Docs not liable for failed sterilisation operations: Supreme Court

Docs not liable for failed sterilisation operations: SC
http://www.tribuneindia.com/2005/20050830/nation.htm#3
S S Negi
Legal Correspondent

New Delhi, August 29
Holding that a doctor could not be held liable to pay damage for a failed sterilisation operation till any negligence on his part in performing the surgery is proved, the Supreme Court has directed the Union and State Governments to devise a welfare fund or insurance scheme to the persons in whose case operations had been unsuccessful.

“We are...clearly of the opinion that merely because a woman having undergone a sterilisation operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child,” a Bench of Chief Justice R C Lahoti, Mr Justice C K Thakker and Mr Justice P K Balasubramanyan ruled.

The decision came on an appeal by the Punjab Government against awarding of Rs 50,000 compensation by courts below to a woman from Bathinda, who had conceived a child even after she under went a sterilisation operation in August 1984. A woman doctor of a local government hospital had performed the operation.

The woman had claimed a compensation of Rs 3 lakh from Punjab Government’s Health Department in a suit before a civil court for the failure of her operation. But the court directed the state to pay Rs 50,000 to her. The District Judge and the Punjab and Haryana High Court upheld the order of the civil court.

The Medical Officer of Civil Hospital, Bathinda, in his statement had told the civil judge that the “medical science recognises failure of sterilisation operations to the extent of 0.3 to 3 per cent.”

Taking note of it, the Supreme Court said the surgeon could be held liable in contract unless the plaintiff (affected woman) proved that she had been assured 100 per cent exclusion of pregnancy after the surgery and was only on the basis of such assurance that she was persuaded to undergo the operation.

To overcome this problem and without causing any harm to the family planning programme, The government should provide some solace to the person in whose case the operation was unsuccessful on account of “their illiteracy, ignorance or carelessness, the court said

The best course for the government would be to take steps to devise an insurance schemes to the women on whom the operations had been a failure as the rate of such failure was not alarmingly high but negligible considering the vastness of the family welfare programme being undertaken in the country, the court said.

Supreme Court Appeal (Civil) 5128 of 2002 : Doctors not liable for failed Sterilisation

CASE NO.:
Appeal (civil) 5128 of 2002

PETITIONER:
State of Punjab

RESPONDENT:
Shiv Ram & Ors.

DATE OF JUDGMENT: 25/08/2005

BENCH:
CJI R.C. LAHOTI,C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T

R.C. Lahoti, CJI

The plaintiffs-respondents, respectively husband and wife, filed a suit against the State of Punjab, the appellant before us and a lady surgeon who was in the State Government's employment at the relevant time, for recovery of damages to the tune of Rs.3,00,000/- on account of a female child having been born to them in spite of the wife-respondent No. 2 having undergone a tubectomy operation performed by the lady surgeon. According to the plaintiffs-respondents, they already had a son and two daughters from the wed-lock lasting over 17 years. In response to a publicity campaign carried out by the Family Welfare Department of the appellant-State, respondent No. 2 with the consent of respondent No.1, underwent a sterilization operation on 1.8.1984. A certificate in this regard bearing mark of identification No. 505, duly signed by the lady surgeon who performed the said surgery, was issued to her. She was given a cash award of Rs.150/- as an incentive for the operation. On 4.10.1991, respondent No. 2 gave birth to a female child. After serving a notice under Section 80 of the Code of Civil Procedure, a suit for recovery of damages was filed on 15.5.92 attributing the birth of the child to carelessness and negligence of the lady surgeon. The plaint alleged inter alia that the respondents considered abortion to be a sin and that is why after knowing of the conception they did not opt for abortion.

The State was impleaded as defendant No. 1 and the lady surgeon who performed the surgery was impleaded as defendant No.2.

The defendants filed a joint written statement. It was submitted that there was no negligence or carelessness in the performance of the surgery. It is stated in authoritative text books of medical science that pregnancy occurring after sterilization may be attributable to natural failure. It was also submitted that the plaintiffs having learnt of the unwanted pregnancy, should have sought medical opinion and opted for medical termination of pregnancy within 20 weeks which is
permissible and legal.

The parties went to trial. The plaintiff No.1, that is the husband, deposed on oath to substantiate the plaint averments. The wife, plaintiff No.2, did not appear in the witness box. On behalf of the defendants, one Dr. Sham Lal Thukral, Medical Officer, Civil Hospital, Bhatinda appeared to depose that medical science recognises failure of sterilization operations to the extent of 0.3% to 3% and the consequences of such failure can promptly be taken care of by the pregnant woman by undergoing abortion. The deponent produced five extracts (marked as Exhibits D2 to D6) from different textbooks of gynaecology in support of his statement. Original books were
produced for the perusal of the court and returned. The trial court and the first appellate court have not doubted the correctness of the expert medical opinion as expressed in the textbooks cited before the Court. However, the two courts have proceeded on the reasoning that on the birth of a child to a woman who was allured into undergoing sterilization operation by the State in pursuance of its Family Planning Schemes, the State was liable to compensate for the consequences of the
operation having failed. The suit was decreed for Rs.50,000/- with interest and costs. The decree for compensation passed by the trial court has been upheld by the first appellate court. The second appeal preferred by the State has been summarily
dismissed.

At the very outset, the learned Additional Advocate General appearing for the State of Punjab submitted that the appellant-State was not very serious about denying the payment of Rs.50,000/- to the plaintiffs-respondents as they are poor persons, but the State was certainly interested in having the legal issue resolved. He further submitted that the filing of such suits in the civil court or complaints before the Consumer Fora, are on an increase and decrees are being passed against the State without any basis in law and, therefore, the position of law needs to be clarified and settled.

Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, popularly known as Bolam's Test, in its applicability to India. The relevant principles culled out from the case of Jacob Mathew (supra) read as under:

(1) Negligence is the breach of a duty caused by omission to
do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a
prudent and reasonable man would not do. The definition
of negligence as given in Law of Torts, Ratanlal & Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove,
holds good. Negligence becomes actionable on account of
injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential
components of negligence are three: 'duty', 'breach' and
'resulting damage'.


(2) 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. When it comes to
the failure of taking precautions what has to be seen is
whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to
use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard
for judging the alleged negligence.


(3) 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 for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent
person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level
of expertise or skills in that branch which he practices. A
highly skilled professional may be possessed of better
qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.


This Court has further held in Jacob Mathew's case
(supra):-
"Accident during the course of medical or
surgical treatment has a wider meaning.
Ordinarily, an accident means an unintended
and unforeseen injurious occurrence;
something that does not occur in the usual
course of events or that could not be
reasonably anticipated (See, Black's Law
Dictionary, 7th Edition). Care has to be taken
to see that the result of an accident which is
exculpatory may not persuade the human mind
to confuse it with the consequence of
negligence."


The plaintiffs have not alleged that the lady surgeon who
performed the sterilization operation was not competent to
perform the surgery and yet ventured into doing it. It is neither
the case of the plaintiffs, nor has any finding been arrived at by
any of the courts below that the lady surgeon was negligent in
performing the surgery. The present one is not a case where
the surgeon who performed the surgery has committed breach
of any duty cast on her as a surgeon. The surgery was
performed by a technique known and recognized by medical
science. It is a pure and simple case of sterilization operation
having failed though duly performed. The learned Additional
Advocate General has also very fairly not disputed the vicarious
liability of the State, if only its employee doctor is found to have
performed the surgery negligently and if the unwanted
pregnancy thereafter is attributable to such negligent act or
omission on the part of the employee doctor of the State.

The learned Advocate General has brought to our notice a
number of textbooks on gynaecology. We refer to some of them.

In Jeffcoate's Principles of Gynaecology, revised by
V.R. Tindall, MSc.,MD,FRCSE, FRCOG, Professor of Obstetrics
and Gynaecology, University of Manchester (Fifth Edition)
published by Butterworth Heinemann, the following technique of
female sterilization are stated:
"Female Sterilization
Techniques

1. Radiotherapy

A menopausal dose of external beam
irradiation to the ovaries is only attractive in so
far that they sterilize without involving the
woman in an operation. Their disadvantages
(as stated at pages 93 and 528) are such that
they are rarely used except in older women
who are seriously ill.

2. Removal of the ovaries

This sterilizes (provided an accessory ovary is
not overlooked) but is very rarely indicated as
it often results in severe climacteric symptoms.


3. Removal of the uterus

This is effective but involves an unnecessarily
major operation and destroys menstrual as
well as reproductive function. Its chief place is
in those cases where the need for sterilization
is associated with disease in the uterus or
cervix. But, to preclude further childbearing, it
is commonly carried out as part of another
operation. Examples are vaginal hysterectomy
as part of the cure of prolapse, and caesarean
hysterectomy. The latter is sometimes
advocated, in preference to caesarean section
and tubal ligation, on the grounds that it
prevents future uterine disease as well as
conception. Those women who have ethical
objections to tubal ligation may well prefer to
have a 'scarred uterus' removed. Except in
special circumstances, however, caesarean
hysterectomy is not justified as a sterilization
procedure.

As an elective sterilization procedure for
non-pregnant women, some gynaecologists
advocate hysterectomy (preferably vaginal) in
preference to tubal resection. This is because it
removes the possibility of the future
development of uterine disease such as
carcinoma of the cervix and eliminates the
chance of the woman suffering menstrual and
other upsets which sometimes follow less
radical procedures. Hysterectomy, however,
carries a much higher immediate morbidity
rate than does surgical tubal resection and can
be followed by other disturbances and regrets
at loss of menstrual function  an outward
sign of femininity."


4. Resection of fallopian tubes

Provided the pelvic organs are healthy,
one of the best methods is to remove 1-2 cm
of the middle of each tube and to bury the
ligated ends separately under the peritoneum.
Sometimes the cornua of the uterus are
excised, together with the adjacent portions of
the tubes. Excision of the whole of both tubes
is not so safe because it leaves the ovum free
to wander into a possible uterine fistula and
fimbriectomy should never be performed.
Retention of the abdominal ostia is an
advantage for it tends to ensure that ova
become trapped in the occluded tubes.

Of the more simple operations on the
fallopian tubes the best is the Pomeroy
procedure in which a loop of tube is excised
and the cut ends secured with a ligature. This
method has the advantage of avoiding
troublesome haemorrhage which can attend
the techniques described above, requires only
limited access, is speedy, and fails in not more
than 0.3 per cent of cases. The technique of
crushing and ligation of the tubes without
excising any part of them (Madlener operation)
is very unreliable, the failure rate being 3.0 per
cent; it is rarely practised now.


Whatever technique be used for dividing
the tubes, it is important to ligature their cut
ends with plain catgut. This is much more
likely to result in firm closure than is the use of
unabsorbable material, or even chromic gut.
Most failures are due to neglect of this
medicolegally very important point.


Resection of the tubes is usually carried
out abdominally and is particularly easy to
perform 2-4 days after delivery when the
uterus is an abdominal organ and the tubes
readily accessible. It can then, if necessary,
be carried out under local analgesia. Tubal
resection (preferably using the Pomeroy
technique) can also be performed vaginally
either during the course of another operation
or as the route of choice. As a method of
choice it is not new as is sometimes
suggested; it was regularly carried out in the
1920s."



Dealing with reliability of the sterilization procedures
performed and commonly employed by the gynaecologists, the
text book states (at p.621):-
Reliability
The only sterilization procedures in the female
which are both satisfactory and reliable are:
resection or destruction of a portion of both
fallopian tubes; and hysterectomy. No
method, however, is absolutely reliable and
pregnancy is reported after subtotal and total
hysterectomy , and even after hysterectomy
with bilateral salpingectomy. The explanation
of these extremely rare cases is a persisting
communication between the ovary or tube and
the vaginal vault.

Even when tubal occlusion operations are
competently performed and all technical
precautions are taken, intrauterine pregnancy
occurs subsequently in 0.3 per cent of cases.
This is because an ovum gains access to
spermatozoa through a recanalized inner
segment of the tube.

There is clinical impression that tubal
resection operations are more likely to fail
when they are carried out at the time of
caesarean section than at any other time. The
fact that they occasionally fail at any time has
led many gynaecologists to replace the term
'sterilization' by "tubal ligation" or "tubal
resection" in talking to the patient and in all
records. This has real merit from the
medicolegal standpoint."


[underlining by us]



In Shaw's Textbook of Gynaecology , after describing
several methods of female sterilization, the textbook states that
the most popular technique adopted in Mini-lapartomy
sterilization is Pomeroy method in which the fallopian tube is
identified on each side, brought out through the incision, and the
middle portion is formed into a loop which is tied at the base
with catgut and excised. The failure rate is only 0.4% and it is
mainly due to spontaneous recanalization. The operation is
simple, requires a short hospitalization, does not require any
sophisticated and expensive equipment like a laparoscope, and
can be performed in a primary health centre by a doctor trained
in this procedure. In Madlener method, a loop of the tube is
crushed and ligated with a non-absorbable suture. Failure rate
is of 7% and occurrence of an ectopic pregnancy are
unacceptable though it is a simple procedure to perform. There
are other methods, less popular on account of their indications,
which are also stated. Dealing with the topic of complications
and sequelae of sterilization, the textbook states:

"Failure rate of sterilization varies from 0.4%
in Pomeroy's technique, 0.3-0.6% by
laparoscopic method to 7% by Madlener
method. Pregnancy occurs either because of
faulty technique or due to spontaneous
recanalization."



In 'The Essentials of Contraceptive Technology',
written by four doctors and published by Center for
Communication Programs, The Johns Hopkins School of Public
Health in July, 1997, certain questions and answers are stated.
Questions 5 and 6 and their answers, which are relevant for our
purpose, read as under:

"5. Will female sterilization stop working
after a time? Does a woman who had a
sterilization procedure ever have to worry
about getting pregnant again?

Generally, no. Female sterilization should be
considered permanent. Failure rates are
probably higher than previously thought
however. A major new US study found that the
risk of pregnancy within 10 years after
sterilization is about 1.8 per 100 women 
about 1 in every 55 women. The risk of
sterilization failure is greater for younger
women because they are more fertile than
older women. Also, some methods of blocking
the tubes work better than others. Methods
that cut away part of each tube work better
than spring clips or bipolar electrocoagulation
(electric current). Effectiveness also depends
on the skill of the provider.

The same US study found that 1 of every 3
pregnancies after sterilization was ectopic. If a
woman who has had sterilization ever thinks
that she is pregnant or has an ectopic
pregnancy, she should seek help right away.

[underlining by us]



6. Pregnancy after female sterilization is
rare but why does it happen at all?

The most common reason is that the woman
was already pregnant at the time of
sterilization. Pregnancy also can occur if the
provider confused another structure in the
body with the fallopian tubes and blocked or
cut the wrong place. In other case pregnancy
results because clips on the tubes come open,
because the ends of the tubes grow back
together, or because abnormal openings
develop in the tube, allowing sperm and egg to
meet."



In newsletter "alert" September, 2000 issue, Prof.(Dr.)
Gopinath N. Shenoy writes:

"Female sterilization can be done by many
methods/techniques, which are accepted by
the medical professionals all over the world. It
is also an accepted fact that none of these
methods/techniques are cent percent 'failure
free'. This 'failure rate' may vary from method
to method. A doctor is justified in choosing
one method to the exclusion of the others and
he cannot be faulted for his choice if his choice
is based on reasonable application of mind and
is not 'palpably' wrong. A doctor has
discretionary powers to choose the
method/technique of sterilization he desires to
adopt."

[emphasis supplied]


In "The New England Journal of Medicine" , owned,
published and copyrighted by Massachusetts Medical Society, the
result of a research carried out by a team of doctors has been
published and widely circulated. 10,685 women enrolled and
eligible for long term follow up and willing to cooperate and
providing information were studied. The relevant part of the
result of the study reads as under:

"The median age of women at the time of
sterilization was 30 years (range, 18 to 44;
mean [+ SD],31+6). Most women were white
and had been pregnant at least twice (Table
1). In all, 143 women (1.3 percent) reported
pregnancies that were classified as true failure
of sterilization. For 66.4 percent of these
pregnancies, the classification was based on a
review of medical reports by the investigators.
The remainder were classified on the basis of
the woman's history alone."


