LM 1 PROJECT.docx

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

LEGAL METHODS

PT.PARMANAND KATARA

V.

UNION OF INDIA

(1989) 4 SCC 286

(A CASE REVIEW)

Submitted By: Annie Jain (1962)

Ist Year, Ist Trimester ,B.A. LL.B. (Hons.)

Date of Submission : September 25, 2012.

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY


TABLE OF CONTENTS

Index of Authorities...................................................................................................................3

Table Of Cases.......................................................................................................................3

Table Of Statutes....................................................................................................................3

Introduction................................................................................................................................4

Research Methodology...............................................................................................................6

Section I:Case Summary............................................................................................................8

Holding Or The Ratio Decidendi :.........................................................................................8

Facts In Brief..........................................................................................................................8

Arguments..............................................................................................................................8

Judgement..............................................................................................................................9

Section II:Post Judgement........................................................................................................13

Developments that took place post judgement :..................................................................13

Future Application Of The Judgement In Other Cases.......................................................14

Section III:Case Analysis.........................................................................................................16

From The Angle Of Judicial Activism : Scope of the Judgement.......................................16

Section IV: Practical Implementation Of The Judgement.......................................................22

Conclusion................................................................................................................................25

Bibliography.............................................................................................................................27



INDEX OF AUTHORITIES

TABLE OF CASES

TABLE OF STATUTES


NAME OF CASE CITATION

1). Pt.Parmanand Katara v. Union of India (UOI) and Ors. (1989) 4 SCC 286

2). Paschim Banga Khet Mazdoor Samiti and others v. State of AIR 1996 SC 2426

West Bengal and Another

3). Consumer Education and Research center and others v.Union

Of India and others AIR1995 SC 922

4). Mr 'X' v .Hospital 'Z' AIR 1999 SC 495

5). Bandhua Mukti Morcha v. Union of India & Others (1984) 3SCC 161

6). State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117

NAME OF SATUTE YEAR

1). THE CONSTITUTION OF INDIA 1950

2). MOTOR VEHICLES ACT 1888

3). INDIAN PENAL CODE 1860

4). CODE OF MEDICAL ETHICS (Laid down by the

Medical Council of INDIA)


INTRODUCTION

“It is my life. I am owner of my life. Who is the government to decide and force me to

go to a designated government hospital in case of an accident?”

Pandit Parmanand Katara

The decision rendered by the Supreme Court in Pt. Parmanand Katara v.

Respondent: Union of India (UOI) and Ors.1 is important in Indian

jurisprudence for both its unique solution and its application in subsequent cases. In this case

the Supreme Court has tried to achieve an equivalence between the civil rights and its

economic and social counterpart through the application of an expansive definition of the

right to life. Here “Right to Health” was the guarantee which was to benefit from this

approach. This case rendered a landmark judgement which laid down guidelines as to what

attitude and obligation ought to be adopted by medical practitioners in emergency medical

situations and not turn down the case on account of financial constraints or fulfilment of other

legal formalities. The Court ruled that every doctor whether at a government hospital or

otherwise has the professional obligation to extend his services with due expertise for

protecting life.

The Supreme Court went on to adopt an approach of harmonisation of Fundamental Right

enshrined in Article 21 and Directive Principles of State Policy in Article 47.The Court in this

prominent decision relied on various medical sources to conclude that the refusal of

immediate medical attention to a patient in need amounted to the violation of universally

accepted notions of medical ethics and “protection of life and liberty” guaranteed under

Article 21 and hence created a right to emergency medical treatment.2

In a country with a population of 1.3 billion where every two minutes a road accident takes

place and every five minutes a suicide or a case of infant mortality occurs, the vital question

which arises is whether our medical system equipped to handle emergencies?3 Hence a

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



Codified law to compel hospitals and medical practitioners to attend on victims of accidents

those in emergency medical condition and women under labour is one of urgent necessity.

In the Research Paper, the Researcher has first traced the case summary and the judgements

rendered by the Court in this case. Then the Researcher goes on to analysing the

developments that took place post judgement and how the judgement was interpreted in the

subsequent cases and if there was an exercise of judicial activism played by the Court in

rendering its judgement. Thereafter the Researcher examines the genesis of the state’s

commitment to provide for the health of the paper, but argues that in that original

commitment laid numerous contradictions and fractures that help to explain the state’s

relative ineffectiveness in implementing what that was ruled by the Court.



RESEARCH METHODOLOGY

Aims and Objectives

This project aims to analyse the judgement in Parmanand Katara v. Union of India, the basis

for principles enunciated in this case for elucidating the importance of Right to Health to all

citizens as well as the role of judicial activism and its application in subsequent cases.

Scope and Limitations

The scope of the project extends to analysing the appropriateness of the judgement, its

practical implementation in future and if the judiciary exercised any kind of judicial activism

in rendering its judgement.

Because of the numerous pertinent cases available, the Researcher has limited her study to

several representative cases, which help highlight the relevant issues.

Research Questions

1. How and why is the case’s judgement justified?

2. Was there a prominent role of judicial activism by the Court?

3. What are the developments that took place in the field of medico-legal cases post

judgement?

4. Has the Court’s ruling been efficient enough in the practical implementation of the

Ruling?

Sections

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

2. Section II talks about the judgement’s application in future case and the development

in various regulations post judgement.

3. Section III analyses the efficiency of the judgement in the light of judicial activism.

4. Section IV sees to the effectiveness of the judgements in practical terms.

Sources

Books, articles websites, cases and statutes have been used.



Writing Style

An analytical and descriptive style of writing has been adopted.

