Open Review of Health and Human Rights Case Law 28th October 2006
Item
- Title
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Open Review of Health and Human
Rights Case Law
28th October 2006 - extracted text
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Open Review of Health and Human
Rights Case Law
28th October 2006
Organised by Cehat - Mumbai
CHC participant: E.Premdas
Open Review of Health and Human Rights Case Law
28th October 2006
Western Regional Instrumentation Centre (WRIC), University of Mumbai,
Vidyanagari, Kalina, Santacruz (East) Mumbai 400 098.
Tel: 26526141/26526373
Welcome and rationale for the
document_____________
Introduction
Adv. Kamayani Bali
Mahabal___________
Mr. Ravi Duggal
9.40am-10.00am
Right to Health and Public Health
Care_________________
Emergency health care
Adv. Mihir Desai
10.00-10.30am
Adv. Mihir Desai
Discussion
| 10.30am-11.00am
11.00am -11.15am - Tea Break
Environment and Health
Adv. Vijay Hiremath
Aids and Public Health
11.15am11.45am
Adv. Vijay Hiremath
Discussion_______
Medical Negligence
Adv. Mihir Desai
Medical Practice
Adv. Mihir Desai
Discussion
11.45am-12.15pm
12.15£>m- 1.00pm
| 1.00pm-1.30pm
1.30pm-2.00pm - Lunch
Occupational diseases and right to
Adv. Mihir Desai
workers health___________________
Discussion__________________
Drugs and Public Health
Adv. Mihir Desai
Conclusion
9.30am
2.00pm-2.30pm
2.30pm-2.45pm
2.45pm-3.15pm
Adv. Mihir Desai
Discussion
Conclusion
3.15pm-3.45pm
3.45pm-4.00pm
Vote of Thanks and Tea - 4.00pm
Adv. Sanober keshwaar
Adv. Veena johri - lawyers collective
Premdas - CHC Bangalore
Padma - Cehat
Amita - Cehat
Adv. Jaya Sagde
Padma parskash
Vibhuti Patel
Lakshmi lingam
Chandrima
Leni
■
(J
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
grow th 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 sectoi
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 town hospitals and dispensaries in urban areas. While acknowledging this
“social" dimension, it must be stated clearly that the development approach was never rightsbased 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.
1 Prcsentlv the Indian Pharmaceutical ii'.duslrx inanul’aclurcs drug I’ormulaiions io the lune ol Rs. 210 billion and ol this
exports Rs. 98 billion, which is 47% of total production. Hie Indian pharmaceutical industry is the I"’ largest in the world
and accounts lor 8% of world production b\ volume. (MoCI . 2001)
I
While development was planned and directed via the Five Year Plans, it was clear right from
Plan I 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 Shore 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.
.7U*-
2
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 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 Shore Committee. The Shore 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
3
its sphere of control over the health sector.2 Hence 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 H1V/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
' The Constitutional prosisions (Schedule 7 of article 246) are classilied into three li>ts. including a Concurrent list
which both centre and stales can govern bin the overriding power is with the centre. I he list here includes original
entry numbers Central List: 28.Port quarantine, including hospitals connected ’.herewith: seamen's and marine
hospitals 55.Regulation of labour and safets in mines and oilfields State List: 6.Public health and sanitation: hospitals
and dispensaries 9.Relief of the disabled and unemployable Concurrent List: I6.l.unac\ and menial deficiency,
including places for the reception or treatment of lunatics and mental deficients 18.Adulteration oi foodstuffs and other
noods. 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, employ ers' liability, workmen's compensation, invalidity and old
atie 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 3().Vital statistics including registration of births and deaths,
(hup . ulfu
m coiim . ;cdulv.lHni| )
4
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.
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. 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 visa-vis these indicatois. Infact the latest Human Development Report shows a downward
' The I lathi Committee's recommendations pertained to removal of irrational drug combinations, generic naming of
essential drugs, development of a National Formulary for prescription practice.
5
■
trend in India’s global ranking4. (UNDP, 2003). This climb down and slowing of growth
in India’s human development 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___
1951 1961 1971 1981 1991 1996 1997 2001- Latest*
*
1
Hospitals*
Total 2694 3054 3862 6805 1117 1517 1518
4
2
Hospital &
dispensary
beds*
*
4
PHCs
5
Sub-centres
6
Doctors
8
34
% Rural 39
32
27
34
34
30
30
%Private
43
57 ' 68
68
62
75
Total 1170 2296 3486 5045 8064 8927 8967 91454 150000
00 34 55 38 09
38
67
3
0
% Rural
%Private
3 Dispensaries
0
02
18436 22000
22
17
23
21
23
21
28 32
37
37
35
50
6600 9406 1218 1674 2743 2565 2567 22291
J
0
5
1
0
% Rural 79
41
40
78 69
80
50
% Private
57
13
60
56
54
725 2695 5131 5568 2224 2191 2244 22842 23500
7
3
6
2792 5119 1310 1349 1363 13731 140000
2
9
98
31
79
1
23
21
Allopaths 6084 8307 1530 2661 3936 4627 4969 60584 660000
40
40
41
0
1080 12973 143000
173
10
0
1655 3558 8062 1503 3112 5657 6073 80582 880000
00
7
0
4
0
99 35
76
0
0
00
45
All 1560 1846 4500 6653 9200
Systems 00
06 00 40 00
7
Nurses
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 of 138. India is on the fringe of medium and low IIDI group of countries. Indi.i'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 incicase of 1.7% per annum. The slowing down of growth is shown in the table below: (Source: UNDP HDR.
various years)
HDI score_________________________
Annual % increase over previous period
1975
0.407
1980
0.434
1.3
1985
0.473
1.8
1990
0.511
1.6
1995
0.545
1.3
2000
0.577
1.1
6
•Z
I
8
9
Medical
colleges
Out turn
10 Pharmaceuti
cal
production
11
Health
outcomes
Life
Expectancy
Births
attended by
trained
practitioners
12
Health
Expenditure
Rs. Billion
Allopathy
30
60
■
98
111
128
165
165
189
195
<;
Graduates 1600 3400 1040 1217 1393
0
4
0
Postgraduat
397 1396 3833 3139
es
Rs. in 0.2
billion
0.8
IMR/000 134
146
20000
3656
6000
14.3 38.4
91.3
104.9
220
280
80
72
71
66
65
CBR/000 41.7 41.2 37.2 33.9 29.5
CDR/000 22.8 19
15 12.5 9.8
years 32.0 41.2 45.5 54.4 59.4
8
2
5
Percent
18.5 21.9
27
9
62.4
27
8.9
63.5
25
8.1
64.8
24
8
65
101.6 113.1
5
3
329.0 373.4
0
1
0.91 0.88
2.95 3.00
211
1100
249
1464
138
1 10
Public 0.22 1.08 3.35 12.8
CSO
2.05 6.18
6
private
29.7
0
Public 0.25 0.71 0.84 1.05
Private
1.34 1.56 2.43
50.7
8
82.6
1
0.92
1.73
28.5
Health
0.89
0.91
Expenditure
5.32
5.40
as percent of
cso
_________ GDP
Health
Public 2.69 5.13 3.84 3.29 2.88 2.98 2.94 2.72
2.60
Expenditure
as % to
Govt. Total
*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, GO1, 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 Iridian 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 lo back the cause of healthcare as a right.
As stated earlier, the Bhore 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 12lh 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,
' The debate on terminology on 'right to health' and 'right to heallheare' is endless and here we will not get into this
bottomless pit. SulTiee to sa> that right to health is not independent of right to heallheare and hence they must be seen
in tandem. The Wl IO definition was influenced largely by Sigerisl. who argued that state of health is a physical, mental
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 puls on the individual" (Sigerisl. 194 I.
p.63). This broad definition, including social well-being is often criticised for being loo broad and as a consequence the
concern for access to heallheare is lost. While Sigerisl gave this broad definition he also emphasized that healthcare
proteclion and provision was the right of the citizen and a duly of the stale lo respect this. The focus in this paper is on
the right to access healthcare and other related rights, and as a consequence health. I lencc. the use of the phrase 'right
to health and heallheare' in the present paper. I'or a debate on the dellnilions and further.references sec Brigil I ocbes.
1998.