In Medico-legal Aspects in Obstetrics and
Gynaecology, edited by three doctors, Chapter 18, deals with
Medico-legal Problems in Sterilization Operations. It is stated
therein that there are several methods of female sterilization of
which one that will suit the patient and the
surgeon/gynaecologist should be selected. In India, Pomeroy's
method is widely practised. Other methods include  Madlener's,
Irving's, Uchida's methods and so on. The text further states
that failure is one of the undesirous outcome of sterilization.
The overall incidence of failure in tubectomy is 0.4 per 100
women per year. The text describes the following events
wherefrom sterilization failure usually results:
i. Spontaneous recanalisation or fistula formation
is perhaps the most common cause of failure.
Though these are generally non-negligent
causes of failure, it is very difficult to convince
the patient if they are not informed beforehand
about the possibility.

ii. Undetected pregnancy at the time of
sterilization is an indefensible offence. To
avoid such incidence, tests to detect pregnancy
should be done before sterilization operation is
undertaken.

iii. Imperfect occlusion of the tube is a technical
loophole which may result in an unwanted
pregnancy. The chance is particularly high in
laparoscopic methods. If a gynaecologist fails
to place ring on any one of the tube due to
improper visualization, he or she must inform
the patient and her husband, and some other
contraceptive method should be advised.

iv. Occlusion of the wrong structure(s), e.g. round
ligament is a common, indefensible error which
may particularly happen if the surgeon is
inexperienced. This is more frequent in
laparoscopic methods where even confirmation
of the structure by biopsy is difficult, in case of
doubt.

It is thus clear that there are several alternative methods
of female sterilization operation which are recognized by medical
science of today. Some of them are more popular because of
being less complicated, requiring minimal body invasion and
least confinement in the hospital. However, none is foolproof
and no prevalent method of sterilization guarantees 100%
success. The causes for failure can well be attributable to the
natural functioning of the human body and not necessarily
attributable to any failure on the part of the surgeon.
Authoritative Text Books on Gynaecology and empirical
researches which have been carried out recognize the failure
rate of 0.3% to 7% depending on the technique chosen out of
the several recognized and accepted ones. The technique which
may be foolproof is removal of uterus itself but that is not
considered advisable. It may be resorted to only when such
procedure is considered necessary to be performed for purposes
other than merely family planning.
An English decision Eyre v. Measday (1986) 1 ALL ER 488
is very near to the case at hand. The facts of the case were that
in 1978, the plaintiff and her husband decided that they did not
wish to have any more children. The plaintiff consulted the
defendant gynaecologist with a view to undergoing a sterilization
operation. The defendant explained to the couple the nature of
the particular operation he intended to perform, emphasising
that it was irreversible. He stated that the operation 'must be
regarded as a permanent procedure' but he did not inform the
plaintiff that there was a small risk (less than 1%) of pregnancy
occurring following the operation. Consequently, both the
plaintiff and her husband believed that the result of the
operation would be to render her absolutely sterile and incapable
of bearing further children. In 1979 the plaintiff became
pregnant and gave birth to a child. The plaintiff brought an
action against the defendant for damages, inter alia, for breach
of contract, contending that his representation that the operation
was irreversible and his failure to warn her of the minute risk of
the procedure being unsuccessful, amounted to breach of a
contractual term, or express or implied collateral warranty, to
render her irreversibly sterile. The judge dismissed her claim
and the plaintiff appealed to the Court of Appeal.

The Court held 

"(1) The contract undertaken by the defendant
was to carry out a particular type of operation
rather than to render the plaintiff absolutely
sterile. Furthermore, the defendant's
representations to the plaintiff that the
operation was 'irreversible' did not amount to
an express guarantee that the operation was
bound to achieve its acknowledged object of
sterilizing the plaintiff. On the facts, it was
clear that the representations meant no more
than that the operative procedure in question
was incapable of being reversed.

(2) Where a doctor contracted to carry out a
particular operation on a patient and a
particular result was expected, the court would
imply into the contract between the doctor and
the patient a term that the operation would be
carried out with reasonable care and skill, but
would be slow to imply a term or unqualified
collateral warranty that the expected result
would actually be achieved, since it was
probable that no responsible medical man
would intend to give such a warranty. On the
facts, no intelligent lay bystander could have
reasonably inferred that the defendant was
intending to give the plaintiff a guarantee that
after the operation she would be absolutely
sterile and the fact that she believed that this
would be the result was irrelevant."


The appeal was dismissed. The Court of Appeal, upheld
the finding of the trial judge that the risk of pregnancy following
such a procedure to which the plaintiff was subjected is
described as very small. It is of the order of 2 to 6 in every
1000. There is no sterilization procedure which is entirely
without such a risk.

Slade L J, stated in his opinion that "in the absence of any
express warranty, the court should be slow to imply against a
medical man an unqualified warranty as to the results of an
intended operation, for the very simple reason that, objectively
speaking, it is most unlikely that a responsible medical man
would intend to give a warranty of this nature. Of course,
objectively speaking, it is likely that he would give a guarantee
that he would do what he had undertaken to do with reasonable
care and skill; but it is quite another matter to say that he has
committed himself to the extent suggested in the present case."

Purchas LJ, stated in his opinion that "it is true that as a
matter of deliberate election the defendant did not, in the course
of describing the operation which he was recommending,
disclose that there was a very small risk, one might almost say
an insignificant risk, that the plaintiff might become pregnant.
In withholding this information it must be borne in mind, first
that the defendant must have believed that the plaintiff would be
sterile, second that the chances were extremely remote that the
operation would be unsuccessful, third that in withholding this
information the defendant was following a practice acceptable to
current professional standards and was acting in the best
interest of the plaintiff, and fourth that no allegation of
negligence in failing to give this information to the plaintiff is
pursued any longer in this case. There are, therefore, in my
judgment, no grounds for asserting that the result would
necessarily be 100% successful."

In Thake v Morris , [1986] 1 All ER 497 (CA) the claim
for damages was founded on contract and not in torts. The
Court of Appeal firmly rejected the possibility of an enforceable
warranty. Neill L J said:

"a reasonable man would have expected the
defendant to exercise all the proper skill and care of
a surgeon in that speciality: he would not have
expected the defendant to give a guarantee of 100%
success."

Nourse L J said:

"of all sciences medicine is one of the least exact. In
my view, a doctor cannot be objectively regarded as
guaranteeing the success of any operation or
treatment unless he says as much in clear and
unequivocal terms."


We are, therefore, clearly of the opinion that merely
because a woman having undergone a sterilization operation
became pregnant and delivered a child, the operating surgeon or
his employer cannot be held liable for compensation on account
of unwanted pregnancy or unwanted child. The claim in tort can
be sustained only if there was negligence on the part of the
surgeon in performing the surgery. The proof of negligence shall
have to satisfy Bolam's test. So also, the surgeon cannot be
held liable in contract unless the plaintiff alleges and proves that
the surgeon had assured 100 % exclusion of pregnancy after the
surgery and was only on the basis of such assurance that the
plaintiff was persuaded to undergo surgery. As noted in various
decisions which we have referred to hereinabove, ordinarily a
surgeon does not offer such guarantee.

The cause of failure of sterilization operation may be
obtained from laparoscopic inspection of the uterine tubes, or by
x-ray examination, or by pathological examination of the
materials removed at a subsequent operation of re-sterilisation.
The discrepancy between operation notes and the result of x-ray
films in respect of the number of rings or clips or nylon sutures
used for occlusion of the tubes, will lead to logical inference of
negligence on the part of the gynaecologist in case of failure of
sterilisation operation. (See: Law of Medical Negligence and
Compensation by R.K. Bag, Second Edition, p.139)

Mrs. K. Sarada Devi, the learned counsel appearing for the
plaintiffs-respondents placed reliance on a 2-Judge Bench
decision of this Court in State of Haryana & Ors. v. Smt.
Santra, JT 2000 (5) SC 34, wherein this Court has upheld the
decree awarding damages for medical negligence on account of
the lady having given birth to an unwanted child on account of
failure of sterilization operation. The case is clearly
distinguishable and cannot be said to be laying down any law of
universal application. The finding of fact arrived at therein was
that the lady had offered herself for complete sterilization and
not for partial operation and, therefore, both her fallopian tubes
should have been operated upon. It was found as a matter of
fact that only the right fallopian tube was operated upon and the
left fallopian tube was left untouched. She was issued a
certificate that her operation was successful and she was
assured that she would not conceive a child in future. It was in
these circumstances, that a case of medical negligence was
found and a decree for compensation in tort was held justified.
The case thus proceeds on its own facts.

The methods of sterilization so far known to medical
science which are most popular and prevalent are not 100% safe
and secure. In spite of the operation having been successfully
performed and without any negligence on the part of the
surgeon, the sterilized woman can become pregnant due to
natural causes. Once the woman misses the menstrual cycle, it
is expected of the couple to visit the doctor and seek medical
advice. A reference to the provisions of the Medical Termination
of Pregnancy Act, 1971 is apposite. Section 3 thereof permits
termination of pregnancy by a registered medical practitioner,
notwithstanding anything contained in the Indian Penal Code,
1860 in certain circumstances and within a period of 20 weeks
of the length of pregnancy. Explanation II appended to sub-
section (2) of Section 3 provides ____
"Explanation II. ____ Where any pregnancy
occurs as a result of failure of any device or
method used by any married woman or her
husband for the purpose of limiting the number of
children, the anguish caused by such unwanted
pregnancy may be presumed to constitute a grave
injury to the mental health of the pregnant
woman."



And that provides, under the law, a valid and legal ground
for termination of pregnancy. If the woman has suffered an
unwanted pregnancy, it can be terminated and this is legal and
permissible under the Medical Termination of Pregnancy Act,
1971.

The cause of action for claiming compensation in cases of
failed sterilization operation arises on account of negligence of
the surgeon and not on account of child birth. Failure due to
natural causes would not provide any ground for claim. It is for
the woman who has conceived the child to go or not to go for
medical termination of pregnancy. Having gathered the
knowledge of conception in spite of having undergone
sterilization operation, if the couple opts for bearing the child, it
ceases to be an unwanted child. Compensation for maintenance
and upbringing of such a child cannot be claimed.

For the foregoing reasons, we are of the opinion that the
judgments and the decrees passed by the High Court and courts
below cannot be sustained. The trial court has proceeded to
pass a decree of damages in favour of the plaintiffs-respondents
solely on the ground that in spite of the plaintiff-respondent No.2
having undergone a sterilization operation, she became
pregnant. No finding has been arrived at that will hold the
operating surgeon or its employer __ the State, liable for
damages either in contract or in tort. The error committed by
the trial court, though pointed out to the first appellate court and
the High Court, has been overlooked. The appeal has, therefore,
to be allowed and the judgment and decree under appeal have
to be set aside.

We have decided the question of law and held that the
decree awarding the damages was totally uncalled for and had
no foundation in law, and therefore, has to be set aside. The
present case is an occasion, which we would like to utilize for the
purpose of making certain observations on three related topics
noted hereunder.

(1) Jacob Mathew's case (2005) 6 SCC1 : a post script


In Jacob Mathew this Court dealt with the liability of a
medical practitioner in criminal law. Of course, the decision also
discussed in detail the law of medical negligence in general and
indicated the parameters of fixing liability. The distinction
between the concept of negligence in civil law and negligence in
criminal law was highlighted. The present case deals with the
law of negligence in tort. The basis of liability of a professional
in tort is negligence. Unless that negligence is established, the
primary liability cannot be fastened on the medical practitioner.
Unless the primary liability is established, vicarious liability on
the State cannot be imposed. Both in criminal jurisprudence and
in civil jurisprudence, doctors are liable for consequences of
negligence. In Jacob Mathew even while dealing with criminal
negligence, this Court has indicated the caution needed in
approaching a case of medical negligence having regard to the
complexity of the human body which is subjected to treatment
and the uncertainty involved in medical procedures. A doctor, in
essence, needs to be inventive and has to take snap decisions
especially in the course of performing surgery when some
unexpected problems crop up or complication sets in. If the
medical profession, as a whole, is hemmed in by threat of action,
criminal and civil, the consequence will be loss to the patients.
No doctor would take a risk, a justifiable risk in the
circumstances of a given case, and try to save his patient from a
complicated disease or in the face of an unexpected problem
that confronts him during the treatment or the surgery. It is in
this background that this Court has cautioned that the setting in
motion of the criminal law against the medical profession should
be done cautiously and on the basis of reasonably sure grounds.
In criminal prosecutions or claims in tort, the burden always
rests with the prosecution or the claimant. No doubt, in a given
case, a doctor may be obliged to explain his conduct depending
on the evidence adduced by the prosecution or by the claimant.
That position does not change merely because of the caution
advocated in Jacob Mathew in fixing liability for negligence, on
doctors.

(2) How the medical profession ought to respond

Medical profession is one of the oldest professions of the
world and is the most humanitarian one. There is no better
service than to serve the suffering, wounded and the sick.
Inherent in the concept of any profession is a code of conduct,
containing the basic ethics that underline the moral values that
govern professional practice and is aimed at upholding its
dignity. Medical Ethics underpins the values at the heart of the
practitioner-client relationship. In the recent times, professionals
are developing a tendency to forget that the self-regulation
which is at the heart of their profession is a privilege and not a
right and a profession obtains this privilege in return for an
implicit contract with society to provide good, competent and
accountable service to the public. It must always be kept in mind
that doctor's is a noble profession and the aim must be to serve
humanity, otherwise this dignified profession will lose its true
worth.

Medical profession has long subscribed to a body of ethical
statements developed primarily for the benefit of the patient.
The oldest expression of this basic principle comes from
Hippocrates, an early Greek Physician, born in 460 B.C. who
came to be known as the "Father of Medicine" and had devoted
his entire life to the advancement of medical science. He
formulated a code of conduct in the form of the Hippocratic
Oath, as he realized that knowledge and skill were not enough
for a physician without a code of standards and ideals. He coined
an oath of integrity for physicians, a code of standards and
ideals to which they must swear to adhere in the practice of their
profession. This continues till date to be the oath administered
to doctors when they join the profession:
"I swear by Apollo the physician, by Fsculapius, Hygeia,
and Panacea, and I take to witness all the gods, all the
goddesses, to keep according to my ability and my
judgement, the following Oath.

To consider dear to me as my parents him who taught me
this art; to live in common with him and if necessary to
share my goods with him; to look upon his children as my
own brothers, to teach them this art if they so desire
without fee or written promise; to impart to my sons and
the sons of the master who taught me and the disciples
who have enrolled themselves and have agreed to the
rules of the profession, but to these alone the precepts and
the instruction. I will prescribe regimens for the good of
my patients according to my ability and my judgement and
never do harm to anyone. To please no one will I prescribe
a deadly drug nor give advice which may cause his death.
Nor will I give a woman a pessary to procure abortion. But
I will preserve the purity of my life and my art. I will not
cut for stone, even for patients in whom the disease is
manifest; I will leave this operation to be performed by
practitioners, specialists in this art. In every house where I
come I will enter only for the good of my patients, keeping
myself far from all intentional ill-doing and all seduction
and especially from the pleasures of love with women or
with men, be they free or slaves. All that may come to my
knowledge in the exercise of my profession or in daily
commerce with men, which ought not to be spread abroad,
I will keep secret and will never reveal. If I keep this oath
faithfully, may I enjoy my life and practice my art,
respected by all men and in all times; but if I swerve from
it or violate it, may the reverse be my lot."


Many versions of Hippocratic Oath are prevalent. "Light
From Many Lamps" a book edited by Lilian Eichler Watson
contains a little different phraseology of that oath but certainly a
beautiful commentary on the significance of the Hippocratic
Oath. We would like to reproduce the oath and the commentary
hereunder: (pages 181-182);
"I do solemnly swear by that which I hold most
sacred:

That I will be loyal to the profession of
medicine and just and generous to its members;

That I will lead my life and practice my art in
uprightness and honor;

That into whatsoever house I shall enter, it
shall be for the good of the sick to the utmost of my
power, I holding myself aloof from wrong, from
corruption, and from the temptation of others to
vice;

That I will exercise my art solely for the cure of
my patients, and will give no drug, perform no
operation for a criminal purpose, even if solicited, far
less suggest it;

That whatsoever I shall see or hear of the lives
of men which is not fitting to be spoken, I will keep
inviolably secret.

These things I do promise, and in proportion as
I am faithful to this my oath may happiness and
good repute be ever mine __ the opposite if I shall be
forsworn."

[F.N.: The Hippocratic Collection, containing
the best of the ancient Greek medical writings, was
put together by Aristotle and has survived through
the centuries. The "Hippocratic Oath" is one of the
last and most inspiring passages in this Collection.
There are a number of versions of the famous Oath;
but the form given here is the one commonly used
today; and is an adaptation of a translation from the
original Greek.]

"The medical profession is and always has been one
of the most ethical of all professions; and this is due
at least in part to the centuries-old influence of the
Hippocratic Oath. This famous Oath has kept alive
the high standards and ideals set by Hippocrates,
and forms the basis of modern medical ethics.

Written more than twenty centuries ago, the
Hippocratic Oath has inspired generations of doctors
. . . and continues to do so even now. The Oath is
still administered by medical schools to graduating
classes; and thousands of physicians have framed
copies on their walls along with their diplomas.
Conscientious practitioners continue to live up to the
principles and ideals set down for their profession so
long ago by the "Father of Medicine."

