail sale of drugs. State Government’s
justification for its policy decision was that the ban on issuance of wholesale and
retail drug license was a temporary measure to prevent spurt of spurious drugs. There
were adequate drug stores to meet public need. A mushrooming of drug stores would
lead to decline in turnover and loss, which would cause drug stores to sell spurious
drugs to sustain themselves.
Petitioners contended that license cannot be refused when all the conditions attached
to it have been complied with. The Act does not impose any such ban or gives power
to impose such a ban.
Rule 64 provides for conditions subject to which licence shall be granted or renewed.
HC held that grant and renewal of drug is governed by statutory rules and nowhere do
such rules provide that the license can be declined or renewal refused on the ground
that in the opinion of the State Government the number of shops are sufficient to meet
demand of public. Thus, executive decisions of the State cannot override the statutory
provisions. Growth of drug stores is to cater the needs of public. State cannot regulate
grant of license because they cannot efficiently control the menace. The State
Government has an entire department to control and prevent sale of spurious drugs.
Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954
The purpose of this Act is to prevent danger of self-medication and inducement to
take drugs for certain specific disease, condition or disorder, by advertising its alleged
magical properties or healing power.
In Hamdard Dawakhana v. Union of India11 the constitutionality of the Act was
challenged before the Supreme Court on the ground that its violates the freedom to
speech and expression under Article 19( 1 )(a).12
Supreme Court upheld the Constitutionality of the Act and stated that ‘An
advertisement is no doubt a form of speech but its true character is reflected by the
object, for the promotion of which it is employed. It assumes the attributes and
elements of the activity under Art. 19(1) (a) which it seeks to aid by bringing it to the
notice ofpublic. When it takes the form of a commercial advertisement which has an
element of trade or commerce, it no longer falls within the concept offreedom of
speech, for the object is not propagation of ideas, social, political or economic, or
furtherance of literature or human thought, but the commendation of the efficacy,
value and importance ofcertain goods.
It cannot be said, therefore, that every advertisement is a matter, dealing with
freedom of speech nor can it be said that it is an expression of ideas. In every case
one has to see what is the nature of the advertisement and what activities falling
under the Article 19(1), it seeks to further.
The advertisements prohibited by S.3 of the Act relates to commerce or trade and not
to propagation of ideas, and advertising of prohibited drugs and commodities of
which the sale in not in public interest, cannot be speech within the meaning of
freedom of speech and would not fall within Art/. 19(l)(a). As the main purpose and
,0(CWJC) Patna HC dt. 7/12/01
11 AIR 1960 SC 554
“ Sections 3(d) & 8 were also challenged for giving unhindered power to the executive under the Act,
and both were held ultra vires. In 1963 Parliament rectified the flaws.
true intent and aim, object and scope of the Act is to prevent self medication or self
treatment and for that purpose advertisements commending certain drugs and
medicines have been prohibited, it cannot be said that this is an abridgement of the
Petitioner’s right to free speech. ’
In _State of Karnataka v. R.M.K. Sivasubramanya Om14 Drug Inspector raided
the hotel room where the Respondent was staying pursuant to an advertisement
published in a local paper, and seized drugs used to treat tuberculosis and sexual
rigour and literature relating to these drugs. The advertisement read as:
‘all diseases of any nature and how-long-standing
they may be are well attended to with utmost care.
To restore, regain and to retain vim, vigour and vitality,
use our 73 years very popular fully vitaminised
special invigorative nervine tonic for all.
Amazatone with Ton Ton Oil
Cost per set Rs. 147/Medicines are available for all diseases.
Consult the Siddha Hakeem’
High Court opined that for a person to be liable under S.3 three ingredients are
required, namely,
i) Accused should have taken part in publication of an advertisement
ii) Advertisement should relate to or should have reference to a drug.
111) Such drug should be suggested as cure for diseases, condition or disorder
specified under S.3.
Since the contravention of S.3 is made punishable, it should be construed strictly.
High Court held the Respondent as not guilty for followings reasons:
i) It was not proved that Accused himself had authorized the publication of
the advertisement.13 The Advertisement Manager of the local paper in his
deposition stated that though the advertisement in question was published
on behalf of the Accused but it was not made clear who authorized the
Manager to publish on behalf of the Accused.16
ii) There was no evidence to show that he had taken the seized drugs outside
his hotel room for the public to see. There was no evidence to show that
the accused had sent the literature or bottles outside for distribution. The
material available on record merely pointed to the fact that the Drug
Inspector had seized the articles from the possession of the accused when
he was in his hotel room.
iii) ‘Amazatone’ is a special invigorative nervine tonic useful for all and will
help to restore, regain and retain vim, vigour and vitality, it is nowhere
even obliquely stated that it is a cure for impotence or that it helps the
maintenance or improvement of the capacity of human beings for sexual
pleasure. There was also no reference to Tuberculosis.
S
5S *mP°rt °r exPort
any document containing advertisements of such nature as specified
14 1978 CRJ.L.J. 853 (Karnataka HC)
15S.9
ibid para 13. The Advertisement Manager earlier in his statement before police had admitted that the
advertisement was published at the behest of the Accused. The Manager retracted his statement by
deposing that he had signed certain the statement without reading it. The Court expressed that the
advertisement was not sufficient to hold the Accused guilty.
Dr. Yash Pal Sahi v. Delhi Administration17 was a case where the Appellant was
the proprietor of a Homeopathic hospital and publisher of a journal named
‘Homoeopathic Doctor’. In a sting operation carried out by the Respondent, Appellant
was asked to send copies of the said journal and a list of medicines printed by it. This
was sent. The list of medicine had a note stating ‘for the use of medical practitioners
alone’.
Appellant’s case was that he was protected under S.14(l)(c). Rule 6 of the Rules
framed under the Act prescribe that:
‘All documents containing advertisements relating to drugs, referred to in clause (c)
of Sub-section (1) of Section 14, shall be sent by post to a registered medical
practitioner or to a wholesale or retail chemist...Such documents shall bear on top,
printed in indelible ink a conspicuous manner, the words ‘For use only of registered
medical practitioners or a hospital or a laboratory.’
As the list bore the words printed in indelible ink ‘For the use of registered medical
practitioners’ he had complied with the provisions of law.
Supreme Court held that the person to whom the list of medicine was sent was not a
medical practitioner and the Appellant did not even verify his profession before
sending such a list. Therefore, Appellant’s case did not fall under S. 14(1 )(c) and was
guilty under S.3.
1° Zaffar Mohammad v. State of West Bengal18 the advertisement in question that
was published in a local paper was as follows:
New life, New vigour, New spirit, New wave.
If you want a cure, see today well known, world famous experienced
registered Physician. Special diseases such as oldness in youth,
all sorts of defects in nerves, or weakness, laziness
are treated with full responsibility,
with new methods, new machines of science
and electric treatment and are cured permanently
‘Disorders of the nervous system’ is Item No.14 of the Schedule to the Act, hence the
issue was whether the treatment and machines referred to in the advertisement were
drugs for S.3 to apply.
Supreme Court held that any article, other than food, which is intended to affect or
influence in any way any organic function of the body of a human being is a ‘drug’
within the meaning of S.2(b)(iii). The so-called ‘machines of science’ or of ‘electric
treatment ’ whose magically curative properties were advertised in a newspaper by
the Appellant to cure nervous diseases, and designed according to advertisement to
confer on mankind the blessings of new life and new vigour, are ‘articles ’ intended to
influence the organic function of the human body. A machine is a tangible thing which
can both be seen andfelt and as such it answers the description of an ‘article ’ within
the meaning of S.2(b)(iii) of the Act. Such advertisement was therefore not permitted
and the accused had committed an offence.
17 (1963) 5 SCR 582
18 AIR 1976 SC 171
j/j / 6
C. CONCLUSIONS
Health care laws relating to drugs deal with two aspects, (i) Accessibility to drugs;
and (ii) quality of drugs. As regards quality of drugs, there are sufficient provisions in
the law to control the quality through licensing, supervision and provision of
standards. Misleading advertisements are also prohibited. Most of the litigation
concerning drugs has been on these aspects, though overwhelmingly by
manufacturers and traders rather than by consumers.
On the other hand, legal provisions concerning affordability and accessibility to drugs
are very few and even these have been whittled down over a period. Also, not much
litigation has taken place on these issues but some of the Petitions concerning drug
price control and similar issues are pending before the Courts and one needs to keep
an eye on them to discern the trend.
1
OCCUPATIONAL HEALTH AND SAFETY & RIGHT OF
WORKERS TO HEALTH
A. INTRODUCTION
There are four laws which have been enacted dealing with health care for workers.
Factories Act, 1948 prescribes safety conditions for manufacturing processes.
Workmen’s Compensation Act deals with compensation to workers who suffer
injuries at the place of work and suffer from specified occupational diseases.
Employees State Insurance Act, 1948, apart from dealing with compensation also is
concerned with access to free medical care for employees. This includes setting up of
dispensaries, hospitals and panel doctors whom the employees can approach.
Maternity Benefit Act is concerned with providing paid medical leave to pregnant
women workers coupled with certain other benefits. Apart from these general laws,
certain specific Acts have been passed which also deal to a certain extent with the
health care for workers. These include the Beedi and Cigar Workers Act, Mines Act,
etc.
Prior to 1920s, it was believed that an employee by entering into a contract with the
employer undertakes the risks involved in employment and therefore cannot hold the
employer liable if he suffers from any injury or disease related to employment. But
since 1920s, when the Employers Liability Act was enacted it was recognized that
because of the unequal relationship between employer and employee no such
presumption can be made. All these laws also recognize that it is the responsibility of
the employer to provide safe work environment for employees. Over the years the
laws have been amended to bring in more and more detailed safety provisions for
employees. Of course, especially the safety laws are implemented more in their
breach.
Most of these Enactments are more than 50 years old and obviously a large amount of
litigation has taken place on these issues. Especially the Workmen’s Compensation
Act and ESI Act have been much used by employees who suffer from employment
related injuries and diseases. An overwhelming amount of litigation has been
concerning whether a particular injury or disease is employment related or not.
Questions such as when an employee gets heart attack at work place, can it be called
employment related injury or when an employee is traveling from home to work and
meets with an accident can it be called an employment related injury have been
agitated widely. Similarly, issues concerning extent of injury and occupational disease
have also been subject matter of a large amount of litigation. But it is not the scope of
this book to go into these aspects.
In this Chapter we will look at some other aspects mainly those flowing from the
Supreme Court’s assertion of workers having a fundamental right to work in healthy
environment. Some aspects of these fundamental rights have already been dealt with
under the Chapter on fundamental right to health care and the present Chapter will
deal with some of the remaining aspects.
) I
2
Many of these laws have their foundation in the Constitution or certain International
Instruments.
Article 38(1) of the Constitution lays down the foundation for human rights and
enjoms the State to promote the welfare of the people by securing and protecting, as
effectively as it may, a social order in which justice, social, economic and political
shall inform all the institutions of the national life.
Article 46 directs the State to protect the poor from social injustice and all forms of
exploitation.
Article 39(e) charges that policy of the State shall be to secure ‘health and strength of
the workers.’
Article 42 mandates that the States shall make provision, statutory or executive ‘to
secure just and humane conditions of work.'
Article 43 directs that the State shall endeavour to secure to all workers, by suitable
legislation or economic organization or any other way to ensure decent standard of
life and full enjoyment of leisure and social and cultural opportunities to the workers.
Article 25(2) of the Universal Declaration of Human Rights promises right to standard
of adequate living for health and well-being of the individual including medical care
sickness and disability.
Article 2(b) of the International Covenant on Political, Social and Cultural Rights
protects the right of worker to enjoy just and favourable conditions of work ensuring
safe and healthy working conditions.
As regards health care, both Factories Act and ESI Act deal with it to a certain extent.
Apart from making provisions concerning health and safety at work place, s. 45 of the
Factories Act mandates every factory to have first aid boxes. For every 150 workers
there should be at least one first aid box. Such first aid box is to be in charge of a
person who holds a certificate in first aid from the State Government. Besides, every
factory having more than 500 workers is required to have an ambulance room and
prescribed medical and nursing staff. Each State Government has its own rules under
the Factories Act. For instance, Rule 76 of the Maharashtra Factories Rules prescribes
a detailed list of the items which are required to be in a First Aid Box. There is a
further sub division depending on whether the Factory is using mechanical power or
not. Rule 78 prescribes that in every factory which employs more than 500 workers
the Ambulance Room must be in charge of a qualified medical practioner along with
at least one qualified nurse.
Similarly, in what are classified as hazardous processes, Section 41C of the Factories
Act provides that any employee must be medically examined before he is employed in
such process and should be medically examined once every year during the time he is
in employment and even after the cessation of his employment for such period as may
be prescribed. Rule 73X of the Maharashtra Factory Rules also prescribe that every
factory involved in hazardous process must have at least one fully equipped
ambulance van.
3
Similarly, the ESI Act, provides for medical care to the registered employees in cases
not just of accidents and occupational diseases but also in cases of ordinary illnesses.
The scheme extends to the families of the employees.
B. CASE LAW
In Consumer Education & Research Centre v. Union of India1 the Supreme Court
was concerned with rights of employees in the Asbestos manufacturing industry. It
was a public interest litigation filed concerning conditions of work and health affects
on workers.
In this very crucial decision the Supreme Court held that the right to health of a
worker is an integral facet of meaningful right to life to have not only a meaningful
existence but also robust health and vigour without which worker would lead life of
misery. Lack of health denudes his livelihood. Compelling economic necessity to
work in an industry exposed to health hazards should not be at the cost of the health
and vigour of the workman. Facilities and opportunities, as enjoined in Article 38,
should be provided to protect the health of the workman. Provision for medical test
and treatment invigorates the health of the worker for higher production or efficient
service. The Court further held that continued treatment, while in service or after
retirement is a moral, legal and constitutional concomitant duty of the employer and
the State. Therefore, it must be held that the right to health and medical care is a
fundamental right under 21 read with Article 39(c), 41 and 43 of the constitution to
make life of the workman meaningful and purposeful with dignity ofperson. Right to
life includes protection of the health and strength of the worker and is a minimum
requirement to enable a person to live with human dignity. The State (Central & State)
government or an industry, public or private, is enjoined to take all such action which
will promote health, strength and vigour of the workman during the period of
employment and leisure and health even after retirement as basic essentials to live the
life of health and happiness.
The Supreme Court went on to observe that the right to human dignity, development
of responsibility, social protection, right to rest and leisure are fundamental human
rights to a workman assured by the Charter of Human Rights, in the Preamble and
Arts. 38 & 39 of the Constitution. Health of the worker enables him to enjoy the fruit
of his labour, keeping him physically fit and mentally alert for leading a successful
life, economically, socially and culturally. Medical facilities to protect health of the
workers are, therefore, the fundamental and human rights of the workmen.
The Court also held that in an appropriate case, Court would give directions to the
employer, be it the State or its undertaking private employer to make the right to life
meaningful; to prevent pollution of the work place; protection of the environment;
protection of the health of the workman or to preserve free and unpolluted mater for
the safety and health of the people. This was an important observation because
ordinarily, under its Constitutional jurisdiction the Supreme Court gives directions
only to State authorities and not to private individuals or employers.
1 AIR 1995 SC 922
jy /±
4
The employer is vicariously liable to pay damages in case of occupational diseases,
here in this case asbestosis. The Employees State Insurance Act and Workmen’s
Compensation Act provide for payment of mandatory compensation for the injury or
death caused to the workman while in employment. The Act does not provide for
payment of compensation after cessation of employment, it therefore becomes
necessary to protect such persons f4rom the respective dates on cessation of their
employment.
The Court observed:
“The Employees State Insurance Act and Workmen’s Compensation Act provide for
payment of mandatory compensation for the injury or death caused to the workman
while in employment. Since the Act does not provide for payment of compensation
after cessation of employment, it becomes necessary to protect such persons from the
respective dates of cessation of their employment till date. Liquidated damages by
way of compensation are accepted principles of compensation.”
The Court, while allowing the Petition, said:
“All the industries are directed
(1) to maintain and keep maintaining the health record of every worker upto
a minimum period of 40 years from the beginning of the employment or
15 years after retirement or cessation of the employment whichever is
later;
(2) the Membrane Filter test to detect asbestos fibre should be adopted by
all the factories or establishments on a par with the Metalliferrous
Mines Regulations, 1961 and Vienna Convention and rules issued
thereunder;
(3) All the whether covered by Employees State Insurance Act or
Workmens Compensation Act or otherwise are directed to copulsarily
insure health coverage to every worker;
0)
(5) The Union and all the State Governments are directed to consider
inclusion of such of those small scale factory or factories or industries to
protect health hazards of the workers engaged in the manufacture of
asbestos or its ancilliary products;
(6) The appropriate inspector of factories in particular of the State of
Gujarat, is directed to sent all the workers, examined by ESI hospital
concerned, for re examination by the National Institutie of Occupational
Health to detect whether all or any of them are suffering from asbestosis.
In case of positive finding that all or any of them are suffering from
occupational health hazards, each such worker shall be entitled to
compensation in a sum of rupees one lakh payable by the factory or
industry or establishment concerned within a period of three months
from the date of certification by the National Institute of Occupational
Health.”
5
In Rajangam, Secretary, Dist. Beedi Worker’s Union v. State of Tamil Nadu2 the
issue concerned conditions of work of employees in Beedi manufacturing and allied
industries. A large number of children are employed in this work.
The Supreme Court passed the following directions:
I
2. Tobacco manufacturing is indeed health hazardous. Child labour in this trade
should therefore be prohibited as far as possible and employment of child labour
should be stopped either immediately or in a phased manner to be decided by the
State Governments but within a period not exceeding three years from now. The
provisions of Child Labour (Prohibition & Regulation) Act, 1986 should be
strictly implemented.
3. The Beedi Workers Welfare Cess Act, 1976 and the Beedi Workers Welfare Fund
Act, 1976 which contain beneficial provisions should be implemented in the true
spirit and since they are legislations of the Central Government, the machinery of
the Central Government should be made operational in the area
4
5
6. In view of the health hazard involved in the manufacturing process, every worker
including children, if employed, should be insured for a minimum amount of Rs
50,000 and the premium should be paid by the employer and the incidence should
not be passed on to the workman.”
Bandhu Mukti Morcha v. Union of India 3
PIL was filed against employment of children below 14 years of age in Carpet
industry in Uttar Pradesh and in most cases the children were forced into labour. The
petitioner sought directions for total prohibition on employment of children below 14
years of age and directions to the Respondents to give them facilities like education,
health, sanitation, nutritious food, etc. It was also contended that employment of
children in any industry or in a hazardous industry violated Art. 244 of the
Constitution and derogatory to the mandate contained in Articles 39(e) & (f) & 45 of
the Constitution read with the Preamble.
Judgement:
The imperatives of Directive principles of State policy, particularly, Articles 45, 39 (e)
& (f), 46 read with the Preamble, Article 21, 23 and 24 of the Constitution enjoins
upon State to ensure socio-economic justice to the child and their empowerment, full
growth of their personality- socially, educationally and culturally- with a right to
leisure and opportunity for development of the spirit of reform, inquiry, humanism
and scientific temper to improve excellence- individually and collectively. In specific
the State has the responsibility to formulate policy to protect children of tender age
from abuse (Art. 39(e)); to provide opportunities and facilities for their development
in a healthy manner and in conditions of freedom and dignity and protect their
childhood and youth against exploitation and moral and material abandonment (Art.
39(f)); free and compulsory primary education for all children (Art. 45); and prohibit
2 SC dated 19/11/1991
3 (1997) 10 SCC 549
4 Art 24 Prohibition of employment of children in factories, etc:- No child below the age of 14 shall be
employed in any factory or mine or engaged in any other hazardous employment.
5h
6
employment of the children below the age of 14 in any factory or mine or any
hazardous employment (Art.24).
Child labour is a social phenomenon with its genesis in poverty and cannot be
completely eradicated except by social changes even though it violates the right of the
child to a meaningful life, leisure, food, shelter, medical aid and education. Total
banishment of employment may drive the children and mass them up into destitution
and other mischievous environment, making them vagrant, hard criminals and prone
to social risks etc. Thus progressive elimination of employment of children below the
age of 14 years would be required.
Education is one such way of creating an opportunity for a better life. The Convention
on the Rights of the Child also emphasized the importance of education for children.
Article 28 provides:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including
general and vocational education, make them available and accessible to every
child, and take appropriate measures such as the introduction of free education
and offering financial assistance in case of need,
(c) Make higher education accessible to all on the basis of capacity by every
appropriate means;
(d) Make educational and vocational information and guidance available and
accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of
drop-outs rates.
Article 27(1) provides that the state parties recognize the right of every child to
a standard of living adequate for the child’s physical, mental, spiritual, moral
and social development.
Article 31(1) recognizes the right of the child to rest and leisure, to engage in
play and recreational activities appropriate to the age of the child and to
participate freely in cultural life and the arts.
Article 32 which is material for the purpose of this case reads as under:
(1) State parties recognize the right of the child to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to
interfere with the child’s education, or to be harmful to the child’s health or
physical, mental, spiritual, moral or social development.
(2) State parties shall take legislative, administrative, social and educational
measures to ensure the implementation of the present article. To this end, and
having regard to the relevant provisions of other international instruments, State
parties shall in particular:
a) Provide for a minimum age or minimum ages for admission to employment;
b) Provide for appropriate regulation of the hours and conditions of
employment;
c) Provide for appropriate penalties or other sanctions to ensure the effective
enforcement of the present article.
Thus, SC gave the directions to Central Government to convene a meeting of
Ministers concerned of the respective State Governments and their Principal
Secretaries holding Departments concerned within two months of the receipt of this
Order, to evolve principles of policies for progressive elimination of employment of
children below the age of 14 years in all employments governed by the respective
enactments mentioned in MC Mehta Case; and to evolve such steps consistent with
the scheme laid down in M.C. Mehta case, to provide:
7
(1) Compulsory education to all children either by the industries themselves or in
coordination with it by the State Government to the children employed in the
factories, mine or any other industry, organized or unorganized labour with such
timings as is convenient to impart compulsory education, facilities for secondary,
vocational profession and higher education;
(2) Apart from education, periodical health check-ups;
(3) Nutrient food etc.; &
(4) To entrust the responsibilities for implementation of the principles
Bonded labourer
Bandhua Mukti Morcha v. Union of India5 concerned the issue of release of
bonded labourers especially from stone quarries from Haryana.
The SC appointed a Committee to inquire into the conditions of the workers at such
stone quarries. The Committee’s report stated that the due to a large number of stone
crushing machines operating at the site, the air was laden with dust making it difficult
to breathe. Workers were forced to work and were not allowed to leave the stone
quarries. They did not even have pure water to drink and were living in jhuggies with
stones piled one upon the other as walls and straw covering at the top which did not
afford any protection against sun and rain and which were so low that a person could
hardly stand inside them. A few workers were suffering from tuberculosis. Workers
were not paid compensation for injuries caused due in accidents arising in the course
of employment. There were no facilities for medical treatment or schooling for
children. The Court held:
“It is the fundamental right of everyone under Article 21 to live with human
dignity, free from exploitation. This right to live with human dignity enshrined
in Article 21 derives its life and breath from the Directive Principles of State
Policy and particularly clauses (e) & (f) ofArticle 39 & Articles 41 & 42 and
at least, therefore, it must include protection of the health and strength of
workers, men and women, and the children of tender age against abuse,
opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief These are the minimum requirements
which must exist in order to enable a person to live with human dignity and
neither the Central nor the State Government has the right to take any action
which will deprive a person of the enjoyment of these basic essentials. Since
the Directive Principles of State Policy contained in clause (e) & (f) of
Articles 39, 41 & 42 are not enforceable in a court of law, it may not be
possible to compel the State through the judicial process to make provisions
by statutory enactment or executive fiat for ensuring these basic essentials
which go to make up a life of human dignity but where legislation is already
enacted by the State providing these basic requirements to the persons,
particularly belonging to the weaker section of the community and thus
investing their right to live with basic human dignity, the State can certainly
be obligated to ensure observance of such legislation, for inaction on the part
of the State in securing implementation of such legislation would amount to
denial of protection under Article 21, more so in the context of Article 256
5 AIR 1984 SC 802: (1984) 3 SCC 161
£7/9
8
which provides that the executive power of every State shall be so exercised as
to ensure compliance with laws made by the Parliament & any existing laws
which apply in that State. In ASIAD CONSTRUCTION WORKERS CASE6
another Bench of SC had expressed that the State is under a constitutional
obligation to see that there is no violation of the fundamental right of any
person, particularly when he belongs to the weaker section of the community
and is unable to wage a legal battle against a strong and powerful opponent
who is exploiting him. The Central Government is therefore bound to ensure
observance of various social welfare, and labour laws enacted by Parliament
for the purpose of securing to the workmen a life of basic human dignity in
compliance with the Directive Principles ofState Policy.
