Pt. Parmanand Katara v.

Union of India: A Case Review

LEGAL METHODS

PT.PARMANAND KATARA
V.

UNION OF INDIA
(1989) 4 SCC 286

(A CASE REVIEW)
Submitted By: Annie Jain (1962) Ist Year, Ist Trimester ,B.A. LL.B. (Hons.) Date of Submission : September 25, 2012.

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Pt. Parmanand Katara v. Union of India: A Case Review

Table Of Contents
Index of Authorities ................................................................................................................... 3 Table Of Cases ....................................................................................................................... 3 Table Of Statutes.................................................................................................................... 3 Introduction ................................................................................................................................ 4 Research Methodology .............................................................................................................. 6 Section I:Case Summary ............................................................................................................ 8 Holding Or The Ratio Decidendi : ......................................................................................... 8 Facts In Brief.......................................................................................................................... 8 Arguments .............................................................................................................................. 8 Judgement .............................................................................................................................. 9 Section II:Post Judgement........................................................................................................ 13 Developments that took place post judgement : .................................................................. 13 Future Application Of The Judgement In Other Cases ....................................................... 14 Section III:Case Analysis ......................................................................................................... 16 From The Angle Of Judicial Activism : Scope of the Judgement ....................................... 16 Section IV: Practical Implementation Of The Judgement ....................................................... 22 Conclusion ............................................................................................................................... 25 Bibliography ............................................................................................................................ 27

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INDEX OF AUTHORITIES
TABLE OF CASES
NAME OF CASE CITATION

1). Pt.Parmanand Katara v. Union of India (UOI) and Ors. 2). Paschim Banga Khet Mazdoor Samiti and others v. State of West Bengal and Another 3). Consumer Education and Research center and others v.Union Of India and others 4). Mr 'X' v .Hospital 'Z' 5). Bandhua Mukti Morcha v. Union of India & Others 6). State of Punjab v. Ram Lubhaya Bagga

(1989) 4 SCC 286 AIR 1996 SC 2426

AIR1995 SC 922 AIR 1999 SC 495 (1984) 3SCC 161 (1998) 4 SCC 117

TABLE OF STATUTES
NAME OF SATUTE 1). THE CONSTITUTION OF INDIA 2). MOTOR VEHICLES ACT 3). INDIAN PENAL CODE 4). CODE OF MEDICAL ETHICS (Laid down by the Medical Council of INDIA) YEAR 1950 1888 1860

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Pt. Parmanand Katara v. Union of India: A Case Review

INTRODUCTION
It is my life. I am owner of my life. Who is the government to decide and force me to go to a designated government hospital in case of an accident? Pandit Parmanand Katara The decision rendered by the Supreme Court in Pt. Parmanand Katara v. Respondent: Union of India (UOI) and Ors.1 is important in Indian jurisprudence for both its unique solution and its application in subsequent cases. In this case the Supreme Court has tried to achieve an equivalence between the civil rights and its economic and social counterpart through the application of an expansive definition of the right to life. Here Right to Health was the guarantee which was to benefit from this approach. This case rendered a landmark judgement which laid down guidelines as to what attitude and obligation ought to be adopted by medical practitioners in emergency medical situations and not turn down the case on account of financial constraints or fulfilment of other legal formalities. The Court ruled that every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. The Supreme Court went on to adopt an approach of harmonisation of Fundamental Right enshrined in Article 21 and Directive Principles of State Policy in Article 47.The Court in this prominent decision relied on various medical sources to conclude that the refusal of immediate medical attention to a patient in need amounted to the violation of universally accepted notions of medical ethics and protection of life and liberty guaranteed under Article 21 and hence created a right to emergency medical treatment.2 In a country with a population of 1.3 billion where every two minutes a road accident takes place and every five minutes a suicide or a case of infant mortality occurs, the vital question which arises is whether our medical system equipped to handle emergencies?3 Hence a

Pt. Parmanand Katara Vs. Union of India (UOI) and Ors, (1989) 4 SCC 286 (Supreme Court of India).[hereinafter Parmanand]. 2 Right to Health in the Present Perspective with Special Reference to HIV Infected Persons available at http://www.law-essays-uk.com/resources/sample-essays/human-rights/right-to-health.php(Last visited on September 16, 2012). 3 Nayantara Som and Sushmi Dey, Desperately Seeking Timely Care (2007) available at http://www.expresshealthcare.in/200701/coverstory01.shtml (Last visited on September 16, 2012).

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Pt. Parmanand Katara v. Union of India: A Case Review Codified law to compel hospitals and medical practitioners to attend on victims of accidents those in emergency medical condition and women under labour is one of urgent necessity.

In the Research Paper, the Researcher has first traced the case summary and the judgements rendered by the Court in this case. Then the Researcher goes on to analysing the developments that took place post judgement and how the judgement was interpreted in the subsequent cases and if there was an exercise of judicial activism played by the Court in rendering its judgement. Thereafter the Researcher examines the genesis of the states commitment to provide for the health of the paper, but argues that in that original commitment laid numerous contradictions and fractures that help to explain the states relative ineffectiveness in implementing what that was ruled by the Court.