Though it was written specifically for
physicians, the Hippocratic Oath sets an enduring
pattern of honor, integrity, and devotion to duty for
all people, in all professions." And certainly to
surgeons."





Many people argue that the original Hippocratic Oath is
inappropriate in a society that has seen drastic socio-economic,
political and moral changes, since the time of Hippocrates.
Certain parts of the original oath such as teaching the master's
sons the secrets of medicine without fees and the promise not to
bring a knife to another's body but to leave it to 'practitioners of
the craft' have been rendered obsolete as the modernisation of
education has led to the teaching of medical science in
institutions of higher learning, and specialisation in medicine has
led to physicians who specialise in a variety of fields including
surgery. Similarly, the legalisation on abortion and physician-
assisted suicide in certain parts of the world, has made it
awkward for some medical practitioners there to carry on in the
tradition of the original oath.
This has led to the modification of the oath to something
better suited for our times. One of the most widely used versions
is The Declaration of Geneva which was adopted by the
General Assembly of the World Medical Association at Geneva in
1948. Written with the medical crimes committed in Nazi
Germany in view, it is a 'declaration of physicians' dedication to
the humanitarian goals of medicine.' It is also perhaps the only
one to mention treating people equally, without regard as to
race, religion, social standing and political affiliations:
"I solemnly pledge myself to the service of humanity. I
will give to my teachers the respect and gratitude which
is their due. I will practice my profession with conscience
and dignity. The health of my patient will be my first
consideration. I will respect the secrets which are
confided in me. I will maintain by all means in my power
the honour and noble traditions of the medical profession.
My colleagues will be my brothers and sisters. I will not
permit consideration of religion, nationality, race or social
standing to intervene between my duty and my patient. I
will maintain the utmost respect for human life even
under threat. I will not use my medical knowledge
contrary to the laws of humanity. I make these promises
solemnly, freely and upon my honour."



In recent times the self regulatory standards in the
profession have shown a decline and this can be attributed to
the overwhelming impact of commercialization of the sector.
There are reports against doctors of exploitative medical
practices, misuse of diagnostic procedures, brokering deals for
sale of human organs, etc. It cannot be denied that black sheep
have entered the profession and that the profession has been
unable to isolate them effectively. The need for external
regulation to supplement professional self-regulation is
constantly growing. The high costs and investments involved in
the delivery of medical care have made it an entrepreneurial
activity wherein the professionals look to reaping maximum
returns on such investment. Medical practice has always had a
place of honour in society; currently the balance between service
and business is shifting disturbingly towards business and this
calls for improved and effective regulation, whether internal or
external. There is need for introspection by doctors  individually
and collectively. They must rise to the occasion and enforce
discipline and high standards in the profession by assuming an
active role.


(3) Need for devising a welfare fund or insurance scheme

Failure of many a sterilization operation, though
successfully performed, is attributable to causes other than
medical negligence as we have already discussed hereinabove.
And, yet the doctors are being faced with claim for damages.
Some of the claims have been decreed by the courts without
arriving at any finding providing a foundation in law for
upholding such a claim. The state is also being called upon to
honour such decrees on the principle of vicarious liability when
the surgeon has performed a surgery in discharge of his duty.
Mostly such surgeries are performed on a large scale and as a
part of family welfare programmes of the Government.
Obviously, such programmes are in public interest. Such like
decrees act as a disincentive and have deterrent effect on the
surgeons performing sterilization operations. The State, flooded
with such decrees is also inclined not to pursue family planning
camps on large scale though in public interest.

In Javed & Ors. v. State of Haryana & Ors. (2003) 8
SCC 369, popularly known as 'Two-Child Norm' case, this Court
had an occasion to deal with the problem of increasing
population, the danger which it poses for the progress of the
nation and equitable distribution of its resources and upheld the
validity of the Haryana legislation imposing a disqualification on
persons having more than two children from contesting for an
elective office. The fact cannot be lost sight of that while
educated persons in the society belonging to the middle-class
and the upper class do voluntarily opt for family planning and
are careful enough to take precautions or remedial steps to
guard against the consequences of failure of sterilization, the
illiterate and the ignorant and those belonging to the lower
economic strata of society face the real problem. To popularize
family planning programmes in such sections of society, the
State Government should provide some solace to them if they,
on account of their illiteracy, ignorance or carelessness, are
unable to avoid the consequences of a failed sterilization
operation. Towards this end, the State Governments should
think of devising and making provisions for a welfare fund or
taking up with the insurance companies, a proposal for devising
an appropriate insurance policy or an insurance scheme, which
would provide coverage for such claims where a child is born to
woman who has undergone a successful sterilization operation,
as in the present case.

Conclusion
The appeal is allowed. The judgment and decree passed by the trial court and upheld by the first appellate court and the High Court are set aside. The suit filed by the plaintiffs-respondents is dismissed. However, as we have already stated, in view of the concession given by the learned Additional Advocate General appearing for the appellant State, the amount of Rs.50,000/- if already paid to the plaintiff-respondent shall not be liable to be refunded by way of restitution. No order as to
costs.

Supreme Court Appeal (civil) 5041 of 2005

CASE NO.:
Appeal (civil) 5041 of 2005

PETITIONER:
P.A. Inamdar & Ors.

RESPONDENT:
State of Maharashtra & Ors.

DATE OF JUDGMENT: 12/08/2005

BENCH:
CJI R.C. LAHOTI Y.K. SABHARWAL D.M. DHARMADHIKARI ARUN KUMAR,G.P. MATHUR,TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T
JUDGMENT GIVEN BY
CJI R.C. LAHOTI,Y.K. SABHARWAL,D.M. DHARMADHIKARI,ARUN KUMAR,G.P. MATHUR,TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

(Arising out of Special Leave Petition (C) No.9932 of 2004)
WITH
Civil Appeal No. 5042 of 2005 (@ SLP(C) No.9935/2004); Civil
Appeal No. 5043 of 2005 (@ SLP(C) No. 9936/2004); W.P. (C)
No. 276/2004; W.P. (C) No. 330/2004; W.P. (C) No. 357/2004;
I.A. NOS. 26, 27, 30, 31 AND 33 IN W.P. (C) No.350/1993; Civil
Appeal No. 5035 of 2005 (@ SLP(C) No.11244/2004; W.P.(C)
No. 302/204; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004;
W.P. (C) No. 350/2004; W.P. (C) No. 387/2004; W.P. (C) No.
423/2004; W.P. (C) No. 480/2004; W.P. (C) No. 19/2005; W.P.
(C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No.
380/2004; W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P.
(C) No. 360/2004; W.P. (C) No.361/2004; W.P. (C) No.
362/2004; W.P. (C) No. 363/2004; C.A. No. 5257-5258/2004;
C.A. No. 5259/2004; C.A. No. 5260-5261/2004; C.A. No. 5262-
5263/2004; C.A. No. 5996/2004; C.A. No. 5992/2004; C.A. No.
5997-5998/2004; C.A. No. 7969-7971/2004; C.A. No.
7972/2004; C.A. No. 7973/2004; C.A. No. 7974/2004; C.A. No.
7975/2004; W.P. (C) No. 371/2004; W.P. (C) No.
368/2004; C.A. No. 7117-7119/2004; C.A. No. 7124-
7126/2004; CONMT.PET. (CIVIL) No. 561-563/2004 In C.A. No.
7117-7119/2004; CONMT. PET. (Civil) No. 564-566/2004 in
C.A. No. 7124-7126/2004; W.P. (C) No. 251/2004; Civil Appeal
No. 5036 of 2005 (@ SLP (C) No. 17464/2004); Civil Appeal No.
5037 of 2005 (@ SLP (C) No. 17549/2004); W.P. (C) No.
318/2004; Civil Appeal No. 5038 of 2005 (@ SLP(C) No.
17930/2004; Civil Appeal No. 5039 of 2005 (@ SLP (C) No.
17931/2004); Civil Appeal No. 5040 of 2005 (@ SLP (C) No.
17326/2003); W.P. (C) No. 386/2004; W.P. (C) No. 397/2004


R.C. Lahoti, CJI

Preliminary

Leave granted in all SLPs.

A Coram of 11 Judges, not a common feature in the
Supreme Court of India, sat to hear and decide T.M.A.Pai
Foundation v. State of Karnataka (2002) 8 SCC 481
(hereinafter 'Pai Foundation', for short). It was expected that
the authoritative pronouncement by a Bench of such strength on
the issues arising before it would draw a final curtain on those
controversies. The subsequent events tell a different story. A
learned academician observes that the 11-Judge Bench decision
in Pai Foundation is a partial response to some of the
challenges posed by the impact of Liberalisation, Privatisation
and Globalisation (LPG); but the question whether that is a
satisfactory response, is indeed debatable. It was further
pointed out that 'the decision raises more questions than it has
answered' (see : Annual Survey of Indian Law, 2002 at p.251,
254). The Survey goes on to observe "the principles laid down
by the majority in Pai Foundation are so broadly formulated
that they provide sufficient leeway to subsequent courts in
applying those principles while the lack of clarity in the judgment
allows judicial creativity " (ibid at p.256).

The prophecy has come true and while the ink on the
opinions in Pai Foundation was yet to dry, the High Courts
were flooded with writ petitions, calling for settlements of
several issues which were not yet resolved or which propped on
floor, post Pai Foundation. A number of Special Leave
Petitions against interim orders passed by High Courts and a few
writ petitions came to be filed directly in this Court. A
Constitution Bench sat to interpret the 11-Judge Bench decision
in Pai Foundation which it did vide its judgment dated
14.8.2003 (reported as - Islamic Academy of Education &
Anr. v. State of Karnataka & Ors., (2003) 6 SCC 697;
"Islamic Academy" for short). The 11 learned Judges
constituting the Bench in Pai Foundation delivered five
opinions. The majority opinion on behalf of 6 Judges was
delivered by B.N. Kirpal, CJ. Khare, J (as His Lordship then was)
delivered a separate but concurring opinion, supporting the
majority. Quadri, J, Ruma Pal, J and Variava, J (for himself and
Bhan, J) delivered three separate opinions partly dissenting from
the majority. Islamic Academy too handed over two opinions.
The majority opinion for 4 learned Judges has been delivered by
V.N. Khare, CJ. S.B. Sinha, J, has delivered a separate opinion.
The events following Islamic Academy judgment show
that some of the main questions have remained unsettled even
after the exercise undertaken by the Constitution Bench in
Islamic Academy in clarification of the 11-Judge Bench
decision in Pai Foundation. A few of those unsettled questions
as also some aspects of clarification are before us calling for
settlement by this Bench of 7 Judges which we hopefully propose
to do.

Pai Foundation and Islamic Academy have set out the
factual backdrop of the issues leading to the formulation of 11-
Judge and 5-Judge Benches respectively. For details thereof a
reference may be made to the reported decisions. A brief
summary of the past events, highlighting the issues as they have
travelled in search of resolution would be apposite.
II
BACKDROP

Education used to be charity or philanthropy in good old
times. Gradually it became an 'occupation'. Some of the
Judicial dicta go on to hold it as an 'industry'. Whether, to
receive education, is a fundamental right or not has been
debated for quite some time. But it is settled that establishing
and administering of an educational institution for imparting
knowledge to the students is an occupation, protected by Article
19(1)(g) and additionally by Article 26(a), if there is no element
of profit generation. As of now, imparting education has come
to be a means of livelihood for some professionals and a mission
in life for some altruists.

Education has since long been a matter of litigation. Law
reports are replete with rulings touching and centering around
education in its several aspects. Until Pai Foundation, there
were four oft quoted leading cases holding the field of education.
They were Unni Krishnan v. State of Andhra Pradesh (1993)
1 SCC 645, St. Stephen's College v. University of Delhi
(1992)1 SCC 558, Ahmedabad St. Xavier's College Society
v. State of Gujarat (1974)1 SCC 717 and In Re: Kerala
Education Bill, 1957, (1958) SCR 995. For convenience sake,
these cases will be referred to as Unni Krishnan, St.
Stephen's, St. Xavier's and Kerala Education Bill
respectively. All these cases amongst others came up for the
consideration of this Court in Pai Foundation.

Correctness of the decision in St. Stephen's was doubted
during the course of hearing of Writ Petition No. 350 of 1993
filed by Islamic Academy. As St. Stephen's is a
pronouncement of 5-Judge Bench, the matter was directed to
be placed before 7-Judge Bench.

An event of constitutional significance which had already
happened, was taken note of by the Constitution Bench.
"Education" was a State Subject in view of the following Entry 11
placed in List II ___ State List:-

"11. Education including universities,
subject to the provisions of entries 63,
64, 65 and 66 of List I and entry 25 of
List III."

By the Constitution (42nd Amendment) Act 1976, the
abovesaid Entry was directed to be deleted and instead Entry 25
in List III  Concurrent List, was directed to be suitably amended
so as to read as under:-

"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."


The 7-Judge Bench felt that the matter called for hearing
by a 11-Judge Bench. The 11-Judge Bench felt that it was not
bound by the ratio propounded in Kerala Education Bill and
St. Xavier's and was free to hear the case in wider perspective
so as to discern the true scope and interpretation of Article 30(1)
of the Constitution and make an authoritative pronouncement.

Eleven Questions and Five Heads of Issues in Pai
Foundation


In Pai Foundation, 11 questions were framed for being
answered. Detailed submissions were made centering around
the 11 questions. The Court dealt with the questions by
classifying the discussion under the following five heads:

1. Is there a fundamental right to set up educational
institutions and if so, under which provision?
2. Does Unni Krishnan require reconsideration?
3. In case of private institutions, can there be government
regulations and, if so, to what extent?
4. In order to determine the existence of a religious or
linguistic minority in relation to Article 30, what is to be
the unit __ the State or the country as a whole?
5. To what extent can the rights of aided private minority
institutions to administer be regulated?

Having dealt with each of the abovesaid heads, the Court
through the majority opinion expressed by B.N. Kirpal, CJ,
recorded answers to the 11 questions as they were framed and
posed for resolution. The questions and the answers as given by
the majority are set out hereunder:

"Q.1. What is the meaning and content of the expression
"minorities" in Article 30 of the Constitution of India?

A. Linguistic and religious minorities are covered by the
expression "minority" under Article 30 of the Constitution. Since
reorganization of the States in India has been on linguistic lines,
therefore, for the purpose of determining the minority, the unit
will be the State and not the whole of India. Thus, religious and
linguistic minorities, who have been put on a par in Article 30,
have to be considered Statewise.

Q.2. What is meant by the expression "religion" in Article
30(1)? Can the followers of a sect or denomination of a
particular religion claim protection under Article 30(1) on the
basis that they constitute a minority in the State, even though
the followers of that religion are in majority in that State?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.3 (a) What are the indicia for treating an educational
institution as a minority educational institution? Would an
institution be regarded as a minority educational institution
because it was established by a person(s) belonging to a
religious or linguistic minority or its being administered by a
person(s) belonging to a religious or linguistic minority?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.3(b) To what extent can professional education be treated as
a matter coming under minorities' rights under Article 30?

A. Article 30(1) gives religious and linguistic minorities the right
to establish and administer educational institutions of their
choice. The use of the words "of their choice" indicates that
even professional educational institutions would be covered by
Article 30.

Q.4. Whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the
State Government or by the university to which the institution is
affiliated?

A. Admission of students to unaided minority educational
institutions viz. schools and undergraduate colleges where the
scope for merit-based selection is practically nil, cannot be
regulated by the State or university concerned, except for
providing the qualifications and minimum conditions of eligibility
in the interest of academic standards.
[emphasis by us]

The right to admit students being an essential facet of the
right to administer educational institutions of their choice, as
contemplated under Article 30 of the Constitution, the State
Government or the university may not be entitled to interfere
with that right, so long as the admission to the unaided
educational institutions is on a transparent basis and the merit is
adequately taken care of. The right to administer, not being
absolute, there could be regulatory measures for ensuring
educational standards and maintaining excellence thereof, and it
is more so in the matter of admissions to professional
institutions.
[emphasis by us]


A minority institution does not cease to be so, the moment
grant-in-aid is received by the institution. An aided minority
educational institution, therefore, would be entitled to have the
right of admission of students belonging to the minority group
and at the same time, would be required to admit a reasonable
extent of non-minority students, so that the rights under Article
30(1) are not substantially impaired and further the citizens'
rights under Article 29(2) are not infringed. What would be a
reasonable extent, would vary from the types of institution, the
courses of education for which admission is being sought and
other factors like educational needs. The State Government
concerned has to notify the percentage of the non-minority
students to be admitted in the light of the above observations.
Observance of inter se merit amongst the applicants belonging
to the minority group could be ensured. In the case of aided
professional institutions, it can also be stipulated that passing of
the common entrance test held by the State agency is necessary
to seek admission. As regards non-minority students who are
eligible to seek admission for the remaining seats, admission
should normally be on the basis of the common entrance test
held by the State agency followed by counselling wherever it
exists.