6 Article 37 pertaining lo the application of the principles contained in Part IV of the constitution slates. “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 lo apply these principles
in making laws"
8
Article 46' has been implemented with a fair amount of seriousness through the policy of
resei various lor 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 ol 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, UDI 1R etc. See Box 1 for a^brief
on some of the well-known cases.
fhese 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
horn 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
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
Consume! 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 foi 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
’Article 46 - Promotion of educational and economic interests of Scheduled Castes. Scheduled Tribes and other weaker
sections: I he 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
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 al the
various Government hospitals which were approached even though his condition was
very serious at that lime 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 JU1JIS., Supreme Court of India). This case reflects the right to health
care in an emergency situation and state hospitals are duty hound 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
12
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 (he international human rights provisions for
right to health and healthcare. But it must he noted that the judgment focused only on this
right far the worker and not any citizen.
13
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 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 secs 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 heallh/social insurance coverage, either through social security
legislation like Employee Stale 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, atleasl 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
8 EAG stands for Empowered Action Group stales which include the following: Rajasthan. Madhya Pradesh.
Chaltisgarh. Uttar Pradesh. Uttaranchal. Bihar. Jharkhand and Orissa
14
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
I he States Parties to the present Covenant recognize the right of everyone to
social security, including social insurance.
Article 12
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. 1 he 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.
15
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 6lh 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 lhe rural public
health infrastructure was expanded considerably during the first half of the eighties, more
resources were being committed to the 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 21sl 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 ICTSCR in an economic environment being largely dictated by the World
Bank. At another level the Committee of lhe Fconomic, 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
9 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*'
10 For instance the impact of CF.DAW. Cairo and Bejing Declarations is closely linked to the formulation of a policy on
women and women's empowerment, and selling up of the national and stale Commissions on Women, lhe Rashlriya
Mahila Kosh and of formulalion of man\ 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 lhe UNCIIR have been instrumental in India setting up lhe National and State Human Rights
Commissions, l he Nl IRC' has presently set up a separate cell to monitor ICIiSCR as also for right to public health.
16
Directive Principles" 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.
42. Provision for just and humane conditions of work and maternity 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
11 "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).
17
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 io
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
"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
18
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 ,Qiapter 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 cost-effective 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: ... 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
19
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 sale 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)
20
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 19,h 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
cjuality 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 Stale party. The precise nature of the facilities, goods and services will vary
depending on numerous factors, including the Slate 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.
(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:
21
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
impait 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.
1 his requites, 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 aie obligated to respect, protect andfulfill 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 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)
22
(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 tthe Programme of Action of the International Conference on Population and
Development, the Alma-Ata Declaration provides compelling guidance: on the core
view, these core
obligations arising from article 12. Accordingly, in the
t.~ Committee's
—
obligations include at least the following obligations:
(a) To ensure the right of access to health facilities, goods and sei vices on a nondiscriminatory basis, especially for vulnerable 01 maiginalized 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
healthcare;
...
.
.
(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 contioiling
them;
(e) To provide appropriate training for health personnel, including education on
health and human rights. (Ibid)
The above guidelines from General Comment 14 on Article 12 of ICEoCR are critical to
the development of the framework for right to health and healthcare. As a reminder it is
important to emphasise that in the Bhore Committee report of 1946 we already had these
23
i
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 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
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 I lealth is
presently seriously considering this option, including allowing post-graduate medical education only to those who have
completed the minimum public medical sen ice. including in rural areas.
" Data on a\ailabilit\ of essential drugs show that in 1982-83 the gap in availability was only 2.7% but by 1991-92 il
had walloped to 22.3%. This is precisely the period in which drug price control went out of the window. (Phadke.A.
1998)
24
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.I> 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
• 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
15 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 alleast one private doctor (not
necessarily qualified). 31% of villages had visiting private doctors. 59% had trained birth attendants, and 33% had
village health workers
l'’ It must be noted that coercion was not conllned only to the I jnergcncs 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 lUCDs and were penalized for not fulfilling these
targets in different ways, like cuts and/or delays in salaries, punishment postings etc.
25
•
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
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
17 The poorer classes have reported such low rales 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.
26
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 oi 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 (he 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 SI s 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 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.
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 Duggal. 1997). Similarly, a much larger study in Andhra Pradesh in
1993 revealed extraordinary missing statistics about the private health sector, lor 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)
27
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, 2OOO)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
More than half a century's experience of wailing 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 backburner 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."1 As entitlements rights are contrasted with privileges, group ideals.
19 Data of 80 (op selling drugs in 1991 showed (hat 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)
20 In Mumbai CI'I IAT in collaboration with various medical associations and hospital owner associations have set up a
non-profit company called I leallh Care Accreditation Council. This body hopes to provide the basis for evolving a
much larger initiative on this front.
21 In the I8lh 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
28
societal obligations, or acts ol 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 very different and hence there should not be a global core content,
it needs to be country specific. In 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
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.
22 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 cl.al.. 1988 as quoted by Tocbes.1998)
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
29
•
•
•
•
•
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 adequate, though 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
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.2> 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
amongst children is absent, but where it is del'icienl one sees malnutrition. Another issue is that wc have overflowing
food-stocks in godowns but yet each year there are multiple occasions of mass starvation in various pockets of the
country.
25To illustrate this, taking the Community I Icalth Centre (CHC) area of 150.000 population as a ’‘health district" al
current budgetary levels under block funding this "health district" would gel Rs. 30 million (current resources of slate
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 Cl IC 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 PI ICs in this area),
including its sub-centres and Cl I Vs (Rs. 3.2 million as salaries and Rs. I million for drugs, consumables etc..). This
would mean that each PI IC would gel Rs. 140 per capita as against 'ess than Rs. 50 per capita currently. In contrast a
district headquarter town with 300.OOO 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 gel much larger resources. To support health administration, monitoring, audit, statistics etc. each unit would
have to contribute 5% of its budget. Ofcoursc. these llgures have been worked out with existing budgetary levels and
excluding local government spending which is quite high in larger urban areas. (Duggal.2002)
30
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. 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 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 employment 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 dispensaries are grossly under-utilised. The latter could be made
open to the general public
• 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 first-steps 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
26 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 Nl IS. the local health authorities have the right to prevent setting up of clinics if their area is
saturated.
27 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.
31
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 members of society: it is the floor
below which no one will fall/8 (Chapman. 1993). 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 constraints29, 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:
• 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
28 This implies that the health status of the people should be such that they can atleast work productively and participate
actively in the social life of the community in which they live. It also means that essential healthcare sufficient to
satisfy basic human needs will be accessible to all. in an acceptable and affordable way. and with their full
involvement. (WHO. 1993)
20 General Comment 3 of ICI-SCR reiterates this that the minimum core obligations by definition apply irrespective of
the availabilitx of resources or any other factors and difficulties. I lence it calls for international cooperation in helping
developing countries who lack resources to fulfil obligations under international law.
Most of alleast the curative services will of necessity have to be a public-private mix because of the existing baggage
of the health system we have but this has to be under an organized and accountable health care system.
32
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 fioor 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 fioor 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.
Fhereforc 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 finds that on an
average per 1000 population there are 2 doctors. 5 nurses and as many as 10 hospital beds
(OECD. 1990, WHO. 1961). The moot point here is that these ratios have remained more
or less constant over the last 30 years indicating that some sort of an optimum level has
been reached. In India with regard to hospital care the Bureau of Indian Standards (BIS)
has worked out minimum requirements for personnel, equipment, space, amenities etc..
For doctors they have recommended 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 Bhore
Committee had recommended reasonable levels (which at that time were about half that
of the levels in 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
•" These services need not be part of the health department or the national health authority that max’ be created and may
continue to be part of the urban and rural development departments as presently.
33
•
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 in 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. Such 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:
Daily morbidity =■- 2% to 3% of population, that is about 20-30 million patients to
be handled everyday (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
hospitalisations as per NSS -1987 survey, an underestimate because smaller
studies give estimates of 50/1000/year or 50 million 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) r 18.4% (2-week incidence) or 3.5 episodes per child per year or
nearly 500 million cases per year
• 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
34
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 well-developed 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.
flic 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
systems, quality standards, occupational and environment health problems, reproductive
health issues, violation of rights, allocation of resources, professional conduct, rights of
patients, and protection against epidemics etc. 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 Bhore 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 non-discriminatory 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 Maternity 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
35
malpractice like the Medical Council of India Act, Organ Transplantation 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 sex-selective 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 umbrella of an apex law which mandates the right to health and healthcare. This apex
law must be contextualized within the framework of the ICESCR and other international
covenants as well as the provision of the directive principles of the Indian Constitution
discussed above and must facilitate the organization of the healthcare system into a
regulated system which is under a public authority and financed by pooling all resources
available in the country. To 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 as per the core
content we 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
36
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 system32. 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 care33. Apart from this Canada also has other legislation which regulates
specific aspects of provisions under the Canada Health Act.