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Pt. Parmanand Katara v. Union of India: A Case Review

RESEARCH METHODOLOGY
Aims and Objectives
This project aims to analyse the judgement in Parmanand Katara v. Union of India, the basis for principles enunciated in this case for elucidating the importance of Right to Health to all citizens as well as the role of judicial activism and its application in subsequent cases.

Scope and Limitations

The scope of the project extends to analysing the appropriateness of the judgement, its practical implementation in future and if the judiciary exercised any kind of judicial activism in rendering its judgement. Because of the numerous pertinent cases available, the Researcher has limited her study to several representative cases, which help highlight the relevant issues.

Research Questions
1. How and why is the cases judgement justified? 2. Was there a prominent role of judicial activism by the Court? 3. What are the developments that took place in the field of medico-legal cases post judgement? 4. Has the Courts ruling been efficient enough in the practical implementation of the Ruling?

Sections
1. Section I presents the case summary, its facts in brief and its judgement.

2. Section II talks about the judgements application in future case and the development in various regulations post judgement. 3. Section III analyses the efficiency of the judgement in the light of judicial activism. 4. Section IV sees to the effectiveness of the judgements in practical terms.

Sources
Books, articles websites, cases and statutes have been used. NATIONAL LAW SCHOOL OF INDIA UNIVERSITY Page 6

Pt. Parmanand Katara v. Union of India: A Case Review

Writing Style
An analytical and descriptive style of writing has been adopted.

Mode of Citation
A uniform mode of citation has been used.

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SECTION I:CASE SUMMARY

Pt. Parmanand Katara v. Respondent: Union of India (UOI) and Ors. came for consideration before a Division bench of the Supreme Court comprising Justices G.L Oza and Ranganath Mishra.

HOLDING OR THE RATIO DECIDENDI :

This case is a landmark case where duties and responsibilities of a doctor has been discussed at length especially as to how every doctor whether at a Government hospital or otherwise being in the medical profession should uphold the professional dedication and responsibility to extend his service for protecting human life. The case holds that the doctor does not infringe any law of land by proceeding to take up any medico legal case and treat the injured victim on his appearance before him either by himself or being carried by others. 4And also the courts will not summon a medical professional attending to such a medico legal case to provide evidence unless the same is important to the case and even if he is summoned, the men in the profession should not be harassed, made to wait and waste time unnecessarily.

FACTS IN BRIEF
In Pt. Parmanand Katara Vs. Respondent: Union of India (UOI) and Ors. the petitioner who is a human rights activist filed this writ petition in public interest on the basis on a newspaper report titled Law helps the injured to die concerning the death of a scooterist who was knocked down by a speeding car further stating that seeing the profusely bleeding scooterist, a person on the road took the injured to nearest hospital, where the doctors refused to attend on him and told that he be taken to another hospital located some 20 kilometres away which was authorized to handle medico-legal cases and meanwhile the victim succumbed to his injuries.5

ARGUMENTS
It was contended by the Union of India that the prevailing police rules and Criminal Procedure Code necessitated the fulfilment of several legal formalities before a victim could
4 5

Parmanand, (1989) 4SCC 286. Parmanand, (1989) 4SCC 286.

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Pt. Parmanand Katara v. Union of India: A Case Review be rendered medical aid. The rationale behind this complicated procedure was to keep all evidence intact. And in case the formalities were not observed, the doctors were harassed by the police and were therefore unwilling to accept medico-legal cases. There were three issues before the Supreme Court: Firstly, whether there are any legal impediments that hindered timely treatment in medicolegal cases; Secondly, what is the nature of the duty of the Government, the Government hospital and the police in medico legal case; and Thirdly, whether private hospitals could refuse to treat medico-legal cases? The petitioner, Parmanand Katara, prayed the directions be issued to the Union of India that that every injured citizen brought for treatment should be instantly treated by the doctor, that is,he should be given immediate medical aid in order to bring the patient out of risk zone at the earliest with a view to preserving life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in situation of breach of such directions, apart from any action that may be taken for negligence, appropriate compensation should also be admissible.

JUDGEMENT
Disposing of the Writ petition the Court held that Article 21 6 of the Constitution casts the obligation on the state to preserve life. There can be no second opinion that preservation of human life is of paramount importance, this is 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.It is the obligation of the medical practitioners whether at a Government hospital or otherwise to attend to the sick and injure immediately and to make immediate and timely medical care available to every injured person whether he is injured in an accident or otherwise. It was submitted that the formalities under the Criminal Procedure Code or any other State laws should not stand in the way of the medical practitioners attending an injured person.7Considering the life of a person to be superior to other legal formalities, the deponent feels that it is in the interest of general human life and welfare that the Government should immediately make provisions in law and amendments in the existing laws,if required, so that
6 7

Art. 21, THE CONSTITUTION OF INDIA, 1950. Per Ranganath Misra J., Parmanand, (1989) 4SCC 286.