Q.5(a) Whether the minorities' rights to establish and
administer educational institutions of their choice will include the
procedure and method of admission and selection of students?



A. A minority institution may have its own procedure and
method of admission as well as selection of students, but such a
procedure must be fair and transparent, and the selection of
students in professional and higher education colleges should be
on the basis of merit. The procedure adopted or selection made
should not be tantamount to mal-administration. Even an
unaided minority institution ought not to ignore the merit of the
students for admission, while exercising its right to admit
students to the colleges aforesaid, as in that event, the
institution will fail to achieve excellence.

Q.5(b) Whether the minority institutions' right of admission of
students and to lay down procedure and method of admission, if
any, would be affected in any way by the receipt of State aid?


A. While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe bye __ rules
or regulations, the conditions on the basis of which admission
will be granted to different aided colleges by virtue of merit,
coupled with the reservation policy of the State qua non-minority
students. The merit may be determined either through a
common entrance test conducted by the university or the
Government concerned followed by counselling, or on the basis
of an entrance test conducted by the individual institutions  the
method to be followed is for the university or the Government to
decide. The authority may also devise other means to ensure
that admission is granted to an aided professional institution on
the basis of merit. In the case of such institutions, it will be
permissible for the Government or the university to provide that
consideration should be shown to the weaker sections of the
society.

Q.5(c) Whether the statutory provisions which regulate the
facets of administration like control over educational agencies,
control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
employees, teachers and principals including their service
conditions and regulation of fees, etc. would interfere with the
right of administration of minorities?

A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should
be minimal and the conditions of recognition as well as the
conditions of affiliation to a university or board have to be
complied with, but in the matter of day-to-day management, like
the appointment of staff, teaching and non-teaching, and
administrative control over them, the management should have
the freedom and there should not be any external controlling
agency. However, a rational procedure for the selection of
teaching staff and for taking disciplinary action has to be evolved
by the management itself.

For redressing the grievances of employees of aided and
unaided institutions who are subjected to punishment or
termination from service, a mechanism will have to be evolved,
and in our opinion, appropriate tribunals could be constituted,
and till then, such tribunals could be presided over by a judicial
officer of the rank of District Judge.

The State or other controlling authorities, however, can
always prescribe the minimum qualification, experience and
other conditions bearing on the merit of an individual for being
appointed as a teacher or a principal of any educational
institution.

Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State,
without interfering with the overall administrative control of the
management over the staff.

Fees to be charged by unaided institutions cannot be
regulated but no institution should charge capitation fee.

Q.6(a) Where can a minority institution be operationally
located? Where a religious or linguistic minority in State A
establishes an educational institution in the said State, can such
educational institution grant preferential admission/reservations
and other benefits to members of the religious/linguistic group
from other States where they are non-minorities?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q. 6. (b) Whether it would be correct to say that only the
members of that minority residing in State A will be treated as
the members of the minority vis-`-vis such institution?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.7. Whether the member of a linguistic non-minority in one
State can establish a trust/society in another State and claim
minority status in that State?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.8. Whether the ratio laid down by this Court in St. Stephen's
case (St. Stephen's College v. University of Delhi, (1992) 1
SCC 558) is correct? If no, what order?

A. The basic ratio laid down by this Court in St. Stephen's
College case (supra) is correct, as indicated in this judgment.
However, rigid percentage cannot be stipulated. It has to be left
to authorities to prescribe a reasonable percentage having
regard to the type of institution, population and educational
needs of minorities.

Q. 9. Whether the decision of this Court in Unni Krishnan, J.P.
v. State of A.P., (1993) 1 SCC 645 (except where it holds that
primary education is a fundamental right) and the scheme
framed thereunder require reconsideration/modification and if
yes, what?

A. The scheme framed by this Court in Unni Krishnan case
(supra) and the direction to impose the same, except where it
holds that primary education is a fundamental right, is
unconstitutional. However, the principle that there should not be
capitation fee or profiteering is correct. Reasonable surplus to
meet cost of expansion and augmentation of facilities does not,
however, amount to profiteering.

Q. 10. Whether the non-minorities have the right to establish
and administer educational institution under Articles 21 and
29(1) read with Articles 14 and 15(1), in the same manner and
to the same extent as minority institutions?
and

Q. 11. What is the meaning of the expressions "education" and
"educational institutions" in various provisions of the
Constitution? Is the right to establish and administer
educational institutions guaranteed under the Constitution?

A. The expression "education" in the articles of the Constitution
means and includes education at all levels from the primary
school level up to the postgraduate level. It includes
professional education. The expression "educational institutions"
means institutions that impart education, where "education" is
as understood hereinabove.

The right to establish and administer educational
institutions is guaranteed under the Constitution to all citizens
under Articles 19(1)(g) and 26, and to minorities specifically
under Article 30.

All citizens have a right to establish and administer
educational institutions under Articles 19(1)(g) and 26, but this
right is subject to the provisions of Articles 19(6) and 26(a).
However, minority institutions will have a right to admit students
belonging to the minority group, in the manner as discussed in
this judgment."

The majority led by Kirpal, CJ, in Pai Foundation did say
that the expression "minorities" in Article 30 of the Constitution
of India, whether linguistic or religious, has to be determined by
treating the State and not the whole of India as unit. Questions
such as: (i) what is religion, (ii) what is the indicia for
determining if an educational institution is a minority institution,
(iii) whether a minority institution can operate extra-territorially
extending its activities into such states where the minority
establishing and administering the institution does not enjoy
minority status, (iv) the content and contour of minority by
reference to territories, were not answered in Pai Foundation
and were left to be determined by the regular Benches in
individual cases to be heard after the decision in Pai
Foundation. We also do not propose to involve ourselves by
dealing with these questions except to the extent it may become
necessary to do so for the purpose of answering the questions
posed before us.

Pai Foundation explained in Islamic Academy
Pai Foundation Judgment was delivered on 31.10.2002.
The Union of India, various State Governments and the
Educational Institutions, each understood the majority judgment
in its own way. The State Governments embarked upon
enacting laws and framing the regulations, governing the
educational institutions in consonance with their own
understanding of Pai Foundation. This led to litigation in
several Courts. Interim orders passed therein by High Courts
came to be challenged before this Court. At the hearing, again
the parties through their learned counsel tried to interpret the
majority decision in Pai Foundation in different ways as it
suited them. The parties agreed that there were certain
anomalies and doubts, calling for clarification. The persons
seeking such clarifications were unaided professional educational
institutions, both minority and non-minority. The Court
formulated four questions as arising for consideration in view of
the rival submissions made before the Court in Islamic
Academy:

"(1) whether the educational institutions are entitled to fix their
own fee structure;
(2) whether minority and non-minority educational institutions
stand on the same footing and have the same rights;
(3) whether private unaided professional colleges are entitled
to fill in their seats, to the extent of 100% , and if not, to
what extent; and
(4) whether private unaided professional colleges are entitled
to admit students by evolving their own method of
admission."

We could attempt at formulating the gist of the answers
given by the Constitution Bench of the Court as under:

(1) Each minority institution is entitled to have its own fee
structure subject to the condition that there can be no
profiteering and capitation fees cannot be charged. A provision
for reasonable surplus can be made to enable future expansion.
The relevant factors which would go into determining the
reasonability of a fee structure, in the opinion of majority, are:
(i) the infrastructure and facilities available, (ii) the investments
made, (iii) salaries paid to the teachers and staff, (iv) future
plans for expansion and betterment of the institution etc.

S.B. Sinha, J, defined what is 'capitation' and 'profiteering'
and also said that reasonable surplus should ordinarily vary from
6 per cent to 15 per cent for utilization in expansion of the
system and development of education.

(2) In the opinion of the majority, minority institutions stand on
a better footing than non-minority institutions. Minority
educational institutions have a guarantee or assurance to
establish and administer educational institutions of their choice.
State Legislation, primary or delegated, cannot favour non-
minority institution over minority institution. The difference
arises because of Article 30, the protection whereunder is
available to minority educational institutions only. The majority
opinion called it a "special right" given under Article 30.

In the opinion of S.B. Sinha, J, minority educational
institutions do not have a higher right in terms of Article 30(1);
the rights of minorities and non-minorities are equal. What is
conferred by Article 30(1) of the Constitution is "certain
additional protection" with the object of bringing the minorities
on the same platform as that of non-minorities, so that the
minorities are protected by establishing and administering
educational institutions for the benefit of their own community,
whether based on religion or language.

It is clear that as between minority and non-minority
educational institutions, the distinction made by Article 30(1) in
the fundamental rights conferred by Article 19(1)(g) has been
termed by the majority as "special right" while in the opinion of
S.B.Sinha, J, it is not a right but an "additional protection".
What difference it makes, we shall see a little later.

(3)&(4). Questions 3 and 4 have been taken up for
consideration together. A reading of the opinion recorded in
Islamic Academy shows that paras 58, 59 and 68 of Pai
Foundation were considered and sought to be explained. It
was not very clear as to what types of institutions were being
dealt with in the above referred to paragraphs by the majority in
Pai Foundation. Certainly, distinction was being sought to be
drawn between professional colleges and other educational
institutions (both minority and unaided). Reference is also found
to have been made to minority and non-minority institutions. At
some places, observations have been made regarding
institutions divided into groups only by reference to aid, that is
whether they are aided or unaided educational institutions
without regard to the fact whether they were minority or non-
minority institutions. It appears that there are a few
passages/sentences wherein it is not clear which type of
institutions the majority opinion in Pai Foundation was
referring to thereat. However, the majority opinion in Islamic
Academy has by explaining Pai Foundation held as under:

(1) In professional institutions, as they are unaided, there will
be full autonomy in their administration, but the principle
of merit cannot be sacrificed, as excellence in profession is
in national interest.


(2) Without interfering with the autonomy of unaided
institutions, the object of merit based admissions can be
secured by insisting on it as a condition to the grant of
recognition and subject to the recognition of merit, the
management can be given certain discretion in admitting
students.
(3) The management can have quota for admitting students at
its discretion but subject to satisfying the test of merit
based admissions, which can be achieved by allowing
management to pick up students of their own choice from
out of those who have passed the common entrance test
conducted by a centralized mechanism. Such common
entrance test can be conducted by the State or by an
association of similarly placed institutions in the State.


(4) The State can provide for reservation in favour of
financially or socially backward sections of the society.

(5) The prescription for percentage of seats, that is allotment
of different quotas such as management seats, State's
quota, appropriated by the State for allotment to reserved
categories etc., has to be done by the State in accordance
with the "local needs" and the interests/needs of that
minority community in the State, both deserving
paramount consideration. The exact concept of "local
needs" is not clarified. The plea that each minority unaided
educational institution can hold its own admission test was
expressly overruled. The principal consideration which
prevailed with the majority in Islamic Academy for
holding in favour of common entrance test was to avoid
great hardship and incurring of huge cost by the hapless
students in appearing for individual tests of various
colleges.

The majority opinion carved out an exception in favour of
those minority educational professional institutions which were
established and were having their own admission procedure for
at least 25 years from the requirement of joining any common
entrance test, and such institutions were permitted to have their
own admission procedure. The State Governments were
directed to appoint a permanent Committee to ensure that the
tests conducted by the association of colleges is fair and
transparent.

S.B. Sinha, J, in his separate opinion, agreed with the
majority that the merit and merit alone should be the basis of
selection for the candidates. He also agreed that one single
standard for all the institutions was necessary to achieve the
object of selection being made on merit by maintaining
uniformity of standard, which could not be left to any individual
institution in the matter of professional courses of study.
However, the merit criterion in the opinion of Sinha, J, was
required to be associated with the level of education. To quote
his words: "the merit criterion would have to be judged like a
pyramid. At the kindergarten, primary, secondary levels,
minorities may have 100% quota. At this level the merit may
not have much relevance at all but at the level of higher
education and in particular, professional education and
postgraduate-level education, merit indisputably should be a
relevant criterion. At the postgraduation level, where there may
be a few seats, the minority institutions may not have much say
in the matter. Services of doctors, engineers and other
professionals coming out from the institutions of professional
excellence must be made available to the entire country and not
to any particular class or group of people. All citizens including
the minorities have also a fundamental duty in this behalf."

Before we part with the task of summing up the answers
given to the four questions in Islamic Academy, we would like
to make a few observations of ours in this regard. First, the
majority opinion spread over 30 printed pages, and the minority
opinion spread over 60 printed pages, both though illuminating
and instructive, have nonetheless not summed up or pointedly
answered the questions. We have endeavoured to cull out and
summarize the answers, noted above, as best and as briefly as
we could from the two opinions. We would, therefore, hasten to
add that in order to fully appreciate the ratio of the two opinions,
they have to be read in detail and our attempt at finding out and
placing in a few chosen words the ratio decidendi of the two
separately recorded opinions, is subject to this limitation.
However, we shall make a reference to relevant passages from
the two opinions as and when it becomes necessary. A point of
significance which we would like to briefly note here itself, a
detailed discussion being relegated to a later part of this
judgment, is that the opinion of S.B. Sinha, J, has examined in
detail, the scope of protection conferred on minority institutions
by reference to their right to seek recognition or affiliation, an
aspect of wider significance which does not seem to have
received consideration with that emphasis either in Pai
Foundation or in the majority opinion in Islamic Academy.
We shall revert to this aspect a little later.
III
Issues herein

A Few Preliminary observations
Before we embark upon dealing with the issues posed
before us for resolution, we would like to make a few preliminary
observations as a preface to our judgment inasmuch as that
would outline the scope of the controversy with which we are
actually dealing here. At the very outset, we may state that our
task is not to pronounce our own independent opinion on the
several issues which arose for consideration in Pai Foundation.
Even if we are inclined to disagree with any of the findings
amounting to declaration of law by the majority in Pai
Foundation, we cannot; that being a pronouncement by 11-
Judge Bench, we are bound by it. We cannot express a dissent
or disagreement howsoever we may be inclined to do so on any
of the issues. The real task before us is to cull out the ratio
decidendi of Pai Foundation and to examine if the explanation
or clarification given in Islamic Academy runs counter to Pai
Foundation and if so, to what extent. If we find anything said
or held in Islamic Academy in conflict with Pai Foundation,
we shall say so as being a departure from the law laid down by
Pai Foundation and on the principle of binding efficacy of
precedents, over-rule to that extent the opinion of the
Constitution Bench in Islamic Academy.

It is pertinent to note, vide paras 2, 3 and 35 of Islamic
Academy, that most of the petitioners/applicants therein were
unaided professional educational institutions (both minority and
non-minority). The purpose of constituting the Constitution
Bench, as noted at the end of para 1, was "so that
doubts/anomalies, if any, could be clarified." Having answered
the questions, the Constitution Bench treated all interlocutory
applications as regards interim matters as disposed of (see para
23). All the main matters (writ petitions, transfer petitions and
special leave petitions) were directed to be placed before the
regular Benches for disposal on merits.

Islamic Academy in addition to giving clarifications on
Interlocutory Applications, directed setting up of two committees
in each State: one committee "to give effect to the judgment in
Pai Foundation" and to approve the fee structure or to propose
some other fee which can be charged by minority institutions
(vide para 7), and the other committee __ to oversee the tests
to be conducted by the association of institutions (vide para 19).

