2.

To understand the scope of Article 21 in this context

India is a party to the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. The Supreme Court held that Article 21 of
the Constitution of India in relation to human rights has to be interpreted in conformity with
international law. Further, Article 25 [2] of the Universal Declaration of Human Rights and
Article 7 (b) of the International Covenant on Economic, Social and Cultural Rights have been
cited by the Supreme Court while upholding the right to health by a worker.

These covenants find statutory acceptance in the Statement of Objects and Reasons of The
Protection of Human Rights Act, 1993. In addition, human rights commissions are empowered
to study treaties and other international instruments on human rights and make
recommendations for their effective implementation. In the recent past, many complaints of
alleged medical negligence and deficient service by private and government hospitals and
medical professionals have been filed with the national or state Human Rights Commissions.

The Constitution incorporates provisions guaranteeing everyone’s right to the highest

attainable standard of physical and mental health. Article 21 of the Constitution guarantees
protection of life and personal liberty to every citizen. The Supreme Court has held that the
right to live with human dignity, enshrined in Article 21, derives from the directive principles
of state policy and therefore includes protection of health.

Further, it has also been held that the right to health is integral to the right to life and the
government has a constitutional obligation to provide health facilities.

Failure of a government hospital to provide a patient timely medical treatment results in

violation of the patient’s right to life. Similarly, the Court has upheld the state’s obligation to
maintain health services.

Public interest petitions have been filed under Article 21 in response to violations of the right
to health. They have been filed to provide special treatment to children in jail; on pollution
hazards; against hazardous drugs; against inhuman conditions in after-care homes; on the
health rights of mentally ill patients; on the rights of patients in cataract surgery camps; for
immediate medical aid to injured persons; on conditions in tuberculosis hospitals; on
occupational health hazards; on the regulation of blood banks and availability of blood
products; on passive smoking in public places; and in an appeal filed by a person with HIV on
the rights of HIV/AIDS patients.

3. To Understand the CrPC process in accidental cases

In Penu v. State, S. Acharya, J. observed that merely because the tractor’s wheel ran over the
Morrum heap it cannot be said that the petitioner was recklessly driving the vehicle in a rash
or negligent manner knowing that injury was most likely to be occasioned thereby. Moreover,
the deceased by sitting on the tool box on the tractor in between the driver and the bonnet
without any firm protection except the mudguard of the vehicle, took upon himself the risk and
the consequences of his own act.

As the deceased was the immediate boss of the petitioner it was not excepted of the latter to
ask the deceased not to sit on the tractor in aforesaid manner, or that he would not drive the
vehicle with the deceased sitting on it in that manner. There is no evidence of recklessness or
indifference to the consequences on the part of the petitioner in this case.

Considering the facts and circumstances of the case I am of the view that criminal rashness or
negligence, which is required to constitute an offence either under section 279 or under section
304A, Indian Penal Code, cannot be attributed to the petitioner beyond reasonable doubt, more
so on the admitted prosecution evidence that he was, driving the vehicle slowly and carefully,
on the above considerations the conviction of the petitioner under section 279 and 304A, Indian
Penal Code, cannot be maintained.

Accordingly, his conviction for the said offences and the sentence paused against him there
under are hereby set aside, and he is acquitted of the same.

4. To overview the duty off the Doctors and Hospital in cases of Accidental
negligence

A person who holds himself out ready to give medical advice and treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose.

Such a person when consulted by a patient owes him certain duties:

 1. A duty of care in deciding whether to undertake this case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administrating that treatment properly.

A breach of any of these duties gives a right of action for negligence to the patient.

In any of the medico-legal cases, it is the legal duty of the treating doctor to report it to the
nearest police station immediately after completing primary lifesaving medical care. This is in
accordance with Section 39 of Criminal Procedure Code of India. The idea is to initiate the
legal proceeding at the earliest is so that maximum evidence can be collected by the police
officer. Quick action by the police also helps to avoid the destruction of evidence by the treating
physician.

The following cases should be considered as medico-legal and as such the medical officer is
“duty-bound” to intimate to the police regarding such cases:

 All cases of injuries and burns -the circumstances of which suggest commission of an
offense by somebody. (irrespective of suspicion of foul play)
 All vehicular, factory or other unnatural accident cases specially when there is a
likelihood of patient’s death or grievous hurt.
 Cases of suspected or evident sexual assault.
 Cases of suspected or evident criminal abortion.
 Cases of unconsciousness where its cause is not natural or not clear.
 All cases of suspected or evident poisoning or intoxication.
 Cases referred from a court or otherwise for age estimation.
 Cases brought dead with improper history creating suspicion of an offense.
 Cases of suspected self-infliction of injuries or attempted suicide.
 Any other case not falling under the above categories but has legal implications.

In a country where 130,000 deaths occur annually due to road traffic accidents and 53% women
suffer from domestic violence leading to grave injuries, it is important that hospitals and the
law work hand in hand to help the injured. Our legal system has grown in leaps and bounds
from 1989 when people would lose their lives waiting for treatment and the ‘right to life’ act
was formed in the same year. The law states that concerns like legal formalities, monetary
considerations or even the infrastructural restraints of the institution should not prohibit the
institution or hospital from providing basic and emergency medical treatment.