The State of Haryana must therefore ensure that mine lessees or contractors,
to whom it is giving its mines for stone quarrying operations, observe various
social welfare and labour laws enactedfor the benefit of the workmen. This is
a constitutional obligation which can be enforced against the Central
Government and the State of Haryana by a writ petition under Article 32.7 "
The Supreme Court also issued various directions to the State and Central
Governments and some of the important directions concerning health are the
following:
1. The Central Government and the Government of Harayan will immediately
take steps for the purpose of ensuring that the stone crusher owners do not
continue to foul the air and they adopt either of two devices, namely, keeping
a drum of water above the stone crushing machine with arrangement for
continuous spraying of water upon it or installation of dust sucking machine
and a compliance report in regard to this direction shall be made to this court
on or before 28th February 1984.
2. The Central Government and the Government of Haryana will immediately
ensure that the mine lessees and stone crusher owner start supplying pure
drinking water to the workmen on a scale of at least two litres for every
workmen by keeping suitable vessels in a shaded place at conveniently
accessible points and such vessels shall be kept in clean and hygienic
condition and shall be emptied, cleaned and refilled every day and the
appropriate authorities of the Central Government and the Government of
Haryana will supervise strictly the enforcement of this direction and initiate
necessary action if there is any default.
3. The Central Government and the Government of Haryana will immediately
direct the mine lessees and the stone crusher owners to start obtaining drinking
water from any unpolluted source or sources of supply and to transport it by
tankers to the work site with sufficient frequency so as to be able to keep the
vessels filled up for supply of clean drinking water to the workmen and the
Chief Administrator, Faridabad Complex will set up the points from where the
mine lessees and the stone crusher owner can, if necessary, obtain supply of
potable water for being carried by tankers.
4. The Central Government and the State Government will ensure that
conservancy facilities in the form of latrines and urinals in accordance with the
6 People’s Union v. union of India (1982)2 SCC 235
7 p. 183 para 10
9
provisions contained in Section 20 of the Mines Act, 1950 and Rules 33 to 36
of the Mines Rules 1955 are provided.
5. The Central Government and the State Government will take steps to
immediately ensure that appropriate and adequate medical and first aid
facilities as required by Section 21 of the Mines Act, 1952 and Rules 40 to 45A of the Mines Rules 1955 are provided to the workmen.
6. The Central Government and the Government of Haryana will ensure that
every workman who is required to carry out blasting with explosives is not
only trained under the Mines Vocational Training Rules, 1966 but also holds
first aid qualification and carries a first aid outfit while on duty as required by
Rule 45 of the Mines Rules, 1955.
7. The Central Government and the State Government will immediately take
steps to ensure that proper and adequate medical treatment is provided by the
mine lessees and the owners of the stone crushers to the workmen employed
by them as also to the members of their families free of cost and such medical
assistance shall be made available to them without any cost of transportation
or otherwise and the doctor’s fees as also the cost of medicines prescribed by
the doctors including hospitalization charges, if any, shall also be reimbursed
to them.
8. The Central Government and the State Government will ensure that the
provisions of the Maternity Benefit Act, 1961, the Maternity Benefit (Mines &
Circus) Rules, 1963, and the Mines Creche Rules, 1966, where applicable in
any particular stone quarry or stone crusher are given effect to by the mine
lessees and stone crusher owners.
9. As soon as any workman employed in a stone quarry or stone crusher receives
injury or contracts disease in the course of his employment, the concerned
mine lessee or stone crusher shall immediately report this fact to the Chief
Inspector or Inspecting Officers of the Central Government and/or the State
Government and such Inspecting Officers shall immediately provide legal
assistance to the workman with a view to enabling him to file a claim for
compensation before the appropriate Court or authority and they shall also
ensure that such claim is pursued vigorously and the amount of compensation
awarded to the workman is secured to him.
10. The Inspecting Officers of the Central Government as also of the State
Government will visit each stone quarry or stone crusher at least once in a
fortnight and ascertain whether there is any workman who is injured or who is
suffering from any disease or illness, and if so, they will immediately take all
necessary steps for the purpose of providing medical and legal assistance.
11. If the Central Government and the Government of Harayana fail to ensure
performance of any of the obligations set out in clauses 11, 13, 14 & 15 by the
mine Jesses and stone crusher owners within the period specified in those
respective clauses, such obligation or obligations to the extent to which they
are not performed shall be carried out by the Central Government and the
Government of Harayana.
In the case of Mangesh Salodkar Vs. Monsanto Chemicals of India Ltd. (Writ Petition
No. 2820 of 2003 decided by the Bombay High Court on 13th July, 2006), the issue
concerned conditions of work at the plants run by Monsanto Ltd. The Company
manufactured pesticides and it was alleged that a particular worker suffered from
brain haemorrage because of the work environment. He survived but suffered major
1V
10
illnesses. He was paid Rs. 3 lakhs by the Company towards medical expenses but he
filed a Petition in the High Court. The Court initially appointed a Commission headed
by a retired judge of the High Court. The Commission in turn summoned documents
from Factory Inspectorate and asked certain experts to go into the conditions of work
of the Factory. Medical examination was also undertaken of some of the workers.
During the pendency of the matter, the dispute between workers and employer was
resolved as the employer agreed to pay additional Rs. 17. 80 lakhs to the concerned
employee and Rs. 7.40 lakhs to some of the other employees who were affected. The
Commission accordingly filed a report before the High Court. Since the dispute
between employer and employees was resolved the Court was not called upon to
determine that aspect. However, the Court did go into some other aspects concerning
rights of employees to a safe work place, etc.
To begin with, the Court held that the workers had a fundamental right to health at
their work place. In addition it observed:
“As this case demonstrates, the absence of updated medical records results in a
virtual denial of access to justice. In the absence of information, factory workers and
all those who espouse the cause of workers cannot realistically attempt to redress the
systemic failure on the part of the regulated industry to maintain regulator/
standards.”
The Court issued various directions including the following:
“(iv).'The medical examination of workers which is to be conducted under
Section 41E of the Factories Act, 1948 should be such as would enable an
identification of diseases and illnesses which are a likely outcome of the
process and material used in the factory;
(v). Copies of medical records of workmen must be handed over to them as
and when medical examinations are conducted and the appropriate
government will consider the issuance of suitable directions mandating the
permanent preservation of medical records in the electronic form by factories
engaged in hazardous processes;
(vi). In respect of factories involved in hazardous processes, safety and
occupational health surveys as required by Section 91A should invariably be
carried out at the time of renewal of licenses, apart from other times.”
C. CONCLUSION
Right to safe working environment has been recognized since nearly 80 years. Over
the years it has expanded to include newer areas. To begin with it was only a
recognition in principle. This was followed by a recognition that if an injury was
suffered at the workplace the employer was liable to pay compensation. Subsequently
this was expanded to even occupational diseases. Over the years the modalities and
procedures which are required to fulfill this right have been recognized. This includes
regular medical examination, handing over medical reports to the workers, frequent
inspection of the work premises. Apart from health, certain health care aspects of the
workers have also been recognized. These include the provisions under the ESI Act
11
for giving free medical treatment to registered employees and under the Factories Act
for providing regular check up, first aid kits and in certain circumstances also
ambulance rooms and vans.
On paper these laws appear very effective. Even otherwise, to a limited extent for the
organized work force they do provide certain amount of succour. Even the
Government employees have a number of schemes and provisions concerning medical
benefits and care. But by and large they have been ineffective in dealing with the
unorganized sector. To begin with, these laws do not apply to small scale industries.
Also, implementation of these laws in many of the establishments to which they apply
is also difficult. For instance, if the employer has not deducted or deposited the ESI
contribution, the employee becomes disentitled to avail of the benefit. Similarly,
many ocuupational diseases are not covered by the Act and at times it has become
difficult to prove in courts that a disease occurred because of employment at a
particular place. Courts role has also not been laudatory especially in recent times. For
instance, in 2006, the Supreme Court held that a casual workman is not entitled to
benefit of Workmen’s Compensation Act.
xj MEDICAL NEGLIGENCE
A. INTRODUCTION
Negligence has since centuries been recognized as a tort i.e. a civil wrong for which
the remedy is compensation in monetary terms. This is true of any negligence, not just
medical negligence. Medical negligence is a sub species of this tort which falls within
the larger species of professional negligence. Medical negligence, like other forms of
negligence, is under our law, as under many other legal systems also a criminal
offence for which a doctor can even be imprisoned. This chapter briefly looks at all
aspects of medical negligence under the Indian law.
Before we go into what constitutes medical negligence it is necessary to look at the
various remedies available under the Indian law in case of medical negligence.
Broadly, there are three remedies available:
Filing a civil suit for damages or a complaint before the consumer court for
compensation. This is essentially a civil remedy where the relief sought is
compensation for injuries suffered. The law followed is what is known as the
“common law” concerning negligence which is not based on any statute or legislation
but is the judge made law over centuries both in England and in India. Civil suits are
difficult to pursue for two reasons: first, the expenses including the court fees are very
high and two, the delay can be very long. Before the Consumer Protection Act, 1985
was enacted one saw very little medical negligence litigation due to these reasons. But
since the enactment of the Consumer Protection Act the cases against doctors have
gone up dramatically partly because it is a much cheaper remedy and partly because
relatively it is a quicker remedy.
Filing a case before the Medical Council. A case against a doctor can be filed
before the Medical Council of the concerned system of medicine. The Medical
Councils do not have the power either to award compensation or to imprison the
doctor. Its powers are confined to warning a doctor, suspending or revoking his
license. Besides, by and large the perception has been that the medical councils tend
to protect their members.
Filing a criminal case of negligence. The main section under which a criminal
case is filed against doctors is Section 304B of the Indian Penal Code which deals
with causing death due to rash and negligent act. The punishment is two years
imprisonment or fine or both. Similarly, S.336 of the Penal Code provides that it is an
offence to endanger the human life or personal safety of others through a rash or
negligent act. The punishment is three months imprisonment or fine of Rs. 250 or
both. S. 337 and 338 of the Indian Penal Code make it an offence to cause simple hurt
or grievous hurt through rash or negligent act. The punishment can be upto six months
of imprisonment or fine upto Rs. 500 or both for simple hurt and punishment upto 2
years or fine upto Rs. 1000 or both for causing grievous hurt.
All the three remedies can be resorted to simultaneously.
But what will amount to medical negligence? And is there any difference between
how the civil law defines negligence and how the criminal law defines negligence.
Till
— 2004
— . it.v was generally believed that though the civil law and criminal law provide
5/ A
for different remedies what constitutes negligence under both these laws is the same.
However recent decisions of the Supreme Court have taken a different view.
Following are the three essential components of negligence:
The existence of a duty to take care, which is owed by the defendant to the
complainant;
The failure to attain that standard of care, prescribed by the law, thereby
committing the breach of such duty;
Damage, which is both causally connected with such breach and recognized
by the law, has been suffered by the complainant.
This is the ordinary legal meaning of negligence. But for professionals such as
medical practitioners an additional perspective is added through a test known as the
Bolam test which is the accepted test in India. In the case of Bolam 7s. Friern
Hospital Management Committee' the Queens Bench Division of the British Court
held:
“(W)here you get a situation which involves the use of some special skill or
competence, then the test whether there has been negligence or not is not the
test of the man on the top of a Clapham Omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest expert
skill ...It is well established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art.”
As set out in the judgment of the Supreme Court in the case of Jacob Mathew Vs.
State of Punjab2
“Two things are pertinent to be noted. Firstly, the standard of care, when
assessing the practice as adopted is judged in the light of the knowledge
available at the time (of the incident), and not at the date of trial. Secondly,
when the charge of negligence arises out of failure to use some particular
equipment, the charge would fail if the equipment was not generally available
at that point of time on which it is suggested as should have been used.
A mere deviation from normal professional practice is not necessarily
evidence of negligence. Let it also be noted that a mere accident is not
evidence of negligence. So also an error of judgment on the part of the
professional is not negligence per se.”
In this decision the Supreme Court also observed that for inferring negligence on part
of a professional including a doctor additional considerations apply. “A simple lack of
care, an error of judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available or simply because a more
skilled doctor would not have chosen to follow or resort to that practice or procedure
which the accused followed.”
Finally, while dealing with negligence the Supreme Court made the following
observations:
1 1957 2 ALL ER 118
2 2005 6 SCC 1
“A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be applied forjudging
whether the person charged has been negligent or not would be that of an
ordinary competent person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level of expertise or
skills in that branch which he practices.”
B. CRIMINAL NEGLIGENCE
As regards criminal liability of medical practitioners, Supreme Court in a recent
judgment3 curtailed criminal proceedings against medical negligence to incidents of
gross negligence. It held that a medical practitioner canno^bejield punishable for
^^very'mishap or death during medical treatment. ‘No'crimM~liability should be
attached where a patient's death results from error ofjudgment or an accident. Mere
inadvertence or some degree of want of adequate care and caution might create civil
liability but would not suffice to hold him criminally liable. A The degree of medical
negligence must be such that it shows complete apathy for the life and safety of his
patient as to amount to a crime against the state. The issue has been more elaborately
dealt with in the case of Jacob Mathew discussed above.
In Suresh Gupta s case, the patient died while he was being operated for nasal
deformity, a minor operation without much complexity. The medical experts of the
prosecution testified that the cause of death was due to the failure of the Appellant in
introducing a cuffed endotracheal tube of proper size to prevent aspiration of blood
from the wound in the respiratory passage. SC held that even if is assumed that the
Appellant was negligent, he’ll not be criminally liable as the alleged act was not
grossly negligent. At the most he was liable in tort for damages but not for
imprisonment under the criminal law.
The court expressed concern that if the liability of doctors is unreasonably extended to
criminal liability thereby exposing them to the risk of landing themselves in prison for
alleged criminal negligence then the repercussion would be that the doctors would be
worried about their own safety rather than administering treatment to the best of their
ability. The Court felt that this would adversely affect the society at large and shake
the mutual confidence between the doctor and the patient.
Even where gross negligence is alleged, a prima facie case must be established before
a Magistrate at the first instance as was pointed out in Dr. Anand R. Nerkar v. Sint
Rahimbi Shaikh Madar5
... it is necessary to observe that in cases where a professional is involved
and incases where a complainant comes forward before a Criminal Court and
levels accusations, the consequences of which are disastrous to the career and
reputation of adverse party such as a doctor, the court should be slow in
entertaining the complaint in the absence of the complete and adequate
material before it. It is always open to the learned magistrate to direct an
Dr. Suresh Gupta v. Govet. Of NCT of Delhi (2004) 6 SCC 422
4 p. 429, para 21
5 1991(1) Bom. C. R. p. 629
5m
enquiry through the police so that all relevant aspects of the case are looked
into before process is issued.... the duly cast on the trial Magistrate under
Section 202 of the Criminal procedure Code is not to be understood as being
confined to ascertain as to whether the complainant and the witnesses have
mechanically averred that the accused has committed an offence, but I
presupposes that judicial mind will apply itself to the case made out as a
whole and conclude as to whether there 1 sufficient justification to hold that an
offence has been committed. The establishment of a prima facie case,
therefore, indicates that on the face of the record all ingredients that would
constitute the commission of an offence are before the court. Where there exist
serious lacunae in the case made out and where the possibilities and
probabilities of an adverse conclusion are remote, it would not be justified in
holding that a prima facie case has been made out. ’
So far so good. But what the Supreme Court did in Jacob Mathew’s case was to hold
that ingredients of criminal negligence were more rigorous than those of civil
negligence. In addition to the ingredients of civil negligence for establishing criminal
negligence “z7 shall have to be found that the rashness was of such a degree as to
amount to taking a hazard knowing that the hazard was of such a degree that injury
was most likely imminent... Where negligence is an essential ingredient of the offence
the negligence to be established by the prosecution must be culpable or gross and not
the negligence merely based upon an error of judgment... .criminal negligence is the
gross and culpable neglect or failure to exercise that reasonable and proper care and
precaution to guard against injury.. ”
The Supreme Court also gave guidelines for prosecuting doctors:
A private criminal complaint should not be entertained unless the complainant
has produced prima facie evidence in the court in the form of a credible opinion given
by another competent doctor to support the charge of rashness or negligence.
The investigating officer, before proceeding against a doctor, should obtain an
independent medical opinion preferably from a doctor in government service qualified
in that branch of medical practice.
The accused doctor should not be arrested in a routine manner unless his arrest
is necessary for furthering investigation or for collecting evidence or unless the
investigating officer feels satisfied that the doctor will abscond.
This judgment in fact amounts to a stretched interpretation of the words of the
legislation and placing doctors on a higher pedestal when the law itself does not make
any such distinction.
C. JURISDICTION OF CONSUMER COURTS:
Medical negligence gives rise to civil and criminal liability. We have already
mentioned that as regards civil wrongs, aggrieved person can claim compensation
either through a civil suit or a complaint lodged with consumer forum. Since the
enactment of Consumer Protection Act, 1985 there has been a significant rise in
medical negligence cases being filed. In one sense, the passing of this law has given a
boost to consumers for approaching courts in respect of negligence. Before we go into
substantial aspects of medical negligence it is important to see how the Courts have
interpreted the Consumer Protection Act and its jurisdiction. Doctors have raised a
number of concerns regarding the applicability of Consumer Protection Act. Wide
ranging issues from applicability of the Act to medical practitioners, the nature of
medical services which would be covered by the Act, the nature of consumers (i.e.
patients) who would be covered by the Act have been litigated.
Indian Medical Association v. V.P. Shantha6 finally settled the issue as to whether
Consumer Protection Act applied to medical practitioners, hospitals and nursing
homes. The Court held that proceedings under Consumer Protection Act are summary
proceedings for speedy redressal and the remedies are in addition to private law
remedy. The issue was whether patients are consumers under the Consumer
Protection Act and could they claim damages for injury caused by negligence of the
doctor, hospital or nursing home?
Apart from submitting that patients could not be classified as consumers under the
Consumer Protection Act, the Medical Association argued the following points which
are important to briefly reproduce:
Deficiency in service, as defined under the Act, means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance
which is required to be maintained under any law or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in respect to any
service. Thus, deficiency is ascertained on the basis of certain norms relating to
quality, nature and manner of performance, and since medical services cannot be
judged on the basis of any fixed norms, therefore, practitioners are not covered
under the definition of ‘services’.
Only such person can fairly and justly decide on medical malpractice cases who
are themselves qualified in medical field as they will be able to appreciate the
complex issues involved in such cases. The District Forum comprises of President
who is or was a District Judge and the other two members shall be persons having
adequate knowledge or experience of, or having shown capacity in dealing with,
problems relating to economics, law, commerce, accountancy, industry, public
affairs or administration. Similarly State Commission and National Commission
comprise of two members who are concerned with economics, law, commerce,
accountancy, industry, public affairs or administration, while the President shall
be a person who is or was a judge of a High Court and Supreme Court,
respectively. It was submitted that as the members of the Forum are not qualified
to deal with medical malpractice claims hence medical practitioners should be
exempted from the ambit of the Act.
Medical malpractice claims involve complex issues that will require detailed
examination of evidence, deposition of experts and witnesses. This is contrary to
the purpose of summary proceedings involving trial by affidavits, which is to
provide speedy results. Hence Consumer Forum should not adjudicate medical
malpractice cases.
If the medical practitioners are brought within the purview of the Act, the
consequences would be a huge increase in medical expenditure on account of
insurance charges as well as tremendous increase in defensive medicine, that
medical practitioners may refuse to attend to medical emergencies and their will
6 (1995) 6 SCC 651
7 Section 2( 1 )(g)
/2
be no safeguards against frivolous and vexatious complaints and consequent
blackmail.
The Supreme Court, however, rejected all these arguments and held The Act defines ‘consumer’ as any person who hires or avails of any services for
a consideration which has been paid or promised or partly paid and partly
promised under any system of deferred payment and includes any beneficiary of
such services other than the person who hires or avails of the services for the
consideration paid or promised, or partly paid and partly promised, or under any
system of deferred payment, when such services are availed of with the approval
of the first mentioned person.8
‘Service’ means service of any description which is made available to potential
users and includes the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or other energy,
boarding or lodging or both, housing construction, entertainment, amusement or
the purveying of news or other information, but does not include rendering of any
service free of charge or under a contract ofpersonal service.
Supreme Court observed that all services are included other than those that are
provided for free or under a contract of service.
The next question was as to by what parameters deficiency in services of medical
practitioners, hospitals or nursing homes should be ascertained. Section 14
enumerates the relief that can be granted for deficiency in service. Sub-section 1(d)
provides compensation for any loss or injury suffered by a consumer due to
negligence of the opposite party. A determination of deficiency in services has,
therefore, to be made by applying the same test as is applied in an action for
damages for negligence. The test is the standard of medical care a reasonable man
possessing same skills and expertise would employ under same circumstances. A
medical practitioner need not exhibit extraordinary skills.
As regards the expertise of the member of the consumer forum to adjudicate on
medical malpractice cases the Supreme Court observed that the object of the Act
is to have members who have required knowledge and experience in dealing with
problems relating to various fields connected with the object and purpose of the
Act, which is to protect the interest of the consumers. Also as person who is well
versed in law and has considerable judicial or legal experience heads all the forum,
it will ensure that the deliberation on cases will be guided by legal principles. To
say that the members must have adequate knowledge or experience in the field to
which the complaints are related would lead to impossible situation. If the
jurisdiction is limited to the area of expertise of its members then complaints
relating to large number of areas will be outside the scope of the Act as the two
members in the District Forum have experience in two fields. The problem will
arise vertically as at particular times in State Commission there may be members
having experience in fields other than that of members of District Forum, would
this imply that the State Commission will be ousted of its Appellate jurisdiction in
such complaints. The intention of the legislature is to ensure that the members
have the aptitude to deal with consumer problem. It is for the parties to place the
necessary material before the forum to deliberate upon. It cannot therefore, be said
that since the members of the Consumer Dispute Redressal Agencies don’t posses
knowledge and experience in medicine, they are incapable of dealing with medical
malpractice cases.
8 Section 2(l)(d)(ii)
Appellant had contended that medical malpractice cases involved complicated
question of facts that are not fit for summary trials, hence such cases should be
kept outside the purview of the Act. Supreme Court observed that in some cases
complicated questions requiring recording of evidence of experts may arise but it
is not so in all cases. There are many cases where deficiency of services is due to
obvious faults for instance, removal of wrong limb or performance of an operation
on the wrong patient or without looking into the out-patient card injecting drug to
which the patient is allergic or use of wrong gas during of an anesthetic or during
surgery leaving inside the patient swabs or other foreign object during surgery.
Such issues arising in complaint can be easily established and speedily disposed
off by the consumer courts. In complaints involving complicated question of facts
that require recording of evidence of experts, the consumer forum can ask the
complainant to approach civil court for appropriate relief. The Act clearly states
that its provision is in addition to and not in derogation of he provisions of any
law for the time being in force.
The Supreme Court drew the following conclusions:
Services rendered to patient by medical practitioner (except where the doctor
renders service free of charge to every patient or under a contract of personal
service), by way of consultation, diagnosis and treatment, both medical and
surgical, would fall within the ambit of services as defined in Section 2(l)(o)
of the Act
The fact that medical practitioners belong to the medical profession and are
subject to the disciplinary control of the Medical Council of India and /or State
medical Councils would not exclude the services rendered by them from the
ambit of the Act.
Services rendered by a medical officer to his employer under the contract of
employment is not ‘service’ under S. 2(1 )(o) for purposes of the Act
Services rendered at private or Government hospital, nursing home, health
centres and dispensaries for a fee are ‘services’ under the Act while services
rendered free of charge are exempted. Payment of a token amount for
purposes of registration will not alter the nature of services provided for free.
Services rendered at a Government or a private hospital, nursing home, health
centres and dispensaries where services are rendered on payment of charges to
those who can afford and free to those'who cannot is also ‘service’ for the
purposes of the Act. Hence in such cases the persorTTvho' are: rendefed free
services are ‘beneficiaries’ under S. 2(1 )(d) thereby ‘consumer’ under the Act.