Since the direction made in Islamic Academy for
appointment of the Committees has been vehemently assailed
during the course of hearing before us, we would extract from
the judgment in Islamic Academy the following two passages
wherein, in the words of Khare, CJ, the purpose and the
constitution of the Committees, the powers conferred on and the
functions enjoined upon them are given:
"..we direct that in order to give effect to
the judgment in T.M.A. Pai case the
respective State Governments/concerned
authority shall set up, in each State, a
committee headed by a retired High Court
Judge who shall be nominated by the Chief
Justice of that State. The other member, who
shall be nominated by the Judge, should be a
Chartered Accountant of repute. A
representative of the Medical Council of India
(in short "MCI") or the All India Council for
Technical Education (in short "AICTE"),
depending on the type of institution, shall also
be a member. The Secretary of the State
Government in charge of Medical Education or
Technical Education, as the case may be,
shall be a member and Secretary of the
Committee. The Committee should be free to
nominate/co-opt another independent person
of repute, so that the total number of
members of the Committee shall not exceed
five. Each educational institute must place
before this Committee, well in advance of the
academic year, its proposed fee structure.
Along with the proposed fee structure all
relevant documents and books of accounts
must also be produced before the Committee
for their scrutiny. The Committee shall then
decide whether the fees proposed by that
institute are justified and are not profiteering
or charging capitation fee. The Committee will
be at liberty to approve the fee structure or to
propose some other fee which can be charged
by the institute. The fee fixed by the
Committee shall be binding for a period of
three years, at the end of which period the
institute would be at liberty to apply for
revision. Once fees are fixed by the
Committee, the institute cannot charge either
directly or indirectly any other amount over
and above the amount fixed as fees. If any
other amount is charged, under any other
head or guise e.g. donations, the same would
amount to charging of capitation fee. The
Governments/appropriate authorities should
consider framing appropriate regulations, if
not already framed, whereunder if it is found
that an institution is charging capitation fees
or profiteering that institution can be
appropriately penalised and also face the
prospect of losing its recognition/affiliation.
(para 7)

We now direct that the respective State
Governments do appoint a permanent
Committee which will ensure that the tests
conducted by the association of colleges is fair
and transparent. For each State a separate
Committee shall be formed. The Committee
would be headed by a retired Judge of the
High Court. The Judge is to be nominated by
the Chief Justice of that State. The other
member, to be nominated by the Judge,
would be a doctor or an engineer of eminence
(depending on whether the institution is
medical or engineering/technical). The
Secretary of the State in charge of Medical or
Technical Education, as the case may be, shall
also be a member and act as the Secretary of
the Committee. The Committee will be free to
nominate/co-opt an independent person of
repute in the field of education as well as one
of the Vice-Chancellors of the University in
that State so that the total number of persons
on the Committee do not exceed five. The
Committee shall have powers to oversee the
tests to be conducted by the association. This
would include the power to call for the
proposed question paper(s), to know the
names of the paper-setters and examiners
and to check the method adopted to ensure
papers are not leaked. The Committee shall
supervise and ensure that the test is
conducted in a fair and transparent manner.
The Committee shall have the powers to
permit an institution, which has been
established and which has been permitted to
adopt its own admission procedure for the
last, at least, 25 years, to adopt its own
admission procedure and if the Committee
feels that the needs of such an institute are
genuine, to admit, students of their
community, in excess of the quota allotted to
them by the State Government. Before
exempting any institute or varying in
percentage of quota fixed by the State, the
State Government must be heard before the
Committee. It is clarified that different
percentage of quota for students to be
admitted by the management in each minority
or non-minority unaided professional
college(s) shall be separately fixed on the
basis of their need by the respective State
Governments and in case of any dispute as
regards fixation of percentage of quota, it will
be open to the management to approach the
Committee. It is also clarified that no
institute, which has not been established and
which has not followed its own admission
procedure for the last, at least, 25 years, shall
be permitted to apply for or be granted
exemption from admitting students in the
manner set out hereinabove. (para 19)"



Sinha, J. has not specifically spoken of the Committees.
Nevertheless he made a reference to these Committees in his
opinion and thus impliedly recorded his concurrence with the
constitution of these Committees.
Vide para 20, the Constitution Bench has made it clear
that the setting up of two sets of Committees in the States has
been directed in exercise of the power conferred on this Court
by Article 142 of the Constitution and such Committees "shall
remain in force till appropriate legislation is enacted by
Parliament". Although the term 'permanent' has been used, but
it appears to us that these Committees are intended to be
transitory in nature.

Reference for constituting a Bench of a coram higher than
Constitution Bench


These matters have been directed to be placed for hearing
before a Bench of seven Judges under Orders of the Chief
Justice of India pursuant to Order dated July 15, 2004 in P.A.
Inamdar and Ors. v. State of Maharashtra and Ors., (2004)
8 SCC 139 and Order dated July 29, 2004 in Pushpagiri
Medical Society v. State of Kerala and Ors., (2004) 8 SCC
135. The aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-minority institutions
imparting professional education. The issues arising for decision
before us are only three:
(i) the fixation of 'quota' of
admissions/students in respect of unaided
professional institutions;


(ii) the holding of examinations for admissions
to such colleges, that is, who will hold the
entrance tests; and

(iii) the fee structure.

The questions spelled out by Orders of Reference
In the light of the two orders of reference, referred to
hereinabove, we propose to confine our discussion to the
questions set out hereunder which, according to us, arise for
decision:-

(1) To what extent the State can regulate the
admissions made by unaided (minority or non-
minority) educational institutions? Can the
State enforce its policy of reservation and/or
appropriate to itself any quota in admissions to
such institutions?


(2) Whether unaided (minority and non-minority)
educational institutions are free to devise their
own admission procedure or whether direction
made in Islamic Academy for compulsorily
holding entrance test by the State or
association of institutions and to choose
therefrom the students entitled to admission in
such institutions, can be sustained in light of
the law laid down in Pai Foundation?


(3) Whether Islamic Academy could have issued
guidelines in the matter of regulating the fee
payable by the students to the educational
institutions?


(4) Can the admission procedure and fee structure
be regulated or taken over by the Committees
ordered to be constituted by Islamic
Academy?

The issues posed before us are referable to headings 3
and 5 out of 'five headings' formulated by Kirpal, CJ in Pai
Foundation. So also speaking by reference to the 11 questions
framed in Pai Foundation, the questions and answers relevant
for us would be referable to question Nos. 3 (b), 4, 5 (a) (b) (c)
and (9).
IV
Submissions made
A number of learned counsel addressed the Court at the
time of hearing raising very many issues and canvassing
different view-points of law referable to those issues. We
propose to place on record, as briefly as we can, the principal
submissions made confined to the issues arising for decision
before us.


The arguments on behalf of the petitioners were led by
senior counsel Shri Harish Salve. Extensively reading various
relevant paragraphs and observations in different opinions in Pai
Foundation, learned counsel contends that the directions for
setting up permanent committees for regulating admissions and
fixing fee structure in unaided minority and non-minority
institutions issued in the case of Islamic Academy are contrary
to the ratio of judgment in Pai Foundation. According to
learned counsel, the directions clearly run counter to all earlier
Constitution Bench decisions of this Court in St. Stephen's,
St. Xavier's and Kerala Education Bill.

It is argued that in the judgment of the eleven judges in
Pai Foundation which deals with several diverse issues of
considerable complexity, every observation has to be understood
in its context. Paragraph 68 in Pai Foundation has wrongly
been read as the ratio of the judgement by the Bench of five
judges in the case of Islamic Academy. It is submitted that
paragraph 68 in the majority opinion in Pai Foundation has to
be read and understood in the context of the constitutional
interpretation placed on Articles 29 & 30 of the Constitution.
Reading thus, the directions for setting up permanent
committees, for fixing quota and fee structure seriously impinge
on the constitutional guarantee of autonomy to minority
institutions under Article 30 and to unaided non-minority
institutions under Article 19(1)(g). It is submitted that taking
over the right to regulate admission and fee structure of unaided
professional institutions is not a 'reasonable restriction' within
the meaning of Article 19(6) of the Constitution. Such restriction
is virtual negation of the constitutional protection of autonomy to
minorities in running educational institutions 'of their choice' as
provided in Article 30 of the Constitution.

Elaborating his legal propositions, learned senior counsel
Shri Salve argued that establishing and running an educational
institution is a guaranteed fundamental right of 'occupation'
under Article 19(1)(g) of the Constitution. Article 19(6) permits
State to make regulations and place reasonable restrictions in
public interest upon the rights enjoyed by citizens under Article
19(1)(g) of the Constitution. Any imposition of a system of
selection of students for admission would be unreasonable if it
deprives the private unaided institutions of the right of rational
selection which it has devised for itself. Subject to the minimum
qualifications that may be prescribed and to some system of
computing the equivalence between different kinds of
qualifications like a common entrance test, it can evolve a
system of selection involving both written and oral tests based
on principle of fairness. Reference is made to paragraph 40 of
the judgment in Pai Foundation.

It is submitted that the State can prescribe minimum
qualifications and may prescribe systems of computing
equivalence in ascertaining merit; however, the right of rational
selection, which would necessarily involve the right to decide
upon the method by which a particular institution computes such
equivalence, is protected by Article 19 and infringement of this
right constitutes an unreasonable encroachment upon the
constitutionally guaranteed autonomy of such institutions.

It is further argued that where States take over the right
of the institution to grant admission and/or to fix the fees, it
constitutes nationalization of educational institutions. Such
nationalization of education is an unreasonable restriction on the
right conferred under Article 19. Reliance is placed on paragraph
38 of the judgment in Pai Foundation.

Learned counsel further argues that schemes framed
relating to grant of admission and fixing of fees in Unni
Krishnan has been held to be unconstitutional by the 11-Judge
Bench in Pai Foundation. [Reference is made to paragraph 45
of the judgment in Pai Foundation] It is submitted that the
directions to set up committees for regulation of admission and
fee structure in Islamic Academy virtually do the same
exercise as was done in Unni Krishnan and disapproved in the
larger Bench decision in Pai Foundation. The submission in
substance made is that Unni Krishnan was disapproved in Pai
Foundation and has wrongly been re-introduced in Islamic
Academy.

It is argued that State necessity cannot be a ground to
curtail the right of a citizen conferred under Article 19(1)(g) of
the Constitution. The Constitution casts a duty upon the States
to provide educational facilities. The State is obliged to carry out
this duty from revenue raised by the State. The shortfall in the
efforts of the State is met by the private enterprise, that
however, does not entitle the State to nationalize, whether in the
whole or in part, such private enterprise. This, it is submitted, is
the true ratio of the Pai Foundation in so far as Article 19 of
the Constitution is concerned.

It is next argued that as held in St. Xavier's and re-
affirmed in Pai Foundation the right to establish and administer
educational institutions by minorities under Article 30 of the
Constitution is not an absolute right meaning thereby that it is
subject to such regulations that satisfy a dual test that is : the
test of 'reasonableness' and 'any regulation regulating the
educational character of the institutions so that it is conducive to
making the institution an effective vehicle of education for the
minority community and for the others who resort to it'. Any
regulation which impinges upon the minority character of the
institutions is constitutionally impermissible. It is submitted that
between the right of minorities to establish and administer the
educational institutions and the right of the State to regulate
educational activities for maintaining standard of education, a
balance has to be struck. The regulation in relation to
recognition/affiliation operates in the area of standard of
excellence and are unquestionable if they do not seriously curtail
or destroy the right of minorities to administer their educational
institutions. Only in maintaining standards of education, State
can insist by framing regulations that they be followed but in all
other areas the rights of minority must be protected. It is
conceded that mal-administration is not protected by Article 30
of the Constitution. Similarly, secular laws with secular object
that do not directly impinge upon the right of minority
institutions and operate generally upon all citizens do not
impinge upon Article 30 of the Constitution. This has been the
constitutional interpretation of Article 30 not because Article 30
admits no exception like Article 19(6) but because the right
conferred under Article 30 does not extend to these areas. The
laws that serve national interest do not impinge upon Article 30.

Learned counsel in elaborating his argument tried to make
a distinction between the rights of aided institutions and unaided
institutions. Article 29(2) places a limitation on the right of an
aided institution by providing that if State aid is obtained, 'no
citizen shall be denied admission on grounds only of religion,
race, caste, language or any of them'. It is submitted that as a
necessary corollary, no such limitation can be placed while
regulating admission in an unaided minority institution which
may prefer to admit students of minority community. So far as
unaided minority educational institutions are concerned, the
submission made is that government has no right or power,
much less duty, to decide as to which method of selection of
students is to be adopted by minority institutions. The role of the
government is confined to ensuring that there is no mal-
administration in the name of selection of students or in the
fixation of fees. No doubt, the State is under a duty to prevent
mal-administration, that is to control charging of capitation fees
for the seats regardless of merit and commercializing education
resulting in exploitation of students, but to prevent mal-
administration of the above nature or on the ground that there is
likelihood of such mal-administration, the State cannot take over
the administration of the institutions themselves into its own
hands. The likelihood of an abuse of a constitutional right cannot
ever furnish justification for a denial of that right. An
apprehension that a citizen may abuse his liberty does not
provide justification for imposing restraints on the liberty of
citizens. Similarly, the apprehension that the minorities may
abuse their educational rights under Article 30 of the
Constitution cannot constitute a valid basis for the State to take
over those rights.

Learned senior counsel Shri Ashok Desai appearing on
behalf of unaided Karnataka Private Medical Colleges (through its
Association) of both categories of minority and non-minority has
questioned the correctness of the directions in the case of
Islamic Academy for setting up permanent committees for
fixation of quota and determination of fees. According to him, as
held in Pai Foundation, in the name of controlling capitation,
there cannot be indirect nationalization and complete State
control of unaided professional institutes. In the case of Islamic
Academy, the ratio of Pai Foundation that autonomy of
unaided non-minority institutions is an important facet of their
right under Article 19(1)(g) and in case of minority under Article
19(1)(g) read with Article 30 of the Constitution has been
ignored.
On behalf of unaided private professional colleges, learned
counsel further submitted that there are many private
educational institutes which have been set up by people
belonging to a region or a community or a class in order to
promote their own groups. As long as these groups form an
unaided minority institution, they are entitled to have
transparent criteria to admit students belonging to their group.
For instance, scheduled castes and scheduled tribes have started
Ambedkar Medical College; Lingayaths have started KLE Medical
College in Belgaun and people belonging to Vokalliga community
have started Kempegowda Medical College. Similarly, Edava
community in Kerala has started its own colleges. Sugar
cooperatives in Maharashtra have started their own colleges.
Learned counsel also highlighted an instance of a college opened
in Tamil Nadu by State Transport Workers for the education of
their children on the engineering side. He submitted that if the
State is allowed to interfere in the admission procedure in these
private institutions set up with the object of providing
educational facilities to their own group, community or poorer
sections, the very purpose and object of setting up a private
medical college by a group or community for their own people
would be defeated.

According to learned counsel, the State control in unaided
private professional colleges can only be to the extent of
monitoring or overseeing its working so that they do not indulge
in profiteering by charging capitation fees and sacrifice merit.
According to the learned counsel, in the directions contained in
Islamic Academy, the main ratio of Pai Foundation that the
unaided institutions should have autonomy in the matter of
admission and fees structure has been totally forgotten. The
learned counsel raised very serious objections to the manner in
which the various permanent committees set up in several
States on the directions of Islamic Academy are conducting
themselves and forcing their decisions on private institutions.
The proposed fee structure is required to be placed before the
Committee in advance of the academic year by the institute. It is
the Committee which has to decide whether the fees proposed
by the institute are justified and do not amount to profiteering or
charging of capitation fees. The Committee has been given
liberty to approve the fee structure of the institute or to propose
a different fee structure. The fee fixed by the Committee is
binding for a period of three years and at the end of the said
period the institute would be at liberty to apply for revision.
Learned counsel gave in writing certain illustrations of decisions
of the Fee Committee in few unaided colleges in the State of
Karnataka and pointed out that without proper financial
expertise and without studying the relevant documents and
accounts, the Committee determined the fee structure by only
taking into account the affordability of the parents of the
students with no regard whatsoever to the viability of the
institute on the basis of finances so generated. It is argued as to
why private professional institutes should not be allowed to
modernize its facilities and provide better professional education
than government institutes. It is pointed out that in the case of
non-minority unaided M.S. Ramaiaya Medical College, Bangalore,
the Fee Committee initially fixed annual fee at Rs.2.55 lacs for
MBBS course as against the justification shown by the institute
for demanding Rs. 3.90 lacs. The decision of the Fee Committee
led to the filing of writ petition by the institute in the High Court
of Karnataka and agitation and demonstrations by the students'
union. The Committee under the pressure of the student
community reduced the annual fee to Rs.1.6 lacs which was re-
affirmed after the High Court directed that the management of
the unaided college should be heard before reducing the annual
fee.