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Pt. Parmanand Katara v. Union of India: A Case Review immediate medical relief and care to the injured persons and/or serious patients are available without delay or without waiting for the legal formalities to be completed.The Medical Council of India urged that Government Doctors as well as other doctors in private hospitals or public hospitals attending medico-legal cases should be indemnified under law from any action by the Government/police authorities/any person for not waiting for legal formalities before giving relief to the injured upholding his professional duty, for which he has taken oath as medical practitioner, superior to the various legal formalities involved. Criminal procedure should be amended so that injured persons may be treated immediately without waiting for a police report or completion of police formalities. The Indian Evidence Act should also be amended so that the diary maintained by doctors in the regular course of their work is admissible as evidence for the purposes of the medico-legal cases in place of their presence during trial to prove the same..Also zonal regulations and classifications cannot also operate as fetters in the process of discharge of the obligation.The Court gave directions for giving adequate publicity to the decision in this case by the national media, the Doordarshan and the All India Radio, as well as through the High Courts and the Sessions Judges. 8There 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.9There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.The members of the legal profession, our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purpose of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible.Law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily.Also whenever on such situations the medical practitioner finds that his assistance is not enough to save the life of the person but some alternative better assistance is necessary, it becomes the obligation of the man in the medical profession so approached to

8 9

Per Ranganath Misra J., Parmanand, (1989) 4SCC 286. Parmanand,(1989) 4SCC 286

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Pt. Parmanand Katara v. Union of India: A Case Review render all the help which he could and also see that the person reaches the proper expert as early as possible.10

10

Per G.L.Oza, J., (1989) 4SCC 286.

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SECTION II:POST JUDGEMENT

DEVELOPMENTS THAT TOOK PLACE POST JUDGEMENT :
Following the Supreme Court Judgement in 1989 in Parmanand case, the Motor Vehicles Act 1988 was amended in 1994, to make it obligatory on both the driver/owner of the vehicle to take the accident victim to the nearest doctor, every registered medical practitioner or doctor on duty to instantly treat the victim without waiting for any kind of legal formalities to be fulfilled prior to this utmost obligation.11 Also the Law Commission observing the prevailing conditions that when the injured victims are not taken to medical practitioners in emergency situations, they are not only turned down on the ground of the case being a medico legal case but are also sent to the Government Hospital because they are not in a position to pay immediately or they do not have any insurance or are not a part of a scheme which entitles them to some kind of medical reimbursement. The Law Commission therefore took up the subject suo moto in view of the observations in the Parmanand case and the fact that there is no appropriate legislation on the subject, and has provided in its 201 Law Commission Report that no hospital shall refuse to provide emergency medical care to victims of accident on any of the above grounds and if they refuse, that will amount to an offence.12Also according to the report hospitals have to initially screen the persons to decide if the patients require emergency treatment, and if not the further provisions of the EMTALA Act13 will not apply. It laid down what all safeguards need to be taken while making the transfer to another hospital in case the required facilities are not available for emergency medical treatment in a certain hospital , in the Bill annexed to the Report. The report also provided that the States must publish a scheme for reimbursement
11

Sec. 134, Motor Vehicles Act, 1888 : Act 54 of 1994 (w.e.f 14-11-1994). Section 134 of the Motor Vehicles (MV) Act, 1988 states that the driver and / or the owner of the motor vehicle responsible for a road accident is required to take all reasonable steps to secure medical attention for the injured person by conveying him to the nearest medical practitioner or hospital, unless it is not practicable to do so on account of mob fury or any other reason beyond his control. Under Section 187 of MV Act 1988, whoever fails to comply with the provisions of the clauses of Section 134, shall be punishable with imprisonment for a term which may extend to 3 months, or with fine which may extend to Rs. 500, or with both. If it is the second time for the person concerned, then the penalty is harsher. The imprisonment may extend to 6 months, or with fine, which may extend to Rs.1000, or with both. 12 201st report of the Law Commission of India, Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition AND women Under Labour ,4 (2006) 13 In the United States, there is as statute called EMTALA(Emergency Medical Treatment and Labour Act) , enacted by introducing it in 1986 into the Consolidated Omnibus Budget Reconciliation act, 1985(COBRA) which imposed a compulsory duty on hospitals to give medical treatment to patients in emergency medical situations failing which the defaulter can be punished under criminal law.The Law Commission has adopted several provisions of the EMTALA Act and made changes to suit the conditions in India.