Services rendered free of charge by~TThFdical practitioner attached to a
hospital/ nursing home or where he is employed in a hospital/nursing home
that provides free medical facilities, is not ‘services’ under the Act.
Where an insurance company pays, under the insurance policy, for
consultation, diagnosis and medical treatment of the insurer then such insurer
is a consumer under S. 291 )(d) and services rendered either by the hospital or
the medical practitioner is ‘service’ under S. 2(1 )(o). Similarly where an
employer bears the expenses of medical treatment of its employee, the
employee is consumer under the Act.
The remedy under Consumer Protection Act is in addition to civil remedy and it
cannot be denied to a consumer merely on the ground that either the facts are too
complicated or the complainant’s claim is unreasonable.
In Charan Singh v. Healing Touch Hospital,9 Appellant had brought a claim of Rs.
34 lacs for removal of his one kidney without his consent during the course of the
operation, which resulted in loss of job and huge expenses for his treatment and
upkeep. National Commission dismissed his complaint on the reasoning that his claim
was excessive, exaggerated and unrealistic. This was because a consumer is required
to approach the District, State or National Commission directly depending on the
compensation claimed.
‘..the complainant was drawing a salary of Rs. 3000 plus allowances... This is
his allegation, which is not admitted by the opposite party. Even if we accept
his contention is correct and even I we accept that as a result of wrong
treatment given in the Hospital he has suffered permanent disability, the claim
of Rs. 34 lacs made by the complainant is excessive. We are of the view that
this exaggerated claim has been made only for the purpose of invoking the
jurisdiction of this commission... ’
Supreme Court opined that the quantum of compensation is at the discretion of the
Forum irrespective of the claim. The legislative intent behind the Act is to provide
speedy summary trial and the Commission should have taken the complaint to its
logical conclusion by asking the parties to adduce evidence and rendered its findings
on merits. The Court further held,
While quantifying damages, Consumer Forums are required to make an
attempt to serve the ends of justice so that compensation is awarded, in an established
case, which not only serves the purpose of recompensing the individual, but which
also at the same time aims to bring about a qualitative change in the attitude of the
service provider.
It is not merely the alleged harm or mental pain, agony or physical discomfort,
loss of salary and emoluments etc. suffered by the Appellant which is in issue- it is
also the quality of conduct committed by the Respondents upon which attention is
required to be founded in a case of proven negligence, (para 13, p. 673)
In another case10 Supreme Court observed that in matters involving complicated
questions of fact that require recording of evidence, the consumer forum has the
discretionary power to direct the complainant to approach civil court for appropriate
reliefs. Nevertheless, the procedure provided in the Act is adequate vis-a-vis civil suit
to decide medical malpractice cases involving complicated questions of law and fact.
For instance affidavits of experts including doctors can be taken as evidence.
Thereafter, if cross-examination is sought for by the other side and the Commission
finds it proper, it can easily evolve a procedure permitting a party who intends to
cross-examination by putting certain questions in writing and those questions could
also be replied to by such experts including by doctors on affidavit. In case where
stakes are very high and still a party intends to cross-examine such doctors or experts,
there can be video conference or asking questions by arranging telephonic conference
and at the initial stage this cost should be borne by the person who claims such
videoconference. Further, the Commissioner appointed by it at the work place can
undertake cross-examination. For avoiding delay the District Forum or commissions
can evolve a procedure of levying heavy cost where a party seeks adjournment on one
or the other ground.
9 (2000) 7 SCC 668
10 Dr. JJ Merchant v. Shrinath Chaturvedi (2002) 6 SCC 635
D. CASE LAW ON CIVIL NEGLIGENCE
The substantial aspects of civil liability in negligence cases have by and large
remained the same over decades with a few additions. Indian civil law on negligence
essentially is the judge made common law followed in England since centuries. The
main principles have been as laid out in introduction to this chapter. This section
looks at the application of these principles in concrete situations.
In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole11 patient had died
due to shock when the Appellant attempted reduction of fracture without taking
elementary caution of giving anesthesia. In the light of the surrounding circumstances
it was held that the Appellant was negligent in applying too much of force in aligning
the bone. Supreme Court held that doctors have the discretion to choose the course of
treatment to be given and such discretion is relatively large in case of emergency.
Nevertheless, doctor owes his patients a duty of care in deciding whether to undertake
the case, the line of treatment to be adopted and a duty in administering that
treatment. When a doctor gives medical advice and treatment, he impliedly
undertakes that he is possessed of skill and knowledge for the purpose. And in
executing his duty he must employ reasonable degree of skill, knowledge and care.
The Supreme Court also cited with approval the observations in Halsbury Laws of
England in its Vol. 30 which states that whether or not he is a registered medical
practitioner, such a person who is consulted by a patient owes him certain duties,
namely
□duty of care in deciding whether to undertake the case;
□duty of care in deciding what treatment to give;
□duty of care in his administration of that treatment; and
□duty of care in answering a question put to him by a patient in circumstances in
which he knows that the patient intents to rely on his answer.
A breach of any of these duties will support an action for negligence by the patient.12
Bombay High Court held that in a claim against medical negligence it is not
sufficient to show that the patient suffered in some way but it has to be proven that the
suffering or death of the patient was the result of negligence on part of the doctor.
In Philips India Ltd. v. Kunju Punnu13 Bombay High Court held that in an action
for negligence against a doctor, the plaintiff has to prove:
that the defendant had a duty to take reasonable care towards the plaintiff to avoid
the damage complained of;
that there was a breach of duty on the part of the defendant; and
that the breach of duty was the real cause of the damage complained of and such
damage was reasonably foreseeable.
In the instant case the deceased was an employee of the Appellant. He approached the
resident doctor of the company complaining of digestive problem and was treated
accordingly. After a week he returned this time complaining of fever, cold and
headache. Within 4-5 days he was brought in with high fever and was kept in the
company’s dispensary for observation. In the evening when the doctor found red
11 AIR 1969 SC 128
12 Vol. 30 Fourth Edition, p.31 para 34
13 1975 M. L.J. 792
09842
£k
pigmentation his body he advised pathological test and was taken in a nursing home
of a specialist who treated him for bacteraemia. He approved of the treatment given
by doctor. Later it was discovered that the deceased was suffering from small pox that
had caused his death.
The issue before the court was whether the doctor was negligent as he failed to
diagnose small pox. Court held that a mistaken diagnosis is not necessarily negligent
diagnosis. A practitioner can be liable if his diagnosis is so palpably wrong as to
prove negligence, in other words, if his mistake is of such a nature as to imply an
absence of reasonable skill and care on his part regard being had to the ordinary levels
of skills in the profession. In the instant case there was no evidence to show that when
the patient was taken to the company doctor any doctor of ordinary skill and
competence could have diagnosed the disease of the patient as small pox or treated
him for small pox. There was no epidemic of small pox at that time to induce the
defendant doctor from carrying on test for the same. On the other hand, expert
evidence showed that fulminating small pox could have occurred within 24 or 36
hours with no outward manifestations at all and that appearances were very indefinite
with no findings on which to base a certain diagnosis. Thus, the defendant doctor was
held to be not negligent.
In some circumstances, however, negligence may be attributed to a medical
practitioner without proof of direct nexus between injury and conduct of the
practitioner. In Poonam Verma v. Ashwin Patel14 Respondent No. 1 was a registered
Homeopathy Doctor who prescribed allopathic medicine for viral fever which as then
prevalent in Appellant’s locality. The condition of Appellant’s husband deteriorated
and he was admitted in Respondent No.2, a nursing home, for pathological tests and
diagnosis. The deceased was treated for two days and as his condition did not improve
he was shifted to another hospital where he died within hours of admission. In appeal
the Supreme Court set up an ad hoc medical board to determine the cause of death.
Board concluded that it was impossible to determine the true cause of the death.
Therefore, claims against Respondent No.2 hospital were set aside but Respondent
No.l was held negligent on the ground that he was a homeopathic doctor and was not
qualified to administer any other system of medicine. Respondent No.l was held to be
negligent per se.
Black s Law Dictionary defines ‘negligence per se’ asConduct, whether of action or omission, which may be declared and treated
as negligence without any argument or proof as to the particular surrounding
circumstances, either because it is in violation of a statute or valid municipal
ordinance, or because it is so palpably opposed to the dictates of common
prudence that it can be said without hesitation or doubt that no careful person
would have been guilty of it. As a general rule, the violation of a public duty,
enjoined by law for the protection ofperson or property, so constituted. ’
Also known as the Doctrine of Res ipsa Loquitur (things speaks for itself). The
doctrine is attracted ‘...when an unexplained accident occurs from a thing under the
control of the defendant, and medical1 or other expert evidence shows that such
accidents would not happen if proper care were used, there is at least evidence of
negligence for a jury’.
14 (1996) 4 SCC 332
15 Street on Torts (1983) 7th Ed.
It may be mentioned that now under the Judgment in Jacob Mathew’s case (ibid)
Supreme Court has held that the doctrine of Res Ipsa Loquitor is not applicable in
criminal cases. Of course it continues to be applicable in civil cases.
Even so, the present judgment seems to be incorrect, in the context of the long line of
precedents on negligence. In this case, the cause of death was not attributed to the
treatment. Thus there was no causal link established between the treatment and the
death. In absence of this, punishing a doctor for negligence does not fit within the law.
The Court could have of course directed the homeopathy doctor to be prosecuted and
his registration to be cancelled for practicing allopathic medicine. The Court have also
directed the doctor to pay a fine which could then have been ordered to have been
paid to the heirs of the deceased. But having come to the conclusion that there was no
causal link between treatment and injury (in this case death) the doctor could not have
been punished for negligence.
In Shyam Sunder Vs. State Of Rajasthan,16 the doctrine of res ipsa loquitur was
again discussed. The normal rule is, that it is for the plaintiff to prove negligence, but,
in some cases, considerable hardship is caused to the plaintiff, as the true cause of the
accident is not known to him, but is solely within the knowledge of the defendant who
caused it. The plaintiff can prove the accident but cannot prove how it happened (so
as) to establish negligence on the part of the defendant. This hardship is sought to be
avoided, in certain cases, by invoking the principle of res ipsa loquitur, where the
thing is shown to be under the management of the defendant or his servants, and the
accident is such, as, in the ordinary course of things, does not happen if those who
have the management use proper care, then it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want of
care.
[Scott Vs. London & Catherine Docks, (1965) 3 H&C 596 quoted in ’Shyam Sunder
Vs. State of Rajasthan', AIR 1974 SC 896]
In Jasbir Kaur v. State of Punjab17 Petitioner’s newborn child’s eye was gauged out
by a cat that crept into the ward where he was kept. The infant was kept in a separate
room under the charge of Petitioner’s relatives, as there was a shortage of cots. It was
urged by the Respondent Government hospital that the incident took place because of
Petitioner’s relatives, negligence in leaving the child alone. The Court applied the
doctrine of res ipsa loquitur and held the hospital and State negligent. The safety and
protection was under the control of the Hospital and such an incident would have not
in the ordinary course of things but because of the negligence of the Hospital.
Another landmark judgment wherein liability was established on the basis of doctrine
of res ipsa loquitur is Achutrao Haribhau v. State of Maharashtra18. In this case
Respondent doctors left a mop inside the abdomen of the deceased during the
sterilization operation that caused pus formation and peritonitis. Though the mop was
removed but expired soon after the second operation. However, Appellant failed to
prove that negligence of respondent Doctor in leaving the mop inside her abdomen
had caused the death of the deceased. Supreme Court held that ‘without doubt
formation of pus was due to the mop left in the abdomen, and it was the pus formation
that caused all the subsequent difficulties. The negligence in leaving the mop in the
deceased’s abdomen during the first operation led, ultimately, to her death.
16 AIR 74 SC 876
17 AIR 1995 P&H 278
18 (1996) 2 SCC 634
£/(>
Negligence is thus writ large in this case. In a case like this the doctrine of res ipsa
loquitur clearly applies. Under these circumstances, and in the absence of any valid
explanation by the Respondent which would satisfy the Court that there was no
negligence on their part, it must be held that the deceased died due to negligence of
respondent no.2 & 3. The Supreme Court observed:
“The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care ad competence, judged in the light of the
particular circumstances of each case, is what law requires. A person is not
liable in negligence because someone else of greater skill and knowledge
would have prescribed different treatment or operated in a different way. He
is also not guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that
particular art, even though a body of adverse opinion also existed among the
medical men.
“An error of judgment may not necessarily amount to negligence. It will
depend on the nature of the error. If such an error ofjudgment would not have
been made by a reasonably competent professional man professing to have the
standard and type of skill that the defendant held himself out as having, and
acting with ordinary care, then it is negligent. If, on the other hand, it is an
error that (such) a man, acting with ordinary care, might have made, then it is
not negligence. ”
In Vinitha Ashok v. Lakshmi Hospital19 Appellant’s uterus was removed because of
excessive bleeding during a surgery for termination of pregnancy that was discovered
to be cervical pregnancy. Appellant alleged that had a sonography been performed the
nature of pregnancy would have been determined and she would not have had her
uterus removed. Supreme Court observed that there was difference of opinion among
medical experts on whether ultra sonography could determine cervical pregnancy.
The Appellant showed no symptoms of cervical pregnancy and there was no reason
for the Respondent doctor to suspect that and resort to a different course of treatment.
In Kerela removal of uterus was recommended for tackling excessive bleeding in case
of cervical pregnancy, and in the instant case Respondent had to resort to it save
Appellant’s life. Supreme Court, thus, held that the course adopted by Respondent
doctor was reasonable and although the risk involved might have called for further
investigation, Respondent doctor’s view cannot be dismissed as being illogical.
Difference of opinion amongst experts on procedure adopted by a doctor cannot be
called negligence if the procedure adopted is commonly in practice in an area.
In State of Tripura Vs. Amrita Bala Sen20 the Division Bench of Gauhati High
Court was concerned with a case where 2 persons who were admitted to a
Government hospital for cataract operation lost one eye each due to the operation. A
Writ Petition was filed directly in the High Court by these two persons claiming
compensation from the State. The Division Bench found that the facts were quite clear
and negligence of the doctors was apparent on the face of the record. The Court
therefore directed the State to pay to each of these persons compensation of Rs.
60,000/- with interest. The State argued that the concerned individuals should be
asked to file a civil suit in local courts (which would have been time consuming and
19 (2001) 8 SCC 731
20 2005 1 GLR 7
also expensive) rather than approaching the High Court directly. But the Court
negatived this contention and held that when the facts were clear, there was no need
for the High Court in cases of state negligence to ask the complainants to go through
long winded legal proceedings and the High Court itself could direct compensation.
In S. Mittal V/s State of U.P.21 the Court was concerned with negligence in eye
camps. An eye camp was organised for extending expert ophthalmic surgical
treatment to patients of a particular place in UP. The operated eyes of several patients
were, however, irreversibly damaged, owing to post-operative infection of the "intra
ocular cavities of the eyes", caused by normal saline used at the time of surgery. A
public interest litigation was filed, praying (apart from other reliefs) for compensation
to victims of the negligence in arranging the eye operations. The Supreme Court
directed the State Government to pay Rs. 12,500 compensation to each victim (in
addition to Rs.5,000 already paid). The Supreme Court, observed that
(a) It was no defence, that the treatment was gratuitous or free.
(b) State Government would be liable for negligence in such activities.
In the case of Achutrao Haribhau Khodwa Vs. State Of Maharashtra22, a patient
had undergone a sterilisation operation in a Government hospital. The patient
developed high fever and abnormal pain; and, though her condition deteriorated, no
step was taken to ascertain the cause of her ailment. When the patient's condition
became serious, the doctors re-opened the abdomen. A mop (towel), (left inside the
peritoneal cavity during the previous operation) was removed and the abdomen was
closed, after draining out the collected pus. The patient ultimately died. The Supreme
Court held that once death by negligence in a Government hospital is established, the
State is liable to pay compensation.
In Philips India Ltd. V/s Kanju Pannu23,
It was held by the Bombay High Court that the doctor was not negligent on the facts.
What was important was that the Court laid down that the duty cast on the company’s
doctor, in respect of the company's employee, is not higher or lower than the duty of
an average doctor towards hispatient.
In Spring Meadows Hospital Vs. Harjot Ahluwalia,24 a child patient was treated for
seven days in the Spring Meadows Hospital (Noida) for typhoid. The consultant
physician prescribed "Chioromphenical injunction", but the unqualified nurse misread
it as "chloroquine" and indented, for the purchase of injection, "Lariago" (i.e.
chloroquine). She injected chloroquine 5 mg IV, which was at least 3-1/2 times of the
normal paediatric dose. The patient suffered irreversible brain damage. Treatment for
21 days in AIIMS, New Delhi, did not help. The patient was compelled to live in a
vegetative state.
21 1989 3 SCC 223
22 1996 2 SCC 634
23 AIR 75 BOM 306
24 AIR 1998 SC 1801
The National Consumer Commission, whose judgment was confirmed by the
Supreme Court, came to the conclusion, that the attending doctor was negligent, as he
allowed an unqualified nurse to administer the injection, even though the consultant
doctor had advised administration by the attending doctor himself.
The hospital and the nurse were jointly and severally liable. The Court ordered the
following compensation in the case:
(a) Rs. 12.5 lakhs to the child (Rs. 10 lakhs compensation, plus Rs. 2.5 lakhs
forequipment).
(b) Rs. 5 lakhs to the parents, for mental agony.
The Supreme Court further held that when a young child is taken to a
hospital and treated by the hospital, then (a) the child's parents would come within the definition of "consumer" [section 2(1)
(d) (ii) ]; and
(b) the child also becomes a "consumer", being a beneficiary of such services.
[Even where the patient is a married daughter, the parents who are required "to spend
for her treatment, are also "consumers", Rajaram S.Parale Vs. Dr. Kalpana Desai25]
State Of Haryana VS. Santra26 relates to negligence in sterilization, resulting in the
birth of an unwanted child.
A mother of seven children underwent sterilization at a Government hospital under
the scheme launched by the State Government (Haryana). The hospital authority
issued a certificate that the operation was successful. However, after the operation,
she conceived and gave birth to a daughter. The evidence established that only her
right fallopian tube had been operated upon and the left fallopian tube had not been
touched.
It was held that the doctor who had performed the operation had acted in the most
negligent manner and, further, that the State was vicariously liable for the doctor's
negligence. The following points need to be noted concerning this judgment of the
Supreme Court:
(a) The claim in the above case arose, not from mere failed sterilization, but for
negligent failure of sterilization.
(b) The judgment also clarifies, that running a hospital for the treatment of the general
public is a welfare activity. It is not a "sovereign function", conferring immunity from
tort liability.
(c) However, it seems (from material not quoted in the judgement) that the operating
doctor had clearly stated that the left tube was inoperable. This seems to have escaped
the court's attention.
25 1998 3 CPR 398 (BOM)
26 2000 1 CPJ 53 (SC)
C. CONCLUSION
The cases of medical negligence are rising rapidly especially in the consumer courts.
However it has been observed that getting fellow doctors to testify even in cases
which are self evident is a very difficult task. With the recent decisions of the
Supreme Court in matters concerning criminal negligence, it is going to be more and
more difficult for doctors to be prosecuted under the criminal law.
Majority of the successful cases have been those where the Courts are not required to
go into complicated medical evidence. They have repeatedly held that a doctor is
liable only if the line of treatment prescribed by him was not a recognized method
altogether. A few cases concerning informed consent are now coming up before the
Courts but it is yet to be settled as to what constitutes ‘informed consent’.
'll
MEDICAL PRACTICE
A. INTRODUCTION
Not every person who has studied medicine has a right to practice medicine. Not
every degree or diploma qualifies a person to claim that he has studied medicine.
Medical profession is governed by various Central and State Acts that prescribe
standard of education and practice in the interest of public and to maintain high
standard of the profession. Thus, to be eligible to practice there must be absolute
adherence to the provisions of concerned Acts.
Since medical practice is part of the concurrent list of the Constitution, both Central
as well as State Governments can pass laws concerning medical practice. Ordinarily if
the State law conflicts with the Central law, the Central law will prevail. In respect of
all systems of medicine Central as well as State laws have been passed. The Medical
Council Act, 1956 regulates modern system of medicine; the Indian Medicine Central
Council Act, 1970 regulates Indian systems of medicine including Ayurveda, Sidha
and Unani systems of medicine and the Homoeopathic Central Council Act, 1973
regulates practice of homoeopathic medicine. In respect of each of these branches of
medicines most of the State Governments have also passed laws. All these laws have
schedules which list the qualifications and degrees and diplomas which would entitle
practitioners to practice a particular branch of medicine. Thus, Medical Council Act,
1956 gives a list of degrees and diplomas which are recognized for practicing
allopathic medicine. Similarly, say the Maharashtra Medical Practitioners Act
prescribes additional list of degrees and diploma which would are available in
Maharashtra and which would also entitle practitioners to practice allopathic
medicine. Medical Councils are set up at both Central and State levels, which apart
from other functions also sets the standards for medical ethics and parameters of
medical malpractice.
One of the major issues which the Courts have had to deal with is the one concerning
cross practice. Can an Ayurvedic practitioner give allopathic drugs and vice versa.
The common sense answer would be no. But a large part of the primary health care
sector is run by those practitioners who are registered under the Ayurvedic system but
have done what is known as integrated medicine i.e. they have studied some amount
of allopathic system. The other issue concerns practice of those system of medicines
which are not ordinarily recognized as the mainstream branches. These and similar
issues have been raised in the Supreme Court and the High Courts in the last few
years.
B. Case Law
In Poonam Verma v. Ashwin Patel i the Supreme Court made its famous
observation:
‘A person who does not have the knowledge of a particular system of medicine
but practices in that system is a quack and a mere pretender to medical
knowledge or skill, or to put it differently, a charlatan. '
‘(1996)4 SCC 332
11
The Court went onto observe that no person can practice a system of medicine unless
he is registered either under Indian Medical Register or State Register to practice that
system of medicine; and only such persons are eligible for registration who possess
the recognised degree as specified under the concerned Central and State Act. The
mere fact that during the course of study some aspects of other system of medicine
were studied does not qualify to practice those other systems.
In this case, Respondent was a registered homoeopathy doctor but he prescribed
allopathic medicines to Appellant’s husband. His defense was that he had received
instructions in modern system of medicine (allopathy), and after the completion of his
course, he had worked as Chief Medical Officer at a well-known Allopathic clinic.
Supreme Court observed that a registered homoeopathic practitioner could practice
homoeopathy only. Further the Court opined that ‘physiology and anatomy is
common in all systems of Medicines and the students belonging to different systems
may be taught physiology and anatomy together, but so far as the study of drugs is
concerned, the pharmacology of all systems is entirely different. Therefore, merely
because the anatomy and physiology are similar does not entitle a person who has
studied one system of medicine to treat patients under another system.’
Hence it was held that Respondent was registered to practice homoeopathy only. He
was under a statutory duty not to enter other systems of medicine. He trespassed into a
prohibited field and was liable to be prosecuted under Section 15(3) of the Indian
Medical Council Act, 1956. His conduct also amounted to an actionable negligence
for any injury caused to his patients in prescribing allopathic drugs.
U'f'
Mukhtiar Chand (Dr.) v. State of Punjab 2 the primary question before the
Supreme Court was as to ‘who can prescribe allopathic medicines?’ Drugs and
Cosmetics Act & Rules state that drugs can be sold or supplied by a pharmacist or
diuggist only on the prescription of a ‘registered medical practitioner’ who can also
store them for treatment of his patients. Rule 2(ee) defines ‘registered medical
practitioner’ as a person‘i) holding a qualification granted by an authority specified or notified under Section
3 of the Indian Medical Degrees Act, 1916, or specified in the Schedules to the
Medical Council Act, 1956; or
ii) registered or eligible for registration in a Medical Register of a State meant for the
registration of persons practicing the modern scientific system of medicine (excluding
the homoeopathic system of medicine); or
iii) registered in a Medical Register (other than a register for the registration of
homeopathic practitioner) of a State, who although not falling within sub-clause (i) or
sub-clause (ii) is declared by a general or special order made by the State Government
in this behalf as a person practicing the modern scientific system of medicine for the
purposes of the Act.’