Thus the learned counsel on behalf of the Karnataka
Private Medical College Association questioned the correctness of
the directions of the Bench in Islamic Academy. It is submitted
that as decided in Pai Foundation by a larger Bench, the
essence of private educational institutions is the autonomy that
the institution must have in its management and administration.
The 'right to establish and administer' particularly comprises the
right a) to admit students and b) to set up reasonable fee
structure. The autonomy of the institution, therefore, predicates
that all seats would be filled by the management and there can
be no reservations or quotas in favour of the State. In Pai
Foundation, the only observations made were that some
colleges may be required to admit a small percentage of
students belonging to weaker sections of the society by granting
them freeships or scholarships. It is conceded that autonomy of
a private educational institution to admit students of its choice
does not mean that there can be no insistence on transparency
in the admission procedure and on merit being the criterion for
admission. It is submitted that autonomy of a private
educational institution could mean that they can, according to
the objects and purposes of their institutions, give preference to
a particular class or group of students like SC/ST in Ambedkar
Medical College, students from backward area in Bijapur college
and transport employees' children in Madras State Corporation
Employees' College or the children of employees of Larson &
Turbo Company in a college established by that company. The
right to charge fees so as to run the college and to generate
sufficient funds for its betterment and growth cannot be
controlled by the State. That would seriously encroach upon the
autonomy of the private unaided institution. It is submitted, by
quoting Dr. S. Radhakrishnan, the then Chairman of the
University Education Commission, that interests of democracy lie
with the resistance of the trend towards governmental
domination of the educational process. In conclusion, learned
counsel representing Association of private unaided colleges in
Karnataka submits that the decision in Islamic Academy and
the directions made therein go far beyond the law laid down by
the larger Bench in Pai Foundation. The Bench in Islamic
Academy virtually reviewed the larger Bench decision in Pai
Foundation in guise of implementation of the said decision and
on the basis of later developments. In Islamic Academy, the
Bench accepted that there could be no rigid fee structure fixed
by the government for private institutions. An institute should
have the freedom to fix its own fee structure for day-to-day
running of the institute and to generate funds for its further
growth. Only capitation and diversion of profits and surplus of
the institute to any other business or enterprise was prohibited.
It is submitted that Islamic Academy contrary to the legal
position explained in Pai Foundation, could not set up in each
State permanent committees headed by retired High Court
Judges with the power to decide on the justification of the fee
proposed by the institute and propose any other fees. It could
also not make the fee fixed by the Committee binding for a
period of three years. Learned counsel submits that once the
college infrastructure and hospital facilities attached to the
medical college have been approved by the Medical Counsel of
India in accordance with its regulations, the total expenses of
college and hospital could be taken into account by the institute
to decide upon its own fee structure. Learned counsel, in
criticizing the directions in Islamic Academy, submitted that
although the scheme formulated in Unni Krishnan has been
expressly overruled in Pai Foundation on the ground that it
virtually nationalized education and resulted in surrendering total
process of selection to the State, the Bench in Islamic
Academy's case, in an attempt to take up preventive measures
to ensure merit and check profiteering in private unaided
professional institutions, cannot re-introduce quota system for
the management and the State and thus infringe upon the
autonomy of the institute. Such an attempt, learned counsel
contends, would be unconstitutional and violative of Article
19(1)(g) of the Constitution in the case of non-minority unaided
institutions and also violative of Article 30 in the case of minority
unaided professional institutions. Learned counsel argued that
constitutionally, as held in Pai Foundation, it is not permissible
for the State to impose a Government quota, its own reservation
policy, a lower scale of fees etc. on a private unaided non-
minority and unaided minority professional institutions, only by
taking into consideration the interests of students. In the State
of Karnataka for the academic year 2004-2005, by illustration, it
is shown that 75% of the intake capacity is the Government
quota in which are included 5% quota for sports, defence and
NCC; 50% quota for Scheduled Castes/Economically backward
classes/Scheduled Tribes/OBC, there is total 55% reservation
quota in 75% of the government quota. The remaining 25%
quota left for the management is also to be taken over by the
Government insisting on admitting students from the select list
prepared on the common entrance test conducted by the State.

Learned senior counsel Shri F. S. Nariman also supported
the submissions made by other counsel on behalf of the unaided
professional institutions and added that the observations of the
Bench in Islamic Academy clearly go far beyond anything said
by eleven judges in Pai Foundation. It is submitted that the
question of quota 50:50 for State and management as referred
to in St. Stephen's was in respect of aided minority educational
institutions and in Pai Foundation, the Bench never suggested
fixation of quota for State and management in case of unaided
professional institutions. Learned senior counsel particularly
pointed out that in Islamic Academy, the observations that
different percentage of quota for students to be admitted by the
management in each minority and non-minority unaided
professional institutions shall be separately fixed on the basis of
their need by the respective State Government, was a totally
new direction, nowhere to be found or supported by any of the
observations in any of the opinions of the 11-Jud

Doctors Not to be Charged just because the patient died

CASE NO.:
Appeal (crl.) 144-145 of 2004

PETITIONER:
Jacob Mathew

RESPONDENT:
State of Punjab & Anr.

DATE OF JUDGMENT: 05/08/2005

BENCH:
CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T


R.C. LAHOTI, CJI

Ashok Kumar Sharma, the respondent no.2 herein filed a First
Information Report with police station, Division No. 3, Ludhiana,
whereupon an offence under Section 304A read with Section 34 of the
Indian Penal Code (for short "the IPC") was registered. The gist of the
information is that on 15.2.1995, the informant's father, late Jiwan Lal
Sharma was admitted as a patient in a private ward of CMC Hospital,
Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in
breathing. The complainant's elder brother, Vijay Sharma who was
present in the room contacted the duty nurse, who in her turn called
some doctor to attend to the patient. No doctor turned up for about
20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us
and Dr.Allen Joseph came to the room of the patient. An oxygen
cylinder was brought and connected to the mouth of the patient but
the breathing problem increased further. The patient tried to get up
but the medical staff asked him to remain in the bed. The oxygen
cylinder was found to be empty. There was no other gas cylinder
available in the room. Vijay Sharma went to the adjoining room and
brought a gas cylinder therefrom. However, there was no
arrangement to make the gas cylinder functional and in-between, 5 to
7 minutes were wasted. By this time, another doctor came who
declared that the patient was dead. The latter part of the FIR states
(as per the translation in English as filed by the complainant):

"the death of my father
was occurred due to the carelessness of
doctors and nurses and non availability of
oxygen cylinder and the empty cylinder was
fixed on the mouth of my father and his
breathing was totally stopped hence my
father died. I sent the dead body of my
father to my village for last cremation and
for information I have come to you. Suitable
action be done Sd/- ---- As per statement
of intimator the death of Jiwan Lal Sharma
has occurred due to carelessness of doctors
and nurses concerned and to fit empty gas
cylinder."

On the abovesaid report, an offence under Section 304A/34 IPC
was registered and investigated. Challan was filed against the two
doctors.

The Judicial Magistrate First Class, Ludhiana framed charges
under Section 304A, IPC against the two accused persons, both
doctors. Both of them filed a revision in the Court of Sessions Judge
submitting that there was no ground for framing charges against
them. The revision was dismissed. The appellant filed a petition in the
High Court under Section 482 of the Code of Criminal Procedure
praying for quashing of the FIR and all the subsequent proceedings.

It was submitted before the High Court that there was no
specific allegation of any act of omission or commission against the
accused persons in the entire plethora of documents comprising the
challan papers filed by the police against them. The learned single
Judge who heard the petition formed an opinion that the plea raised by
the appellant was available to be urged in defence at the trial and,
therefore, a case for quashing the charge was not made out. Vide
order dated 18.12.2002, the High Court dismissed the petition. An
application for recalling the abovesaid order was moved which too was
dismissed on 24.1.2003. Feeling aggrieved by these two orders, the
appellant has filed these appeals by special leave.

According to the appellant, the deceased Jiwan Lal was suffering
from cancer in an advanced stage and as per the information
available, he was, in fact, not being admitted by any hospital in the
country because his being a case of cancer at terminal stage. He was
only required to be kept at home and given proper nursing, food, care
and solace coupled with prayers. But as is apparent from the records,
his sons are very influential persons occupying important positions in
Government. They requested the hospital authorities that come what
may, even on compassionate grounds their father may be admitted in
the hospital for regulated medical treatment and proper management
of diet. It was abundantly made clear to the informant and his other
relations who had accompanied the deceased that the disease was of
such a nature and had attained such gravity, that peace and solace
could only be got at home. But the complainant could prevail over the
doctors and hospital management and got the deceased admitted as
an in-patient. Nevertheless, the patient was treated with utmost care
and caution and given all the required medical assistance by the
doctors and para-medical staff. Every conceivable effort was made by
all the attending staff comprising of doctors and nurses and other
para-medicals to give appropriate medical treatment and the whole
staff danced attendance on the patient but what was ordained to
happen, did happen. The complainant and his relations, who were
misguided or were under mistaken belief as to the facts, lodged police
report against the accused persons  wholly unwarranted and
uncalled for.

The matter came up for hearing before a Bench of two learned
judges of this Court. Reliance was placed by the appellant on a recent
two-judge Bench decision of this Court in Dr. Suresh Gupta v. Govt.
of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this
appeal doubted the correctness of the view taken in Dr. Suresh
Gupta's case and vide order dated 9.9.2004 expressed the opinion
that the matter called for consideration by a Bench of three Judges.
This is how the case has come up for hearing before this Bench.

In Dr. Suresh Gupta's case, the patient, a young man with no
history of any heart ailment, was subjected to an operation performed
by Dr. Suresh Gupta for nasal deformity. The operation was neither
complicated nor serious. The patient died. On investigation, the cause
of death was found to be "not introducing a cuffed endotracheal tube
of proper size as to prevent aspiration of blood from the wound in the
respiratory passage". The Bench formed an opinion that this act
attributed to the doctor, even if accepted to be true, could be
described as an act of negligence as there was lack of due care and
precaution. But, the Court categorically held  "for this act of
negligence he may be liable in tort, his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly
negligent as to make him criminally liable".

The referring Bench in its order dated 9.9.2004 has assigned
two reasons for their disagreement with the view taken in Dr. Suresh
Gupta's case which are as under:-

(1) Negligence or recklessness being 'gross' is not a requirement of
Section 304A of IPC and if the view taken in Dr. Suresh
Gupta's case is to be followed then the word 'gross' shall have
to be read into Section 304A IPC for fixing criminal liability on a
doctor. Such an approach cannot be countenanced.

(2) Different standards cannot be applied to doctors and others. In
all cases it has to be seen whether the impugned act was rash
or negligent. By carrying out a separate treatment for doctors
by introducing degree of rashness or negligence, violence would
be done to the plain and unambiguous language of section
304A. If by adducing evidence it is proved that there was no
rashness or negligence involved, the trial court dealing with the
matter shall decide appropriately. But a doctor cannot be
placed at a different pedestal for finding out whether rashness
or negligence was involved.

We have heard the learned counsel for the appellant, the
respondent-State and the respondent complainant. As the question of
medical negligence arose for consideration, we thought it fit to issue
notice to Medical Council of India to assist the Court at the time of
hearing which it has done. In addition, a registered society  'People
for Better Treatment', Kolkata; Delhi Medical Council, Delhi Medical
Association and Indian Medical Association sought for intervention at
the hearing as the issue arising for decision is of vital significance for
the medical profession. They too have been heard. Mainly, the
submissions made by the learned counsel for the parties and the
intervenors have centred around two issues : (i) Is there a difference
in civil and criminal law on the concept of negligence?; and (ii)
whether a different standard is applicable for recording a finding of
negligence when a professional, in particular, a doctor is to be held
guilty of negligence?

With the awareness in the society and the people in general
gathering consciousness about their rights, actions for damages in tort
are on the increase. Not only civil suits are filed, the availability of a
forum for grievance redressal under the Consumer Protection Act,
1986 having jurisdiction to hear complaints against professionals for
'deficiency in service', which expression is very widely defined in the
Act, has given rise to a large number of complaints against
professionals, in particular against doctors, being filed by the persons
feeling aggrieved. Criminal complaints are being filed against doctors
alleging commission of offences punishable under Section 304A or
Sections 336/337/338 of the IPC alleging rashness or negligence on
the part of the doctors resulting in loss of life or injury (of varying
degree) to the patient. The present one is such a case. The order of
reference has enabled us to examine the concept of 'negligence', in
particular 'professional negligence', and as to when and how it does
give rise to an action under the criminal law. We propose to deal with
the issues in the interests of settling the law.

Negligence as a tort
The jurisprudential concept of negligence defies any precise
definition. Eminent jurists and leading judgments have assigned
various meanings to negligence. The concept as has been acceptable
to Indian jurisprudential thought is well-stated in the Law of Torts,
Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P.
Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a
duty caused by the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and
reasonable man would not do. Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care and skill, by
which neglect the plaintiff has suffered injury to his person or
property.  The definition involves three constituents of
negligence: (1) A legal duty to exercise due care on the part of the
party complained of towards the party complaining the former's
conduct within the scope of the duty; (2) breach of the said duty; and
(3) consequential damage. Cause of action for negligence arises only
when damage occurs; for, damage is a necessary ingredient of this
tort."

According to Charlesworth & Percy on Negligence (Tenth Edition,
2001), in current forensic speech, negligence has three meanings.
They are: (i) a state of mind, in which it is opposed to intention; (ii)
careless conduct; and (iii) the breach of duty to take care that is
imposed by either common or statute law. All three meanings are
applicable in different circumstances but any one of them does not
necessarily exclude the other meanings. (Para 1.01) The essential
components of negligence, as recognized, are three: "duty", "breach"
and "resulting damage", that is to say:-
1. the existence of a duty to take care, which is
owed by the defendant to the complainant;

2. the failure to attain that standard of care,
prescribed by the law, thereby committing a
breach of such duty; and

3. damage, which is both causally connected
with such breach and recognized by the law,
has been suffered by the complainant. (Para
1.23)


If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence. (Para 1.24)

Negligence __ as a tort and as a crime
The term 'negligence' is used for the purpose of fastening the
defendant with liability under the Civil Law and, at times, under the
Criminal Law. It is contended on behalf of the respondents that in
both the jurisdictions, negligence is negligence, and jurisprudentially
no distinction can be drawn between negligence under civil law and
negligence under criminal law. The submission so made cannot be
countenanced inasmuch as it is based upon a total departure from the
established terrain of thought running ever since the beginning of the
emergence of the concept of negligence upto the modern times.
Generally speaking, it is the amount of damages incurred which is
determinative of the extent of liability in tort; but in criminal law it is
not the amount of damages but the amount and degree of negligence
that is determinative of liability. To fasten liability in Criminal Law, the
degree of negligence has to be higher than that of negligence enough
to fasten liability for damages in Civil Law. The essential ingredient of
mens rea cannot be excluded from consideration when the charge in a
criminal court consists of criminal negligence. In R. v. Lawrence,
[1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and
the other Law Lords agreed with him. He reiterated his opinion in R.
v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of
recklessness as constituting mens rea in criminal law. His Lordship
warned against adopting the simplistic approach of treating all
problems of criminal liability as soluble by classifying the test of
liability as being "subjective" or "objective", and said "Recklessness on
the part of the doer of an act does presuppose that there is something
in the circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was capable
of causing the kind of serious harmful consequences that the section
which creates the offence was intended to prevent, and that the risk of
those harmful consequences occurring was not so slight that an
ordinary prudent individual would feel justified in treating them as
negligible. It is only when this is so that the doer of the act is acting
'recklessly' if, before doing the act, he either fails to give any thought
to the possibility of there being any such risk or, having recognized
that there was such risk, he nevertheless goes on to do it."

The moral culpability of recklessness is not located in a desire to
cause harm. It resides in the proximity of the reckless state of mind
to the state of mind present when there is an intention to cause harm.
There is, in other words, a disregard for the possible consequences.
The consequences entailed in the risk may not be wanted, and indeed
the actor may hope that they do not occur, but this hope nevertheless
fails to inhibit the taking of the risk. Certain types of violation, called
optimizing violations, may be motivated by thrill-seeking. These are
clearly reckless.

In order to hold the existence of criminal rashness or criminal
negligence it shall have to be found out that the rashness was of such
a degree as to amount to taking a hazard knowing that the hazard was
of such a degree that injury was most likely imminent. The element of
criminality is introduced by the accused having run the risk of doing
such an act with recklessness and indifference to the consequences.
Lord Atkin in his speech in Andrews v. Director of Public
Prosecutions, [1937] A.C. 576, stated, "Simple lack of care  such
as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a very high degree
of negligence is required to be proved before the felony is
established." Thus, a clear distinction exists between "simple lack of
care" incurring civil liability and "very high degree of negligence" which
is required in criminal cases. Lord Porter said in his speech in the
same case ___ "A higher degree of negligence has always been
demanded in order to establish a criminal offence than is sufficient to
create civil liability. (Charlesworth & Percy, ibid, Para 1.13)

The fore-quoted statement of law in Andrews has been noted
with approval by this Court in Syad Akbar v. State of Karnataka
(1980) 1 SCC 30. The Supreme Court has dealt with and pointed out
with reasons the distinction between negligence in civil law and in
criminal law. Their Lordships have opined that there is a marked
difference as to the effect of evidence, viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to
the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as
convinces the mind of the Court, as a reasonable man, beyond all
reasonable doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error
of judgment.

Law laid down by Straight, J. in the case Reg v. Idu Beg
(1881) 3 All. 776, has been held good in cases and noticed in
Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J.
423 ? a three-Judge Bench decision of this Court. It has been held
that while negligence is an omission to do something which a
reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which
having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have
adopted.

In our opinion, the factor of grossness or degree does assume
significance while drawing distinction in negligence actionable in tort
and negligence punishable as a crime. To be latter, the negligence has
to be gross or of a very high degree.