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Pt. Parmanand Katara v. Union of India: A Case Review of expenditures incurred by hospitals and medical practitioners. For this the States must allocate separate funds for this purpose. The duty of the States in this behalf, according to then Law Commissioner, can be traced to Article 2114 as well as the Directive Principles of State Policy enunciated in the Constitution of India. The Law commission prepared the Report annexing a Model Bill to be enacted by the States, as hospitals fall within the ambit of State List, Seventh schedule and it will be for the State legislatures to enact law. It emphasized on the urgency of law in this field and said that the huge gap in the law in this behalf will be legislatively plugged.15 Again recently,as a prelude to ensuring the right to emergency care,' the Union Cabinet recently approved the Clinical Establishments (Registration and Regulation) Bill, 2010; the hope is it will be placed before Parliament soon. The Bill makes it mandatory for all clinical establishments in the country to provide treatment to any person in an emergency condition. When the Bill becomes law, it will be the first piece of legislation to make it obligatory for the clinical establishments to provide emergency treatment to the needy.16

FUTURE APPLICATION OF THE JUDGEMENT IN OTHER CASES

The judgement in Pt. Parmanand Katara v Respondent: Union of India (UOI) and Ors. has been used as precedents in many subsequent cases which came before the Courts. Illustrative of such cases are Paschim Banga Khet Mazdoor Samiti v State of West Bengal where the Apex Court went beyond Parmanand Katara and held that the Constitution envisages the establishment of a welfare State at the federal level as well as the State level. In a welfare State the basic duty of the Government is to secure the welfare of the people which it does by providing adequate medical facilities to its people. The Court observed that Article 2117 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance.The Government hospitals run by State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life.Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life

14 15

Art. 21, THE CONSTITUTION OF INDIA, 1950 201st Law Commission Report, 4. 16 S.Viswanathan, HEALTH CARE WOES: NEED FOR DOCTORS, FUNDS, THE HINDU (April 18, 2010) available at http://www.thehindu.com/opinion/Readers-Editor/article402046.ece(Last visited on 16, 2012). 17 Art. 21, THE CONSTITUTION OF INDIA, 1950

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Pt. Parmanand Katara v. Union of India: A Case Review guaranteed under Article 21.18 In the present case there was a breach of the said right, guaranteed under Article 2119 when Hakim Seikh was denied treatment at the Government hospitals which were approached, even though his condition was very serious at that time and was in need of immediate medical attention.In respect of deprivation of the constitutional rights guaranteed under Pat III of the Constitution, the position is well settled that adequate compensation can be awarded by the Court in case of such violation by way of redress in proceedings under Article 32 and 226. Again the Supreme Court in Consumer Education and Research Centre v. Union of India has given much importance to the health of workers and observed that right to life includes right to health. It said that right to health and medical care must be held as fundamental right.20 In Mr X v Hospital Z, the court again upheld the right to health over the right to privacy.21 Hence what the researcher observes that the Court has always upheld the spirit of judgement as given in the Parmanand case and mostly using it as a precedent with a wider interpretation of the judgement often leaving a scope for adding Right to Health as an express right under the chapter on Fundamental Rights.

18

Paschim Banga Khet Mazdoor Samiti and Others v. State of West Bengal and another, AIR 1996 SC 2426 (Supreme Court of India).Hereinafter [Paschim Banga]. 19 Art. 21, THE CONSTITUTION OF INDIA, 1950. 20 Consumer Education and Research center and others v.Union of India and others, AIR1995 SC 922 (Supreme Court of India). 21 Mr 'X' v .Hospital 'Z, AIR 1999 SC 495 (Supreme Court of India).

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SECTION III:CASE ANALYSIS

The World Report on Road Traffic Injury Prevention released by the World Health Organization on World Health Day(7th April, 2004) has highlighted that nearly 12 lakh people are known to die each year in road accidents globally. 22There is an urgent need for the interventions required at various stages relating to post crash care. On one hand relative ignorance on part of the public to come forward to help the roads crash victims, for apparent fear that they might be involved in police cases which is like a deterrence in building confidence in public for helping road accident victims, and on the other hand research shows that a number of the accident victims can be saved if they receive immediate medical attention. Hence in the light of these given present situations in the real world, the researcher whole heartedly agrees with the spirit of the judgement, and appreciates the Courts decision in Parmanand case and also the application of the judgement in future case, that human life is of supreme importance and hence the patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to treat emergency cases in order to preserve life so that the innocent may be protected and the guilty may be punished.

FROM THE ANGLE OF JUDICIAL ACTIVISM : SCOPE OF THE JUDGEMENT

Judicial Activism is defined as A philosophy of judicial decision-making whereby judges allow their personal views about public policy among other factors to guide their decision.23 It involves that kind of judicial creativity whereby the judges not only create something new but also fill in the gaps by examining and interpreting the law in a novel way and sometimes in the process tend to enter the domain of the legislators which is often criticized. In Pt. Parmanand Katara Vs. Respondent: Union of India (UOI) and Ors. the Supreme Court provides scope or it can be said that it makes space for a wider interpretation of Article 2124 of Indian Constitution which says No person shall be deprived of his life or personal liberty

22

World Health Organization, Road Safety Is No Accident (2004) available at http://www.who.int/mediacentre/news/releases/2004/pr24/en/index.html (Last visited on September 11,2012). 23 BLACKS LAW DICTIONARY,850 (Bryan A.Garner ed.,7th edn.,1999). 24 Art. 21, THE CONSTITUTION OF INDIA, 1950.