In 1967 State Respondent issued a notification under Clause (iii) of Rule 2(ee)
whereby those vaids and hakims who had been registered under certain specified State
Acts, viz., East Punjab Ayurvedic and Unani Practitioners Act, 1949; PEPSU
Ayurvedic and Unani Practitioners Act; and Punjab Ayurvedic & Unani Practioners
Act, 1963, governing practice in Indian medicine were declared as ‘medical
2 (1998)7 SCC 579
practitioner’ for the purposes of Drugs and Cosmetics Act. Even though notification
allowed ayurvedic practitioners to prescribe allopathic medicines, yet State authorities
restrained them from doing do hence began the course of litigation. High Court held
the notification as ultra vires the provisions of Rule 2(ee)(iii) and also contrary to
Indian Medical Council Act, 1956 and accordingly dismissed the writ petition. Indian
Medical Council Act provides qualification and registration of medical practitioners
to practice allopathic medicine. Through this petition Appellants sought to reinforce
their right to prescribe allopathic medicine on the strength of the Notification and
restrain State authorities from interfering with such a right. Similar issues also arose
in various other High Courts and finally all the cases reached the Supreme Court.
Supreme Court observed on a plain reading of Rule 2(ee) that clause (i) & (ii) covered
medical practitioners registered to practice allopathic medicine, while clause (iii)
covered persons who are registered in a State Medical Register other than for
practicing modern system of medicine and homeopathy, and through a State
Government declaration held eligible to practice modern system of medicine for
purposes of the Drugs Act.
The Court further observed that Rule 2(ee) only defines the expression ‘registered
medical practitioners’ and does not provide as to who can be registered. Therefore,
the Court read the notification in consonance with laws regulating and permitting
medical practice.
As a rule medical practitioner can practice in that system of medicine for which he is
registered as a medical practitioner. Under the Indian Medical Council Act, 1956
there are two types of registration: under ‘State Medical Register’ and ‘Indian
Medical Register’. Section 15(2) states that only such persons can practice allopathic
medicine in State who are enrolled in any State Medical Register. Section 15(1)
provides that qualifications specified in the Schedules of the Act shall be sufficient for
enrollment in State Medical Register. However, such qualification is not a necessary
pre condition for registration. ‘State Medical Register’ is a contradistinction to ‘Indian
Medical Register and is maintained by the State Medical Council constituted under
any State law that regulates the registration of medical practitioners. It is thus possible
that in a State, the law governing registration may enable a person to be enrolled on
the basis of qualifications other than the ‘recognized medical qualification’. On the
other hand, ‘recognized medical qualification’ is a perquisite for enrollment in Indian
Medical Register. To summarise, persons holding ‘recognized medical qualification’
cannot be denied registration in any State Medical Register, but the same cannot be
insisted upon for registration in a State Medical Register. Further, a person registered
in a State Medical Register cannot be enrolled on the Indian Medical Register unless
he possesses ‘recognized medical qualification'.
The Indian Medicine Central Council Act, 1970 has made a similar distinction
between ‘State Register’ and ‘Central Register of Indian Medicine’. Section 17
provides the recognized medical qualification for enrollment in State Register, and
that no person other than those who are enrolled either on the State register or Central
Register of Indian Medicine can practice Indian medicine. Section 17(3) carves out
exception to the above stated prohibition and protects, inter alia***
Privileges including the right to practice any system of medicine which was
conferred by or under any State law relating to registration ofpractitioners of Indian
h
Medicine for the time being in force, on a practitioner of Indian Medicine who was
enrolled on a State register of Indian Medicine.
***
Thus, a harmonious reading of Section 15 of the 1956 Act and Section 17 of 1970 Act
leads to the conclusion that a medical practitioner of Indian Medicine who is enrolled
on the State Register of Indian Medicine or the Central Register of Indian Medicine
can practice modern scientific medicine only if he is also enrolled on a State Medical
Register within the meaning of Section 15(2) of the 1956 Act.
Supreme Court held that benefit of Rule 2(ee) and the notifications issued there under
would be available in those States where the privileges to practice any system of
medicine is conferred upon by the State law for the time in being in force, under
which medical practitioners of Indian Medicine are registered in the State.
Lastly, Appellants urged that integrated courses in ayurvedic medical education
includes to an extent the study of modern scientific system of medicine. The right to
practice a system of medicine is derived from the Act under which a medical
practitioner is registered; whereas the right which the holders of a degree in integrated
courses of Indian Medicine are claiming is to have their prescription of allopathic
medicine honoured by a pharmacist or a chemist under the Pharmacy Act and Drugs
Act. Supreme Court held that right to prescribe drugs is a concomitant of the right to
practice a system of medicine. Appellants cannot claim such a right when they do not
possess the requisite qualification for enrollment in the State Medical Register.3
Akhtar Hussain Delvi (Dr.) v. State of Karnataka 4 dealt with a situation quite
opposite to the earlier cases. Here, a registered allopathic medical practitioner sought
^pbMhe right to prescribe drugs and medicines of ayurvedic origin, which had been
accepted by professionals practicing allopathic medicine pursuant to clinical and other
tests. The High Court observed that under Indian Medicine Central Council Act, 1970
only such persons have right to practice Indian medicine who either possess medical
qualifications specified in Second, Third or Fourth Schedule of the Act or are enrolled
in the State Register of Indian medicine. The Petitioner neither had acquired such a
qualification nor passed qualifying examination under the concerned State Act,
therefore, was not entitled to prescribe ayurvedic medicine.
Standard of education
The Medical Councils constituted under different Central and State Acts are sole
statutory body under their respective Acts that regulate the course of admission,
standard of education and quality of practice. Provisions made by Medical Council in
exercise of such powers can neither be transgressed by any authority nor are subject to
judicial review unless the Act itself provides certain exceptions and confers or
delegates any power to any other authority.
Basavaraj M. v. Karnatak State Pharmacy Council 5
3 Even if a non-allopathic medical practitioner does not have the right to practice allopathic medicine,
he can prescribe allopathic medicine that are sold across the counter for common ailment, (p. 597 para
4 AIR 2003 Karnataka 388
5 AIR 2001 Karnataka 239
The Karnataka State Government conducted a job-oriented Diploma in Pharmacy
Vocational Courses from 1993 to 1995 under the Centrally Sponsored Scheme of
providing vocational courses at secondary education level. The course was not
recognized by Pharmacy Council of India, a statutory body constituted under
Pharmacy Act, 1948 to determine the course, to regulate admission, standard and
examination. Petitioners’ grievance was that they had been denied registration on the
basis of Diploma Certificate that was granted by the State Government. Under
Pharmacy Act, 1948 only such persons are eligible for registration who have passed
the approved examination or posses qualification that has been approved under
Section 14 or is registered as Pharmacist in another state. High Court held that since
Pharmacy Council of India was the sole authority governing the standard of education
and practice in pharmacy, State Government was not competent to run such a course
without proper and due approval from it. If a course is run without the requisite
approval of the statutory body then certificates or diplomas received are not valid and
will not entitle persons like the Petitioners to claim registration. It is of no
consequence whether State Government or any authority acting under it has granted
such diplomas.
Delhi Pradesh Registered Medical Practitioners v. Director of Health, Delhi
Admn. Services6 was a Petition filed against the decision of the Indian Medicine
Central Council constituted under the Indian Medical Central Council Act, 1970
denying recognition to the degree in Indian medicine awarded by Hindi Sahitya
Sammelan after 1967. Appellants’ case was that:
1. The Institution in question was very old and reputed, and on the basis of degrees
awarded by it large number of practitioners in the discipline of Ayurveda had been
registered in various States including Delhi and have been successfully practicing
in the discipline of Ayurveda.
2. In the absence of proper medical facilities available to a large number of poorer
sections of society, the ban on practitioners who were providing medical services
to the needy and poor people was wholly unjustified.
Supreme Court, however, refused to review the decision of the Indian Medical
Central Council merely on the basis of above submission as it fell within the realm of
policy decision of constitutional functionaries who had the requisite knowledge and
expertise to take such decisions. Thus, the Degrees were not recognized.
vdL "J
&
fl '
UNLICENSED PRACTITIONERS
In State of Tamil Nadu Vs. M.C. George7 decided by the Tamil Nadu High Court
the Petitioner was a hereditary practitioner of Siddha medicine. Since mid 1960s he
was practicing Siddha medicine after learning it from his father and was very popular
with his villagers. In 1981 the Tamil Nadu Government issued a Notification asking
people who were practicing Indian system of medicine to register themselves. The
6 (1997)11 SCC 687
7 W.A. No. 108 of 2005 and W.A.M.P. No. 153 of 2005
Decided On: 24.03.2005
/I A
Petitioner delayed the matter and was not granted registration. He challenged this in
the High Court. The Division Bench said that the Petitioner did not have any need to
register himself since under the Indian Medicine Central Council Act, if a person was
practicing Indian medicine at the commencement of the Act for a period of five years,
he had a right to continue practicing Indian medicine. As a result, the Court held that
the Petitioner could continue to practice Siddha medicine without registration. It
needs to be noted of course, that this right is only for those who were already
practicing Indian medicine for five years at the time of commencement of the law and
not the subsequent entrants.
The Court also observed:
“9. Before dealing with the facts of this case, it may be mentioned that
in our country, like in other countries, since ancient times medicine
has been practiced and a medical system has been evolved. We had
renowned medical practitioners like Sushrut and Charak who are
internationally known. In fact, no society can get along without
medical practitioners. In every society some people fall sick and get
diseases, thus requiring medical treatment. In our country, the Siddha,
Ayurveda and Unani systems were evolved, which were traditionally
indigenous systems of our country. Medical practitioners of these
systems would often pass all their medical knowledge to their children
or disciples and often this knowledge was kept secret from others.
Thus, this knowledge was passed on from generation to generation, but
it was only given to the children or the devoted disciples and kept
secret from others. Many of the treatments in our indigenous medical
systems are very effective and there is no reason why we should not
utilize the wisdom of our ancestors.
10. In our opinion, we should encourage indigenous systems of
medicines, though with scientific discrimination and after
experimentation. However, it is also important that quackery should be
suppressed, because it is also true that quackery is widely prevalent in
our country, as poor people often cannot afford the fees of qualified
doctors. Hence, a balance has to be maintained. ”
In Private Medical Practitioners Association of A.P. Vs. State of Andhra
Pradesh the State Government issued a notification prohibiting all unlicensed
practitioners from practicing medicine. This was challenged by the Association
representing the unlicensed practitioners in the High Court. The contention was that
they were mainly practicing in rural areas and were of great help to the poor villagers.
The High Court however dismissed their Petition holding that unless a person has the
qualifications prescribed under one of the medical laws he does not have the right to
practice medicine.
8 W.P. 15410 of 1995 decided by the AP High Court on 8.4.2002
In the case of Electropathy Medicos of India Vs. State of Maharashtra9 the
College was conducting a three year course in Electropathy which was a
branch of medicine contended to be different from Homeopathy, Ayurveda
and Allopathy. The State Government had issued a notification directing that
such a course is not recognized and no degrees or diplomas could be offered.
This was challenged. The Petitioners contended that Electropathy was
founded in the 19th Century in Italy and provided a sound system of medical
practice. The High Court however rejected this and ordered:
ili) The petitioner-society is directed to close down all courses in
electropathy/ electro-homoeopathy forthwith.
ii) The petitioner-society is directed not to grant affiliation and/or
recognition to any college or institution.
Hi) The petitioner-society is hereby directed to refund the fees received
from the students admitted by the petitioner-society for its 3 years
diploma courses as well as one year diploma course with interest at
the rate of 18% p.a. within 3 months.
iv) The State Government is directed to close down all institutions in
the State holding the course in electropathy or electro-homoeopathy
and to take action against the electropathy practitioners in accordance
with the provisions of the Maharashtra Medical Practitioners Act,
1961. u
A similar case concerning Electropaths and Electrohomeopaths happened in U.P. In
the case of Electro Homeopthic Practitioners Association of India10 a Division
Bench of Allahabad High Court was asked to permit Electrohomeopaths to continue
to carry on their profession. The Court rejected this contention and held that unless a
system of medicine was recognised by the Legislature it could not be allowed to
continue. Upon this, the Association claimed that its members were not practising
medicine. The Court, while rejecting this contention held:
“23. Shri U. K. Shandilya. learned sr. counsel for the appellants then
submitted that the members of the petitioner's Association are not practising
medicine, and hence they cannot be debarredfrom practice. We cannot agree.
Chambers English Dictionary defines medicine to mean "the art or science of
prevention and cure of disease." Thus, medicine is that knowledge which is
usedfor curing the aliment of the human body. Since the petitioners claim that
their activities are aimed at curing the ailment of the human body there can be
no doubt that they claim to be practising medicine. It is of course a different
9 decided by Bombay High Court on 13.8.2001
10 2004 4 A WC 3148
matter that their claim has not ibeen accepted by the expert committee
appointed by the Central Government. ”
The Court directed the State to restrain the practice or teaching of Electro
Homeopathy throughout the State.
In the case of D.K.Joshi Vs. State of U.P.11 a public interest litigation was filed
demanding that the State Government should take steps to stop unqualified
practitioners from practicing in Agra and surrounding areas. The Court felt that
adequate steps were not taken by the administration and issued directions in respect of
the entire state of U.P. as follows:
“6. The Secretary, Health and Family Welfare Department, State of U.P. shall
take such steps as may be necessary to stop carrying on medical profession in
the State of U.P. by persons who are unqualified unregistered and in addition
shall take followings steps:
(i) All District Magistrates and the Chief Medical Officers of the State
shall be directed to identify, within a time limit to be fixed by the
Secretary, all unqualified/unregistered medical practitioners and to
initiate legal actions against these persons immediately.
(ii) Direct all District Magistrates and the Chief Medical Officers to
monitor all legal proceedings initiated against such persons;
(iii)The Secretary, Health and Family Welfare Department shall give
due publicity of the names of such unqualified/unregistered medical
practitioners so that people do not approach such persons for medical
treatment.
(iv) The Secretary, Health and Family Welfare Department shall
monitor the actions taken by all District Magistrates and all Chief
Medical Officers of the State and issue necessary directions from time
to time to these officers so that such unauthorised persons cannot
pursue their medical profession in the State.”
In the case of Charan Singh Vs. State of U.P.12 the Allahabad High Court was
concerned with practitioners having degrees from unrecognized colleges. This arose
as a follow up of the D.K. Joshi case above cited. The Court came down heavily on
these practitioners and held that they had no right to practice. Similarly, it also
ordered the State Government to close down such institutions. Besides this, the Court
repeated the directions earlier issued by it meant for ensuring that only registered
medical practitioners practice in the State. Towards this the Court directed:
11 C.A. No. 2016 of 1996 decided by the Supreme Court on 25.4.2000
12 AIR 2004 ALL 373
(1) All the Hospitals, Nursing Homes, Maternity Homes, Medical Clinics,
Private Practitioners, practising medicine and offering medical and health
care services, Pathology Labs, Diagnostic Clinics; whether run privately or by
firms, Societies, Trusts, Private limited or Public limited companies, in the
State, shall register themselves with Chief Medical Officer of the District
where these establishments are situate, giving full details of the medical
facilities offered at these establishments, the names of the registered and
authorised medical personnel practising, employed or engaged by them, their
qualifications with proof of their registrations, the Para Medical staff
employed or engaged and their qualifications, on a form (for each category)
prescribed by the Principal Secretary, Medical Health and Family Welfare,
Government of U. P. The prescribed pro forma with true and accurate
information shall be submitted, supported by an affidavit of the person
providing such medical services of the person incharge of such establishment,
sworn before Notary Public. The required information shall be submitted for
registration, by al these persons, on or before 30-4-2004.
(2) The principal Secretary, Medical Health and Family Welfare, U. P. shall
publish the information requiring all the persons to obtain registrations, along
with the directions given in this order, and the prescribed pro forma, in all
leading newspapers of the State, at least three times, in the month ofFebruary,
2004.
(3) Any change or addition in the particulars submitted shall be notified within
thirty days and that the registrations shall be renewed every year before 30th
April of the year.
(4) On and from 1-5-2004, all those persons who have not furnished the
information and obtained registration with the Chief Medical Officers of the
District, shall be taken to be practising unauthorised and that the Chief
Medical Officers, shall scrutinize and forthwith report the matter to the
Superintendent/Senior Superintendent of Police of the District with
information to this Court, to conduct raids and to seal the unauthorised
premises/establishments. All the authorised persons/establishments, who fail
to obtain registration will have liberty to apply only to this Court to explain
the delay and to seek permission to continue with their medical
practice/profession.
(5) All those medical practitioners who desire to offer medical services in the
State, in future, shall be required to submit the details in the aforesaid pro
forma for registration as above with the Chief Medical Officer of the district
before they start medical practice.
(6) All the institutions/establishments/colleges awarding medical degree in
the State shall apply and get themselves with the Principal Secretary Medical
Health and Family Welfare, U. P. with full particulars of their authorization
to confer such degrees/certificates, on or before 30-4-2004.
(7) The news papers and magazines, published in Uttar Pradesh, are
restrained from publishing advertisements by and from unauthorised medical
\Z'
A
practitioners, publishing their claims of quick and magical remedies. They
shall require these persons to give proof of their qualifications and
registrations. The breach shall be taken to aid and obviate illegal activities
violative of Magic Remedies (Objectionable Advertisement) Act, 1954, and
other relevant legislation's.
(8) The Principal Secretary, Medical Health and Family Welfare, it is
directed, to ensure that no medical officer in the Government Service is posted
beyond three years in any District, and that all para medical staff serving in
the Primary Health Centre/Community Health Centre/District Hospitals and
other hospitals run by Government of UP. for more than five years shall be
transferred from that centre/hospital. Any doctor in employment of State
Government offering their services to the unauthorised medical practitioners
shall face immediate disciplinary action by the State Government, and shall be
prosecutedfor aiding and abetting such unauthorised practice.
In the case of Shri Sarjoo Prasad Vs. State of Bihar13 the Patna High Court was
concerned with the right of practice of Occupational Therapists/ Physiotherapists. To
begin with, after studying the literature in detail the Court held that Occupational/
physiotherapy is a recognized form of medical practice. However, the Court further
observed that unless the concerned qualification finds a place in the Schedule to the
Medical Council Acts and the holders of the qualifications are registered under that
Act, they have no right to practice modern scientific medicine or prescribe allopathic
drugs.
C. CONCLUSIONS
India is a place where various systems of medicine are practiced. The Legislature
however recognizes the 5 main systems, namely Allopathy, Ayurvedic, Unani, Siddha
and Homeopathy. In order to practice medicine, practitioner has to have a recognized
qualification from a recognized institute. In all other cases, practice of medicine is
prohibited.
The Courts have mainly been concerned with cross practice and practice of certain
non recognized systems of medicine. Cross practice has by and large not been allowed
though there are certain exceptions. Similarly, uniformly the Courts have uniformly
come down against unrecognized degrees or qualifications granted by unrecognized
institutions. The Courts have also refused to recognize other systems of medicine such
as electorpathy, etc.
One issue which has been constantly coming up especially in States like Maharashtra
concerns registered practitioners of other States. In states like Bihar, a certificate for
practicing medicine is permitted even without any formal qualifications if one is able
to satisfy certain basic criteria. A number of persons from Maharashtra, for instance,
go to Bihar and get these Certificates and start practicing medicine in Maharashtra’
Such practice has been challenged in Maharashtra and the cases are pending in Court.
But it is very likely that the Courts will frown upon such practice and will not allow
such medical practitioners.
13 2003 1 BLJR 686
V ImL
CHAPTER
EMERGENCY HEALTH CARE
A.
INTRODUCTION
Following questions repeatedly confront doctors, patients as well as activists.
• Are doctors and hospitals bound to attend to emergency patients?
• Is the obligation same for Government hospitals and private hospitals?
• What if the case is a police case? Should the police formalities be first
completed before attending to a patient?
• What if the patient or his relatives do not have money to bear expenses for the
treatment?
We read about and hear of many cases where emergency patients suffer as they are
sent from one hospital to another without being admitted. Many times private
hospitals refuse to admit medico legal emergency cases and ask them to approach
public hospitals.
In India, there is no law that deals specifically with duty to provide medical treatment
in emergency cases. Emergency health care like public health facilities falls in the
shadow of Article 21. In other words, where there is refusal to treat an emergency
case, petitioner can initiate legal proceedings for compensation for violation of his
right to life. Supreme Court has held that failure to provide timely medical care
amounts to violation of fundamental right to life.
In reference to emergency cases, Supreme Court is more definite on the nature and
extent of duty of State. State is under an absolute liability to provide medical facilities
in such circumstances, and financial inability or lack of infrastructure is no
justification to evade such liability. Whenever State fails to discharge its
constitutional obligation, aggrieved party may approach either Supreme Court or High
Court under Articles 32 or 226, respectively as a public law remedy. Court may also
be moved by a public-spirited person or organization as Supreme Court in number of
judgments has said that the traditional concept of‘locus standi’ does not strictly apply
to Public Interest Litigation.1 Supreme Court & High Courts also have the power to
convert a letter concerning any issue of public importance into a PIL suo moto (at its
own initiative).
So far as duty of private medical practitioners and private hospitals are concerned, in
the ordinary course of practice, they have a right to decide whether to undertake a
case or not.2 However, Supreme Court while deciding upon delay in treatment of
medico-legal cases by Government hospitals has said that even private hospitals
One of the basic principles of law is that only such a person can approach the court who is directly
affected by chain of events which gives rise to the legal proceedings. Thus, at the admission stage
aggrieved party must establish its ‘Locus standi’. If such a party fails then the matter is held not
maintainable, i.e., court has the jurisdiction to try the matter but will not because the party claiming
relief does not have right to claim such relief.
‘When a patient consults a doctor, the doctor owes him certain duty, viz., a duty of care in deciding
whether to undertake the case and a duty of care in deciding what treatment to give. A breach of any of
these duties gives a right of action for negligence to the patient.’ Dr. Laxman Balkrishna Joshi v Dr
Trimbak Bapu Godbole AIR 1969 SC 128
I
cannot refuse treatment in a medico-legal case. But the question is if a private hospital
refuses treatment then which forum is to be approached. Article 21 of the Constitution
dealing with right to life is normally not available against private parties. Consumer
courts and civil courts deal with tortuous liability of doctor or hospital, i.e.,
negligence in treatment. In emergency cases if the hospital refuses to treat a patient it
can definitely amount to negligence in performing duties and consumer court or civil
courts can be approached.
However, the under the Code of Medical Ethics drawn up by the Medical Council
with the approval of the Central Government, it has been said:
"10. Obligations to the sick:
Though a physician is not bound to treat each and every one asking his
services except in emergencies for the sake of humanity and the noble
traditions of the profession, he should not only be ever ready to
respond to the calls of the sick and the injured, but should be mindful
of the high character of his mission and the responsibility he incurs in
the discharge of his ministrations, he should never forget that the
health and the lives of those entrusted to his care depend on his skill
and attention. A physician should endeavour to add to the comfort of
the sick by making his visits at the hour indicated to the patients.
13. The patient must not be neglected:
A physician is fee to choose whom he will serve. He should, however,
respond to any request for his assistance in an emergency or whenever
temperate public opinion expects the service. Once having undertaken
a case, the physician should not neglect the patient, nor should he
withdraw from the case without giving notice to the patient, his
relatives or his responsible friends sufficiently long in advance of his
withdrawal to allow them to secure another medical attendant. No
provisionally or fully registered medical practitioner shall wilfully
commit an act of negligence that may deprive his patient or patients
from necessary medical care."
Of course, there will continue to be a number of gray areas. For instance, if a patient
suffers a heart attack in the clinic of a general practitioner to what extent is the general
practitioner liable to treat such a patient. It appears that in such a case the general
practitioner would be required to give ordinary care and treatment to a patient but will
not be expected to treat like a heart specialist. Or while traveling in an aircraft if a
passenger suffers a stroke, is a doctor co passenger obliged to treat him? These are
areas on which still there is no clarity. In the absence of a specific law, there is also
not likely to be clarity on every area since the law develops depending on the cases
which come up before the court and such development is very erratic and uneven.
B. IMPORTANT CASE LAW
I. OBLIGATION TO PROVIDE EMERGENCY HEALTH CARE
Paschim Banga Khet Mazdoor Samitv v. State of W.B.3
"Providing adequate medical facilities is an essential part of the obligation
undertaken by the State in a welfare state. The Government discharges this
obligation by running hospitals and health centres. Article 21 imposes an
obligation on the State to safeguard right to life of every person. Preservation
of human life is thus ofparamount importance. Government hospitals run by
the state and the medical officers employed therein are duty-bound to extend
medical assistance for preserving human life. Failure on the part of a
government hospital to provide timely medical treatment to a person in need
of such treatment results in violation of his right to life guaranteed under
Article 21' (para 9)
'tk
The issue before Supreme Court was the legal obligation of Government to provide
facilities in government hospitals for treatment of persons who had sustained serious
injuries and required immediate medical attention. In the instant petition, Petitioner
who had suffered brain hemorrhage in a fall from the train was denied treatment at
various Government hospitals because of non-availability of beds.