Negligence by professionals
In the law of negligence, professionals such as lawyers, doctors,
architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any task
which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person
possesses the requisite skill for performing that task. Any reasonable
man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to
possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer
does not tell his client that the client shall win the case in all
circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that
the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only assurance which
such a professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that branch
of profession which he is practising and while undertaking the
performance of the task entrusted to him he would be exercising his
skill with reasonable competence. This is all what the person
approaching the professional can expect. Judged by this standard, a
professional may be held liable for negligence on one of 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 for judging, 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 necessary for every
professional to possess the highest level of expertise in that branch
which he practices. In Michael Hyde and Associates v. J.D.
Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that
where a profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the defendant is to
be judged by the lowest standard that would be regarded as
acceptable. (Charlesworth & Percy, ibid, Para 8.03)

Oft'quoted passage defining negligence by professionals,
generally and not necessarily confined to doctors, is to be found in the
opinion of McNair J. in Bolam v. Friern Hospital Management
Committee, [1957] 1 W.L.R. 582, 586 in the following words:
"Where you get a situation which involves the
use of some special skill or competence, then the
test as to 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."
(Charlesworth & Percy, ibid, Para 8.02)

The water of Bolam test has ever since flown and passed under
several bridges, having been cited and dealt with in several judicial
pronouncements, one after the other and has continued to be well
received by every shore it has touched as neat, clean and well-
condensed one. After a review of various authorities Bingham L.J. in
his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79
summarised the Bolam test in the following words:-
"From these general statements it follows that a
professional man should command the corpus of
knowledge which forms part of the professional
equipment of the ordinary member of his
profession. He should not lag behind other
ordinary assiduous and intelligent members of his
profession in knowledge of new advances,
discoveries and developments in his field. He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations on
his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members of
the profession would be alert. He must bring to
any professional task he undertakes no less
expertise, skill and care than other ordinarily
competent members of his profession would bring,
but need bring no more. The standard is that of
the reasonable average. The law does not require
of a professional man that he be a paragon
combining the qualities of polymath and prophet."
(Charlesworth & Percy, ibid, Para 8.04)

The degree of skill and care required by a medical practitioner is
so stated in Halsbury's Laws of England (Fourth Edition, Vol.30,
Para 35):-
"The practitioner must bring to his task a
reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care. Neither
the very highest nor a very low degree of care and
competence, judged in the light of the particular
circumstances of each case, is what the law
requires, and a person is not liable in negligence
because someone else of greater skill and
knowledge would have prescribed different
treatment or operated in a different way; nor is he
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 medical men.

Deviation from normal practice is not
necessarily evidence of negligence. To establish
liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the
defendant has not adopted it; and (3) that the
course in fact adopted is one no professional man
of ordinary skill would have taken had he been
acting with ordinary care."

Abovesaid three tests have also been stated as determinative of
negligence in professional practice by Charlesworth & Percy in their
celebrated work on Negligence (ibid, para 8.110)

In the opinion of Lord Denning, as expressed in Hucks v. Cole,
[1968] 118 New LJ 469, a medical practitioner was not to be held
liable simply because things went wrong from mischance or
misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another. A medical
practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.

The decision of House of Lords in Maynard v. West Midlands
Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench
consisting of five Law Lords has been accepted as having settled the
law on the point by holding that it is not enough to show that there is
a body of competent professional opinion which considers that decision
of the defendant professional was a wrong decision, if there also exists
a body of professional opinion, equally competent, which supports the
decision as reasonable in the circumstances. It is not enough to show
that subsequent events show that the operation need never have been
performed, if at the time the decision to operate was taken, it was
reasonable, in the sense that a responsible body of medical opinion
would have accepted it as proper. Lord Scarman who recorded the
leading speech with which other four Lords agreed quoted the
following words of Lord President (Clyde) in Hunter v. Hanley 1955
SLT 213 at 217, observing that the words cannot be bettered  "In the
realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional menThe
true test for establishing negligence in diagnosis or treatment on the
part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care". Lord Scarman added  "a doctor who professes to
exercise a special skill must exercise the ordinary skill of his speciality.
Differences of opinion and practice exist, and will always exist, in the
medical as in other professions. There is seldom any one answer
exclusive of all others to problems of professional judgment. A court
may prefer one body of opinion to the other, but that is no basis for a
conclusion of negligence." His Lordship further added "that a judge's
'preference' for one body of distinguished professional opinion to
another also professionally distinguished is not sufficient to establish
negligence in a practitioner whose actions have received the seal of
approval of those whose opinions, truthfully expressed, honestly held,
were not preferred."

The classical statement of law in Bolam's case has been widely
accepted as decisive of the standard of care required both of
professional men generally and medical practitioners in particular. It
has been invariably cited with approval before Courts in India and
applied to as touchstone to test the pleas of medical negligence. In
tort, it is enough for the defendant to show that the standard of care
and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The
fact that a defendant charged with negligence acted in accord with the
general and approved practice is enough to clear him of the charge.
Two things are pertinent to be noted. Firstly, the standard of care,
when assessing the practice as adopted, is judged in the light of
knowledge available at the time (of the incident), and not at the date
of trial. Secondly, when the charge of negligence arises out of failure
to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time on which it
is suggested as should have been used.

A mere deviation from normal professional practice is not
necessarily evidence of negligence. Let it also be noted that a mere
accident is not evidence of negligence. So also an error of judgment
on the part of a professional is not negligence per se. Higher the
acuteness in emergency and higher the complication, more are the
chances of error of judgment. At times, the professional is confronted
with making a choice between the devil and the deep sea and he has
to choose the lesser evil. The medical professional is often called upon
to adopt a procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to follow, would
depend on the facts and circumstances of a given case. The usual
practice prevalent nowadays is to obtain the consent of the patient or
of the person incharge of the patient if the patient is not be in a
position to give consent before adopting a given procedure. So long
as it can be found that the procedure which was in fact adopted was
one which was acceptable to medical science as on that date, the
medical practitioner cannot be held negligent merely because he chose
to follow one procedure and not another and the result was a failure.

No sensible professional would intentionally commit an act or
omission which would result in loss or injury to the patient as the
professional reputation of the person is at stake. A single failure may
cost him dear in his career. Even in civil jurisdiction, the rule of res
ipsa loquitur is not of universal application and has to be applied with
extreme care and caution to the cases of professional negligence and
in particular that of the doctors. Else it would be counter productive.
Simply because a patient has not favourably responded to a treatment
given by a physician or a surgery has failed, the doctor cannot be held
liable per se by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence which in reality belongs to
the law of torts. Inference as to negligence may be drawn from
proved circumstances by applying the rule if the cause of the accident
is unknown and no reasonable explanation as to the cause is coming
forth from the defendant. In criminal proceedings, the burden of
proving negligence as an essential ingredient of the offence lies on the
prosecution. Such ingredient cannot be said to have been proved or
made out by resorting to the said rule (See Syad Kabar v. State of
Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in
Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court
has observed that there may be a case where the proved facts would
themselves speak of sharing of common intention and while making
such observation one of the learned judges constituting the Bench has
in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it
has been stated that the rule has applicability in a criminal case and an
inference as to an essential ingredient of an offence can be found
proved by resorting to the said rule. In our opinion, a case under
Section 304A IPC cannot be decided solely by applying the rule of res
ipsa loquitur.

A medical practitioner faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to clearly make out
a case of negligence before a medical practitioner is charged with or
proceeded against criminally. A surgeon with shaky hands under fear
of legal action cannot perform a successful operation and a quivering
physician cannot administer the end-dose of medicine to his patient.

If the hands be trembling with the dangling fear of facing a
criminal prosecution in the event of failure for whatever reason
whether attributable to himself or not, neither a surgeon can
successfully wield his life-saving scalper to perform an essential
surgery, nor can a physician successfully administer the life-saving
dose of medicine. Discretion being better part of valour, a medical
professional would feel better advised to leave a terminal patient to his
own fate in the case of emergency where the chance of success may
be 10% (or so), rather than taking the risk of making a last ditch
effort towards saving the subject and facing a criminal prosecution if
his effort fails. Such timidity forced upon a doctor would be a
disservice to the society.

The purpose of holding a professional liable for his act or
omission, if negligent, is to make the life safer and to eliminate the
possibility of recurrence of negligence in future. Human body and
medical science  both are too complex to be easily understood. To
hold in favour of existence of negligence, associated with the action or
inaction of a medical professional, requires an in-depth understanding
of the working of a professional as also the nature of the job and of
errors committed by chance, which do not necessarily involve the
element of culpability.

The subject of negligence in the context of medical profession
necessarily calls for treatment with a difference. Several relevant
considerations in this regard are found mentioned by Alan Merry and
Alexander McCall Smith in their work "Errors, Medicine and the Law"
(Cambridge University Press, 2001). There is a marked tendency to
look for a human actor to blame for an untoward event  a tendency
which is closely linked with the desire to punish. Things have gone
wrong and, therefore, somebody must be found to answer for it. To
draw a distinction between the blameworthy and the blameless, the
notion of mens rea has to be elaborately understood. An empirical
study would reveal that the background to a mishap is frequently far
more complex than may generally be assumed. It can be
demonstrated that actual blame for the outcome has to be attributed
with great caution. For a medical accident or failure, the responsibility
may lie with the medical practitioner and equally it may not. The
inadequacies of the system, the specific circumstances of the case, the
nature of human psychology itself and sheer chance may have
combined to produce a result in which the doctor's contribution is
either relatively or completely blameless. Human body and its working
is nothing less than a highly complex machine. Coupled with the
complexities of medical science, the scope for misimpressions,
misgivings and misplaced allegations against the operator i.e. the
doctor, cannot be ruled out. One may have notions of best or ideal
practice which are different from the reality of how medical practice is
carried on or how in real life the doctor functions. The factors of
pressing need and limited resources cannot be ruled out from
consideration. Dealing with a case of medical negligence needs a
deeper understanding of the practical side of medicine.

At least three weighty considerations can be pointed out which
any forum trying the issue of medical negligence in any jurisdiction
must keep in mind. These are: (i) that legal and disciplinary
procedures should be properly founded on firm, moral and scientific
grounds; (ii) that patients will be better served if the real causes of
harm are properly identified and appropriately acted upon; and (iii)
that many incidents involve a contribution from more than one person,
and the tendency is to blame the last identifiable element in the chain
of causation  the person holding the 'smoking gun'.

Accident during the course of medical or surgical treatment has
a wider meaning. Ordinarily, an accident means an unintended and
unforeseen injurious occurrence; something that does not occur in the
usual course of events or that could not be reasonably anticipated
(See, Black's Law Dictionary, 7th Edition). Care has to be taken to see
that the result of an accident which is exculpatory may not persuade
the human mind to confuse it with the consequence of negligence.

Medical Professionals in Criminal Law
The criminal law has invariably placed the medical professionals
on a pedestal different from ordinary mortals. The Indian Penal Code
enacted as far back as in the year 1860 sets out a few vocal examples.
Section 88 in the Chapter on General Exceptions provides exemption
for acts not intended to cause death, done by consent in good faith for
person's benefit. Section 92 provides for exemption for acts done in
good faith for the benefit of a person without his consent though the
acts cause harm to a person and that person has not consented to
suffer such harm. There are four exceptions listed in the Section
which is not necessary in this context to deal with. Section 93 saves
from criminality certain communications made in good faith. To these
provisions are appended the following illustrations:-

Section 88
A, a surgeon, knowing that a particular operation
is likely to cause the death of Z, who suffers under
a painful complaint, but not intending to cause Z's
death and intending in good faith, Z's benefit,
performs that operation on Z, with Z's consent. A
has committed no offence.

Section 92
Z is thrown from his horse, and is insensible. A, a
surgeon, finds that Z requires to be trepanned. A,
not intending Z's death, but in good faith, for Z's
benefit, performs the trepan before Z recovers his
power of judging for himself. A has committed no
offence.

A, a surgeon, sees a child suffer an accident
which is likely to prove fatal unless an operation be
immediately performed. There is no time to apply
to the child's guardian. A performs the operation in
spite of the entreaties of the child, intending, in
good faith, the child's benefit. A has committed
no offence.

Section 93
A, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live. The patient
dies in consequence of the shock. A has committed
no offence, though he knew it to be likely that the
communication might cause the patient's death.

It is interesting to note what Lord Macaulay had himself to say
about Indian Penal Code. We are inclined to quote a few excerpts from
his speech to the extent relevant for our purpose from "Speeches and
Poems with the Report and Notes on the Indian Penal Code" by Lord
Macaulay (Houghton, Mifflin and Company, published in 1874).

"Under the provisions of our Code, this case would
be very differently dealt with according to
circumstances. If A. kills Z. by administering
abortives to her, with the knowledge that those
abortives are likely to cause her death, he is guilty
of voluntary culpable homicide, which will be
voluntary culpable homicide by consent, if Z.
agreed to run the risk, and murder if Z. did not so
agree. If A causes miscarriage to Z., not intending
to cause Z.'s death, nor thinking it likely that he
shall cause Z.'s death, but so rashly or negligently
as to cause her death, A. is guilty of culpable
homicide not voluntary, and will be liable to the
punishment provided for the causing of
miscarriage, increased by imprisonment for a term
not exceeding two years. Lastly, if A took such
precautions that there was no reasonable
probability that Z.'s death would be caused, and if
the medicine were rendered deadly by some
accident which no human sagacity could have
foreseen, or by some peculiarity in Z.'s constitution
such as there was no ground whatever to expect,
A. will be liable to no punishment whatever on
account of her death, but will of course be liable to
the punishment provided for causing miscarriage.

It may be proper for us to offer some arguments in
defence of this part of the Code.

It will be admitted that when an act is in itself
innocent, to punish the person who does it because
bad consequences, which no human wisdom could
have foreseen, have followed from it, would be in
the highest degree barbarous and absurd." (P.419)

"To punish as a murderer every man who, while
committing a heinous offence, causes death by
pure misadventure, is a course which evidently
adds nothing to the security of human life. No man
can so conduct himself as to make it absolutely
certain that he shall not be so unfortunate as to
cause the death of a fellow-creature. The utmost
that he can do is to abstain from every thing which
is at all likely to cause death. No fear of
punishment can make him do more than this; and
therefore, to punish a man who has done this can
add nothing to the security of human life. The only
good effect which such punishment can produce
will be to deter people from committing any of
those offences which turn into murders what are in
themselves mere accidents. It is in fact an addition
to the punishment of those offences, and it is an
addition made in the very worst way." (p.421)

"When a person engaged in the commission of an
offence causes death by rashness or negligence,
but without either intending to cause death, or
thinking it likely that he shall cause death, we
propose that he shall be liable to the punishment of
the offence which he was engaged in committing,
superadded to the ordinary punishment of
involuntary culpable homicide.

The arguments and illustrations which we have
employed for the purpose of showing that the
involuntary causing of death, without either
rashness or negligence, ought, under no
circumstances, to be punished at all, will, with
some modifications, which will readily suggest
themselves, serve to show that the involuntary
causing of death by rashness or negligence, though
always punishable, ought, under no circumstances
to be punished as murder." (P.422)


The following statement of law on criminal negligence by
reference to surgeons, doctors etc. and unskillful treatment contained
in Roscoe's Law of Evidence (Fifteenth Edition) is classic:
"Where a person, acting as a medical man, &c.,
whether licensed or unlicensed, is so negligent in
his treatment of a patient that death results, it is
manslaughter if the negligence was so great as to
amount to a crime, and whether or not there was
such a degree of negligence is a question in each
case for the jury. "In explaining to juries the test
which they should apply to determine whether the
negligence in the particular case amounted or did
not amount to a crime, judges have used many
epithets, such as 'culpable,' 'criminal', 'gross',
'wicked', 'clear', 'complete.' But whatever epithet
be used and whether an epithet be used or not, in
order to establish criminal liability the facts must
be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere
matter of compensation between subjects and
showed such disregard for the life and safety of
others as to amount to a crime against the State
and conduct deserving punishment." (p. 848-849)
xxx xxx xxx

"whether he be licensed or unlicensed, if he display
gross ignorance, or gross inattention, or gross
rashness, in his treatment, he is criminally
responsible. Where a person who, though not
educated as an accoucheur, had been in the habit
of acting as a man-midwife, and had unskilfully
treated a woman who died in childbirth, was
indicted for the murder, L. Ellenborough said that
there was no evidence of murder, but the jury
might convict of man-slaughter. "To substantiate
that charge the prisoner must have been guilty of
criminal misconduct, arising either from the
grossest ignorance or the [most?] criminal
inattention. One or other of these is necessary to
make him guilty of that criminal negligence and
misconduct which is essential to make out a case of
manslaughter." (p.849)


A review of Indian decisions on criminal negligence
We are inclined to, and we must - as duty bound, take note of
some of the relevant decisions of the Privy Council and of this Court.
We would like to preface this discussion with the law laid down by the
Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A
duly qualified medical practitioner gave to his patient the injection of
Sobita which consisted of sodium bismuth tartrate as given in the
British Pharmacopoea. However, what was administered was an
overdose of Sobita. The patient died. The doctor was accused of
manslaughter, reckless and negligent act. He was convicted. The
matter reached in appeal before the House of Lords. Their Lordships
quashed the conviction. On a review of judicial opinion and an
illuminating discussion on the points which are also relevant before us,
what their Lordships have held can be summed up as under:-

(i) That a doctor is not criminally responsible for a
patient's death unless his negligence or
incompetence went beyond a mere matter of
compensation between subjects and showed such
disregard for life and safety of others as to amount
to a crime against the State.;

(ii) That the degree of negligence required is that it
should be gross, and that neither a jury nor a court
can transform negligence of a lesser degree into
gross negligence merely by giving it that
appellation.  There is a difference in kind
between the negligence which gives a right to
compensation and the negligence which is a crime.