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Pt. Parmanand Katara v. Union of India: A Case Review except according to procedure established by law25.The court seemingly assumed an activist posture and came forward to the rescue of aggrieved citizens by interpreting the constitutional provision in its wider possible meaning to protect basic civil liberties and enhance the practical implementation of the Right to life and personal liberty, more so in the context of Article 25626 which provides that the executive power of every state(in this case those in medical profession acting as government servants) shall be so exercised so as to ensure compliance with the laws made by Parliament and any existing laws which apply in the State.The Supreme Court laid down exhaustive guidelines as seen in the judgement section in the paper. Thus the court converted what seemed a non-justiciable issue into a justiciable one by invoking the wide sweep of the enforceable article 21.27 The broader interpretation of the guidelines laid down in the judgement can be seen as a pathway to the enforcement of an altogether new right namely Right to Health seeing the critical situations faced in medico-legal cases.The Right to Health has been perhaps the least difficult area for the court in terms of justiciability, but not in terms of enforceability. However in terms of judicial decisions the court has always recognized the right to health as being an integral part of the right to life.28 Article 47 of Directive Principles of State Policy provides for the duty of the state to improve public health. Hence Right to instant medical aid:
ALL DOCTORS INCLUDING PRIVATE DOCTORS OBLIGED TO RENDER IMMEDIATE

MEDICAL AID IN INJURY CASES which

has been seen as forming a part of article 21 itself finds

a corresponding expression in the Directive Principles of State Policy in Article 47 which makes improvement of public health a primary duty of the State. Public health can be improved by making available the best of doctors, specialists and super specialists.29 The court in this case has interpreted Article 21 as casting an obligation on the State to preserve life emphasizing that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. Entering the domain of legislation, rendering a wider interpretation of the existing statute, the judgement said that no law or State action can intervene to obtain avoid/delay the discharge of the utmost obligation imposed upon them and this obligation being total, absolute and
25 26

Art. 21, THE CONSTITUTION OF INDIA, 1950. Art.256, THE CONSTITUTION OF INDIA, 1950. 27 Art. 21, THE CONSTITUTION OF INDIA, 1950 28 Right To Health (2007) available at http://www.civilserviceindia.com/subject/Law/notes/fundamental-righthealth.html (Last visited on September 9, 2012). 29 Art. 47, THE CONSTITUTION OF INDIA, 1950.

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Pt. Parmanand Katara v. Union of India: A Case Review paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must hence give way. The court held this matter as quite urgent and important assuring the doctor of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others.30Hence this case is important because in one sense it acts as a reminder to the doctors of their Hippocratic oath implying that the life of a person is more important than other formalities. However some doctors may be indifferent towards obeying this Hippocratic oath considering it not to be legally binding on them because it is only a moral obligation. They should be made aware of the fact that that modified version of Hippocratic oath is now part of the Indian Medical Council(Professional Conduct, Ethics and Etiquettes) Regulations-2002, and is now binding and have force of law.31 Nowadays health care has become more of a money-making scheme as is mentioned in Bernard Shaws play The Doctors Dilemma. The medical profession being a noble profession should not be brought down to the level of a simple business or commerce. Since most of the people in India are poor the consequence is that for most of them proper medical treatment is next to impossible and they are bound to rely on quacks,which comes as a disgrace to the noble profession.32 Hence in the light of this judgement, judicial activism can prove to be a boon to the victims of arbitrary, illegal and unconstitutional actions of state as well as of public servants, the doctors in this case. Right to life and personal liberty has been given a wider and an elaborate meaning to include all the essential rights for human life with dignity and those rights are easily made available through the channels of an activist judiciary. No doubt, the right to health under Article 2133 is not an expressed right but can only be implied, but nevertheless, it cannot be diminished. In the Bandhua Mukti Morcha case34, the Apex Court has stated that right to life does not mean a right to a mere vegetable existence but a right to a dignified life.The Right to Health, according to the researcher was elevated to the status of fundamental rights which could not be taken, defeated or abridged by statutes or other legal formalities. Hence the main means through which the Supreme Court has achieved equilibrium between
30 31

Parmanand , AIR 1989 4SCC 286 .The Indian Medical Council (Professional Conduct, Ethics and Etiquettes) Regulations-2002. 32 Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE MANGEMENT,531(5th edn.,2010). 33 Art. 21, THE CONSTITUTION OF INDIA, 1950 34 Bandhua Mukti Morcha v. Union Of India & Others,(1984) 3SCC 161.