The Petitioner was given first aid in a Primary health centre and referred to a certain
specialized State hospital for better treatment. At the specialized hospital. Petitioner
was examined and X-rays of his skull were taken which showed his condition as
serious and immediate admission for further treatment was recommended. However,
he was not admitted as there were no vacant beds and was referred to another
specialized hospital. There also he was not admitted are there were no vacant beds.
After doing the rounds of three more State specialized hospitals, Petitioner was
admitted in a private hospital and incurred expenditure disproportionate to his means.
He had to spend Rs. 17,000 for his treatment.
Respondent Government justified its action on the ground that the petitioner could not
have been kept on floor of a hospital or trolley because such arrangement of treatment
was fraught with grave risks of cross-infection and lack of facility for proper post
operative care. The Respondent State further stated that State hospitals cater to the
need of poor and indigent patients as of the total number of beds maintained by the
state government all over the State, 90% are free beds for treatment of such patients.
During the pendency of the case, the State Government appointed an enquiry
committee to investigate the matter. It concluded, ‘Even in excess of the sanctioned beds some patients are kept on the trolley
beds in the morning and that even if it is dangerous to keep a patient with head
injuries on a trolley-bed he could very well be kept for the time being on the
floor and could be transferred to the cold ward, as the situation demanded,
temporarily. In the instant case, the Emergency Medical officer concerned
should have taken some measure to admit the petitioner and he is, therefore,
responsible for non-admission in the said hospital. In a situation of this kind’
the Superintendent of the hospital should take some measures to give
3 (1996)4 SCC 37
/I/
'■V
.?
guidelines to the respective medical officers so that a patient is not refused
admission when his condition is grave...
The Emergency Medical Officer should have contacted the superior authority
over the telephone if there was any stringency as to the beds available and
admit the patient in spite of the total sanctioned beds not having been available.
The Superintendent should have given guidelines to respective medical
Officers for admitting serious cases under any circumstances and thus in a way
the Superintendent was responsible for this general administration.’
Various recommendations made by the Enquiry Committee were adopted by the State
Government and following directions were issued by the West Bengal State
Government to health centres/OPD/Emergency Departments of hospitals in dealing
with patients:
1. Proper medical aid within the scope of the equipments and facilities
available at the Health Centres and hospitals should be provided to such
patients and proper records of the treatment given should be maintained and
preserved. The guiding principle should be to ensure that no emergency case
is denied medical care. All possibilities should be explored to accommodate
emergency patients in serious condition.
To avoid confusion Admission/Emergency Attendance Registers shall
contain a clear recording of the following information:
a) name, age, sex, address, disease of the patient by the attending MO;
b) date and time of attendance/examination/admission of the patient;
and
c) whether and where the patient has been admitted, transferred,
referred;
Further, there should be periodical inspection of the arrangement by the
Superintendent and responsibility fixed for maintenance and safe custody of
the registers.
2. Emergency Medical Officers will get in touch with Superintendent/Deputy
Superintendent/Specialist Medical Officer for taking beds on loan from cold
wards for accommodating such patients as extra-temporary measures.
3. Superintendents of hospitals will issue regulatory guidelines for admitting
such patients on internal adjustments amongst various wards and different
kinds of beds including cold beds and will hold regular weekly meetings for
monitoring and reviewing the situation.
4. If feasible, such patients should be accommodated in trolley-beds and, even,
on the floor when it is absolutely necessary during the exercise towards
internal adjustments as referred to above.
The Enquiry Committee made certain other suggestions which were also accepted by
the State Government:
1. A central Bed Bureau should be set up which should be equipped with
wireless or other communication facilities to find out where a particular
emergency patient can be accommodated when a particular hospital finds itself
absolutely helpless to admit a patient because of physical limitations. In such
cases the hospital concerned should contact immediately the Central Bed
Bureau which will communicate with other hospitals and decide in which
hospital an emergency serious patient is to be admitted.
2. Some casualty hospitals or trauma units should be set up at some points on
regional basis.
3. The intermediate group of hospitals, viz., the district, sub-division and the
State general hospitals should be upgraded so that a patient in a serious
condition may get treatment locally.
Apart from directions of the Respondent State and the recommendation of Enquiry
Committee, Supreme Court made some additional recommendations:
1. Adequate facilities at the Primary Health Centres where the patient can be
given basic treatment and hisTcondition stabilized.
2. Hospitals at the district and Sub-divisional level are to be upgraded so that
serious cases can be treated there.
3. Facilities for giving specialist treatment are to be increased and having regard
to the growing need, it must be made available at the district and subdivisional level hospitals.
4. In order to ensure availability of bed in an emergency at State level hospitals,
there should be a centralized communication system so that the patient can be
sent immediately to the hospital where bed is available in respect of the
treatment which is required.
5. Proper arrangement of ambulance should be made for transport of a patient
from the primary health centre to the district hospital or sub-divisional hospital
to the State hospital.
6. Ambulance should be adequately provided with necessary equipment and
medical personnel.
Supreme Court observed that though for implementation of the above directions
financial resources would be required but at the same time it cannot be ignored that it
is the constitutional obligation of State to provide adequate medical services to the
people. The Court also observed: “In the context of the constitutional obligation to
provide free legal aid toll pooFiccused this Court has held that the State cannot avoid
its constitutional obligation in that regard on account of financial constraints. (Khatri
II v. State Of Bihar). These observations will apply with equal, if not greater, force in
the matter of discharge of constitutional obligation of the State to provide medical aid
to preserve human life. In the matter of allocation of funds for medical services the
saTd constitutional obligation of the State has to be kept in view.” The Court held that
it was necessary that a time-bound plan for providing these services should be chalked
out keeping in view the recommendations of the Committee as well as the
requirements for ensuring availability of proper medical services in this regard as
indicated by us and steps should be taken to implement the same.
This case arose out of an incident in West Bengal. Other States were not parties to the
case. Also, the Committee was concerned with West Bengal and the directions were
also given by the West Bengal Government. The Supreme Court, however,
observed that other States, though not parties, should also take necessary steps in
the light of the recommendations made by the Committee, the directions
contained in the Memorandum of the Government of West Bengal dated August
22, 1995 and the further directions given in the Judgment. Thus all the directions
referred to above, would be equally applicable to other States in the country.
Besides, Union of India was a party to these proceedings. The Court observed that
since it was the joint obligation of the Centre as well as the States to provide medical
services it is expected that the Union of India would render the necessary assistance in
the improvement of the medical services in the country on these lines.
The Court also ordered that the Petitioner be paid Rs. 25,000/- as compensation.
Labonva Moyee Chandra v. State of West Bengal4
The instant case reflected the lack of seriousness of State in executing its duties and
the implementation of the directions and recommendations in Paschim banga Khet
Mazdoor Samity case?
Appellant was an old woman residing in a village near the city of Burdwan who was
denied admission in SSKM, a state hospital on account of non-availability of bed even
though her condition was recorded as critical. This hospital was also involved in the
earlier case of Pashim Banga Khet Mazdoor Samity.
Appellant suffered severe chest pain and difficulty in breathing, the local doctor
examined her, diagnosed heart block and recommended immediate hospitalization.
Appellant was taken to Burdwan where she was shown to Burdwan Medical College
hospital (BMCH) who referred her to cardiology department of Seth Sukhlal Karnanl
Medical College (SSKM) in Calcutta or any other State hospital having cardiology
department as they didn’t have the said facility. At SSKM, RMO referred Appellant
to the Cardiology Department who informed her that there were no vacant beds and
referred her back to the RMO. Appellant instead was admitted in a private hospital
were she under went an operation and a permanent pacemaker was implanted.
There were two issues before the Supreme Court: firstly, whether Appellant was
brought to SSKM hospital in a critical state, and secondly, whether the Appellant was
refused admission and ‘turned out at night’.
The Supreme Court considered following evidence to conclude that Appellant indeed
was in a critical state:
1) The prescription of the local doctor recorded that patient was unconscious,
suffering from convulsion and frothing from mouth. He diagnosed complete heart
block condition (stockes-adams). Stockes-adams is a medical term to designate
occasional transient cessation of the pulse and loss of consciousness, especially
caused by heart block. ‘The condition of such patient must be critical. ’ Accordingly
the local doctor advised urgent hospitalization, and prescribed oxygen inhalation and
medication.
2) Discharge certificate of BMCH described her condition as ‘complete heart block’
and referred her to a State hospital with cardiology department.
3) The endorsement of the cardiology RMO on the outdoor Emergency Department
ticket of SSKM hospital also described her as suffering from ‘Complete heart block’
with S.A. Attack. This clearly showed that Appellant’s condition was not stable as
alleged by the State.
As regards the second issue, Supreme Court held that though the SSKM hospital did
not turn her out it was not for her to bear with the jostling between the two
departments when she was in a critical state. It was the responsibility of the doctor in
charge of the Cardiology Department who examined her, to ensure that a bed was
made available in any of the department so that she could be accommodated in the
Cardiology Department as and when vacancy arose.
Supreme Court observed that despite the directions issued by it and the State
Government in Pashcim Banga Khet Mazdoor Samiti there had been no compliance
of the same. Appellant was denied treatment in BMCH on ground of lack of proper
facility. This was despite the specific direction in Mazdoor Samiti case to upgrade
facilities and to set up specialist treatment in District level hospitals. “Clearly State
4 SC decided on 31/7/1998
5 ibid
Government has not taken any follow up action to ensure that recommendations are
implemented. ” There was no ‘centralised communication system’ set up with the help
of which BMCH could have referred Appellant to a hospital that had vacant beds
before setting her off on a long journey in a critical state. The ‘admission register’
maintained by SSKM hospital was not as per the guidelines set out in the Mazdoor
Samiti case. The entries were haphazardly and irresponsibly made. It did not describe
the medical condition of the Appellant although a column had been provided for it.
The inquiry report submitted by SSKM hospital to Court did not show that there was
no possibility of arranging bed for the Appellant. It was silent about the occupancy of
beds in other departments.
In the light of above circumstances and lapses on part of State and government
hospital to implement the recommendations in Pashim Banga Mazdoor Khet Samiti
case, Supreme Court held the state liable to compensate Appellant for the cost of
pace-maker assessed at Rs.25,000/-. Further, State Government was directed to take
follow up action on the implementation of the recommendations under the earlier case.
-
II. MEDICO LEGAL CASES
Parmanand Katara v. Union of India6
^ie *nstant petition was filed by a human right activist seeking directions against
Union of India that every injured citizen brought for treatment should be
instantaneously given medical aid to preserve life and thereafter the procedural
criminal law should be allowed to operate in order to avoid negligent death and in
event of breach of such direction, apart from any action that may be taken for
negligence, appropriate compensation should be admissible. The Petitioner had
appended to the writ petition a report titled ‘Law helps the injured to die’ published
by Hindustan Times that told the story of a hit-n-run case where the victim was
denied treatment by the nearest hospital and asked to approach another hospital
situated 20 km away that was authorized to handle medico-legal cases. The victim
succumbed to his injury on way to the other hospital.
There were three issues before Supreme Court:
First, whether there are any legal impediments that hindered timely treatment in
medico-legal cases;
Second, the nature of duty of Government, Government hospitals & Police in medico
legal cases; and
Last, whether private hospitals could refuse to treat medico-legal cases?
Medical Council of India in its affidavit stated that though doctors are not bound to
undertake every case but they can not refuse emergency case on humanitarian grounds
and the noble tradition of the profession necessitates this. The affidavit stated that the
doctors were reluctant to undertake medico-legal cases because of unnecessary
harassment by Police during the course of investigation and trial. MCI urged that
doctors attending medico-legal cases should be indemnified under the law from any
action by the Government/police authorities so that it is conducive for doctors to
perform their duties. Criminal procedure should be amended so that injured persons
may be treated immediately without waiting for police report or completion of police
formalities. The Indian Evidence Act should also be amended so that diary maintained
by doctors in regular course of their work is admissible as evidence for the purposes
of the medico-legal cases instead of their presence during trial to prove the same.
6 AIR 1989 SC 2039
)M
A report of the Committee headed by the Director General of Health Services was
filed. It had taken the following decisions:
"1. Whenever any medico-legal case attends the hospital, the medical
officer on duty should inform the Duty Constable, name, age, sex of
the patient and place and time of occurrence of the incident, and should
start the required treatment of the patient. It will be the duty of the
Constable on duty to inform the concerned Police Station or higher
police functionaries for further action.
Full medical report should be prepared and given to the Police, as soon
as examination and treatment of the patient is over. The treatment of
the patient would not wait for the arrival of the Police or completing
the legal formalities.
2. Zonalisation as has been worked out for the hospitals to deal with
medico-legal cases will only apply to those cases brought by the Police.
The medico-legal cases coming to hospital of their own (even if the
incident has occurred in the zone of other hospital) will not be denied
the treatment by the hospital where the case reports, nor the case will
be referred to other hospital because the incident has occurred in the
area which belongs to the zone of any other hospital. The same police
formalities as given in para 1 above will be followed in these cases.
All Government Hospitals, Medical Institutes should be asked to provide the
immediate medical aid to all the cases irrespective of the fact whether they are
medico-legal cases or otherwise. The practice of certain Government
institutions to refuse even the primary medical aid to the patient and referring
them to other hospitals simply because they are medico-legal cases is not
desirable. However, after providing the primary medical aid to the patient,
patient can be referred to the hospital if the expertise facilities required for the
treatment are not available in that Institution."
The Union Government, filed its affidavit and denied that there was any legal
impediment in criminal procedural law to hinder treatment in emergency cases. The
affidavit mentioned, “ there are no provisions in the Indian Penal Code, Criminal
Procedure Code, Motor Vehicles Act etc. which prevent Doctors from promptly
attending seriously injured persons and accident case before the arrival of Police and
their taking into cognisance of such cases, preparation of F.I.R. and other formalities
by the Police.”
Supreme Court, agreeing with this, held that ‘There is no legal impediment for a medical professional when he is called
upon or requested to attend to an injured person needing his medical
assistance immediately. The effort to save the person should be the top priority
not only of the medical professional but even of the police or any other citizen
who happens to be connected with the matter or who happens to notice an
incident or a situation.
Preservation of human life is ofparamount importance. That is so on account
of the fact that once life is lost, the status quo ante cannot be restored as
resurrection is beyond the capacity of man. The patient whether he is innocent
person or liable to be punished under the laws of the society, it is the
obligation of those who are in charge of the health of the community to
preserve life so that innocent may be protected and the guilty may be punished.
Social laws do not contemplate death due to negligence to tantamount to legal
punishment. A doctor at the Government hospital positioned to meet the State
obligation is, therefore, duty bound to extend medical assistance for
preserving life. EvetyjlQclor whether at a Government hospital or otherwise
bas_ the pr()fessi()nal obligation to extend his services with due expertise for
protectingJif?. No law or State action can intervene to avoid delay the
discharge of the paramount obligation case upon the members of the medical
profession. The obligation being total, absolute and paramount, laws of
procedure whether in statutes or otherwise which would interfere with
discharge of this obligation cannot be sustained and must, therefore, give
. Mortal regulations and classification cannot operate as fetters in the
process of discharge of the obligation and irrespective of the fact whether
under instructions or rules, the victim has to be sent elsewhere or how the
police shall be contacted, the guidelines indicated in the 1985 decision of the
Committee on Forensic Medicine (set up by the Ministry of Home Affairs of
the Government ofIndia) are to become operative ”
Supreme Court Legal Aid Committee v. State of Bihar7
-r
The responsibility to provide immediate medical treatment to an injured person in a
medico-legal case extends even to the police. Thus, where the deceased who was
lynched by the mob for attempting to rob passengers of train, died because of
negligence of the police in taking him to a hospital on time and also for the inhuman
manner in which he was tied and dumped in the vehicle, the Court held that it
amounted to violation of right to life and the State was bound to pay Rs.20,000/- as
compensation for the loss of life.
’
Poonam Sharma v. Union of India8
In another case pertaining to the liability of police and Government hospital in
medico-legal case, Petitioner’s husband met with an accident while driving in
allegedly drunken state. The police took him to Government hospital for check up
where the doctor on duty stitched up an inch cut on his scalp and gave him brufen
tablets. Later the deceased was taken into custody and charged for drunken driving
under Motor Vehicles Act, 1988. In the night the deceased complained of severe
headache and the police took him to the same doctor who again prescribed brufen
tablets. During the night the condition of the deceased deteriorated. Next day his
family bailed him out and took him to another hospital were he succumbed to brain
hemorrhage.
High Court observed that in case of head injury, it is elementary that an extra care is
required to be taken. Such extra care is required to be taken, particularly in medico
legal cases. In medico-legal cases, the doctor as also the police authorities are under
statutory obligation not only to see that injuries suffered by a person who has been
brought to the hospital be properly taken care of. Every doctor at the Government
hospital having regard to the paramount importance of preservation of human life is
statutorily obliged to extend his services with due expertise.
’(1991)3 SCC 482
8 AIR 2003 Delhi 50
SU
t
-
cK
The instant case was not of an error in clinical judgment. Within a few hours, the
patient was brought back complaining of severe headache. Despite that no further
treatment was given and he was asked to take brufen tablets only. Thus, in light of the
facts and circumstances of the case and that the deceased was only 30 years old
drawing a salary of Rs.3,000/- per month, High Court ordered Rs. 2 lacs as
compensation to the Petitioner.
C. CONCLUSION
The Courts have now been recognizing that the State and State run medical
institutions have the obligation to provide medical care in cases of emergency. This
cannot be contingent upon adequate infrastructure, etc. In the Paschim Banga Case,
the Court ordered Central Bed Bureaus to be set up as also upgraded facilities in
district and sub district hospitals. Of course these have not been widely implemented.
But groups working on health can definitely file Public Interest Litigations in High
Courts for implementation of these orders in their respective states.
It is to be noted that though the responsibility of the State and government hospitals is
well provided by a radical interpretation of the Constitution, there is no definite
corresponding legal duty imposed on private hospitals and practitioners to treat
emergency cases. The above judgments focus on the duty of State and government
hospitals. In this regard, the Counsel for the Petitioner in Paschim Banga Khet
Mazdoor Samity case9 made few interesting suggesting drawing from the legal
position in USA. It was urged that the denial of treatment should be specifically made
a cognizable offence and further it should also be made actionable as a tort.10 In US it
was found that private hospitals were turning away uninsured, indigent person in need
of urgent medical care and these patients were often transferred to, or dumped on
public hospitals and the resulting delay or denial of treatment had sometimes
disastrous consequences. To meet this situation US Congress has enacted the
Consolidated Omnibus Budget Reconciliation Act, 1986 (for short COBRA) to
prevent the practice of dumping of patients by private hospitals. By this Act all
hospitals that receive medical care benefits and maintain emergency rooms are
required to perform two tasks before they may transfer or discharge any individual: (i)
the hospital must perform a medical screening examination of all prospective patients,
regardless of their ability to pay; (ii) if the hospital determines that the patient suffers
from an emergency condition, the law requires the hospital to stabilize his condition.
It cannot transfer or discharge an unstabilized patient unless the transfer or discharge
is appropriate as defined by the statute. COBRA also imposes penalty on hospitals
and physicians who negligently violate its provisions. In addition, the individual who
suffers personal harm as a direct result of the refusal to treat has a right to pursue civil
action against the defaulting hospital.
In respect of medico legal cases, the Courts have now categorically laid down that
treatment cannot wait for legal papers to be prepared.
9 ibid
10 In civil law, liability of doctor arises when there is a duty of care, a breach of such duty and
consequential injury. The duty is not absolute which implies that a doctor need not treat all those who
approach him. He has right to refuse. He is liable for harm caused only to those whom he undertakes to
treat.
V
ENVIRONMENT AND HEALTH CARE
A. INTRODUCTION
The right to healthy, clean and pollution free environment has its origin in the human
right to health. The logic being that in order for a healthy body one needs clean
environment. Of course, there are a number of other reasons for the need of good
environment, namely conservation of natural resources, maintaining bio diversity and
protecting wild life. But in the context of individual human beings the right to clean
environment is very much linked to the right to health.
As already set out in the earlier chapters, in India, the judicial recognition of the
fundamental right to healthy environment preceded the recognition of right to health. A
large chunk of public interest litigation in the last 20 years has revolved around
environmental issues and there are hundreds of cases decided by the Apex Court
concerning all facets of environment. In this Chapter, we are confining ourselves mainly
to those judicial decisions, which touch upon right to health care and not merely right to
health.
B. CASE LAW
’Municipal Council Ratlam v. Vardichand and others, is a crucial case because for the
first time the Supreme Court prescribed that in matters concerning public health financial
inability was no ground for State authorities to cany out their duties. The Apex court
held that, ‘
A responsible Municipal Council constitutedfor the precise purpose of
preserving public health and providing better finances cannot run away from its
principal duty by pleading financial inability. Decency and dignity are non-negotiable
facets^ofhuman rights and are a firsfcharge on local self-governing bodies. Similarly,
providing drainage system - not pompous and attractivefbui in working~condition and
sufficient to meet the needs of the people - cannot be evaded if the municipality is to
justify its existence........ ’
Ratlam is a town in the State of Madhya Pradesh. The town had the Ratlam
Municipal Council, as its local self governing body. The situation of sanitation in
Ratlam was pathetic as the drains overflowed. In ward no 12, new road, Ratlam
there was litter which dirtied the area and also created a lot of stink. The discharge
from the alcohol plant on the road added to the woes of the citizens.
The municipality was oblivious to its obligation towards human well-being and
was directly guilty of breach of duty and public nuisance and active neglect. The
sub-Divisional Magistrate, Ratlam, was moved to take action under Section 133
CrPC to abate the nuisance by ordering the municipality to construct drain pipes
with flow of water to wash the filth and stop the stench. The magistrate found the
facts proved, made the direction sought and scared by the prospect of prosecution
under Section 188 IPC, for violation of the order under Section 133 CrPC, the
1 AIR 1980 Supreme Court 1622
y O'
J:
pl t-
municipality rushed from court to court till, it reached the Apex Court as the last
refuge of lost causes.
The Sessions Court held the order as unjustified but the High Court of Madhya Pradesh
upheld the order of the Divisional Magistrate. Ratlam.
The Municipal Council, Ratlam argued that though it was their statutory
obligation to build proper drains, there was financial inability. The Court held
that, ‘The plea of the municipality that notwithstanding the public nuisance
financial inability validly exonerates it from statutory liability has no juridical
basis. The criminal procedure code operates against statutory bodies and others
regardless of the cash in their coffers, even as human rights under Part 111 of the
Constitution have to be respected by the State regardless of budgetary provision.
Likewise, Section 123 of the Act has no saving clause when the municipal council
is penniless. Otherwise, a profligate statutory body or pachydermic governmental
agency may legally defy duties under the law by urging in self-defence a self
created bankruptcy or perverted expenditure budget. That cannot be.’
The Supreme court also held that it was not just a matter of health of a private
individual but the helath, safety and convenience of public at large was at stake.
The Supreme Court while passing the judgment in this matter partially modified
the order of the magistrate and also asked the Municipal Council, Ratlam to carry
out the following orders,
‘1. We direct the Ratlam Municipal Council (Rl) to take immediate
action, within its statutory powers, to stop the effluents from the Alcohol
Plant flowing into the street. The State Government also shall take action
to stop the pollution. The sub-Divisional Magistrate will also use his
power under Section 133 CrPC, to abate the nuisance so caused. Industries
cannot make profit at the expense of public health. Why has the magistrate
not pursued this aspect ?
2. The Municipal Council shall, within six months from today, construct a
sufficient number of public latrines for use by men and women separately,
provide water supply and scavenging service morning and evening so as to
ensure sanitation. The Health Officer of the Municipality will furnish a
report, at the end of the six-monthly term, that the work has been
completed. We need hardly say that the local people will be trained in
using and keeping these toilets in clean condition. Conscious cooperation
of the consumers is too important to be neglected by representative bodies.
3. The State Government will give special instructions to the Malaria
Eradication Wing to stop mosquito breeding in Ward 12. The subDivisional Magistrate will issue directions to the officer concerned to file
a report before him to the effect that the work has been done in reasonable
time.
4. The municipality will not merely construct the drains but also fill up
cesspools and other pits of filth and use its sanitary staff to keep the place
free from accumulations of filth. After all, what it lays out on prophylactic
sanitation is a gain on its hospital budget.