(iii) It is impossible to define culpable or
criminal negligence, and it is not possible to make
the distinction between actionable negligence and
criminal negligence intelligible, except by means of
illustrations drawn from actual judicial opinion.
.. The most favourable view of the conduct of an
accused medical man has to be taken, for it would
be most fatal to the efficiency of the medical
profession if no one could administer medicine
without a halter round his neck."
(emphasis supplied)

Their Lordships refused to accept the view that criminal negligence
was proved merely because a number of persons were made gravely ill
after receiving an injection of Sobita from the appellant coupled with a
finding that a high degree of care was not exercised. Their Lordships
also refused to agree with the thought that merely because too strong
a mixture was dispensed once and a number of persons were made
gravely ill, a criminal degree of negligence was proved.

The question of degree has always been considered as relevant
to a distinction between negligence in civil law and negligence in
criminal law. In Kurban Hussein Mohamedalli Rangawalla v.
State of Maharashtra (1965) 2 SCR 622, while dealing with Section
304A of IPC, the following statement of law by Sir Lawrence Jenkins in
Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with
approval:-
"To impose criminal liability under Section 304-A,
Indian Penal Code, it is necessary that the death
should have been the direct result of a rash and
negligent act of the accused, and that act must be
the proximate and efficient cause without the
intervention of another's negligence. It must be
the causa causans; it is not enough that it may
have been the causa sine qua non."

K.N. Wanchoo, J. (as he then was), speaking for the Court,
observed that the abovesaid view of the law has been generally
followed by High Courts in India and was the correct view to take of
the meaning of Section 304A. The same view has been reiterated in
Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904.

In Juggankhan v. The State of Madhya Pradesh (1965) 1
SCR 14, the accused, a registered Homoeopath, administered 24 drops
of stramonium and a leaf of dhatura to the patient suffering from
guinea worm. The accused had not studied the effect of such
substances being administered to a human being. The poisonous
contents of the leaf of dhatura, were not satisfactorily established by
the prosecution. This Court exonerated the accused of the charge
under Section 302 IPC. However, on a finding that stramonium and
dhatura leaves are poisonous and in no system of medicine, except
perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea
worm, the act of the accused who prescribed poisonous material
without studying their probable effect was held to be a rash and
negligent act. It would be seen that the profession of a Homoeopath
which the accused claimed to profess did not permit use of the
substance administered to the patient. The accused had no knowledge
of the effect of such substance being administered and yet he did so.
In this background, the inference of the accused being guilty of rash
and negligent act was drawn against him. In our opinion, the principle
which emerges is that a doctor who administers a medicine known to
or used in a particular branch of medical profession impliedly declares
that he has knowledge of that branch of science and if he does not, in
fact, possess that knowledge, he is prima facie acting with rashness or
negligence.

Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole
and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act,
1855. It does not make a reference to any other decided case. The
duties which a doctor owes to his patients came up for consideration.
The Court held that a person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that purpose. Such a person
when consulted by a patient owes him certain duties, viz., a duty of
care in deciding whether to undertake the case, a duty of care in
deciding what treatment to be given or a duty of care in the
administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient. The practitioner
must bring to his task a reasonable degree of skill and knowledge and
must exercise a reasonable degree of care. Neither the very highest
nor a very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires. The
doctor no doubt has a discretion in choosing treatment which he
proposes to give to the patient and such discretion is relatively ampler
in cases of emergency. In this case, the death of patient was caused
due to shock resulting from reduction of the fracture attempted by
doctor without taking the elementary caution of giving anaesthetic to
the patient. The doctor was held guilty of negligence and liability for
damages in civil law. We hasten to add that criminal negligence or
liability under criminal law was not an issue before the Court as it
did not arise and hence was not considered.

In the year 1996, there are 3 reported decisions available.
Indian Medical Association v. V.P. Shantha and Ors. (1995) 6
SCC 651 is a three-Judge Bench decision. The principal issue which
arose for decision by the Court was whether a medical practitioner
renders 'service' and can be proceeded against for 'deficiency in
service' before a forum under the Consumer Protection Act, 1986. The
Court dealt with how a 'profession' differs from an 'occupation'
especially in the context of performance of duties and hence the
occurrence of negligence. The Court noticed that medical professionals
do not enjoy any immunity from being sued in contract or tort (i.e. in
civil jurisdiction) on the ground of negligence. However, in the
observation made in the context of determining professional liability
as distinguished from occupational liability, the Court has referred to
authorities, in particular, Jackson & Powell and have so stated the
principles, partly quoted from the authorities :-

"In the matter of professional liability professions
differ from occupations for the reason that
professions operate in spheres where success
cannot be achieved in every case and very often
success or failure depends upon factors beyond the
professional man's control. In devising a rational
approach to professional liability which must
provide proper protection to the consumer while
allowing for the factors mentioned above, the
approach of the Courts is to require that
professional men should possess a certain
minimum degree of competence and that they
should exercise reasonable care in the discharge of
their duties. In general, a professional man owes
to his client a duty in tort as well as in contract to
exercise reasonable care in giving advice or
performing services. (See : Jackson & Powell on
Professional Negligence, 3rd Edn., paras 1-04, 1-05,
and 1-56)."



In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC
332 a doctor registered as medical practitioner and entitled to practice
in Homoeopathy only, prescribed an allopathic medicine to the patient.
The patient died. The doctor was held to be negligent and liable to
compensate the wife of the deceased for the death of her husband on
the ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the field of
any other system of medicine and since he trespassed into a
prohibited field and prescribed the allopathic medicine to the patient
causing the death, his conduct amounted to negligence per se
actionable in civil law. Dr. Laxman Balkrishna Joshi's case (supra)
was followed. Vide para 16, the test for determining whether there
was negligence on the part of a medical practitioner as laid down in
Bolam's case (supra) was cited and approved.

In Achutrao Haribhau Khodwa and Ors. v. State of
Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in
the very nature of medical profession, skills differs from doctor to
doctor and more than one alternative course of treatment are
available, all admissible. Negligence cannot be attributed to a doctor
so long as he is performing his duties to the best of his ability and with
due care and caution. Merely because the doctor chooses one course
of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the
medical profession. It was a case where a mop was left inside the lady
patient's abdomen during an operation. Peritonitis developed which
led to a second surgery being performed on her, but she could not
survive. Liability for negligence was fastened on the surgeon because
no valid explanation was forthcoming for the mop having been left
inside the abdomen of the lady. The doctrine of res ipsa loquitur was
held applicable 'in a case like this'.

M/s Spring Meadows Hospital and Anr. v. Harjol
Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is
again a case of liability for negligence by a medical professional in civil
law. It was held that an error of judgment is not necessarily
negligence. The Court referred to the decision in Whitehouse &
Jorden, [1981] 1 ALL ER 267, and cited with approval the following
statement of law contained in the opinion of Lord Fraser determining
when an error of judgment can be termed as negligence:-

"The true position is that an error of
judgment may, or may not, be negligent, it
depends on the nature of the error. If it is
one that would not have been made by a
reasonably competent professional man
professing to have the standard and type of
skill that the defendant holds himself out as
having, and acting with ordinary care, then it
is negligence. If, on the other hand, it is an
error that such a man, acting with ordinary
care, might have made, then it is not
negligence."


In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC
182 also Bolam's test has been approved. This case too refers to
liability for compensation under civil law for failure of sterilisation
operation performed by a surgeon. We are not dealing with that
situation in the case before us and, therefore, leave it to be dealt
within an appropriate case.

Before we embark upon summing up our conclusions on the
several issues of law which we have dealt with hereinabove, we are
inclined to quote some of the conclusions arrived at by the learned
authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at
the end of the book in the chapter titled  'Conclusion') highlighting
the link between moral fault, blame and justice in reference to medical
profession and negligence. These are of significance and relevant to
the issues before us. Hence we quote :-

(i) The social efficacy of blame and related sanctions in particular
cases of deliberate wrongdoings may be a matter of dispute, but
their necessity  in principle  from a moral point of view, has
been accepted. Distasteful as punishment may be, the social,
and possibly moral, need to punish people for wrongdoing,
occasionally in a severe fashion, cannot be escaped. A society
in which blame is overemphasized may become paralysed. This
is not only because such a society will inevitably be backward-
looking, but also because fear of blame inhibits the uncluttered
exercise of judgment in relations between persons. If we are
constantly concerned about whether our actions will be the
subject of complaint, and that such complaint is likely to lead to
legal action or disciplinary proceedings, a relationship of
suspicious formality between persons is inevitable. (ibid, pp.
242-243)

(ii) Culpability may attach to the consequence of an error in
circumstances where substandard antecedent conduct has been
deliberate, and has contributed to the generation of the error or
to its outcome. In case of errors, the only failure is a failure
defined in terms of the normative standard of what should have
been done. There is a tendency to confuse the reasonable
person with the error-free person. While nobody can avoid
errors on the basis of simply choosing not to make them, people
can choose not to commit violations. A violation is culpable.
(ibid, p. 245).

(iii) Before the court faced with deciding the cases of professional
negligence there are two sets of interests which are at stake :
the interests of the plaintiff and the interests of the defendant.
A correct balance of these two sets of interests should ensure
that tort liability is restricted to those cases where there is a
real failure to behave as a reasonably competent practitioner
would have behaved. An inappropriate raising of the standard of
care threatens this balance. (ibid, p.246). A consequence of
encouraging litigation for loss is to persuade the public that all
loss encountered in a medical context is the result of the failure
of somebody in the system to provide the level of care to which
the patient is entitled. The effect of this on the doctor-patient
relationship is distorting and will not be to the benefit of the
patient in the long run. It is also unjustified to impose on those
engaged in medical treatment an undue degree of additional
stress and anxiety in the conduct of their profession. Equally, it
would be wrong to impose such stress and anxiety on any other
person performing a demanding function in society. (ibid,
p.247). While expectations from the professionals must be
realistic and the expected standards attainable, this implies
recognition of the nature of ordinary human error and human
limitations in the performance of complex tasks. (ibid, p. 247).

(iv) Conviction for any substantial criminal offence requires that the
accused person should have acted with a morally blameworthy
state of mind. Recklessness and deliberate wrongdoing, are
morally blameworthy, but any conduct falling short of that
should not be the subject of criminal liability. Common-law
systems have traditionally only made negligence the subject of
criminal sanction when the level of negligence has been high  a
standard traditionally described as gross negligence. In fact,
negligence at that level is likely to be indistinguishable from
recklessness. (ibid, p.248).

(v) Blame is a powerful weapon. Its inappropriate use distorts
tolerant and constructive relations between people.
Distinguishing between (a) accidents which are life's misfortune
for which nobody is morally responsible, (b) wrongs
amounting to culpable conduct and constituting grounds for
compensation, and (c) those (i.e. wrongs) calling for
punishment on account of being gross or of a very high degree
requires and calls for careful, morally sensitive and scientifically
informed analysis; else there would be injustice to the larger
interest of the society. (ibid, p. 248).

Indiscriminate prosecution of medical professionals for criminal
negligence is counter-productive and does no service or good to the
society.

Conclusions summed up
We sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.
Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: 'duty',
'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls
for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply. A case of occupational
negligence is different from one of professional negligence. 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. When it comes to the
failure of taking precautions what has to be seen is whether
those precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the
date of trial. Similarly, 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
particular time (that is, the time of the incident) at which it is
suggested it should have been used.

(3) 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 for judging, whether
the person charged has been negligent or not, would be that of
an ordinary competent person exercising ordinary skill in that
profession. It is not possible for every professional to possess
the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in
Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its
applicability in India.

(5) The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown
to exist. For an act to amount to criminal negligence, the degree
of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form the
basis for prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC, yet it
is settled that in criminal law negligence or recklessness, to be
so held, must be of such a high degree as to be 'gross'. The
expression 'rash or negligent act' as occurring in Section 304A
of the IPC has to be read as qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a nature that the
injury which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in
determining the onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa loquitur
has, if at all, a limited application in trial on a charge of criminal
negligence.

In view of the principles laid down hereinabove and the
preceding discussion, we agree with the principles of law laid down in
Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same.
Ex abundanti cautela, we clarify that what we are affirming are the
legal principles laid down and the law as stated in Dr. Suresh Gupta's
case. We may not be understood as having expressed any opinion on
the question whether on the facts of that case the accused could or
could not have been held guilty of criminal negligence as that question
is not before us. We also approve of the passage from Errors,
Medicine and the Law by Alan Merry and Alexander McCall Smith which
has been cited with approval in Dr. Suresh Gupta's case (noted vide
para 27 of the report).

Guidelines  re: prosecuting medical professionals
As we have noticed hereinabove that the cases of doctors
(surgeons and physicians) being subjected to criminal prosecution are
on an increase. Sometimes such prosecutions are filed by private
complainants and sometimes by police on an FIR being lodged and
cognizance taken. The investigating officer and the private
complainant cannot always be supposed to have knowledge of
medical science so as to determine whether the act of the accused
medical professional amounts to rash or negligent act within the
domain of criminal law under Section 304-A of IPC. The criminal
process once initiated subjects the medical professional to serious
embarrassment and sometimes harassment. He has to seek bail to
escape arrest, which may or may not be granted to him. At the end
he may be exonerated by acquittal or discharge but the loss which he
has suffered in his reputation cannot be compensated by any
standards.

We may not be understood as holding that doctors can never be
prosecuted for an offence of which rashness or negligence is an
essential ingredient. All that we are doing is to emphasize the need
for care and caution in the interest of society; for, the service which
the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions. Many a complainant prefers recourse
to criminal process as a tool for pressurizing the medical professional
for extracting uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain
guidelines need to be framed and issued by the Government of India
and/or the State Governments in consultation with the Medical Council
of India. So long as it is not done, we propose to lay down certain
guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence
is an ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the Court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the
accused doctor. The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or omission, obtain
an independent and competent medical opinion preferably from a
doctor in government service qualified in that branch of medical
practice who can normally be expected to give an impartial and
unbiased opinion applying Bolam's test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may not be
arrested in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigation
officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the
arrest may be withheld.

Case at hand
Reverting back to the facts of the case before us, we are
satisfied that all the averments made in the complaint, even if held to
be proved, do not make out a case of criminal rashness or negligence
on the part of the accused appellant. It is not the case of the
complainant that the accused-appellant was not a doctor qualified to
treat the patient whom he agreed to treat. It is a case of non-
availability of oxygen cylinder either because of the hospital having
failed to keep available a gas cylinder or because of the gas cylinder
being found empty. Then, probably the hospital may be liable in civil
law (or may not be  we express no opinion thereon) but the accused
appellant cannot be proceeded against under Section 304A IPC on the
parameters of Bolam's test.
Result

The appeals are allowed. The prosecution of the accused
appellant under Section 304A/34 IPC is quashed.

All the interlocutory applications be treated as disposed of.

AlPG 2nd Councelling SC WP(Civil) No.157/2005 2005 08 02

ITEM NO.2 COURT NO.2 SECTION X


S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS


WRIT PETITION (CIVIL) NO.157 OF 2005


AMIT GUPTA & ORS. Petitioner(s)


VERSUS


U.O.I. & ANR. Respondent(s)


(With appln(s) for stay and impleadment as party respondent)

[For Final Disposal]


Date: 02/08/2005 This Petition was called on for hearing today.


CORAM :

HON'BLE MR. JUSTICE Y.K. SABHARWAL

HON'BLE MR. JUSTICE B.N. SRIKRISHNA






UPON hearing counsel the Court made the following

O R D E R


Let the Medical Council of India and the Ministry of Health, Government of India, examine the suggestion about providing from the next academic year second counselling for admission to Post-graduate courses as also re-examine the schedule of dates and file their suggestions within six weeks.

Application for impleadment is dismissed.

List the petition after six weeks.