The regulatory 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 nurse:doctor and doctorbeds 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
■'2 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 of 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.
(.tLl.W.:TlH.\Y.S:.iiisti.cc
: accessed 30-3-2()()6)
37
■
■
■
■
■
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 ol 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
■ Proper geographical distribution to prevent over concentration in certain areas
7. 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
38
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
lights (informed consent, privacy, access to records etc.), complaints redressal,
leproductive 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
agency to monitor what 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 I lealth Care, in Issues in Health
Care Policy, ed John Mckinlay, A Milbank Reader 3, New York
Andreassen, B, Smith, A and Stokke. H, 1992: Compliance with economic and Social Rights:
Realistic Evaluations and Monitoring in the Light of Immediate Obligations in A Eide and B
Hagtvet (eds) Human Rights in Perspective: A global Assessment, Blackwell, Oxford
Bhore, Joseph, 1946 : Report of the Health Survey and Development Committee, Volume 1 to IV
Govt, of India, Delhi
BIS, 1989 : Basic Requirements for Hospital Planning CIS: 12433 (Part 1)-19883, Bureau of
Indian Standards, New Delhi
BIS, 1992 : Basic Requirements fora 100 Bedded Hospital, A Draft Report. BIS. New Delhi
CBHI, various years : Health Information of India, Central Bureau of Health Intelligence
MoHF&W, GO1, New Delhi
Chapman, Audrey, 1993: Exploring a Human Rights Approach to Healthcare Reform, American
Association for the Advancement of Science, Washington DC
De Villiers, 1992 "Directive Principles of State Policy and Fundamental Rights: The Indian
Experience," South African Journal on Human Rights 29 (1992).
Duggal, Ravi, Nandraj S, Vadair A, 1995: Health Expenditure Across States, Economic and
Political Weekly, April 15 and April 22, 1995
Duggal, Ravi, 2000: The Private Health Sector in India - Nature. Trends and a Critique VHAI
New Delhi
I9uggal, Ravi 2002. Resource Generation Without Planned Allocation, Economic and Political
Weekly, Jan 5, 2002
Duggal, Ravi 2004: Operationalizing Right to Healthcare in India, ICFAI Journal of Healthcare
Law, August 2004, Vol2, No. 3, pgs 13-42
Eilis, Randall, Alam, Moneer and Gupta, Indrani, 2000: Health Insurance in India - Prognosis
and Prospectus, Economic and Political Weekly, Jan.22, 2000
39
FYP I - IX, various years: Five Year Plans - First to Ninth, Planning Commission, GOI, New
Delhi
Gupta, RB et.al.,1992 : Baseline Survey in Himachal Pradesh under IPP VI and VII, 3 Vols.,
Indian Institute of Health Management Research, Jaipur
Hathi Committee, 1975: Committee 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 in the Americas
Pan-American Health Organization, Scientific Publication No. 509, Washington, D.C. 1989 ’
ICMR, 1990: A National Collaborative Study of High Risk Families - ICMR Task Force, New
Delhi
MoCF, 2001: Annual report. Dept, of Chemicals and Petrochemicals, Ministrof Chemicals and
Fertilizers, GOI, New Delhi
MoHFW, 1983 : National Health Policy, Govt, of India, Ministry of Health & Family Welfare,
New Delhi
MoHFW, 2001: India Facility Survey Phase I, 1999, UPS, Ministry of Health and Family
Welfare, New Delhi
Nandraj, Sunil and Ravi Duggal, 1997 : Physical Standards in the Private Health Sector, Radical
Journal of Health (New Series) 11-2/3
Nariman, F, 1995: Economic Social and Cultural Rights and the Role of Lawyers, ICJ Review No.
55,1995
NFHS-1998, 2000: National Family Health Survey-2: India, UPS, Mumbai
NHP-2001: Draft National Health Policy, Ministry of Health and Family Welfare, GOI, New
Delhi
NSS-1987 : Morbidity and Utilisation of Medical Services, 42nd 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. II. 1994: fhe 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, GO!, 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 1990-2001)
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
40
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 securing*
*
e) 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 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 Court- Municipal
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, io keep him
physically fit and mentallyalert for leading a successful economic, social and cultural
life. The medical facilities are, therefore, part of social security and like gilt edged
1 1980 Cri IJ 1075)
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 li^hl ofArts. 22 to 25 of the Universal Declaration of Human Rights.
International Convention on Economic. Social and C ultural Rights, and in the light of
socio-economic justice assured in our Constitution, right io 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. fhe case is discussed in detail in the
chapter on occupational health. However, the relevant observations ol the C ouit 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 to make their 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 accoiding to the capacity,
social and cultural heritage.
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 standaid ol
life of worker is an input. Art. 25(2) of the universal declaration of human rights
ensures right to standard of adequate living for health and well being of the individual
including medical care, sickness and disability. Article 2(b) ol the Intel national
Convention on Political, Social and Cultural Rights protects the right of worker to
2 1995 3 SCC 42
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 ol 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 efllcienl
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 io 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.
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. Moiiinder Singh Chawla ’, the Supreme Court observed:
”lt is now settled law that rieht to health is an integral to right to life. Government has
constitutional obligation to provide the health facilities. If the Government servant has
3 1997 2 SCC 83
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 2 1. Similarly in Shantistar Builders v.
Narayan Khimalal Totame, (1990) 2 SC.J 10 = AIR 1990 SC 630 = 1990 I 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. Stale of U.P.,
AIR 1987 SC 359, Subhash Kumar v. State of Bihar (supra), the Supreme Court
imposed a positive obligation upon the Slate 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
4 T. Ramakrishna Rao Vs. Hyderabad Urban Development Authority decided on 20.7.2001
The Allahabad High Court heldT
” 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 Slate, 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 SupremeX'ourt, 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 aid. The Government doctor
stitched up the wound and prescribed brufen tablets. 'Thereafter, 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 X-Rays 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.
' In S.K.Garg Vs. State ol’U.P. decided on 21.12.98
b There arc 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 Stale for a wrong committed by it
or persons acting under it. Both remedies exist independent of each other. I’or instance, in an incident of medical
negligence bv Government doctors, a cause of action may be instituted by invoking writ jurisdiction of SC or
IIC under Articles 32 & 226. respeclivelx. Simultaneously aggrieved person will also be entitled to pursue civil
law remed) in torts or contract against individuals before either Consumer courts or civil courts, (refer chapter
on medical negligence)
7 AIR 2003 Delhi 50
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 treatment was given.
A citizen of India is entitled to preservation of his life not only at the hands of the police
authorities, but also at the hands of the public authorities, which would include hospital
authorities having regard to the extended scope of Article 21 of the Constitution. Every
doctor at the government hospital having regard to the paramount importance of
preservation of human life is under statutory obligation to extend his sendees 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 case 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 which caused
tremendous hardship to commuters, especially in long distance trains. The 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 reseiwe a
Coupe' offour births in long distance train that shall cany sign board 'MEDICAL
FACILITIES' with symbol of Red Cross. Visible symbol of Red-cross shall also be
displayed out side the compartment. Team of one 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 he 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 to the
passengers free of cost by a competent doctor and complaint book is 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 Radio. People of
Country shall also be made aware through the news papers.
(iv) Chemist facilities shall be provided on the station premises keeping in mind the
quantum ofpassengers traffic.
8 AIR 2005 RAJ 317
(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. Moliinder 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 Al IMS, 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 he 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 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.
9 (1997) 2 SCC 83
10 (1996) 2 See 336
In Devindar Singh Shergil v. State of Punjab" dealt with a retired government employee.
The Appellant, a retired government official, who had approached Postgraduate Institute ol
medical Sciences (PGI), Chandigarh lor 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 AllMS 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
Al IMS 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 I his 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 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 readers
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 cjueue
of waiting lists, and it has to provide all facilities for which an employee looks for at another
hospital. Al 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
11 (1998) 8 SCC 552
12 (1998) 4 SCC 117
13 In Surjeet Singh case. Appellant was reimbursed at the rates of AllMS even though he was treated abroad; or
in Devindar Singh Shergil case, where the Appellant was reimbursed at the rate prevailing at AllMS even
though there were other hospitals specified in Stale. Health policy that were cheaper than Al IMS
providing medical facilities to its citizens including its employees. Provisions of facilities
cannot he unlimited. It has to he 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 of undeserved want. Hence, the
principle offixation or rate and scale under the new policy was justified and could not he
held as infringing 'right to life '.