5. We have no hesitation in holding that if these directions are not
complied with the sub-Divisional Magistrate will prosecute the officers
responsible. Indeed, this Court will also consider to punish for contempt in
case of report by the sub-Divisional Magistrate of willful breach by any
officer.’
The court also held that the State should be guided by the paramount principle of
Art. 47 of the Constitution of India which states that, improvement of public
health should be one of the primary duties of the state.
The Bombay High court in 2Citizens Action Committee, Nagpur vs. Civil Surgeon,
Mayo (General) Hospital, Nagpur and Ors, put in detail the responsibilities of the
Municipal Corporation, in marinating the civi^hospital and the otliex.ba^ic_amenities in
the city. The high court in its order stated that, ‘We cannot but emphasis that the hospitals
have their own role to play. Hospitals are the necessities of modern life and they have to
respond to the needs of any growing city. Hardly any option can be speedy out or any
excuse permissible so as to afford an alibi when the matters concern the authorities
would bestow urgent attention on every facet of the problem of public health and
effectively
'
------ --The citizens Action Committee approached the Nagpur bench of the Bombay
High Court asking the court to intervene as the over all condition of the civic
amenities such as roads, sanitation and public health was deteriorating
considerably.
The Court issued notice to all the concerned authorities and asked them to file
their say. Two fact finding reports of the citizens were also given to the court. The
court largely based its finding on the reports and the affidavits filed by the
citizens.
One of the main problems was regarding the 3 hospitals that were being run by
the state. The overcrowding in all the hospitals had reached dangerous levels. The
trespassers and visitors also burdened the hospitals. Even the staff of the hospitals
was housed in poor conditions and they were living in unhygienic conditions.
2 AIR 1986 Bom 136
VlJi
The court held that as per Art. 47 of the constitution of India it is the duty of the
state to provide for proper facilities for public health.
The court set up an Investigative and Remedial Measures Suggestive Committee
(I. R. M. S. C.) to look into the matter.
The High Court of Madhya Pradesh in 3Hamid vs. State of M.P. held that the citizens
have right to clean and safe drinking water. The court stated that, ‘ Under Article 47 of the
Constitution oj India, it is the responsibility of the State to raise the level of nutritianand
the standardofliymg of its people^ andjhe improvement^fpublicj^l^- It Is incumbent
on State to improvejhejwaltl^^
unpolluted drinking water. Slate in
present case has failed to discharge its primary responsibility. It is also covered by
Article 21 of the Constitution of India and it is the right of the citizens of India to have
protection of life, to have pollution free air and pure water
’. The court also held the
state liable to pay for the damages caused by the consumption of the polluted water.
Hamid Khan a lawyer filed a petition before the high court of the Madhya
Pradesh, legarding the quality of water supplied through the hand pumps in the
district of Mandla. The water being supplied contained high amount of fluoride
causing damage to lot of people in terms of damages like, skeletal flurosis and
dental flurosis.
The high court held that, ‘Under Article 47 of the Constitution of India, it is the
responsibility of the State to raise the level of nutrition and the standard of living
of its people and the improvement of public health. It is incumbent on State to
improve the health of public providing unpolluted drinking water. Slate in present
case has failed to discharge its primary responsibility. It is also covered by Article
21 of the Constitution of India and it is the right of the citizens of India to have
protection of life, to have pollution free air and pure water........ ’
The court also held that the people affected due to the contaminated water should
be treated at the expense of the state. The court further held that in cases where
surgery is required, it should be done at the state expense.
The State was also directed to close down the hand pumps which had excessive
amount of fluoride and a proper and safe drinking water facility should be put in
place.
The Allahabd High court in 4Kaamlavati vs. Kotwal and others, ordered the brick klin
owners to follow the norms laid down by the government very strictly and also ordered
the government to set up a fund for the modernizatmn_ofthe_brick^kilns as the traditional
brick klins were causing a lot of air pollution.
3 1996
4 2000
C. CONCLUSION
In the hundreds of cases dealing with environment, our Courts have not really
dealt so much with right to health care but right to health and the impact of
environment on health. While dealing with environmental issues the Supreme
Court has developed a number of innovative doctrines such as “polluter pays”,
public trust , reversal of burden of proof’, “preventive principle”,
“trangenerational equity”, etc. However, none of them directly deal with health
care. It is important now for the Courts to look not just at the harmful effects of
environmental pollution but also the issue of health care related to it and the
responsibility of the polluters not just to stop the pollution but to ensure health
care for those affected.
c^_ T
I XVX’Cr
^>Yi nr^cVvu
.^X'x'X C\ SXa4
9
e
X/'^-XxA QxV\J<>k/v
f'v>Lev
T
-9
'S
J(/vi ‘-Cj
v
<_c-v^' U-c-CXf
d lA/vx.4n
o JLu
Lx
L,
p p^cXp^L^z, X-OfelvX^
Po^M^
V\)N
CONCLUSIONS
Last two decades have seen a phenomenal rise (compared to the earlier decades) on
litigation concerning health of individuals and also communities and society at large.
An obvious off shoot of these developments has been litigations concerning health
care. Till the early 1980s judicial response to health related issues in India was
essentially centered around cases of medical negligence. Even these cases were few
and far between.
There were two developments in the 1980s which led to a marked increase in health
related litigation. First was the establishment of consumer courts which made it
cheaper and speedier to sue doctors for medical negligence. Second, the growth of
public interest litigation and one of its off shoots being recognition of health and
health care as a fundamental right.
PUBLIC INTEREST LITIGATION, FUNDAMENTAL RIGHT AND ITS
CONSEQUENCES
The Public interest litigation movement in India started in late 1970s. This movement,
had and has as its basis the enforcement of fundamental rights guaranteed under the
Constitution of India. Any citizen could trigger off the judicial mechanism by
claiming violation of fundamental rights, either of himself or of other individuals or of
citizenry at large. Fundamental rights existed even before late 1970s. The real push
for the PIL movement came from an expanded interpretation of the fundamental right
to life which is enshrined in Article 21 of the Constitution. This reads:
“No person shall be deprived of his life or personal liberty except through
procedure established by law. ”
Till the 1970s by and large the courts had interpreted ‘life’ literally i.e. right to exist.
It was in late 1970s onwards that an expanded meaning started to be given to the word
‘life'. Over the years it has come to be accepted that life does not only mean merely
animal existence but the life of a dignified human being with all its concomitant
attributes. This has been interpreted to include a healthy environment and effective
health care facilities.
As already mentioned in the Chapters above, to begin with, the right to health as a
fundamental right grew as an off shoot of the environmental litigation. Pollution free
environment as a fundamental right presupposes right to health as a fundamental
right. Logically, the explicit recognition of the fundamental right to health should
have preceded the fundamental right to good environment. However, the development
of jurisprudence in this branch has been reverse. To begin with, right to decent
environment was recognized and from that followed the right to public health, health
and health care. Even while dealing directly with right to health, the first issues
concerned employees’ health.
EMPLOYEES’ RIGHT TO HEALTH
It was in 1991, in C.E.R.C. Ltd. Vs. Subhash Chandra1 the Supreme Court placed
reliance on international instruments and declared that right to health is a fundamental
right. It went further and observed that health is not merely absence of sickness and
observed:
“33. ...In the light of Arts. 22 to 25 of the Universal Declaration of Human
Rights, International Convention on Economic, Social and Cultural Rights,
and in the light of socio-economic justice assured in our Constitution, right to
health is a fundamental human right to workmen. The maintenance of health is
a most imperative constitutional goal whose realisation requires interaction
by many social and economic factors. ”
In CERC Vs. Union of India2 the Supreme Court was dealing with the rights of
workers in Asbestos manufacturing and health hazards related to it. It observed:
“27. Therefore, we hold that right to health, medical aid to protect the health
and vigour of a worker while in service or post retirement is a fundamental
right under Article 21, read with Articles 39(e), 41, 43, 48A and all related to
Articles and fundamental human rights to make the life of the workman
meaningful and purposeful with dignity of person.”
Similarly, in State of Punjab Vs. Mohinder Singh Chawla3, dealing with rights of
Government employees to health care, the Supreme Court observed:
“It is now settled law that right to health is an integral to right to life.
Government has constitutional obligation to provide the health facilities. If the
Government servant has suffered an ailment which requires treatment at a
specialised approved hospital and on reference whereat the Government
servant had undergone such treatment therein, it is but the duty of the State to
bear the expenditure incurred by the Government servant. Expenditure, thus,
incurred requires to be reimbursed by the State to the employee.”
RIGHT TO HEALTH- GENERALLY
In Virender Gaur v. State of Haryana, 1995 (2) SCC 577, the Supreme Court held
that environmental, ecological, air and water pollution, etc., should be regarded as
amounting to violation of right to health guaranteed by Article 21 of the Constitution.
In Kirloskar Brothers Ltd. v. Employees’ State Insurance Corporation^, the
Supreme Court held that right to health and medical care is a fundamental fight under
Article 21 read with Article 39(e), 41 and 43. It is also relevant to notice as per the
judgment of the Supreme Court in Vincent Panikurlangara v. Union of India, AIR
1987 SC 990 - (1987) 2 SCC 165, “In a welfare State, therefore, it is the obligation of
the State to ensure the creation and the sustaining of conditions congenial to good
health.”
1 AIR 1992 SC 573
2 1995 3 SCC 42
3 1997 2 SCC 83
4(1996) 2 SCC 682
But having recognized that right to health and health care is a fundamental right what
follows? Fundamental rights are generally available only against the state. They
prescribe the obligations of the State. In a poverty ridden country like India, does it
mean that the State must provide free medical health care facilities to all? In a
situation where there is increasing privatization of health care systems, where the
annual budget for health is reducing, where the cost of health education is growing
exponentially this seems very unlikely. No Court has yet said that the State is bound
to provide free medical care to all the citizens.
QUALITY OF HEALTH CARE
The other aspect would of course be the quality of health care provided by the State.
Infrastructure in not just primary health care centers but even in government run
hospitals in metropolitan cities is crumbling. These institutions are plagued by lack of
enough beds, sufficient medicines and other similar problems. The Courts including
the Supreme Court have not adequately dealt with this aspect. They have mainly been
concerned with pious declarations of health being a fundamental right and peripharal
and not so peripharal issues such as rights of government employees to be treated in
government hospitals, emergency medical care and the like.
But in a case dealing with bad infrastructure in public hospitals the
Allahabad High Court held5:
“ It is indeed true that most of the Government Hospitals in Allahabad are in
a very bad shape and need drastic improvement so that the Public is given
proper medical treatment. Anyone who goes to the Government Hospitals in
Allahabad will find distressing sanitary and hygienic conditions. The poor
people, particularly, are not properly looked after and not given proper
medical treatment. Consequently, most people who can afford it go to private
nursing homes or private clinics. ...All this needs to be thoroughly
investigated. This is a welfare State, and the people have a right to get proper
medical treatment. In this connection, it may be mentioned that in U.S.A, and
Canada there is a law that no hospital can refuse medical treatment of a
person on the ground of his poverty or inability to pay. In our opinion. Article
21 of the Constitution, as interpreted in a series ofjudgments of the Supreme
Court, has the same legal effect. ”
Statutory duty ofpolice and government hospitals
In the case of B. Poonam Sharma v. Union of India6, the Court held that every
doctor at the government hospital having regard to the paramount importance of
preservation of human life is under statutory obligation to extend his services with
due expertise. Hence, Respondent was directed to pay Rs.2 lacs as compensation
under Public Law for violation of fundamental rights of Petitioner’s husband.
5 In S.K.Garg Vs. State of U.P. decided on 21.12.98
AIR 2003 Delhi 50
In Marri Yadamma v. State of Andhra Pradesh7, the High Court stated that on arrest a
prisoner merely loses his right to free movement. His all other rights including right to
medical treatment remains intact and it cannot be violated.
EMERGENCY HEALTH CARE
One of the major issues concerning health care has been the obligation of doctors to
provide emergency health care.
In the case of Paschim Banga Khet Mazdoor Samity v. State of W.B.8 the Supreme
Court observed that providing adequate medical facilities is an essential part of the
obligation undertaken by the State in a welfare state. And the failure on the part of a
government hospital to provide timely medical treatment to a person in need of such
treatment results in violation of his right to life guaranteed under Article 21.
It is to be noted that though the responsibility of the State and government hospitals is
well provided by a radical interpretation of the Constitution, there is no definite
corresponding legal duty imposed on private hospitals and practitioners to treat
emergency cases. The judgments mainly focus on the duty of State and government
hospitals.
Medico-legal cases:
In Parmanand Katara v. Union of India9 Supreme Court, held that ‘There is no legal impediment for a medical professional when he is called
upon or requested to attend to an injured person needing his medical
assistance immediately. The effort to save the person should be the top priority
not only of the medical professional but even of the police or any other citizen
who happens to be connected with the matter or who happens to notice an
incident or a situation.
Every doctor whether at a Government hospital or otherwise has the
professional obligation to extend his services with due expertise for
protecting life. No law or State action can intervene to avoid delay the
discharge of the paramount obligation case upon the members of the medical
profession. The obligation being total, absolute and paramount, laws of
procedure whether in statutes or otherwise which would interfere with
discharge of this obligation cannot be sustained and must, therefore, give
way......... ”
CONDITIONS OF EMPLOYMENT OF HEALTH CARE PROFESSIONALS
In C.L. Venkata Rao Vs. Govt, of Andhra Pradesh10 the Andhra Pradesh High
Court was concerned with the issue of strikes by doctors and facilities in medical
hospitals. The Court relied on the Medical Regulations framed under Section 20-A
read with Section 33(m) of the Indian Medical Council Act, 1956. Regulation No. 2 in
Chapter-2 lays down the duties of physicians to their patients. Regulation No. 2.4 lays
down:
7 AIR 2002 AP 164
8 (1996)4 SCC 37
9 AIR 1989 SC 2039
10 2005 6 ALD 327 decided on 23.8.2005
"provisionally or fully registered medical practitioner shall not willfully
commit an act of negligence that may deprive his patient or patients from
necessary medical care."
Chapter-7 of these Regulations deals with misconduct and the acts of commission or
omission on the part of a physician, which construe misconduct. Regulation No. 7.1
deals with violation of the Regulations. Regulation No. 7.24 lays down that:
"If a physician posted in a medical college/institution both as teaching faculty
or otherwise shall remain in hospital/college during the assigned duty hours. If
they are found absent on more than two occasions during this period, the same
shaH be construed as a misconduct if it is certified by the Principal/Medical
Superintendent and forwarded through the State Government to Medical
Council of India/ State Medical Council for action under these Regulations."
On the basis of these two provisions, the Division Bench came to the conclusion that
doctors do not have a right to strike. However, since the strike had been withdrawn
the Court directed that no action be taken against striking doctors.
The second issue which the Court dealt with concerned provision of emergency health
care services in case doctors go on strike. High Court directed the State Government
to have an emergency plan ready in case doctors go on strike including opening up
military and similar hospitals for common people during the strike. The Court
exhorted private hospitals to provide free treatment to poor patients in case of strike
by Government doctors.
The third issue was the one raised by doctors. They had argued that the Government
hospitals did not have enough facilities. This included problems concerning lack of
availability of drugs, inadequate teaching doctors, etc. The High Court appointed a
committee to go into these aspects and submit a report to the Government.
Seenath Beevi Vs. State of Kerala11 was concerned with conditions of service of
nurses in hospitals. The Kerala High Court was faced with a situation where the
nurses in some of the Taluka hospitals complained that they were required to perform
14 hours of duty for six days in a week and asked the Court to direct the Government
to have nurses in three shifts of 8 hours each. The State contented that this would
cause tremendous financial strain to it. To begin with, the Court observed:
"Facts stated in the Writ Petition, uncontroverted as they are, go to show that
the work of a Nurse, especially in the Government Hospitals, is extremely
arduous in nature. The sum and substance of the submission of the learned
counsel is that attending such duties continuously for long hours is harmful to
the physical as well as mental health of the Nurse, unsafe to the patient and
likely to cause deleterious consequences. ”
" 2003 3 KLT 788
The Court, after referring to various decisions of the Supreme Court, reaffirmed that
right to decent working conditions is part of fundamental right to life. It further
observed:
Therefore it can safely be held that rationalisation of working hours to make
it just, unreasonable and humane is the constitutional obligation of the State.
Right to have such conditions of work is an integral part of the right to life
under Article 21 of the Constitution. ”
The Court ordered that nurses must not be forced to work for more
than 8 hours a day and financial stringency is no ground for the State to
abdicate this responsibility. The Court’s final order had the following
directions:
(i) There shall be a declaration that compelling the petitioner
to be on duty continuously for 14 hours a day for 6 days
consecutively in a week is illegal and unconstitutional.
(ii) The respondents are directed to introduce 3 shift duty
system in the Government Hospital, Thirroorangadi,
immediately and redress forthwith the grievance of the
petitioner.
(Hi) It is made clear that in the light of the declaration above
made to the effect that the impugned action of the respondents
is illegal and unconstitutional, the prevailing system of
assigning duty for 14 hours continuously to the petitioner and
other nursing staff shall not be continued. It follows that the
respondents shall take expeditious steps to introduce 3 shift
duty system for the nursing staff in all the hospitals. ”
The Supreme Court and the High Courts have been intervening in a much more active
manner in the last few years on the issue of health and health care. But again, unless
they start looking into the impact of patents and drug price control as also the
obligations of private hospitals, the effect is bound to be limited. Besides, there is an
increasing need to look at the obligations of private hospitals. The Bombay and Delhi
High Courts have already started looking into this issue, but unless there is a national
level focus on the responsibilities of private health care providers the impact of
judicial decisions is likely to be very marginal. There is definitely a need for a Central
Legislation which lays down responsibility of the State to provide cheap, accessible
and quality health care to all Indians.
Mihir Desai
HEALTH RELATED LEGISLATION
IN KARNATAKA
NAVEEN I. THOMAS
September 2003
COMMUNITY HEALTH CELL
Society for Community Health Awareness, Research & Action (SOCHARA)
Bangalore, India
Introduction
If the number of laws a land possessed were an indicator of a law-abiding society, India would
have been highly ranked among the nations of the world. However, the mere possession of laws
and other legal instruments do not ensure a law-abiding society, instead it just adds to the notion
of lawlessness (more the laws, more will be the incidents of violations). However, legislations and
legal instruments provide an avenue, which could be harnessed by an aware and vigilant civil
society to ensure order and social justice.
The need for a vigilant and pro-active civil society has become all the more necessary in view of
legislations and decisions increasingly being taken at a global level, way beyond the reach of
local communities and very often, even national governments. The World Trade Organisation
(WTO) negotiations is a case in point, where nations and continents are subdued into agreeing to
norms and agendas that are very often set by powerful Trans-National Corporations (TNCs).
However, WTO is not the only mechanisms for remote access and control of national resources
and economies. Aid and loan given by industrialized nations and multi-lateral organisations like
the World Bank to less-industrialized nations, are often means of coercing them to budge to the
machination of powerful vested interests. The governments of the less-industrialized nations have
repeatedly failed to stand up to such devices. In such a scenario, it is important for the civil
society to be pro-active and work towards strengthening the existing spaces available for people
to have access and control over their resources.
Much has been written about the impact of globalization on health. Even the National Health
Policy 2001 makes a note of the threats faced by people due to globalization. However sadly, the
Government action has been to reduce it’s spending on health, even while taking the LPG
(liberalization, privatization and globalization) route. More than 80% of health spending is already
in the private sector. The opening up of the health sector under the General Agreement of Trade
in Services (GATS) could see further changes in the health care scenario in the country.
There is a dire need to explore different ways in which health of the people can be secured.
Prioritization of health spending, increasing the health budget and strengthening the policy and
legal environment are a few of the ways, in which this can be achieved. Strengthening the policy
and legal environment helps people to stake a claim to health and health care as a right, if it is
accompanied with proper enforcing, monitoring, redressing and mass-awareness creating
mechanisms. The role of civil society in supporting the process cannot be over-emphasized here.
The knowledge of existing legislation is the first step in enforcing or improving the policy and legal
environment. This document attempts to put together the legislations in Karnataka which form a
major part of the existing policy environment in the state. However this has to be seen in the
context of other policies and practices including the functioning of the Taskforce on Health which
was set up the state Government, role of judiciary, rules framed under various Acts and
regulations of local bodies like corporations, municipalities, panchayats, etc. and Government
Orders (G.O.).
This purpose of this document is to serve a handbook for NGOs, health activists, academicians,
Government functionaries, media persons and anybody who wishes to know the existing Acts as
provided by the Karnataka state. It has been updated up to December 2002. A few important Acts
passed in 2003 have also been included. The website of the Department of Parliamentary Affairs
and Legislation, Government of Karnataka (http://dpal.kar.nic.in/ ) came in handy for preparing the
handbook.
This handbook is only a preliminary document and needs to be expanded further to include laws
and policies applicable at different levels. A critique of the contents of these laws and policies are
also needed for an informed debate and policy refinement. That would be the next step in this
journey!
24 Sep 2003
Note: The following section lists the various Acts of Karnataka state, which have a link with
health. The Acts of Karnataka state have been divided into seven sections:
1)
2)
3)
4)
5)
6)
Health related Acts
Agriculture/ Veterinary/ Animal related Acts
Urban related Acts
Rural related Acts
Tobacco/Alcohol related Acts (including industrial use)
General Acts
Health related Acts
SI.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
_____________________ Act_____________________
Anatomy Act, 1957 (23 of 1957)___________________
Ayurvedic, Naturopathy, Siddha, Unani and Yoga
(Registration and Medical Practitioners) Miscellaneous
Provisions Act, 1961 (9 of 1962)___________________
Health Cess Act, 1962 (28 of 1962)________________
Medical Registration Act, 1961 (34 of 1961)__________
Nurses, Midwives and Health Visitors Act, 1961 (4 of
1962)________________________________________
Private Nursing Homes (Regulation) Act, 1976 (75 of
1976)_______________
Rajeev Gandhi Health Sciences University Act, 1994
(44 of 1994)___________________________________
District Vaccination Act 1892 (Bombay Act I of 1892)
Drugs (Control) Act, 1952, (Bombay Act XXIX of 1952)
Female Infanticide Prevention (Amendment) Act, 1897
(Bombay Act III of 1897)___________________
Indian Lunacy (Bombay Amendment) Act, 1938
(Bombay Act XV of 1938)__________________
Nursing Homes Registration Act, 1949 (Bombay Act XV
of 1949)______________________________________
Vaccination Act, 1877 (Bombay Act I of 1877)________
Indian Medical Degrees (Coorg Amendment) Act, 1949
(Coorg Act IV of 1949) ________________________
Public Health Act, 1943 (Coorg Act I of 1943)________
Vaccination Act, 1950 (Coorg Act IV of 1950)________
Infections Diseases Act, 1950 (Hyderabad Act XII of
1950)_______________ _________________________
Vaccination Act, 1951 (Hyderabad Act XXIV of 1951)
Dangerous Drugs (Madras Amendment) Act, 1950
(Madras Act XVI of 1950)
______ Amendment(s) / Remarks______
Amended by Act 15 of 1999___________
Amended by Act 9 of 1966, 32 of 1966, 3
of 1968, 8 of 1969, 13 of 1972, 7 of 1977,
46 of 1981, 38 of 1991 and 11 of 1992
Amended by Acts 19 of 1968, 33 of 1976
Amended by Act 27 of 1981
Amended by Act 9 of 1977
Amended by Act 11 of 1998
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Coorg area
Act which is in force in Coorg area______
Act which is in force in Coorg area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Mangalore Kollegal area_______________________
Act
which is in force in Mangalore Drugs (Control) Act, 1949 (Madras Act XXX of 1949)
Kollegal area_______________________
Medical Degrees (Madras Amendment) Act, 1940 Act which is in force in Mangalore (Madras Act XX of 1940)_________________________ Kollegal area______________________
Opium and Dangerous Drugs (Madras Amendment) Act which is in force in Mangalore Act, 1947 (Madras Act XXXIV of 1947)______________ Kollegal area_______________________
Opium (Madras Amendment) Act, 1951 (Madras Act Act which is in force in Mangalore XXXII of 1951)____________
Kollegal area_______________________
Public Health Act, 1939 (Madras Act III of 1939)- Act which is in force in Mangalore Amended by Karnataka Act 13 of 1965, 83 of 1976.