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Pt. Parmanand Katara v. Union of India: A Case Review civil rights and their economic and social counterpart has been through the application of an expansive definition of the right to life, and unsurprisingly as seen in this case, Right to Health was one of the guarantees to first benefit from this approach.35 Even in the later judgement in 1996 in Paschim Banga Khet Majdoor Samity v. State of West Bengal
36

upholding the judgement in Parmanand case the Supreme Court did not stop

declaring the Right to Health to be a fundamental right and enforcing the right of the labourer by asking the Government of West Bengal to pay him compensation for the loss suffered, directing the government to prepare a blue print for primary health care with particular reference to treatment of patients during an emergency.37 The Supreme Court used the Right to Life to secure the Right to Emergency Medical Care, concluding that such an essential obligation could not be avoided by pleading financial constraints.38The court, in holding that there had been a violation of Right to Life under Article 21, and awarding compensation, stated that the right to emergency medical care formed a core component of the Right to Health which in turn was recognized as forming an integral part of the Right to Life. It did this by reconceptualising the right to life as imposing a positive obligation on the state to safeguard and protect the life of every person, stating that preservation of human life was of utmost importance and that:The Constitution envisages the establishment of a welfare state Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the government in this respect [and it] discharges this obligation by running hospitals and health centres.39 In line with its general approach of frequently offering comprehensive remedies that go beyond merely providing redress for the victim, but also laying down the necessary policy and administrative steps to be taken by the state in the wider public interest, the judicial activism playing its role, the court not only ordered compensation , but also directed the type of facilities that the state government had to provide which included hospitals and emergency provisions(ambulances and communication) by

35

Iain Byrne, Enforcing the Right to Health: Innovative Lessons available at http://www.swisshumanrightsbook.com/SHRB/shrb_03_files/37_453_Byrne.pdf (Last visited on September 9, 2012). 36 Paschim Banga, AIR 1996 SC 426. 37 Supra note 4. 38 The petitioner had been taken to a succession of eight state medical institutions ranging from a local health centre to two medical colleges and was refused treatment at each, either due to lack of beds or lack of technical capacity. Eventually he was admitted to a private hospital where he had to pay for treatment. 39 Paschim Banga, (1996) AIR SC 2426 at 2429.

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Pt. Parmanand Katara v. Union of India: A Case Review formulating a blueprint for primary healthcare with particular reference to treatment of patients under an emergency as part of the states public health obligation under Article 47. 40 However this judicial activism by the court faced certain criticisms as well. In State of Punjab v. Ram Lubhaya Bagga, the court stated no State or country can have unlimited resources to spend on its projects and the same goes for providing medical facilities to its citizens including its employees. Provision of facilities has to be to the extent finances permit.If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exhorbitant scales, the State would be bound to reimburse the same.The principle of fixation of rate and scale is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution.41 Hence the cons of this judgement is the twisted interpretation of the Supreme Courts judgement in Parmanand Katara case in the sense that a fundamental right is one which is enforceable against the state and not against a person. Hence right to health being enshrined in the wider interpretation of the fundamental right: Right to Life, it imposes a duty on the State rather to make available emergency services to the victims in road accidents and even in other emergencies. In case of an accident taking place and if there happens to be a doctor nearby, no duty is cast on him to provide immediate medical aid just because health is a fundamental right. It should instead be the duty of the State that if it fails to make available immediate and fail-safe arrangements for providing medical aid to citizens in emergent situations through its own mechanisms and resources and if it wants to enumerate the services of private practitioners/hospitals for this purpose, they should arrive at agreements with them ensuring that the required payment for the services rendered is made. No such agreements exist with private solo practitioners who spend their hard earned money to start practicing and have to pay commercial rates for water, telephone and electricity etc. And also for the purpose of income tax, they are tagged together as those having their own business. In the given conditions, the private practitioners having solo practices hence cannot be treated as bonded labour by the government who can be asked to do their bidding without any right to adequate remuneration. The confusion can also be said to have arisen due to the carelessly worded affidavits submitted by the MCI and the IMA. The Council/Association is of the view that though doctors are not bound to treat every case, all doctors should always be up and ready for providing life saving treatment in emergency situations to the patients who come at their door, not waiting for various formalities, including the modality of payments to have

40 41

Paschim Banga, (1996) AIR SC 2426. State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117 (Supreme Court of India). para. 29, p.130

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Pt. Parmanand Katara v. Union of India: A Case Review been done with. Hence it can be seen in the light of the situation where the public, physicians and even the lawyers have fallen into the habit of interpreting the Katara judgement as if the Court has mandated that doctors are legally bound to provide free emergency treatment to whosoever happens to come to them or be brought to them even though it should be prerogative of private healthcare providers,who practice the medical profession in order to earn their living in a situation where cost of living is rising and the cost of treatment is prohibitive.