K.P, Singh v. Union of India” 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:
1. 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 lighters could procure such medicines directly from a registered chemist and
claim reimbursement on the strength of a fllled-in pro forma of the service head of
their respective ministry, department or office. While in case of 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.
2. 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 of 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 emergency, 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 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 Delhi1 the case was filed against the
order of the Respondent by which it rejected the Petitioners 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
14 (2001) 10 SCC 167
"Delhi I iedt 3/10/2002
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. I lowever it also clarified
that its order should not he understood as whittling down the right of the Respondents to
frame or formulate a policy including one providing restriction or ceding on reimbursement
ofexpenses as long as the said policy is not violates Articles 14 A- 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/DETEN US:
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.16
In Marri Yadamma v. State of Andhra Pradesh17 the deceased was an under trial who died
of congestive cardiac failure . The petition was hied 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.
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 slated 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 he violated.
16 Rama Murthy v. State of Karnataka (1997) 2 SCO 642
17 AIR 2002 AP 164
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 ol 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 slate 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:
‘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 'in case l/ie 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 Board forms an opinion that custodial interrogation
is not feasihle in that event it will he open to (he 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. "No doubt investigating officials
IXAPI IC dl. 27/6/2001
'“As a rule, power of judiciary cannot stretch into the arena of legislature. It cannot direct
Parliament or stale 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 ol High Court. In the absence of the same and in consideration of the limitation
of judicial review, it is unlikely High Court would have passed such an order.
20 (1998) 2 SCC 105
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 thev have to safeguard his
health while he is in their custody. Rut to say that interrogation should be sub/ecl to the
opinion of the cardiologists of the AllMS and that the officials of the Directorate should
approach (he Director of AllMS to constitute a Board of ( ardiologists 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 arrestee 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.”
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
(i)
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
(ii)
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
(iii)
month from the date of this order indicating:
21 AIR 1997 SC 610
22 2002 3 SCC 3 I
a)
(iv)
I he 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.
Every State shall file an affidavit stating:
a) 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.
b) If it does not exist, the reason thereof and when such an Authority is
expected to be established and operationalised.
c) 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.
d) 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.
e) 1 he 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. It 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
23 Decision of the Supreme Court given on 12/1 1/1991
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 arc 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 fumdamental 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.
DRUGS& PUBLIC HEA1 /I II
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. 1'hey 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 Dru^:- for the purposes of (his Chapter, a dru^ shall be deemed to
be misbranded-
1
(a) If it is so coloured, coated, powdered or polished that damage is concealeddff if it
is made to appear of better or greater therapeutic value than it really is; or
(b) If it is not labeled in the prescribed manner ; or
(c) If its label or container or anything accompanying the drug bears any statement,
design or device which makes any false claim for the drug or which is false or
misleading in any particular.
Section 17A. Adulterated Drugs- For (he purpose of this Chapter, a drug shall be
deemed to be adulleraled(a) If it consists in whole or in part, of any filthy, putrid or decomposed
substances; or
(b) If it has been prepared, packed or stored not under sanitary conditions
whereby it may have been contaminated with filth 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
deleterious substances which may render the contents injurious to health; or
(d) If it bears or contains, for purposes of colouring only, a colour other than one
. which is prescribed; or
(e) If it contains 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 oj' 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
fictitious 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 IS. Prohibition of manufacture and sale of certain drugs and cosmetics- From
such date us may be fixed by (he State Government by notification in the official
Gazette in this behalf, no person shall by himself or by any other person on this
behalffa) Manufacture for sale orfor distribution, or sell, or slock or exhibit or offerfor
sale, or distributeAny drug which is not of a standard cpiality, or is misbranded,
i)
adulterated or spurious;
*
H)
id)
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, (hereof
2
iv)
dny^ di
which by means of any statement, design or device
accompanying it or by any other means, purports or claims to
v)
prevent, cure or mitigate any such disease or ailment, or to have
any such other effect as may he prescribed;
*
vi)
Any drug or cosmetic in contravention of any provision of this
Chapter or any rule made there under:
(h) Sell or slock or exhibit or offer for sole, distribute onv drug or cosmetic which
has been imported or iiuiniijaclured in contravention of any of the provisions
of this Act or any rule made there under;
(c) Manufacture for sale or for distribution, or sell, or stock or exhibit or offer for
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 shad apply to the manufacture, subject to
prescribed conditions, of small quantities of anv drug for the purpose of
examination, test or analysis:
Providedfurther that the Central Government may, after consult at ion with (he
Board, by notification in (he Official Gazette, permit, subject to anv conditions
specified in the notification, the manufacture for sale or for distribution, sale
stocking or exhibiting or offering for sale or distribution of anv drug or class
of drugs not being ofstandard quality.
Sections 20 & 21 contemplate appointment of Government Analysts & Inspectors,
lespectively by the Central and Stale 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 el 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 fora term which may
extend up to a term of life and with line.
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: Prohibitioii of advertjsem^ of certain drugs for treatment of certain
diseases and disorder
Subject to the provisions of this Act. no person shall take 'any ya/i 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-
3
(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 excepl(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 indirectly 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 Delhi" 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 1IC was whether the Central Government had acted arbitrarily or the
opinion tendered by the Board w as arbitrary and w ithout substance. HC held that the
advice tendered by the Board consisting of*experts, who have special knowledge and
1 Section 5 applies to adverlisenicnt ol’magic remedies mulalis mutandis
2 AIR 1993 P&ll 28
4
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 ci high powered body consisting of experts
arrives at such a decision after due consideration and exchange of views, ire 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, ire
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
Laxmikant 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 AllMS, 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 Corporation*
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 SCdl. I 1/4/1997
4 AP IIC dl. 10/12/2002
5
Cadila Pharmaceuticals Ltd. V. State of Kerela" was a case which dealt with
definition 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 includesall medicines for internal or external use of human beings or animals and
(i)
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
I
repelling insects like mosquitoes;
such substances (other than food) intended to affect the structure or any
(ii)
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 the 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 of any disease or disorder. Therefore, it did not fall
within ‘drugs' within the meaning of S.3(d)( I).
i-
High Court disagreed with the submission of Petitioner that the two products in
question are not part of any treatment of disease or disorder. 11 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.
6
Similarly, in Chiinanlal v. State of Maharashtra 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 Kcrcla 357
6 AIR 1963 SC 665
6
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 Kcrela7 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 14.1 1.1994 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:
possession of drugs covered by Schedule H without having a qualified
i)
man under whose supervision sale of such drugs could be executed; and
he was found in possession of and exhibiting for sale expired penicillin
ii)
ointment.
Rule 110 Sub-rule 9 of Rule 65 of Drugs and Cosmetics Rules reads ‘Substance
specified in Schedule H, and preparatiqns 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 wa$ an important case concerning storage of
drugs in transit. The Appellant had a vyholesale dealer license to stock drugs at
7 Kcrela HC decided on 25/2/2002
8 AIR 1956 Allahabad 703
7
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-flrm
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-flrm was that it did not have
the license to slock the drugs al the latter.place, therefore they acted in contravention
of the provision of Drugs and Cosmetics Act, and were liable for punishment under
S.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 slocking 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 car. be
inferred that drugs stocked are slocked 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 (he 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.
‘’(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 lor wholesale and retail sale of drugs. Slate 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 (he advertisement and what activities falling
under the Article 19(1), it seeks to further.
The advertisements prohibited by 8.3 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(1) (a). As the main purpose and
10 (CW.IC) Patna HC dt. 7/12/01
"AIR I960 SC 554
12 Suctions 3(d) & 8 were also challenged lor giving unhindered power to the executive under the Act.
and both were held ultra vires. In 1963 Parliament rectified the Haws.
9
true intent and aim, object and scope o f 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 oj the
Petitioner's right to free speech. '
In IJState of Karnataka v. R.M.K. Sivasubrainanya Om" 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.
iii) 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.I? 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 slated 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.
13 S.6 prohibits import or export of any document containing advertisements of such nature as specified
in Ss. 3. 4 & 5
14 1978 CRI.L.J. 853 (Karnataka IIC)
15 S.9
ibid para 13. The Advertisement Manager earlier in his statement before police had admitted that the
advertisement w as 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
ad\crliscmenl was not sufficient to hold the Accused guilty.