Kollegal area_______________________
Tuberculosis Sanetoria (Regulation of Buildings) Act, Act which is in force in Mangalore 1947 (Madras Act XVI of 1947)____________________ Kollegal area_______________________
| Act which is in force in Mysore area
Drugs Control Act 1950 (Mysore Act V of 1950)
27.
Lepers Act, 1925 (Mysore Act IV of 1925)
28.
Public Health Act, 1944 (Mysore Act 10 of 1944)
29.
Vaccination Act, 1906, (Mysore Act I of 1906)
- Act which is in force in Mysore area
- Amended by Karnataka Act 13 of
1965_________________
- Act which is in force in Mysore area
- Amended by Karnataka Act 13 of 1965
- Act which is in force in Mysore area
Agriculture/ Veterinary/Animal related
SI.
1.
2.
3.
4.
5.
6.
7.
8.
9.
_____________________ Act___________________
Agricultural Pests and Diseases Act, 1968 (1 of 1969)
Animal Diseases (Control) Act, 1961 (18 of 1961)
Amendment(s) / Remarks
Live-Stock Improvement Act, 1961 (30 of 1961)
Sheep and Sheep Products Development Act, 1973,
(12 of 1974)
Prevention of Cruelty to Animals (Bombay Amendment)
Act, 1953 (Bombay Act
XXII of 1953)__________________________________
Prevention of Cruelty to Animals, the Bombay District
Police and the City of
Bombay Police (Amendment) Act, 1946 (Bombay Act
XXVIII of 1946)________________________________
Improved Seeds and Seedling Act, 1951 (Hyderabad
Act XXVIII of 1951)_____________________________
Restriction of Cash Crops Cultivation Regulation
(Repealing) Act, 1953
(Hyderabad Act XIV of 1953)_____________________
Slaughter of Animals Act, 1950 (Hyderabad Act VII of
1950)
Amended by Acts 22 of 1978 and 20
of 1980
Proposed for Repeal
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Urban
SI.
1.
2.
3.
4.
5.
6.
I
4
_____________________ Act____________________ ______ Amendment(s) / Remarks______
Bangalore Water Supply and Sewerage Act, 1964 (36 Amended by Acts 6 of 1966, 10 of 1966
of 1964)
and 18 of 1984_____________________
Amended
by Acts 7 of 1982 and 12 of
Prohibition of Beggary Act, 1975 (27 of 1975)
1988
Karnataka Slum Areas (Improvement and Clearance)
Amended by Acts 19 of 1981, 34 of 1984,
Act, 1973 and Karnataka Public Premises (Eviction of
Unauthorized Occupants) Act, 1974 (33 of 1974)_____ 26 of 1986, 7 of 1988 and 21 of 2002
Urban Water Supply and Drainage Board Act, 1973 (25 Amended by Acts 7 of 1976, 20 of 1977,
of 1974)
45 of 1981 and 19 of 1993____________
Amended by Acts 17 of
Urban Development Authorities Act, 1987 (34 of 1987)
1991, 14 of 1992 and 12 of 1996
The Karnataka Slum Areas (Improvement and
Clearance) and Certain Other Law (Amendment) Act,
2002 (21 of 2002)
Rural
SI.
Act
1.
Panchayat Raj Act 1993 (14 of 1993)
2.
Village Defence Parties Act, 1964 (34 of 1964)
3.
Village Offices Abolition Act, 1961 (14 of 1961)
______ Amendment(s) / Remarks______
Amended by 10 of 1995, 9 of 1996, 17 of
1996, 1 of 1997, 10 of 1997, 29 of 1997,
29 of 1998, 10 of 1999, 21 of 1999, 8 of
2000, 11 of 2000 and 30 of 2001________
Amended by Act 22 of 2000___________
Amended by Acts 8 of 1968, 13 of 1978,
27 of 1984, 47 of 1986 and 22 of 2000
Tobacco/Alcohol Related
SI.
Act
1.
Excise Act, 1965(21 of 1966)
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Prohibition Act, 1961 (1 of 1962)
Prohibition of Smoking in Show Houses and Public
Halls Act, 1963 (30 of 1963)_____________________
Toddy Worker’s Welfare Fund Act, 1981 (31 of 1994)
The Karnataka Prohibition of Smoking and Protection
of Health of Non-Smokers Act, 2001 (2 of 2003)_____
(District) Tobacco Act, 1933 (Bombay Act II of 1933)
Opium Smoking Act, 1936 (Bombay Act XX of 1936)
Smoke-nuisances Act, 1912 (Bombay Act VII of 1912)
Tobacco Duty (Town of Bombay) Act, 1857 and the
Bombay (District) Tobacco Act, 1933 (Suspension)
Act, 1945 (Bombay Act XI of 1945)________________
Power Alcohol Act, 1350 F (Hyderabad Act XI of 1350
F)__________________________________________
Cigarette- Tobacco Safeguarding Act, 1939 (Mysore
Act VI of 1939)________________________________
Power Alcohol Act, 1939, (Mysore Act VIII of 1939)
______ Amendment(s) I Remarks______
Amended by Acts 1 of 1970, 1 of 1971, 61
of 1976, 32 of 1982 28 of 1987, 36 of
1987, 1 of 1994, 2 of 1995. 7 of 1997, 21
of 98, 12 of 1999, 21 of 2000 and 15 of
2001
Amended by Act 10 of 1967
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Acts which are in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Mysore area
Act which is in force in Mysore area
General
SI.
1.
2.
3.
____________________ Act____________________
Civil Services (Prevention of Strikes), Act, 1966 (30 of
1966)_______
Civil Services (Regulation of Promotion, Pay &
Pension) Act, 1973 (11 of 1974)__________________
Co-operative Societies Act, 1959 (11 of 1959)-
Amendment(s) / Remarks
Amended by Act 6 of 1967
Amended by Acts 40 of 1976 and 25 of
1982______________________________
Amended by Acts 40 of 1964, 27 of 1966,
16 of 1967, Presidents Act 1 of 1972,
Karnataka Acts 14 of 1973, 2 of 1975, 39
of 1975, 19 of 1976, 70 of 1976, 71 of
1976, 14 of 1978, 16 of 1979, 3 of 1980, 4
of 1980, 5 of 1984, 34 of 1985, 34 ot
1991,25 of 1998, 2 of 2000, 13 of 2000, 6
of 2001 and 24 of 2001
4.
Debt Relief Act, 1976 (25 of 1976)
10.
Departmental Inquiries (Enforcement of attendance of
Witnesses and Production of Documents) Act, 1981
(29 of 1981)
___________________________
Devadasis (Prohibition of Dedication) Act, 1982 (1 of
1984)_________
Evacuee Interest (separation) Supplementary Act,
1961 (3 of 1961)___________
Existing Laws (Construction of References to Values)
Act, 1957 (12 of 1957)
________________
Essential Services Maintenance Act, 1994 (21 of
1994) (for a period of 10 years from the date of
commencement i.e., 16-4-1994)__________________
Famine Relief Fund Act, 1963 (32 of 1963)
11.
Lokayukta Act, 1984 (4 of 1985)
5.
6.
7.
8.
9.
14.
15.
Prohibition of Admission of Students to the Un
recognised and Un-affiliated Educational Institutions
Act, 1992 (7 of 1993) _________________________
Resettlement of Project Displaced Persons Act, 1987
(24 of 1994)_____________
Repealing and Amending Act, 2000 (22 of 2000)_____
Right to information Act, 2000 (28 of 2000)
16.
Societies Registration Act, 1960, (17 of 1960)
17.
State Aid to Industries Act, 1959 (9 of 1960)
18.
19.
State Commission for Women Act, 1995 (17 of 1995)
State Universities Act, 2000 (29 of 2001)___________
Transparency in Public Procurement Act 1999 (29 of
2000) and 21 of 2001__________ ________________
The Karnataka Fiscal Responsibility Act, 2002 (16 of
2002)
12.
13.
20.
21.
22.
Charitable Endowments Act, 1890. (Central Act 6 of
1890)
23.
Famine Relief Fund Act, 1936 (Bombay Act XIX of
1936)______________
Fodder and Grain Control Act, 1939 (Bombay Act
XXVI of 1939)
__________________________
Growth of Foodcrops Act, 1944 (Bombay Act VIII of
1944)________________
________________
Hindu Women's Rights to Property (Extension to
Agricultural Lands) Act, 1947 (Bombay Act XIX of
1947)______________
Molasses (Control) Act, 1956 (Bombay Act XXXXVIII
of 1956)
Refugees Act, 1948 (Bombay Act XXII of 1948)______
State Guarantees Act, 1954 (Bombay Act XXII of
1954)______________
Village Industries Act, 1953 (Bombay Act XLI of 1954)
(Emergency Powers) Whipping Act, 1947 (Bombay
Act XXVII of 1947)
24.
25.
26.
27.
28.
29.
30?
31.
Amended by Act 63 of 1976
Amended by Acts 43 of 1981 and 28 of
1986
Amended by Act 15 of 1986, 31 of 1986,
1 of
1988 and 30 of 1991
Amended by Acts 1965, 20 of 1975, 65 of
1976, 7 of 1978, 48 of 1986, 11 of 1990, 9
of 1999, 7 of 2000 and 6 of 2002
Amended by Acts 3 of 1964 and 20 of
1978
This is a Central Act which has beer
amended by the Karnataka Act 19 of
1973
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
Act which is in force in Belgaum area
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
Abolition of Whipping Act, 1956 (Hyderabad Act
XXXVI of 1956)__________
Children Protection Act, 1343 F (Hyderabad Act IX of
1343 F)____________
Famine (Stricken Pettadars Property Protection Act,
1931 F (Hyderabad Act III c.1381 F)_______________
Labour Housing Act, 1952 (Hyderabad Act XXXVI of
1952)______________ _________________________
Mining Settlements Act, 1956 (Hyderabad Act XLIV of
1956)______________
Poisons Act 1322 F (Hyderabad Act IV of 1322 F)
Protection of Flood Stricken Debtors Property Act,
1318F (Hyderabad Act I of
1318 F)_____________________________________
Protection of Houses from the Floods of Mossi River
Act, 1318 F (Hyderabad Act II of 1318 F)
Sati Regulation, 1830 (Madras Regulation I of 1830)
Essential Articles Control and
Requisitioning
(Temporary Powers) Act, 1949 (Madras Act XXIX of
1949)_______________
Essential Articles
Control
and
Requisitioning
(Temporary Powers Re-enacting) Act, 1956 (Madras
Act VI of 1956)________________________________
Famine Relief Fund Act, 1936 (Madras Act XVI of
1936)________________
Prevention of Couching Act, 1945 (Madras Act XXI of
1945)__________________
Rivers Conservancy Act, 1884 (Madras Act VI of
1884)________________
Abolition of Whipping Act, 1949 (Mysore Act XII of
1949)
47.
Betting Tax Act, 1932 (Mysore Act IX of 1932)
48.
Essential Service (Maintenance) Act, 1942 (Mysore
Act XXIII of 1942)_____________________________
Limitation (War Conditions) Act, 1947 (Mysore Act I of
1947)
49.
50.
51.
52.
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Gulbarga area
Act which is in force in Mangalore Kollegal area
Act which is in force in Mangalore
Kollegal area
Act which is in force in Mangalore Kollegal area
Act which is in force in Mangalore Kollegal area_______________________
Act which is in force in Mangalore Kollegal area_______________________
Act which is in force in Mangalore Kollegal area
Act which is in force in Mysore area
- Act which is in force in Mysore area
- Amended by Karnataka Acts 11 of 1958,
7 of 1974, 22 of 1980, 20 of 1981, 21 of
1989, 18 of 1994, 6 of 1995, of 1997, 3 of
1998, 5 of 2000
Act which is in force in Mysore area
Act which is in force in Mysore area
- Act which is in force in Mysore area
- Amended by Karnataka Acts 26 of 1957,
13 of 1965)________________________
Pension Act, 1871 (Mysore Act XXII of 1871)________ Act which is in force in Mysore area
Poisons Act, 1910 (Mysore Act 10 of 1910)
Act which is in force in Mysore area
Lotteries and Prize Competitions Control and Tax Act,
1951 (Mysore Act XXVII of 1951)
^jcJr- ]^JM- Pr<^j
lj T> «
)
(L^£V"a
AIDS AND PUBLIC HEALTH
A. INTRODUCTION
The AIDS epidemic is growing globally and at present there are more than 40 Million people
in the world suffering from the killer virus. Much requires to be done for arresting the spread
of the epidemic in India. Though the directive principles enshrined in the constitution of India
state that it is the primary duty of the State to improve public health, the public health system
is in shambles.
'Directive Principles of State Policy* under the Constitution enumerate guiding principles for
States to be followed while formulating their policies. These provide that it is the primary
duty of State to improve public health1, and it should promote a social order in which justice,
social, economic and political shall form part of'all institutions of national life.2
The above provisions, in context of AIDS, imply that a person suffering from AIDS/HIV
cannot be condemned by denying him ways of or affording him opportunity to lead a normal
life. It is the duty of State to provide for his treatment or treatment at affordable price,
employment to ensure he does not die an economic death, rehabilitation el al. State must also
direct its public health policy to prevent spread of AIDS/HIV.
The ‘Directive Principles of State Policy’ are mere guidelines and unenforceable in the Court
of law. However the State can be compelled to execute its duties so far as it concerns public
health because as set out in the earlier chapters various Supreme Court judgments have
interpreted the expression ‘life* under Article 21 to include right to health and all reasonable
health facilities. Therefore disregard of public health is a violation of fundamental rights of
people to life.
As is obvious, litigation concerning AIDS in India is of recent origin and so still in an
embryonic form. After the first few cases of HIV were detected in 1986 the government of
India constituted the National Aids Committee in 1986 under the Ministry of Health and
Family welfare and representatives from different sectors and similarly the State Aids Control
Societies were formed in various states. At present the Aids control programme of the
government of India is under the National Aids Control Organization (NACO). The response
of the Govt, in India has always been a knee jerk reaction in dealing with such issues and
that has lead to loss of liberty of individuals and also discrimination in the society. The Goa
Public Health Act, 1987 is the best example of the reaction of the governments and the
discrimination that followed where AIDS patients were sought to be stigmatized under the
law and segregated. Much more needs to be done by the Governments in spreading
awareness to reducing the costs of essential drugs and proper implementation of programmes
to curb the spread of the virus.
The Courts in India in recent past have taken a very reasonable approach towards the issue of
HIV/AIDS and have passed orders which have helped in reducing discrimination. Right from
stopping people being kept under captivation to stopping discrimination on the basis of the
disease and safeguarding the employment of the affected people and to the policy on drugs
required for the positive people the Courts have played a very important role. The present
Chapter contains some of the important judicial responses dealing with the epidemic of Aids.
The major litigation concerning HIV has been related to three aspects:
! Art. 47
2 Ail. 38
I
a. Employment related issues:
b. Confidentiality
c. Access to medicines
B. CASE LAW
Though a wide range of litigation in courts on the issue of H1V/A1DS has been covered in
this chapter, it's mainly to show the apathy of the government and also highlight the
discriminatory policies adopted by the state in dealing with persons suffering with H1V/A1DS.
Lucy I)’ Souza v. State of Goa3 was one of the first litigations on the issue of Hiv/AIDS in
India. The Bombay High Court was of the opinion that isolation of persons with AIDS was
not in violation of the constitution of India. The court further held that the particular
provision of the Goa Public Health Act was for preventing the spread of the disease and in a
conflict between the public interest and right of an individual the latter should prevail.
r
ap1
S. 53(l)(vii) of the Goa Public Health Act, 1987, empowered the government to isolate a
person suffering with AIDS. The Act did not state that how long the isolation was to be done
and where but stated that the isolation could be done for such person, and at such institution
or ward as may be prescribed. Thus wide powers were given to the government to take away
the liberty of the individual on the grounds that a person was suffering from AIDS.
Section 53 of the controversial Act, is highly draconian and needs to be reproduced in full to
understand the implications:
"53(1): If it appears to the Health Officer that any person is suffering from an
infectious disease, and that such person (i) is without proper lodging or accommodation, or
(ii) is without medical supervision directed to the prevention of the spread of the
disease, or
(iii) is lodging in a place occupied by more than one family; or
(iv) is in a place where his presence is a danger to the people in the neighbourhood;
and
(v) should be removed to a hospital or other place at which patients suffering from
such disease are received for treatment, the I Icalth Officer may remove such person or
cause him to be removed to such hospital or place.
(vi) no person including a foreigner shall refuse collection of blood for investigation
of acquired imuno deficiency syndrome or any other communicable/infectious
diseases if the Health Officer has reasonable ground to suspect that such person is
suffering from acquired imuno deficiency syndrome or other infectous disease as
defined under the Act;
3 AIR 90 BOM 355
2
(vii) In the case of a person who is found to be positive for acquired
imuno
deficiency syndrome by serological test, the Government may isolate such person for such
period and on such
conditions as may be considered necessary and in such Institution or
ward thereof as may be prescribed.
(viii) all such persons admitted in prescribed wards/hospitals shall be provided with
materials, equipment, etc. which shall not be used for any other purpose;
(ix) the parenteral medication of the patents suffering from acquired
deficiency syndrome shall be given through disposable sets/syringes:
i mu no
(x) the linen, matteresses, etc. used for the deceased patients who were suffering from
acquired imuno deficiency syndrome shall be immediately destroyed by burning;
(xi) all the staff working for the management of the patient suffering from acquired
imuno deficiency syndrome shall be effectively protected with long rubber gloves, sterilized
linen and
mask;
(xii) persons handling the dead bodies of patients who suffering from acquired imuno
deficiency syndrome shall be instructed to ensure that they do not come into contact
with any secretions such as saliva; etc.
(xiii) the dead body of patient who was suffering from acuired imuno deficiency
syndrome shall be enclosed be in a polythene bag and tied with knots at both the ends
and sealed before further action for its cremation/ burial or despatch abroad as the
case may be;
(xiv) no transplant operation of any kind shall be performed unless the donor as wel I
as the receptor is confirmed to be free from acquired imuno deficiency syndrome through
serological
investigation;
(xv) all the Blood Banks shall send the blood specimen for ELIZA test to the
Surveillance Centre of the Goa Medical College and only after obtaining the negative
result, it shall be used for the patients;
Provided that in the case of emergency, where blood transfusion is deemed necessary
without waiting for the report of ELIZA test, written consent of the patient or
gaurdian or relative shall be obtained before such blood transfusion."
Apart from the violation of the rights guaranteed under the Constitution of India the petition
raised four basic issues regarding the said provision :
(a) provision for isolation is based on wrong scientific material and foundation;
(b) Object sought to be achieved by isolation is nullified by the provision;
(c) discretion to isolate is unguided and uncontrolled; and
(d) the provision for isolation is procedurally unjust in the absence of the right of hearing
while dealing with the aspects (a) and (b) the court was of the opinion that, isolation was
an invasion on the personal liberty of a person and it may also lead to ostracization. At the
same time the court held that a balance has to be drawn between the right of the
individual and society at large. In a situation of conflict between right of a private
3
individual and the society at large the right of the society should prevail over the right of
the individual.
It was also considered that the isolation might lead to people not coming forward and going
underground if they are suffering from H1V/AIDS. Thus they will not be able to take proper
treatment. Upholding the constitutional validity of the provision the court held that.
’ll. It has always to be remembered that matters like this essentially fall in the realm
of policy. This policy decision is taken by those who are in charge of advancing
public health and who are equipped with the requisite know-how. We And ourselves
too ill-equipped to doubt the correctness of the Legislative wisdom. Even if there is
any doubt about its correctness, its benefit must go in favour of the policy maker. We
are quite conscious that Courts are not powerless to examine the correctness of a
policy decision. But such power has to be very cautiously exercised, field of exercise
being very limied. Settled legal principle is that there is a presumption that the
Legislature understands and appreciates the needs of its people good faith and
knowledge of the existing conditions has also to be presumed in its favour. There is
no weighty evidence — either, intrinsic or extrinsic - on the basis of which the above
presumption or the presumption of constitutionality of a statute is rebutted.’
*14
we find it difficult to accept the submission that there is no scientific basis
whatsoever for considering isolation as one of the proper measures for prevention of
AIDS or that the object sought to be achieved by isolation is nullified by the
impugned provisions of Section 53( 1 )(vii).‘
Regarding the contention that the discretion of isolation was unguided and uncontrolled, the
court held that the government was within its powers to make provisions for controlling the
spread of AIDS. It also stated that a proper rules have been formulated by the government in
this regard.
In the matter of notice and hearing prior to the action of isolation the court held that there are
many provisions and actions in which this principle of natural justice cannot be complied
with. The court was also of the opinion that the condition of prior hearing and notice will
frustrate the provision of isolation. Such a hearing can be given after the isolation also.
Thus in the first ever case regarding I IIV/AIDS the court upheld the Constitutional validity of
a highly suspect Act and this view of course reflected the lack of awareness about the issue in
1990.
Blood Banks
In the case of ''Common Cause v. Union of India the Supreme Court laid down guidelines
regarding operation of blood banks. The issue raised before the court was that the
deficiencies and shortcomings in collection, storage and supply of blood through blood
centres operating in the country could prove fatal.
Blood is one of the medium through which HIV/A1DS is transmitted. Blood has become a
commodity. Some people become professional donors as it is a source of earning for them.
4 AIR 1996 SC 929
4
Blood banks play an important role at different stages of medical treatment. Supply of wrong
or contaminated or bad blood can cost the life of the one being treated, therefore, the Court
felt that it was essential to regulate donation of blood and its quality. Under Drugs and
Cosmetics Act, 1940 blood is treated as a ‘Drug' for the purpose of regulating its collection,
storage and supply.5 The instant PIL was against the deficiencies and shortcomings in
collection, storage and supply of blood through blood centres operating in the country. The
Supreme Court issued the following directions concerning operation of blood banks.
1. Union Government shall take steps to establish forthwith National Council of Blood
Transfusion as a society registered under the Societies Registration Act.
In consultation with the National Council, the State Government/Union Territory
Administration shall establish State Council in each State/Union Territory, which shall be
registered as a society under the Societies Registration Act.
3. National Council shall undertake training programmes for training of technical personnel
in various fields connected with the operation of blood banks.
4. National Council shall take steps for starting special postgraduate courses in blood
collection, processing, storage and transfusion and allies field in various medical colleges
and institutions in the country.
5. Union Government, State Governments and Union Territorories should ensure that within
a period of not more than one year all blood banks cooperating in the country are duly
licensed and if a blood bank is found ill-equipped for being licensed, and remains
unlicensed after the expiry of the period of one year, its operations should be rendered
impossible through suitable legal action.
6. Union Government, State Governments and UTs shall take steps to discourage the
prevalent system of professional donors so -that the system of professional donors is
completely eliminated within a period of not more than two years.
7. The existing machinery for the enforcement of the provisions of the Drugs and Cosmetics
Act and Rules should be strengthen and suitable action be taken in that regard on the basis
of the Scheme submitted by the Drugs Controller (I) to the Union Government for upgradation of the Drugs Control Organization at the Centre and the States.
8. Necessary steps should be taken to ensure that Drugs Inspectors duly trained in blood
banking operations are posted in adequate numbers so as to ensure periodical checking of
the operations of the blood banks through out the country.
Union Government should consider the advisability of enacting a separate legislation fo.r
regulating the collection, processing, storage, distribution and transportation of blood and the
operation of the blood banks in the country. This direction, of course has as yet not been
carried out.
2.
Employment
In 6MX of Bombay Indian Inhabitant v. M/s. ZY the issues raised concerned not only the
right to employment of an HIV affected person but also the safety of other employees and
responsibility of employer to provide medical treatment to its employees who are suffering
from H1V/AIDS. The high Court held that an HIV affected person cannot be denied
employment or be discontinued unless it is medically shown that he is suffering from such a
disease that can be transmitted through daily chores. Taking into consideration the
5Blood banks are regulated under Drugs and Cosmetics Rules. 1945. Part X-B •Requirements for the collection,
storage, processing & distribution of whole human body, human blood components by blood banks &
manufacture of blood products'
6 AIR 1997 BOM 406
5
widespread and present threat of this disease in the world in general and this country in
particular, the State cannot be permitted to condemn HIV persons to economic death. The
Court felt that it was not in public interest and is impermissible under the Constitution. The
interest of the HIV affected persons, employers and society will have to be balanced in such a
case, if it means putting certain economic burden on the State or public corporation or society,
they must bear the same in the larger public interest.