It was not long back a youth, severely injured after being hit by a speeding KSRTC bus at
Koppal, Karnataka died in hospital simply because he didn’t get timely help from the public.
Even though the hospital was just a stone’s throw from the accident spot, but people watched
Anwar writhing in pain and some even used their cell phones to shoot pictures and videos.
None of them tried to shift him to a hospital. Common people still have the fear that they will
be tied in these cases due to unawareness in MLC. Instead of merely berating such callous and
inhuman attitude among the public, there is an urgent need to create awareness that almost 50%
of the accident victims have excellent chances of survival if they get immediate attention and
treatment. Anyone near the accident site can call helpline 108 or 104 for ambulance, and the
victim will be taken to the nearest hospital for emergency treatment free of cost. Hospitals are
required to make admission irrespective of whether it is a medico-legal case and the
government will reimburse the cost of treatment up to Rs 25,000.

5. To understand how denial of medical institutions in accidental cases can

amount to infringement of fundamental rights in accidental cases

Article 21 casts the obligation on the state to preserve life. It is the obligation of those who are
in charge of the health of the community to preserve life so that the innocent may be protected
and the guilty may be punished. No law or state action can intervene to delay and discharge
this paramount obligation of the members of the medical profession.

No law or State action can intervene to avoid/delay the discharge of the paramount obligation
cast upon members of the medical profession. The obligation being total, absolute and
paramount, laws of procedure whether in statute or otherwise which would interfere with the
discharge of this obligation cannot be sustained and must, therefore, give way. The court also
observed:

“Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether
he be an innocent person or 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 preserve life so that
the innocent may be protected and the guilty may be punished. Social laws do not contemplate
death by negligence to tantamount to legal punishment…. Every doctor whether at a
Government hospital or otherwise has the professional obligation to extend his services with
due expertise for protecting life.”

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal, a person
suffering from serious head injuries from a train accident was refused treatment at various
hospitals on the excuse that they lacked the adequate facilities and infrastructure to provide
treatment.

In this case, the Supreme Court further developed the right to emergency treatment and went
on to state that the failure on the part of the Government hospital to provide timely medical
treatment to a person in need of such treatment results in the violation of his right to life
guaranteed under Article 21. It acknowledged the limitation of financial resources to give effect
to such a right but maintained that it was necessary for the State to provide for the resources to
give effect to the entitlement of the people of receiving emergency medical treatment.

It has been reiterated, time and again, that there should be no impediment to providing
emergency medical care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others, it
was held that a hospital is duty bound to accept accident victims and patients who are in critical
condition and that it cannot refuse treatment on the ground that the victim is not in a position
to pay the fee or meet the expenses or on the ground that there is no close relation of the victim
available who can give consent for medical treatment.

The court has laid stress on a very crucial point, viz., the state cannot plead lack of financial
resources to carry out these directions meant to provide adequate medical services to the
people. The state cannot avoid its constitutional obligation to provide adequate medical
services to people on account of financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga, the Supreme Court has recognized that
provision of health facilities cannot be unlimited. The court held that it has to be to the extent
finance permits. No country has unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India, right to get free and timely
legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A policy
decision in formulating a contributory scheme for ex-servicemen and asking them to pay one-
time contribution does not violate Art. 21 nor is it inconsistent with Part IV of the constitution.

6. To understand the guidelines set by Supreme Court in the Parmanada

case

In Parmananda Katara v. Union of India, the Supreme Court has very specifically clarified
that preservation of life is of paramount importance. The Apex Court stated that ‘once life is
lost, status quo ante cannot be restored.’ It was held that it is the professional obligation of all
doctors (government or private) to extent medical aid to the injured immediately to preserve
life without legal formalities to be complied with the police.

Parmanand Katara, a human rights activist, files a writ petition in the Supreme Court on the
basis of a newspaper report concerning the death of a scooterist who was knocked down by a
speeding car. The injured person was taken to the nearest hospital but the doctors refused to
treat him and directed that he be taken to another hospital around 20 kms away, one that was
authorised to handle medico-legal cases. The injured person succumbed to his injuries before
he could reach the second hospital. Among the other things, the petitioner prayed that the court
issue directions to the UoI that every injured citizen brought for treatment must be given
medical assistance to preserve life under Article 21.

Based on the petition, the Supreme Court set down some guidelines which are as follows:

1. There can be no second opinion that preservation of human life is of paramount

importance. Once a life is lost, it cannot be restored as resurrection is beyond the
capacity of a man.
2. Every doctor, whether at a government hospital or otherwise, has the professional
obligation to extend his or her services with due expertise for protecting life.
3. There is no legal impediment for a medical professional when he or she is called upon
or requested to attend to an injured person needing his/her medical assistance
immediately. There is no doubt that the effort to save the person shall be top priority
not only for the medical professional but also 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.
4. Lawyers and judges and everyone concerned about also should keep in mind that a man
in medical profession should not be unnecessarily harassed for purposes of
interrogation or for any other formality and should not be dragged during the
investigations at the police station. This should be avoided as far as possible.