10
Dr. Yash Pal Sa hi 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.I4(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 (I) 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( I )(c) and was
guilty under S.3.
In 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 8.2(b) (Hi). 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 and felt and as such it answers the description ofan 'article ' within
the meaning of 8.2(b) (Hi) 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
I1
C. CONCLUSIONS
Health care laws relating to drugs deal with two aspects, (i) /Xccessibility 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.
12
I
I
I
OCCUPA I IONAL HEALTH AND SAFE I Y & RIGHT OF WORKERS I O
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' Stale
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.
Many of these laws have their foundation in the Constitution or certain International
Instruments.
2
Article 38(1) of the Constitution 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.
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 al 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 Stale Government. Besides, every factory having
more than 500 workers is required to have an ambulance room and prescribed medical
and nursing staff. Each Stale 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 praclioner along with at least one qualified nurse.
Similarly, in what arc 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 al least one fully equipped ambulance van.
Similarly, the ESI Act, provides for medical care to the registered employees in cases not
just of accidents and occupational diseases but also in eases of ordinary illnesses. The
scheme extends to the families of the employees.
B. CASK LAW
In Consumer Education & Research Centre v. (Inion of India1 (he 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 (he State. Therefore, it must he 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 of person. 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 A' Slate) 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 Stale
authorities and not to private individuals or employers.
'AIK 1995 SC 922
09841
4
The employer is vicariously liable to pay damages in case of occupational diseases, here
in this case asbestosis. The Employees Stale 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;
(4)
(5) The Union and all the Stale 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 dale of ccrtiricalion by the National Institute of Occupational I leallh.”
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:
1
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 India3
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
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.
6
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 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 lor 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) Stale.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
7
Departments coneerned within two months of the reeeipt 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:
(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 imparl 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 lor implementation of'the principles
Bonded labourer
Bandhua Mukti Morcha v. Union of India’"' 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:
w7/ 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 particularlv clauses (u) ct (f of Article 3() A . Irtic/es 4/ A 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 offreedom
and dignity, educational facilities, just and humane conditions of work and
maternity relief These are the minimum recpiirements which must exist in order to
enable a person to live with human dignity and neither the Central nor the State
Government has (he right to take any action which will deprive a person of the
enjoyment of these basic essentials. Since (he Directive Principles of State Policy
contained in clause (e) A (f) ofArticles 39. 41 A 42 are not enforceable in a court
of law. it may not be possible to compel (he 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
5 AIR 1984 SC 802: (1984) 3 SCC 161
8
already enacted by the State providing these basic requirements to the persons,
particularly belonging to the weaker section oj 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 Slate in
securing implementation of such legislation would amount to denial of protection
under Article 21, more so in (he context of Article 256 which provides that the
executive power of every State shall be so exercised as to ensure compliance with
laws made bv the Parliament & any existing laws which apply in that Slate. In
AS/AD C 'ONSTRUC 'T1ON 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 of State 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 enacted for 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.
The Supreme Court also issued various directions to the State and Central Governments
and some of the important directions concerning health arc the following:
1. The Central Government and the Government ol 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 lor continuous spraying ol
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 28lh 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 ol Haryana will immediately diicct
the mine lessees and the stone crusher owners to start obtaining di inking watei
from any unpolluted source or sources ol supply and to transport it by lankcis to
the work site with sullicienl lrec]uency so as to be able to keep the vessels Idled
up for supply ofclean drinking water to the workmen and the Chief Administrator,
l aridabad C omplex will set up the points from where the mme lessees and the
6 People's Union v. union of India (1982)2 SCO 235
7 p. 183 para 10
9
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 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 45-A 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 lesses and stone crusher owners within the period specified in those
respective clauses, such obligation or obligations to the extent to which they are
10
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 200j decided by the Bombay’ High Court on 13l11 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 illnesses. He was paid
Rs. 3 lakhs by the Company towards medical expenses but he filed a Petition in the High
Court. Lhe Court initially appointed a Commission headed by a retired judge of the High
Court, lhe 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 regulatory 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 lime of renewal of licenses, apart from other times.”
C. CONCLUSION
11
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 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.
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:
I. 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 Tor 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.
2. 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.
3. 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.
1
li
Till 2004 it was generally believed that though the civil law and criminal law provide
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 Ks. 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 oCJacoh Mathew Ks.
Stale of Punjab'
“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 lime 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.”
1 1957 2 ALL LI< I IS
2 2005 6 S.CC 1
2
Finally, while dealing with negligence the Supreme Court made the following
observations:
“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 loi 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
^ross negligence. It held that a medical practitioner cannot be held punishable for
every mishap or death during medical treatment. 'No criminal 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 cure and caution might create civil
liability but would not suffice to hold him criminally liable. 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. Smt
Rahimbi Shaikh Madar5
‘... il 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
3
Dr. Suresh Gupta v. Covet. Of NOT of Delhi (2004) 6 SCC 422
p. 429. para 21
5
1991(1) Bom. C. R. p. 629
4
3
reputation ofadverse parly such as a doctor, the court should be slow in
entertaining the complaint in the absence of the complete and adequate
material before il. Il is always open to the learned magistrate to direct an
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 (he complainant and the witnesses have
mechanically averred that the accused has committed an offence, but 1
presupposes that judicial mind will apply itselflo the case made out as a
whole and conclude as io whether there I 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 ofan 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 "il shall have to he found that the rashness was ofsuch a degree as to
amount to taking a hazard knowing that the hazard was ofsuch 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 ofJudgment....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:
1. 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.
2. 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.
3. 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 PT CONSUMER GOUR I S:
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
4
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:
a) 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.7 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'.
b) 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.
c) 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.
6 (1995) 6 SCC 651
7 Section 2( I )(g)
5
d) 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
be no safeguards against frivolous and vexatious complaints and consequent
blackmail.
The Supreme Court, however, rejected all these arguments and held a) 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 orother 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.
b) 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
c)
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 Stale Commission will be ousted of its Appellate jurisdiction in
such complaints. The intention of the legislature is to ensure that the members
8 Section 2( 1 )(d)(ii)
6
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.
d) 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.
e) The Supreme Court drew the following conclusions:
i) 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
ii) 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.
iii) Services rendered by a medical officer to his employer under the contract of
employment is not ‘service’ under S. 2( I )(o) for purposes of the Act
iv) 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 person who are rendered free
services are ‘beneficiaries’ under S. 2(1 )(d) thereby ‘consumer’ under the Act.
v) Services rendered free of charge by a medical 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.
vi) 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
7
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 h is consent during the course of the
operation, which resulted in loss ofjob 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.
' ..l/ie complainunl was (/rawing a sa/ary of Rs. 3()0() /)/ns 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
ofRs. 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 (his 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 ofjustice 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.
b. 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)
a.
In another case"1 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, i f 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
9 (2000) 7 SCC 668
10 Dr. .1.1 Merchant v. Shrinalh eiialurvcdi (2002) 6 SCe 635
8
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.
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 Godbole 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
a) duty of care in deciding whether to undertake the case;
b) duty of care in deciding what treatment to give;
c) duty of care in his administration of that treatment; and
d) 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.
12
A breach of any of these duties will support an action for negligence by the patient.
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:
ii
AIR 1969 SC 128
Vol. 30 Fourth Edition, p.31 para 34
13
1975 M. LJ.792
12
9
a) that the defendant had a duty to take reasonable care towards the plaintiff to avoid
the damage complained of;
b) that there was a breach of duty on the part of the defendant; and
c) 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
pigmentation his body he advised pathological lest 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’ as'Conduct, whether of action or omission, which may be declared and treated
as negligence without any argument or proof as to the particular surrounding
14 (1996) 4 SCC 332
10
circumstances, either because it is in violation ofa statute or valid municipal .
ordinance, or because it is so palpably opposed to the dictates of common
prudence that it can he 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 medical or other expert evidence shows that such
accidents would not happen ifproper care were used, there is al least evidence of
negligence for a jury ’.
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 Sliyam 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 look place because of
Petitioner’s relatives, negligence in leaving the child alone. The Court applied the
15 Street on Torts (1983) 7,h Ed.
16 AIR 74 SC 876
17 AIR 1995 P&H 278
11
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.