Petitioner was a casual labourer with the Respondent, a State corporation who had been short
listed for being absorbed into latter's permanent workforce. In the pre-employment medical
lest, he was found HIV+ive and consequently, denied regularization.7
u
Respondent's case was that if a candidate was inflicted with a disease that was most likely to
assume serious proportions in due course, the public body could not be saddled with
responsibility and liability of extending medical facility and treatment to such a candidate by
recruiting him. In prescribing pre-employment medical test, employer intends to recruit such
persons who'll be able to serve the full term of employment, i.e., till the age of
superannuation.
High Court rejected the contention of Respondent and held that the object of medical test
prior to employment or during the. course of employment, is to ensure that such a person is
capable of or continues to be capable of performing his normal job requirements and that he
does not pose a threat or health hazard to other persons or property at workplace. Persons
who are rendered incapable of performing their normal function or pose a risk to other
persons at workplace, for instance, due to a contagious disease that can be transmitted
through normal activities at workplace, can be reasonably and justifiably denied employment
or discontinued from employment. Such a classification has clear nexus with the object to be
achieved, viz., to ensure the capacity of such persons to perform normal job functions as also
to safeguard the interest of other persons at workplace.
AIDS is transmitted through sexual intercourse; blood transfusion or from mother to her
newly born child. HIV is not transmitted through insects, food, water, sneezing, coughing.
Ovtoilets, human excreta, sweat, shared eating and drinking utensils or other items such as
protective clothing or telephones. Thus HIV person cannot be denied employment or be
discQiidnuedjjnless it is medically shown that he suffering from such a disease that can be
transmitted through daily chores.
High Court further stated that State and public corporation cannot take ruthless and inhuman
stand that they will not employ a person unless they are satisfied that that person will serve
during the entire span of service from employment to superannuation. The most important
thing in respect of persons infected with HIV is community support, economic support and
non-discrimination. This is also necessary for prevention and control of this incurable
condition. Taking into consideration the widespread and present threat of this disease in the
world in general and this country in particular, the State cannot be permitted to condemn HIV
persons to economic death. It isn't in public interest and is impermissible under the
Constitution. The interest of the HIV persons, employers and society will have to be balanced
in such a case, if it means pulling certain economic burden on the Stale or public corporation
or society, they must bear the same in the larger public interest.
7A person already in employment cannot be terminated merely because he suffers from AIDS/HIV unless shown
that it has incapacitated him to continue working and he poses a threat to the health of other employees.
■Termination of the services of a workman on ground of continued ill-health.' Section 2(oo) ol Industrial
Dispute Act. 1947
6
In this case, the Court also permitted an HIV afflicated person to file a case without
disclosing his identity due to the stigma attachedLiability of the hospitals
8
•
i
In M. Vijaya v. The Chairman and Managing Director, Singareni Collieries Company Ltd.
the Andhra Pradesh High Court held that it was the duty of the hospital to check whether the
blood was infected or not and not having proper equipments to detect the virus was not an
excuse. The High Court went beyond the point of medical negligence and laid down
important guidelines for the effective implementation of the programmes to curb the spread
of virus and to deal with the people who have been tested positive of HIV.
xJ
Petitioner underwent blood transfusion during an operation at the hospital run by the
Respondent-company. Petitioner's brother was the blood donor and the said hospital had
conducted various tests including test for AIDS, which showed the results as negative. After
operation Petitioner's health deteriorated. Numerous tests were conducted on the Petitioner
and she was found suffering from AIDS. To determine the source. Petitioner's brother's
blood was again tested for HIV after a gap of 10 months and the report was positive. In the
instant petition Petitioner alleged that Respondent's hospital was negligent in conducting test
on her brother because of which HIV could not be detected. Respondent-company, on the
other hand urged that during the window period or asymptomatic period, HIV/AIDS can go
undetected, and it could unknowingly be transmitted to others. Therefore, they cannot be held
negligent.
High Court observed, based on the information provided by the Respondent-company that
approximately 1000 employees were suffering from AIDS/HIV and this number was bound
to increase when their family members were included. Under such circumstances. High Court
held the Respondent-company negligent as they failed to disclose whether the doctors
v/orking in their hospital are themselves aware of the problem; if the pathologists working are
technically competent to carry on the tests; and if both Elisa and/or Weston Blot tests were
conducted on the blood donor.
The importance of this judgment is that in the light of the magnitude of the problem among
Respondent-company’s employees, nature of disease and the social dimension to it. High
Court shifted the burden on Respondent-company to show that its hospital was well trained
and equipped, both technically as well as with requisite expertise to prevent spread of the
same. Importance was also given to the attitude of the employer in cases of AIDS/HIV. The
Court expressed its disapproval at the apathy of Respondent-company's hospital in neither
carrying out requisite blood tests on the Petitioner when she approached them after the
operation nor referring her to any other super specialty hospitals for test and treatment. HC
also noted that despite the knowledge that Petitioner was suffering from AIDS. Respondent
company gave her no financial or other help.
High Court went beyond the issue of medical negligence to issue appropriate directions for
the effective implementation of various AIDS control programmes taken up by the
Government and the NGOs.9
8 2002 AC.I 32
l’The judgment also has negative connotation when it stales that ’in an apparent conllicl between the right to
privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and
duty of the State to identify HIV infected persons for the purpose of stopping further transmission of the virus.
Ip the interests of the general public, it is necessary for the Stale to identify IIIV positive cases and any action
taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the Slate was
7
AIDS control measures:
To begin with the High Court noted the AIDS control programmes of the Government.
Central Government established National AIDS Control Organization (NACO) to ensure high
level of awareness of H1V/A1DS and its prevention, to promote the use of condoms for safe
sex in high risk population, i.e.. Migrant labours, truckers, prison inmates etc.
In the State of AP Directorate of AIDS Control Programme was established in 1992 in close
coordination and collaboration with other Government Departments, Public. Private and NonGovernmental Organizations. The Directorate was responsible for development and
implementation of AIDS control plan as approved by NACO. As per the guidelines of NACO
an AIDS Control Society was constituted for the Andhra Pradesh in 1998 to take long-term
and short-term objectives. The term objectives are:
a) Prevent spread of HIV infection: b) Reduce the morbidity and morality associated with
HIV infection, c) Establishment of effective programme management at all levels; d)
Provision of technical and operational support; and e) To mobilize community support to
restrict transmission by conventional methods.
Short-term objectives are a) Strengthen Sexually Transmitted Disease (STD) clinics; b)
Modern Blood Banks to facilitate HIV testing; c) Strengthening of HIV/AIDS surveillance
and prevention activities; d) Human Resource Development to manage HIV infected and
AIDS patients; e) To create awareness about HIV transmission and its control; f) Promote
safety of blood and blood products; g) Organize social support to HIV/AIDS patients.
In AP there are 142 licensed blood banks of which 44 from Government sector., 5 Central
Government, 2 autonomous, I 1 Quasi Government, voluntary, 33 Hospital attached and 38
are private commercial blood banks. NACO has upgraded the Zonal Blood banks and the
District level blood banks by supplying equipments like blood blank refrigerators.
Centrifuges, water baths, etc. HIV and Hepatltis-C Elisa and Raid test kits are being supplied
by NACO. All the Medical Officers, staff nurses and Laboratory technicians working in
Government Blood Banks are allegedly trained in HIV testing Techniques and Blood
Banking technology. Further, State Blood Transfusion Council (SBTC) was formed in 1998
to create awareness on voluntary blood donation. The Government and charitable blood bank
involving NGOs are arranging Blood donation camps. Workshops are being held involving
members of Indian Medical Association and Nursing Home Association, MO of all blood
banks, on blood safety programme and rational use of blood. Technicians are also instructed
on preventive maintenance of Elisa system. STBC also resolved that no private blood bank
should be given fresh licenses and only corporate hospitals and philanthropic
organization/NGOs like Rotary can be considered after careful scrutiny. The Director, Drug
Control Department has also been directed to raid blood banks and the medical shops for
unauthorized supply of blood bags. Every-blood bank is instructed to do all the mandatory
tests, HIV, HCV. HbsAg by Elisa method in addition to the VDRL and malaria. From Is1
June 2000 as per NACO guidelines, voluntary Counseling and Testing Centres have been
established in all district headquarter hospitals and in Microbiology Departments of the
medical colleges. Surveillance centres known as Blood Testing Centres have also been
established at various medical colleges to monitor the trends of the disease.
under an obligation to take all steps tor the improvement of public health. A law designed to achieve this object,
will not be in breach of Article 21 of the Constitution of India.’ (p.513, para.52)
The above position of IIC is an obiter dicta and has no precedent value. Il should be noted that courts as a
principle do not substitute their views for that of experts in a concerned field. There arc statistic and observation
of National and International bodies that forced exposure hasn’t succeeded in preventing AIDS/IIIV. The above
observation is an outcome of ill-founded notions and that is wh\ public education and awareness is important.
8
It is stated that Family Health Awareness Campaigns are being held at the sub-centre level
for 15 days covering the entire rural and urban slum population in the State to give
counseling to all HIV effected and their relatives about future course of action in prolonging
their lives, suggesting appropriate methods for use of condoms, proper nutritious diet and
treating their psychological depression.
Ultimately, the High Court issued the following directions:
1. Sufficient A1DS/HIV test kits to all hospitals and institutions shall be provided. The
Government Blood banks as well as licensed blood banks should be compelled to buy
fool proof HI V/AIDS test equipment;
2. All the government hospitals should use only disposable needles in injections. Registered
medical practitioners should be compelled to use only disposal syringes.
3. Bio-medical waste collected from hospitals and nursing homes should be properly
destroyed or disposed of.
4. There should be more awareness programmes undertaken by the government especially in
rural areas, in slum areas so that people can take preventive measures:
5. Having regard to the cost of anti-AlDS drugs, efforts should be made to supply anti-AIDS
drugs free of cost like in anti-TB and anti-leprosy programmes and family welfare
programees;
6. Doctors should be encouraged to undergo special training for diagnosis and treatment of
AIDS patients;
7. There should be proper scheme for rehabilitation of patients who are diagnosed of
HIV/AIDS as such persons are ostracized by their community;
8. There should be compensatory mechanism to deal with AIDS in case of negligence on
part of the blood banks/hospitals by way of free facilities and free access to State funded
health institution.
9. Doctrine of constitutional tort should be recognised even for prevention and control of
AIDS and State should be made liable for any negligence on part of the health service
system subject to the principles laid down in Indian Medical Association v. V P Shantha
(1995)6 SCC 651;
10. There should be special treatment facilities in hospitals for those who suffer from
HIV/AIDS:
I I. There should be strict vigilance on licensed blood banks with reference to pre-blood
transfusion testing tor HIV and there should be effective educational and training
programmes for those who manage the blood banks.
12. Government may consider to introduce sex education in schools at least from adolescence
stage;
13. Identity of patients who come for treatment of HIV/AIDS Should not be disclosed so that
other patients will also come forward for treatment;
14. There should be change in the method of AIDS propaganda and no slogans, which
promote indiscriminate sex, should be used in the propaganda;
15. The HIV infected person should be educated about AIDS so that he may not inadvertently
or innocently be responsible in spreading the disease:
16. The latest method of testing blood for HIV/AIDS should be introduced in all the hospitals
by giving subsidies so that tests can be conducted at reduced costs;
17. HC observed that the manner in which bio-medical waste are disposed off has relevance
to the prevention of HIV/AIDS because such wastes includes used needles and syringes,
and there is a possibility of the used syringes and needles being reused. All the hospitals
and nursing homes should be directed to dispose of their bio-medical waste in terms of
Bio-medical Waste (Management and Handling) Rules 1998 and they shall strictly
9
comply with the norms specified therein. Such hospitals shall be directed to obtain the
necessary authorization for disposal of the waste from PCB;
18. Like the Central Government that has exempted medicines imported for treatment of
AIDS from payment of Central excise duty, the State Government should also consider
the desirability of grant of sales tax exemption in relation thereto;
19. It is axiomatic that no mandamus would issue to the Legislature to enact legislation in the
matter but, having regard to the submissions made at the Bar as also taking notice of the
fact that the States of Maharashtra and Karnataka have already introduced Bills in this
behalf in its respective Legislature, the Government of AP may also consider the
desirability of introducing a similar Bill before the State Legislature.
20. The State shall issue necessary circulars to such public sector undertakings and other
private sector companies to see that the person suffering from HIV/AIDS are identified
and/or given proper treatment.
Pension Benefits
ll,E.v. Const. Sudan Singh v. Union of India and Am\ was a case decided by the Delhi High
Court in which the petitioner was a BSF Jawan who had completed six years service with the
force and was detected suffering with HIV. The medical board came to the conclusion that he
was unfit for further service and his service was terminated. The court held that Badan Singh
should be given pension.
The medical board was convened and it was of the opinion that the petition was 70 per cefit
disabled. The petitioner’s contention was that he should be given alternative employment or
pensionary benefits.
The court held that 'it could hardly be presumed that he intended to contract the fatal and
stigmalic health order. No person w ould be happy to reap the benefits of a pension. Given a
choice any person would prefer to work. Il's the duty of the government to provide for health
care and a pension is not a paisa more than his obligation. ’
Confidentiality And Right to Marry
,lMr. X v. Hospital Z brought the issue of privacy before the courts. The petition dealt with
two issues; firstly, right to privacy of a patient, specially an AIDS/HIV patient and secondly,
the right of an individual to be safeguarded from any threat to her health.
Petitioner was tested positive for HIV by the Respondent hospital, who acted upon the
discovery and informed Petitioner’s fiancee about this condition because of which the
marriage was called off and his community ostracized him. Thus, this petition was filed
claiming that there was a breach of privacy and confidentiality by the hospital and the doctor.
The Supreme Court observed that the relationship between doctor and patient is that of trust.
No information acquired during course of treatment should be divulged without the prior
permission of the patient. In case of HIV/AIDS patients, confidentiality is paramount because
of repercussions of disclosure. Nevertheless, HIV infected person has a right to lead a normal
life but not at the cost of others. In the instant case the right of health of Petitioner’s fiancee
was pitched against his right to privacy. Supreme Court held that when two rights collide the
one that promotes morality and public interest shall be upheld.
10 97 (2002) DLT986
" AIR 2003 SC 664
10
Further, to condemn a person to death by transmitting AIDS not only violates his/her right to
life but is also punishable under provisions of Indian Penal Code. Sections 269 and 270 of the
Penal Code are as follows:
269. Negligent act likely to spread infection of disease dangerous to life- Whosoever
unlawfully or negligently does any act which is. and which he knows or has reason to
believe to be, likely to spread the infection of any disease, dangerous to life, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with line, or with both.
270. Malignant act likely to spread infection of disease dangerous to life- Whosoever
malignantly does any act which is. and which he knows or has reasons to believe to be.
likely to spread the infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.’
The above statutory provisions impose a duty upon the Appellant not to marry as marriage
would have the effect of spreading the infection, which obviously is dangerous to life of the
i
i
♦
12
woman whom he marries. x'
Respondent's act was to protect the life of another person therefore, they cannot be held
liable for consequences of their act. Supreme Court expressed that in fact Respondent's
silence would have made them particeps criminis i.e. partners in crime.
The Supreme Court however made a further totally uncalled for observation namely-that
HIV/ AIDS patients did not have a right to marry at all. This was going beyond what the
issues before the Court wereTThis would mean that even if a person wanted to get married to
a person with HIV/AIDS after full disclosure she could not do so. This observation was
subsequently removed by the Supreme Court in a review application.
On the issues of confidentiality in the case of 1 ''Dr. Tokugha Yepthomi v. Appolo Hospital
and Anr. the Apex court held that, the timely disclosure of the HIV positive status of the
patient to his fiancee, saved her from being contracted with HIV and hence the disclosure did
not invade the right to privacy.
Discrimation during recruitment
The Andhra Pradesh high court in 1 AMr.X, Indian Inhabitant v. Chairman, State level Police
Recruitment Board and others observed that the clause in the revised AP Police Manual that
person suffering with HIV cannot be taken into any government service was unconstitutional.
In this case the petitioner an armed reserve police with the Andhra Pradesh Police, applied for
the post of stipendary cadet trainee of police (Civil). The petitioner qualified in the physical
tests, completed the 5 km run within the stipulated 25 minutes and was thereafter permitted to
appear in the written examination. Pursuant to the written examination held on 29-02-2004,
the petitioner was provisionally selected as a sub-inspector of police. The petitioner was
asked to be present on 24-6-2004, for verification and rpedical examination. Petitioner came
to know later that he was not sent for training and was not appointed, as he had tested HIV
positive.
12 Sections 269 & 270 ignores a situations where consummation of marriage is with the knowledge of the other
partner's condition and consent.
AIR 1999 SC 495
14 2006 (2) ALT 82
11
In the high court the petitioner contended that, a person, though found HIV positive, would
be fit to perform normal functions for long durations throughout the asymptomatic period,
and it is only in the last stage (known as AIDS) that a person may be unfit to perform the
functions or duties in his/her employment. A person's job not only provides him or her with
daily sustenance but also helps to define his or her life and that most people, who are HIV
positive, are fully capable of carrying out their job responsibilities and find comfort in
continuing their employment, that persons with HIV positive would not put other employees
at risk and as long as an HIV infected person is able to perform his job he should be treated as
any other employee.
The court in its judgement held that.
'21. The petitioner is one among a large section of ourpopulace living with H/V.
Society has responded to (heir plight with intense prejudice. They have been subjected
to systemic disadvantage and discrimination. They have been stigmatised and
marginalized. As the present case demonstrates, they have been denied employment
because of their HIV positive status without regard to their ability to perform the
duties of the position from which they have been excluded. Society's response to them
has forced many of them not to reveal their HIV status for fear of prejudice. This in
turn has deprived them of the help (hey would otherwise have received. People who
are living with HIV/A1DS are among the most vulnerable groups in our society.
Notwithstanding (he availability of compelling medical evidence as to how this
disease is transmitted, the prejudices and stereotypes against persons found to be HIV
positive still persist. In view of the prevailing prejudice, any discrimination against
them can be interpreted as afresh instance of stigmatization and an assault on their
dignity. The impact of discrimination on persons infected with HIV is devastating. It is
even more so when it occurs in the context of employment. It denies them the right to
earn a living. ’
The court further held that.
'34. While persons who have tested HIV positive, can be said to constitute a class
distinct from others who are not so infected and to satisfy the first of the twin
conditions foravalid classification, i.e., the classification being founded on an
intelligible differentia which distinguishes those that are grouped together from
others, it is the second condition as to whether this differentia has a rational nexus or
relation to the object sought to he achieved, which requires detailed examination. As
staled supra, the object is to ensure (hat persons appointed in the police force are of
sound health and are bodily and mentally jit to discharge the duties required of
. offtcersof the police establishment. Medical evidence placed on record reveals that, in
terms of physical and mental Jitness, not all /)ersons who have tested HIV positive
constitute a single class, for there are different categories among them, some of whom
are in the early stages of the asymptomatic period and others in the final stages and
suffer from AIDS. While those in the final stages who suffer from AIDS may justifiably
be denied appointment in the police establishment on the ground that they lack the
required physical and mental ,fitness, the same cannot be said of those in (he early
stages of the asymptomatic period which, as staled supra, may range anywhere
between 3 to 18 years, since during the prolonged asymptomatic carrier stage oj HIV
infection one remains fully active, physically and mentally. (MX oj Bombay Indian
Inhabitant (supra 1). While the medical evidence on record, of which the petitioner
12
himself is a classic example, would reveal that these persons with HIV positive, at the
curly stages of the asymptomatic period, possess the /fhysical and mental fitness
required for employment in the police establishment. no evidence to the contrary has
been placed by the respondents before this court. Grouping all persons with HIV
positive together for denying employment on the erroneous presumption that they all
lack the high standards ofphysical and mental fitness prescribed for appointment to
posts in the police force does not satisfy the second of the twin conditions, for a valid
classification, that the differentia must have a rational nexus to the object sought to
be achieved. Since a valid classification would require segregation of a group of
persons with common properties and characteristics, postulates a rational basis and
does not mean herding together of certain persons and classes arbitrarily, treating all
HIV positive persons as one single homogenous class, irrespective of the stage of the
disease, for being denied appointment in the police force is in violation of Articles 14
and 16 of the Constitution of India. '
Thus the court rightly struck down the relevant provision of the AP Police Manual and held
that it was discriminatory in nature and also denied gainful employment to persons suffering
with HIV.
Liability of the State
In ,5/? of Bombay V. Union Of India the questions raised before the Calcutta High Court were
regarding the negligence of the concerned public hospital in blood transfusion through which
the petitioner was infected with HIV. The union government took the responsibility and gave
a job and compensation of Rs. 10 Lakhs to the petitioner.
In a hospital situate at Port Blair, under the administrative control of the Indian Navy, the
petitioner got admitted for the purpose of delivering her child. A healthy child was delivered
to the petitioner. After the delivery, the physician attending the petitioner felt that the
petitioner required blood infusion. At that time there was no near relative of the petitioner
present at the hospital to donate blood for the purpose of infusing the same to the petitioner.
The requirement of infusion of blood was so acute, the hospital administration at the
command of the attending physician arranged blood for the purpose of infusing the same to
the petitioner. This blood did not come out from the blood storage unit of the hospital. This
came out from a donation made by a sailor. At that time the hospital was not properly
equipped to test such blood in all possible manner. The known tests were, however,
conducted to find oiit whether the blood is otherwise safe for infusion or not. The blood was
infused and later on, it transpired that the same carried H.I.V. Virus. This incident, though is
an accident, occurred inasmuch as there was non-availability of necessary facilities at the end
of the hospital to find out whether the blood to be infused is infected by H.I.V. or not. Had
the hospital necessary facilities to find out whether the donor's blood is infected with H.I.V.
Virus, the accident could be avoided.
A Writ petition was filed before the Calcutta High Court by the victim woman. Before the
Petition could be decided, the Union Government accepted the responsibility for its
negligence and failure and awarded a compensation of Rs. 10 Lakhs to the woman. She was
also offered a job at the place she desired and also was provided with accommodation.
15 2001 Kolkatta High Court
13
i
■
Aids Detection Kits
Merind Ltd. K State of Maharashtra led the high court to hold that the Aids detection kit
falls under drugs as mentioned under the Drugs and Cosmetic Act.
The Commissioner of Sales Tax by his order dated January 7, 1998 held that any medicinal
formulations or preparations for being qualified as "drugs and medicines" in the new
Schedule, entry C-ll-37, have not only to be useful for diagnosis, treatment, mitigation or
prevention of disease or disorders, but it has also to be capable of internal or external
application on the body. Since the diagnostic kits sold by the assessee were admittedly not
applied on the human body either internally or externally, but were used in pathological
laboratories for carrying out certain tests, the Commissioner held that in spite of the word
"diagnosis" in the Schedule, entry C-ll-37. with effect from October 1, 1995, the diagnostic
kits would not fall under Schedule, entry C-ll-37, but the same would be proper^
quantifiable under Schedule, entry C-ll-106.
It was argued before the High court that the ‘Kit* falls within the definition of‘drugs' as
given in the Drugs and Cosmectics Act.
The High Court after considering many aspects and referring to the earlier judgements of the
Sales Tax Tribunal held that, the diagnostics cannot be classified under C-l-106 which
pertains to instruments but on the contrary held that the diagnostic kits are medicinal
formulations used for diagnosis of the diseases in human beings, then the same would be
squarely covered under entry C-ll-37 and the same cannot be said to be covered under entry
C-II-106.
Thus the High Court negatived all the above-mentioned questions raised before it and held
that the diagnostic kits can be termed as drugs.
C. CONCLUSION
Over the years, one can clearly discern a progressive realization by the Courts concerning
HIV/AIDS and its significance.
Since in terms of judicial time frame the issue is so new we have not confined ourselves only
to cases concerning health care but have also dealt with the manner in which Courts have
generally dealt with the problem. In this short span of time, the Courts have been confronted
with all kinds of issues including discrimination in employment, access to safe blood,
confidentiality and privacy.
The above mentioned cases do not solve the problems of discrimination and isolation or
accessible health care but some of the verdicts of the courts do give a ray of hope to the
persons who are being discriminated on the basis of being HIV positive by the family,
employer and also the society at large. Some of the judgements clearly lay down the right to
be not discriminated and also the right not to be lead towards an economic death due to the
disease. As we have already mentioned above the State needs to do much more on the issue,
similarly the courts have to be more open and understanding in their approach while dealing
with cases of persons suffering from HIV/AIDS.
“'(2004) 136 S IX' 462 BOM
14
- Media
9842.pdf
Position: 1119 (7 views)