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SECTION IV: PRACTICAL IMPLEMENTATION OF THE JUDGEMENT

Even after twenty years of the landmark and monumental judgement, Padmanand Katara is still bitter about the missed opportunity that the aeon making judgement provided the country with. The implementation of the judgement in real terms is still lagging behind in the sense that the medical fraternity and the government both failed in their duties to implement the judgement. Twenty years hence, road traffic accident victims are still refused admission in private hospitals.The protectors of the law, the police, themselves are the biggest hindrance to the implementation in spirit of the judgement.An average policeman in India still forces the accident victim to a government hospital is the agony that stares Katara in the face.42 In absolute terms RTA43 and fatalities have been increasing despite a lot of efforts made by the central and state ministries and other organizations. As against 94000 lives in 2005,105749 lives have been lost in 2006.44 A very recent case that can be cited is that of the much talked about Investigative journalist Jyotirmoy Dey who was shot at in Poway around 2.45pm on Saturday was still breathing when he was taken to Powai Polyclinic at 2.55pm. The hospital refused to treat him saying they were ill-equipped to handle such an emergency.Dey was then taken to Dr LH Hiranandani hospital where he was declared dead on arrival at 3.05pm. Had Powai Polyclinic treated Dey immediately, he could have stood a chance.45 The Medical Council of India had long before the Parmanand Katara case got the Code of Medical Ethics approved on 23rd Oct., 1970,which contains two explicit clauses namely clause 10 and 13,the former talking about the obligations to the sick and the latter stating that the patient must not be neglected,but still the news item which was the starting point of
42

EMS INDIA edit team, Pt. Parmanand Katara - The Man & His Work(2003) available at http://www.emsindia.in/uploaddir/magzine/article/Article_14108-A-03-ParmandKatara.pdf (Last visited on September 9, 2012). 43 Road Traffic Accidents. 44 Supra note 24. 45 Rosy Sequeira, Could journalist J Dey have been saved? DNA (Mumbai edn., June 14, 2011) available at http://www.dnaindia.com/mumbai/report_could-journalist-j-dey-have-been-saved_1554755(Last visited on September 9, 2012).

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Pt. Parmanand Katara v. Union of India: A Case Review this petition is of 1988.Judge G.L.Oza hence said This only reveals an unfortunate state of affairs where the decisions are taken at the higher attractive to quote.46 Hence not much has been achieved as yet. Despite the clear cut directions of the Government, the Government departments and even the media act in a very passive and non concerted manner to publicize the 1989 verdict and its implications which have left the general public even today unaware of the law of land and wait and watch, helplessly due to fear of the police, the injured die on the road.Urged by the Government inaction and the increasing numbers of RTA,Parmanand Katara again filed another PIL asking for SCs intervention in order to force the government to give ample to its own judgement. The court reacted in a touching manner, that brings tears in the eyes of this human rights activist, You have done a wonderful job for the good of the society, but let some other person come before us to take your work forward. which depicts the insensitivity of the Court towards the matter.47 One major issue, as of today is that there are no laws pertaining to critical care. 48 The guidelines which are followed are based on previous cases which makes dealing with the cases even more challenging.With the increase in consumer awareness, the common scene is the misuse of power by the patients in the name of their rights who threaten to reduce costs of treatment, especially in cases of death they deny paying the bill as said by Dr.Jauhari, Chairman, Medico-legal Committee, Sir Ganga Ram Hospital, Delhi.49Another issue is that of consent in emergency. Lawfully, a doctor can give treatment to any patient incapable of giving consent as long as the treatment to any patient as long as the treatment is in the best interest of the patient.In case of emergency, explains Dr Suganthi Iyer, assistant Director, Hinduja Hospital, all considerations regarding will be set aside and the doctor has to do whatever he thinks best at the moment to save the patients life.Many times it so happens that intentioned for public good but

unfortunately do not reach the common man and it only remains text good to read and

46
47

Per G.L.Oza, J., (1989) 4SCC 286. EMS INDIA, Supra note 25. 48 Critical Care is a branch of medicine where life and death are those surreal lines between which the patient is wavering. Thus medico-legal cases are more significant in critical care than any department since it is the life of a patient which is at stake. 49 Sonali Vij, Legally Matters (2010) available at http://www.expresshealthcare.in/201001/criticare01.shtml (Last visited on September 11, 2012).

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Pt. Parmanand Katara v. Union of India: A Case Review if a doctor doesnt wait and proceeds with conducting a surgery in the best interest of the patient and if he dies, the relatives often come and argue with the doctor for doing the same.50 Hence, these act as deterrent factors for the doctors to not take up emergency cases and hinder in the implementation of the judgement in medico-legal cases.

50

Vij, Supra note 31.

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CONCLUSION
After having thoroughly analysed the judgements in the case and the issues pertaining to it can be concluded that firstly, this case has brought the right to get medical care within the purview of Article 21 of the constitution as a fundamental right as a result of which, every person in India gets the right to approach any hospital and get medical aid even when the legal formalities have not been complied with. As a result, the number of deaths occurring due to refusal of the doctors to treat the patients if it is a case of an accident or any criminal case will go down. Then it will be justified to say that doctors are the saviour of human life. Secondly, it can be concluded that there is a need to add Right to Health as an express right under the Chapter on Fundamental Right. Hence it can be enforceable even, as it is projected as supplementing the content of Fundamental right Article 21. It should be the paramount duty of the state to preserve life of all persons and one of the basic means of doing the same is through providing adequate healthcare facilities without any apprehensions in the mind of medical practitioners regarding legal hassles coming on their way.Hence the duty cast on the State under Articles 47 in particular Part IV of the Constitution is to be read as conferring a corresponding right on the citizens and, therefore the right under Article 21at least must be read to include the same within the ambit.51What would be then crucial is the will of the State to implement this constitutional mandate and this agenda of the State can be shaped to considerable extent by a creative and activist judiciary. Since the Directive Principles of State Policy contained in Article 47 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provisions by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these fundamental requirements to the persons, particularly belonging to the weaker section of the community and thus investing their right to live with basic human dignity, the State can certainly be obligated to ensure observance of such legislation, for inaction on the part of the State in securing implementation of such legislation would amount to denial of protection under Article 21, more so in the context of Article 256 which provides that the executive power of
51

University of Minnesota: Human Rights Resource Center,Circle of Rights Economic,Social & Cultural Rights Activism : A Training Resource available at http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm (Last visited on September 11, 2012).