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 ofskill 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 oj the
particular circumstances ofeach case, is what law requires. A person is not
liable in negligence because so me one.else ofgreater 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 ofjudgment 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. 1J, 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 ofcervical 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
ofcervical pregnancy, and in the instant case Respondent had to resort to it save
IS(1996) 2 SCC 634
19 (2001) 8 see 731
12
*
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
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 Pannn23,
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 Al IMS. New Delhi , did not help. The patient was compelled to live in a
vegetative state.
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". Rajarain S.Parale Vs. Dr. Kalpana Desai“‘vJ
26
State Of Haryana VS. Santra 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 Stale 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.
23 AIR 75 BOM 306
24 AIR 1998 SC 1801
25 1 99'8 3 CPR 398 (BOM)
20 2000 I CP.I 53 (SC)
14
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.
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’.
15
11
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 Stale 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 arc 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 1 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. ’
1 (1996)4 SCC 332
I
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 al 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 .staiuiory duly 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 acdoriahle negligence
for any injury caused to his patients in prescribing allopathic drugs.
In 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
druggist 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
practitioner* for the purposes of Drugs and Cosmetics Act. Even though notification
2 (1998)7 SCC 579
2
allowed ayurvedic practitioners to prescribe allopathic medicines, yet Stale 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(ce)(iii) and also coiWary 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 ol 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(ec) that clause (i) <&. (ii) covered
medical practitioners registered to practice allopathic medicine, while clause (iii)
covered persons who arc registered in a Stale Medical Register other than for
practicing modern system of medicine and homeopath), and thiough 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 js
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 Stale 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. ‘Stale Medical Register' is a contradistinction to ‘Indian
Medical Register' and is maintained by the Stale Medical Council constituted under
any State law that regulates the registration of medical practitioners. It is thus possible
that in a Slate, 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 Stale Medical Register, but the same cannot be
insisted upon for registration in a State Medical Register, further, a peison icgisteied
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 Slate Registci. and
that no person other than those who are enrolled either.on the Stale 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(a) ***
(b) Privileges including the right to practice any system of medicine which was
conferred by or under any State law relating t-o regist rat ion of p> act it ionet s of
Indian Medicine for the time being in force, on a practitioner of Indian
Medicine who was enrolled on a State register of Indian Medicine.
I
/q) ***
(d) * *
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 lhe 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 Stale 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 Stales where the privileges to practice any system of
medicine is conferred upon by the Stale law for the lime in being in force, under
which medical practitioners of Indian Medicine are registered in the Slate.
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 lhe Act under which a medical
praciilioner is registered; whereas lhe right which lhe holders of a degree in integrated
courses ol 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?
Akhtar Hussain Delvi (Dr.) v. State of Karnataka 1 dealt with a situation quite
opposite to the earlier cases. Here, a registered allopathic medical practitioner sought
the right lo prescribe drugs and medicines of ayurvedic origin, which had been
accepted by professionals practicing allopathic medicine pursuant to clinical and other
tests. I he High Court observed that under Indian Medicine Central Council Act, 1970
only such persons have right lo practice Indian medicine who either possess medical
qualil ications specified in Second. Third or Fourth Schedule of the Act or are enrolled
in the Stale Register ol Indian medicine. The Petitioner neither had acquired such a
qualification nor passed qualifying examination under the concerned State Act,
therefore, was nol entitled lo prescribe ayurvedic medicine.
Standard of education
I lie Medical Councils constituted under different Central and Stale 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 lo any other authority.
Basavaraj M. v. Karnatak State Pharmacy Council
The Karnataka Stale Government conducted a job-oriented Diploma in Pharmacy
Vocational Courses froin 1993 to 1995 under lhe Centrally Sponsored Scheme of
l-.xcn il a non-allopaihic medical praciilioner docs nol have the right lo practice allopathic medicine,
he can prescribe allopathic medicine that arc sold across the counter lor common ailment, (p. 597 para
41)
1 AIR 2003 Karnataka 3<SX
5 AIR 2001 Karnataka 239
4
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 mecficine 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.
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
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
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
5
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 lime 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 Sushrul and Charak who are
internationally known. In fad, 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 L’nani systems were evolved, which were traditionally
indigenous systems of our country. Medical practitioners of these
systems would often pass all their medical knowledge to (heir 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
should not
utilize the wisdom of our ancestors.
10. In our opinion, tic 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 (rue 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
Pradesh1 the Slate 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.
In the case of
Electropathy Medicos of India Vs. State of Maharashtra 9 the
College was conducting a three year course in Electropathy which was a
s VV.P. 154 I Oof 1995 decided l\\ the AP High Court on 8.4.2002
l) decided by Bonibux I ligh Court on 13.8.2001
6
I
u
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:
"i) The petitioner-society is directed to close down all courses in
electropathy/ electro-homoeopathy forthwith.
ii) The petitioner-society is directed not to yrant 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 vears
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. ”
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 (hen
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 (here can be
no doubt that they claim to be practising medicine. It is of course a different
matter that their claim has not been accepted by the expert committee
appointed by the Central Government. ”
The Court directed the State to restrain the practice or teaching of Electro
10 2004.4 AWC3I48
7
u
Homeopathy throughout the State.
In the case of D.K.Joshi Vs. State of L.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. b> 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 initialed 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 L.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:
(1) All ihe Hospitals, Nursing Hornes, 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
11 C.A. No. 2016 of 1996 decided by the Supreme Court on 25.4.2000
12 AIR 2004 Al.I. 373
8
u
State, shall register themselves with Uhief 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 a! 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 al!
leading newspapers of the Slate, at least three times, in the month of February.
200-1.
(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 Uhief Medical Officers of theDistrict, shall be taken to be /iractising 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 Hie unauthorised
premises/establishments: AH 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
p rac t ice/p rofess io n.
(5) AH those medical practitioners who desire to offer medical services in the
State, in future, shall he 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) AH 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 o f their authorization
to confer such degrees/certificales, 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
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
9
u
violative of Magic Remedies (Objectionable Advertisement) Act, 1954, and
other relevant legislation's.
(R) The Principal Secretary, Medical Health and Family Welfare, it is
directed, to ensure that no medical officer in the Government Service is posted
bevond 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 U.P. for more than five years shall be
transferred from that centre/hospital. Any doctor in employment of State
Government offering their services to (he unauthorised medical practitioners
shall face immediate disciplinary action by the State Government, and shall be
prosecutedfor aiding and abetting such unauthorised practice.
z
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. C ONC LUSIONS
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 Slates 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.
2003 I BUR 6X6
10
I
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.' However, Supreme Court while deciding upon delay in treatment of
medico-legal cases by Government hospitals has said that even private hospitals
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.,.
1 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 parly must establish its 'Locus standi". If such a parts fails then the matter is held not
maintainable, i.e.. court has the jurisdiction to tr\ the matter but will not because the parts claiming
relief docs not have right to claim such relief.
2 'When a patient consults a doctor, the doctor osscs him certain duly. viz., a dills ofcarc in deciding
whether to undertake the case and a duly of care in deciding what treatment to give. A breach of ans of
these duties gives a right of action for negligence to the patient." Dr. Laxman Balkrishna Joshi s . Dr.
Trimbak Bapu Godbole AIR 1969 SC 128
I
J
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 bis
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
2
Paschim Banga Khet Mazdoor Samity v. State of W.B/
‘ Providing adequeue medical facilities is an essential part of the oh/igeition
undertaken hy 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 eve ry person. Presentation
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)
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 Stale 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
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
(1996)4 SCC 37
3
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.
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 al 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.
4
J
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 his condition 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 io
provide free legal aid to a poor accused 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
said 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.
5
L
Labonya Moyee Chandra v. State of West Bengal1
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 stale, 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 stale. 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 dcparlme..l 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 Stale
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
Government has not taken any follow up action to ensure that recommendations are
4 SC decided on 3 1/7/1998
5 ibid .
6
I
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 K a tara v. Union of India6
The instant 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
7
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 (he 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 (he 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 lop 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 Io notice an
incident or a sit nation.
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 oj the society, it is the
8
ohli^cilion of those who ore in charge of the health of the community to
preserve life so that innocent may he protected and the ym/ly may l)e punished.
Social laws do not contemplate death due to negligence to tantamount to legal
punishment. A doctor at the Government hospital positioned to meet (he State
obligation is, therefore, duty bound to extend medical assistance for
preserving life. 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 Slate 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
Zonal regulations and classification cannot operate as fetters in the
process of discharge of the obligation and irrespective of the fad 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
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.
7 (1991) 3 sex: 482
8 AIR 2003 Delhi 50
9
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 case } 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 COB Ft A) 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 ol 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.