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Pt. Parmanand Katara v. Union of India: A Case Review every State shall be so exercised as to ensure compliance with laws made by the Parliament & any existing laws which apply in that State.52 Thirdly, the Researcher has observed that it is indeed a major leap that the Fundamental right to Health and health care has been recognized by the Supreme Court. Still it has a number of limitations because fundamental rights are available only against State and not against private individuals or organizations and also again its enforceability is subject to financial availability.Time has come for the courts to realize that the right to health and health care is a positive fundamental right which cannot be contingent on the financial capacity of the State and which would mandate the State to take up proactive measures. Unregulated commercialization of the healthcare should be checked for further violation of right to healthcare. Fourthly and most importantly from the perspective of the landmark judgement in Parmanand Katara case and the subsequent cases which used it as precedent to arrive at their decisions, it can be concluded that Right to Health inclusive of right to instant medical care(especially in emergency) have been given a high level of importance putting forward a wider interpretation of Right to Life. Hence judicial enforcement has been seen to have taken a creative and a generous interpretation of the existing guarantee under Article 21,Article 32 and Article 47.This is to ensure a true meaning to the principles of indivisibility and interdependence of rights. Hence the researcher supports the spirit of the judgement that immediate medical aid should be administered to the injured in the emergency and not waste time in procedural formalities because once life is lost, the legal form (filled up by a police man) would be a piece of waste paper because the victim would not remain alive to see the result of it. Using the Right to Life as the broader framework, the Court rulings would be useful tools for all those who join hands to pursue a vision Health for All, Now.

52

Supra note 39.

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BIBLIOGRAPHY
BOOKS
Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE MANGEMENT, 531(5th edn., 2010). BLACKS LAW DICTIONARY, 850 (Bryan A.Garner ed., 7th edn., 1999). Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE MANAGEMENT, 531(5th edn., 2010).

ARTICLES
Sonali Vij, Legally Matters (2010) available at http://www.expresshealthcare.in/201001/criticare01.shtml (Last visited on September 11, 2012). EMS INDIA edit team, Pt. Parmanand Katara - The Man & His Work(2003) available at http://www.emsindia.in/uploaddir/magzine/article/Article_14108-A-03ParmandKatara.pdf (Last visited on September 9, 2012). Iain Byrne, Enforcing the Right to Health: Innovative Lessons available at http://www.swisshumanrightsbook.com/SHRB/shrb_03_files/37_453_Byrne.pdf (Last visited on September 9, 2012). Nayantara Som and Sushmi Dey, Desperately Seeking Timely Care (2007) available at http://www.expresshealthcare.in/200701/coverstory01.shtml (Last visited on September 16, 2012). Right To Health (2007) available at http://www.civilserviceindia.com/subject/Law/notes/fundamental-right-health.html (Last visited on September 9, 2012).

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Pt. Parmanand Katara v. Union of India: A Case Review University of Minnesota: Human Rights Resource Center, Circle of Rights Economic,Social & Cultural Rights Activism : A Training Resource available at http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm (Last visited on September 11, 2012). Rosy Sequeira, Could journalist J Dey have been saved? DNA (Mumbai edn., June 14, 2011) available at http://www.dnaindia.com/mumbai/report_could-journalist-jdey-have-been-saved_1554755. (Last visited on September 9, 2012). S.Viswanathan, Health Care Woes: Need for Doctors, Funds, THE HINDU(April 18, 2010) available at http://www.thehindu.com/opinion/ReadersEditor/article402046.ece(Last visited on September 16, 2012). Right to Health in the Present Perspective with Special Reference to HIV Infected Persons available at http://www.law-essays-uk.com/resources/sampleessays/human-rights/right-to-health.php (Last visited on September 16, 2012).

REPORTS
201st report of the Law Commission of India, Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition and women Under Labour ,4 (2006) World Health Organization, Road Safety Is No Accident (2004) available at http://www.who.int/mediacentre/news/releases/2004/pr24/en/index.html (Last visited on September 11, 2012).

ONLINE SOURCES

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Pt. Parmanand Katara v. Union of India: A Case Review http://www.civilserviceindia.com http://www.dnaindia.com http://www.emsindia.in http://www.expresshealthcare.in http://www.law-essays-uk.com http://www.thehindu.com http://www.who.int http://www1.umn.edu www.swisshumanrightsbook.com

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