0 ibid
ll) In civil law. liability of doctor arises when there is a duty of care, a breach of such duly and
consequential injury. The duty is not absolute which implies that a doctor need not treat all those who
approach him. I Ic has right to refuse. I le is liable for harm caused only to those whom he undertakes to
treat.
10
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 carry out their duties. The Apex court held that, ‘............. A
responsible Municipal Council constituted for 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 of human rights and are a first charge on local
self-governing bodies. Similarly, providing drainage system - not pompous
and attractive, but 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
1 AIR 1980 Supreme Court 1622
1
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 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
III 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,
2
‘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 al the expense of public health. Why has the
magistrate not pursued this aspect ?
2. 1 he 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 sub-Divisional 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.’
T he couit also held that the State should be guided by the paramount
principle of Art. 47 of the Constitution of India which states that,
3
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 civic
hospital and the other basic 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.
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.
2 AIR 1986 Bom 136
4
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 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 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, regarding 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.
3 1996
5
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
modernization of the brick kilns as the traditional brick klins were causing a
lot of air pollution.
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
ol 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.
4 2000
6
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 oil 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
CONSEQUENCES
LITIGATION,
EUNDAMEN TAL
RIGHT
AND
ITS
The Public interest litigation movement in India started in late 1970s. This movement,
had and has as its basis the enforcement ol 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 al
large. Fundamental rights existed even before late 1970s. The real push for the P1L
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 he deprived of his life or personal liberty except through
procedure established by law. "
fill 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.
1
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
light. Il went lurlher and observed that health is not merely absence of sickness and
observed:
3j. ...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. 1 he maintenance of health is a most
impel alive constitutional goal whose realisation requires interaction hy 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. fherefore. 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 iintegral 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
tieatment 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.”
RIGHT TO HEAL HI- 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 Corporation4, the Supreme Court held
that right to health and medical care is a fundamental fight under Article 21 read with
Aiticle 39(e), 41 and 43. Il 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 ol conditions congenial to good health."
' AIR 1992 SC 573
2 1995 3 SCC-42
•’ 1997 2 SCC 83
’(1996) 2 SCC 682
2
But having recognized that right to health and health care is a fundamental riiiht what
follows? Fundamental rights are generally available only against the slate. 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.
QUALI1 Y OF HEALTH CARE
Hie 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
peiipharal 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 then most of the Government Hospitals in Allahabad are in a
very had 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. ...AU this needs to he thoroughly investigated. This is a
welfare State, and the people have a right to get proper medical treatment. In this
connection, it may he 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 of police 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 2 1.12.98
6 AIR 2003 Delhi 50
3
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 Sainity v. State of W.B.S 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 (he 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 (he
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 OE EMPLOYMENT OE HEALTH CARE PROEESSIONALS
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
7 AIR 2002 AP 164
8 (1996)4 see 37
‘’AIR 1989 SC 2039
10 2005 6 Al.I) 327 decided on 23.8.2005
4
i
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:
"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."
Chaptei-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/collegc during the assigned duly hours. If they
are found absent on more than two occasions during this period, the same shal 1 be
construed as a misconduct if it is certified by the Principal/Medical
Superintendent and forwarded through the State Government to Medical Council
ol 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.
1 he 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. Ibis 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 (he learned counsel is that
attending such duties continuously for long hours is harmful to (he physical as
11 2003 3 Kl.T 788
5
well as mental health of the Nurse, unsafe to the patient and likely to cause
deleterious consecpiences. "
The Court, alter 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 he held (hat rationalisation of working hours to make it
fust, unreasonable and humane is (he 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 (hat compelling (he petitioner to
be on duly 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) h is made clear that in the light of the declaration above made
to (he effect that the impugned action of the respondents is illegal
and unconstitutional, the prevailing system of assigning duty for 14
hours continuously to (he petitioner and other nursing staff shall
not he continued. It follows that (he respondents shall take
expeditious steps to introduce 3 shift duty system for (he 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 tew 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
6
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) I 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_______________________
Drugs Control Act 1950 (Mysore Act V of 1950)
Act which is in force in Mysore area
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.
_____________________ Act____________________
Bangalore Water Supply and Sewerage Act, 1964 (36
of 1964)
Prohibition of Beggary Act, 1975 (27 of 1975)
Karnataka Slum Areas (Improvement and Clearance)
Act, 1973 and Karnataka Public Premises (Eviction of
Unauthorized Occupants) Act, 1974 (33 of 1974)_____
Urban Water Supply and Drainage Board Act, 1973 (25
of 1974)
5.
Urban Development Authorities Act, 1987 (34 of 1987)
6.
The Karnataka Slum Areas (Improvement and
Clearance) and Certain Other Law (Amendment) Act,
2002 (21 of 2002)
______ Amendment(s) I Remarks
Amended by Acts 6 of 1966, 10 of 1966
and 18 of 1984_____________________
Amended by Acts 7 of 1982 and 12 of
1988
Amended by Acts 19 of 1981, 34 of 1984,
26 of 1986, 7 of 1988 and 21 of 2002
Amended by Acts 7 of 1976, 20 of 1977,
45 of 1981 and 19 of 1993
Amended by Acts 17 of
1991, 14 of 1992 and 12 of 1996
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) I 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) / 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)
Amended by Act 63 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 7757
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.
Amended by Act 15 of 1986, 31 of 1986
1 of
1988 and 30 of 1991
15.
Prohibition of Admission of Students to the Unrecognised 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
12.
13.
jZ
20.
2T
Amended by Acts 43 of 1981 and 28 of
1986
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
2002)
—
-------------------
i
This is a Central Act which has beer
amended by the Karnataka Act 19 of
1973_____
22.
23.
Famine Relief Fund Act, 1936 (Bombay Act XIX of i
I Act which is in force in Belgaum area
1936)
Fodder and Grain Control Act, 1939 (Bombay AcTI
Act which is in force in Belgaum area
XXVI'' of' 1939)
Growth of Foodcrops Act, 1944 (Bombay Act VIII of
Act which is in force in Belgaum area
1944)
24
25.
26
II'
28
29.
~ 30?
!
----------------------------------------------------------
Charitable Endowments Act, 1890. (Central Act 6 of
1890)
31
1---------------------------------------
Hindu Women's
Rights to Property (Extension to
ninuu
womens Kignts
Agricultural Lands) Act. 1947 (Bombay Act XIX of Act which is in force in Belqaum
area
1947)_______
I
a
Molasses (Control) Act, 1956 (Bombay Act XXXXVIII ,
of 1956)
I Act which is in (force
------r._.
in -----------Belgaum area
Refugees^AcL 1948 (Bombay Act XXII of 1948)
Act^vhjch is jn force in Belgaum area
State Guarantees Act. 1954 (Bombay Act XXlFof7
1954)_____________
i Act which is in force in Belgaum area
j VillageTndustries Act, 1953 (Bombay Act XLI of 1954) 7
Act which is in force in Belgaum area
I (Emergency Powers) Whipping Act, 1947 (Bombay
I Act XXVII of 1947)
Act wh|ch is in force in Belgaum area
Abolition of Whipping Act, 1956 (Hyderabad Act Act which is in force in Gulbarga area
XXXVI of 1956) ________________________ ______
-Children Protection Act, 1343 F (Hyderabad Act IX of Act which is in force in Gulbarga area
33.
1343 F)
___________ ___________________
Famine (Stricken Pettadars Property Protection Act, Act which is in force in Gulbarga area
34.
1931 F (Hyderabad Act III c.1381 F)
_
_
Labour Housing Act, 1952 (Hyderabad Act XXXVI of Act which is in force in Gulbarga area
35.
1952)__________
_____________ Mining Settlements Act, 1956 (Hyderabad Act XLIV of Act which is in force in Gulbarga area
36
1956)
__________________________ __________
Poisons Act 1322 F (Hyderabad Act IV of 1322 F)____ Act which is in force in Gulbarga area
37.
Protection of Flood Stricken Debtors Property Act,
Act which is in force in Gulbarga area
1318F (Hyderabad Act I of
38.
1318 F)
_________________
_—7----Protection of Houses from the Floods of Mossi River Act which is in force in Gulbarga area
39.
Act, 1318 F (Hyderabad Act II of 1318 F)
_
Act which is in force in Mangalore Sati Regulation, 1830 (Madras Regulation I of 1830)
Kollegal area______________
40.
Essential Articles Control and
Requisitioning Act which is in force in Mangalore
(Temporary Powers) Act, 1949 (Madras Act XXIX of Kollegal area
41.
1949)_________________________ ____ -———-—
Essential Articles Control and
Requisitioning Act which is in force in Mangalore (Temporary Powers Re-enacting) Act, 1956 (Madras Kollegal area
42.
Act VI of 1956)_________ __________ ____________
’ Famine Relief Fund Act, 1936 (Madras Act XVI of Act which is in force in Mangalore Kollegal area
_ _____________
43.
1936)_______________ _______________________ - Act which is in force in Mangalore Prevention of Couching Act, 1945 (Madras Act XXI of
Kollegal area__________ ________
44.
1945)______ _______________________ ________ - Act which is in force in Mangalore
Rivers Conservancy Act, 1884 (Madras Act VI of
Kollegal area________________ ______
45.
1884)_______ ______________________
_
Abolition of Whipping Act, 1949 (Mysore Act XII of Act which is in force in Mysore area
46.
1949)
______________ _______
- 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
Betting Tax Act, 1932 (Mysore Act IX of 1932)
47.
1989, 18 of 1994, 6 of 1995, of 1997, 3 of
1998, 5 of 2000
_______________
Essential Service (Maintenance) Act, 1942 (Mysore Act which is in force in Mysore area
48.
Act XXIII of 1942)
____________________ Limitation (War Conditions) Act, 1947 (Mysore Act I of Act which is in force in Mysore area
49.
1947)_____________________________ _________ _ - Act which is in force in Mysore area
Lotteries and Prize Competitions Control and Tax Act, - Amended by Karnataka Acts 26 of 195/,
50.
1951 (Mysore Act XXVII of 1951)
13 of 1965)_______ _______________ __
Act which is in force in Mysore area_____
Pension
Act,
1871
(Mysore
Act
XXII
of
1871)
-----------51.
Act which is in force in Mysore area_____
Poisons Act, 1910 (Mysore Act 10 of 1910)
52.
32.
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Al DS AND PUBLIC HEALTH
A? INTRODUCTION
The AIDS epidemic is growing globally and at present there arc 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?
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 et 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.
rhe major litigation concerning HIV has been related to three aspects:
Ari. 47
Ari. 38
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 HIV/AIDS.
Lucy D’ 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 paiticulai
’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.
rr>
... l/"
K
V
.A '
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 lor treatment, the I leallh Officer may remove such person oi
cause him to be removed do 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 infectoiid disease as
defined under the Act:
5 AIR 90 ROM 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 foi 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 suftering from acquired
deficiency syndrome shall be given through disposable sets/syi inges.
i in u 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 whoj was suffering from acuired imuno deficiency
bag and tied with knots at both the ends
syndrome shall be enclosed be in a polythene
„
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 l
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 translusion is deemed necessaiy
without waiting for the report of ELIZA test, written consent ol 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 he
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 conBict 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.
Il was also considered that the isolation might lead to people not coming forward and going
underground if they are suffering from HIV/AIDS. Thus they will not be able to lake proper
treatment. Upholding the constitutional validity of the provision the court held that.
• I 1. 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 find 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 constitutional ity 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( I )(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 HIV/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 'Conimon 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/AIDS is transmitted. Blood has become a
commodity. Some people become professional donors as it is a source of earning for them.
4 AIR I W6 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.
5^
1. Union Government shall take steps to establish forthwith National Council of Blood
Transfusion as a society registered under the Societies Registration Act.
2. 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 (1) 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 for
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.
Em ploy me nt
In ('MX of Bombay Indian Inhabitant v. M/v. 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 HIV/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 suffeiing 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 ol 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. I he
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.
/A
^5
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 al workplace, for instance, due to a contagious disease that can be transmitted
through normal activities al 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.
. ‘vAtoilets, human excreta, sweat, shared eating and drinking utensils or other items such as
4^ protective clothing or telephones. Thus HIV person cannot be denied eniplo.YDlg.QLQ!’
discoiitinuedjKiless it is medically shown that he sutTering from"such a disease that can be
l ra nsm i tied Thro ugh 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 Stale cannot be permitted to condemn HIV
persons to economic death. Il 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 putting certain economic burden on the Stale or public corporation
or society, they must bear the same in the larger public interest.
7 A person already in employment cannot be terminated merely because he suffers from AIDS/111V 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 al'llicaled person to file a case without
disclosing his identity due to the stigma attached.
Liability of the hospitals
In
Vijaya v. The Chairman and Managing Director, Singareni Col/ierie.s 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.
V
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
working 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
The judgmcnl also has negative eonnolation when it stales that ‘in an apparent eonlliel between the. right to
privacy of a person suspected of I IIV 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.
In the interests of the general public, it is necessary for the Stale to identify HIV 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 HIV/AIDS 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 c) 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 I 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 Hepatitis-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 lsl
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 io lake all steps lor lhe improvement of public health. A law designed to achieve this object,
w ill 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 subslilule their view s for thal of experts in a concerned Held. There arc statistic and observation
of National and International bodies that forced exposure hasn’t succeeded in preventing AIDS/IIIV. The above
obsers alion is an outcome of ill-founded notions and that is w-hv 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
Qdiinseling 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:
I. Sufficient AIDS/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/A1DS 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-AI DS drugs, efforts should be made to supply anti-AlDS
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
H1V/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/A1DS;
I I. There should be strict vigilance on licensed blood banks with reference to pre-blood
transfusion testing for 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 Stales 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
"‘/s.v. Const. Badan Singh v. Union of India and /Inr, 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 cent
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 I ha I he intended to contract the fatal and
stigmatic health order. No person would 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
Mr. 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/H1V 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) DI. T 986
11 AIR 2003 SC 664
TO
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
Ppiial 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 Fine, or with both.
270. Malignant act likely to spread infection of disease dangerous to life- Whosoevei
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 ol the
I2
woman whom he marries.
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 parliceps criminis i.e. partners in crime.
The Supreme Court however made a further totally uncalled .jbrobserYati.Qn namelyJ-hat
HIV/ AIDS patients did not have a right to marry at ad I. This was going beyond what the
issueTBeforFthe Court wei:e7Thiswould mean that even if a person wanted to get married to
a person with H1V/A1DS 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 of13Dr. 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 Mr.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 foi
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 medical 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 ol the othei
partner’s condition and consent.
,3 AIK 1999 SC 495
14 2006 (2) AL T 82
I1
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 pul 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.
I lic court in its judgement held that.
'21. The pelilinner is one oniony a Icir^e seclion of ourpopulace living with HU7.
Sociely has responded lo (heir plight \\>Hh 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 they would otherwise have received. People who
are living with H1V/AIDS are among the most vulnerable groups in our society.
Notwithstanding the availability of compelling medical evidence as to how this^
disease is transmitted, the prejudices and stereotypes against persons found to be IIP
positive still persist. In view of the prevailing prejudice, any discrimination against
(hem can be interpreted as a fresh instance of stigmatization and an assault on then
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 lo
earn a living. '
The court further held that.
‘37. 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., (he 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 lo be achieved, which requires detailed examination. As
stated supra, the object is to ensure that persons appointed in the police force are of
sound health and are bodily and mentally ft to discharge the duties required of
offkersofthe police establishment. Medical evidence placed on record reveals that, in
terms of physical and mental fitness, not all persons who have tested HIV positive
const it me 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 (he final stages who suffer from AIDS may justifiably
be denied appointment in the police establishment on the ground that they luck the
required physical and mental fitness, the same cannot be said of those in the early
stages of the asymptomatic period which, as slated supra, may range anywhere
between 3 lo IS years, since during the prolonged asymptomatic currier stage of HIV
infection one remains fully active, physically and mentally. (MX of Bombay Indian
Inhabitant (supra 1). While the medical evidence on record, of which the petitioner
12
himself is a classic example, would reveal fhar these persons with HIV positive, at (he
early stages of the asymptomatic period, possess the physical and mental fitness
requiredfor 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 of physical 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 (he 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 !4
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
of Bombay K 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
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V a
Aids Detection Kits
,6Merind 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.
vS 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 spile of the word
"diagnosis" in the Schedule, entry C-ll-37. with effect from October I. 1995. the diagnostic
kits would
not fall under Schedule, entry C-ll-37, but the same would be propenx
quantifiable under Schedule, entry C-lI-106.
■w
-i
1
‘v;
•4
!
I
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-ll-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 lime, 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.
“’(200-1) 136 S IX' 462 BOM
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