Mode of Citation

A uniform mode of citation has been used.



SECTION I:CASE SUMMARY

Pt. Parmanand Katara v. Respondent: Union of India (UOI) and Ors. came for

consideration before a Division bench of the Supreme Court comprising Justices G.L Oza and

Ranganath Mishra.

HOLDING OR THE RATIO DECIDENDI :

This case is a landmark case where duties and responsibilities of a doctor has been discussed

at length especially as to how every doctor whether at a Government hospital or otherwise

being in the medical profession should uphold the professional dedication and responsibility

to extend his service for protecting human life. The case holds that the doctor does not

infringe any law of land by proceeding to take up any medico legal case and treat the injured

victim on his appearance before him either by himself or being carried by others.4And also

the courts will not summon a medical professional attending to such a medico legal case to

provide evidence unless the same is important to the case and even if he is summoned, the

men in the profession should not be harassed, made to wait and waste time unnecessarily.

FACTS IN BRIEF

In Pt. Parmanand Katara Vs. Respondent: Union of India (UOI) and

Ors. the petitioner who is a human rights activist filed this writ petition in public interest on

the basis on a newspaper report titled “Law helps the injured to die” concerning the death of a

scooterist who was knocked down by a speeding car further stating that seeing the profusely

bleeding scooterist, a person on the road took the injured to nearest hospital, where the

doctors refused to attend on him and told that he be taken to another hospital located some 20

kilometres away which was authorized to handle medico-legal cases and meanwhile the

victim succumbed to his injuries.5

ARGUMENTS

It was contended by the Union of India that the prevailing police rules and Criminal

Procedure Code necessitated the fulfilment of several legal formalities before a victim could

4 Parmanand, (1989) 4SCC 286.5 Parmanand, (1989) 4SCC 286.



be rendered medical aid. The rationale behind this complicated procedure was to keep all

evidence intact. And in case the formalities were not observed, the doctors were harassed by

the police and were therefore unwilling to accept medico-legal cases. There were three issues

before the Supreme Court:

Firstly, whether there are any legal impediments that hindered timely treatment in medico-

legal cases;

Secondly, what is the nature of the duty of the Government, the Government hospital and the

police in medico – legal case; and

Thirdly, whether private hospitals could refuse to treat medico-legal cases?

The petitioner, Parmanand Katara, prayed the directions be issued to the Union of India that

that every injured citizen brought for treatment should be instantly treated by the doctor, that

is,he should be given immediate medical aid in order to bring the patient out of risk zone at

the earliest with a view to preserving life and thereafter the procedural criminal law should be

allowed to operate in order to avoid negligent death and in situation of breach of such

directions, apart from any action that may be taken for negligence, appropriate compensation

should also be admissible.

JUDGEMENT

Disposing of the Writ petition the Court held that Article 216 of the Constitution casts the

obligation on the state to preserve life. There can be no second opinion that preservation of

human life is of paramount importance, this is on account of the fact that once life is lost, the

status quo ante cannot be restored as resurrection is beyond the capacity of man.It is the

obligation of the medical practitioners whether at a Government hospital or otherwise to

attend to the sick and injure immediately and to make immediate and timely medical care

available to every injured person whether he is injured in an accident or otherwise. It was

submitted that the formalities under the Criminal Procedure Code or any other State laws

should not stand in the way of the medical practitioners attending an injured

person.7Considering the life of a person to be superior to other legal formalities, the deponent

feels that it is in the interest of general human life and welfare that the Government should

immediately make provisions in law and amendments in the existing laws,if required, so that

6 Art. 21, THE CONSTITUTION OF INDIA, 1950.7 Per Ranganath Misra J., Parmanand, (1989) 4SCC 286.



immediate medical relief and care to the injured persons and/or serious patients are available

without delay or without waiting for the legal formalities to be completed.The Medical

Council of India urged that Government Doctors as well as other doctors in private hospitals

or public hospitals attending medico-legal cases should be indemnified under law from any

action by the Government/police authorities/any person for not waiting for legal formalities

before giving relief to the injured upholding his professional duty, for which he has taken

oath as medical practitioner, superior to the various legal formalities involved. Criminal

procedure should be amended so that injured persons may be treated immediately without

waiting for a police report or completion of police formalities. The Indian Evidence Act

should also be amended so that the diary maintained by doctors in the regular course of their

work is admissible as evidence for the purposes of the medico-legal cases in place of their

presence during trial to prove the same..Also zonal regulations and classifications cannot also

operate as fetters in the process of discharge of the obligation.The Court gave directions for

giving adequate publicity to the decision in this case by the national media, the Doordarshan

and the All India Radio, as well as through the High Courts and the Sessions Judges.8There is

no legal impediment for a medical professional when he is called upon or requested to attend

to an injured person needing his medical assistance immediately.9There is also no doubt that

the effort to save the person should be the top priority not only of the medical professional

but even of the police or any other citizen who happens to be connected with the matter or

who happens to notice such an incident or a situation.The members of the legal profession,

our law courts and everyone concerned will also keep in mind that a man in the medical

profession should not be unnecessarily harassed for purpose of interrogation or for any other

formality and should not be dragged during investigations at the police station and it should

be avoided as far as possible.Law courts will not summon a medical professional to give

evidence unless the evidence is necessary and even if he is summoned, attempt should be

made to see that the men in this profession are not made to wait and waste time

unnecessarily.Also whenever on such situations the medical practitioner finds that his

assistance is not enough to save the life of the person but some alternative better assistance is

necessary, it becomes the obligation of the man in the medical profession so approached to

render all the help which he could and also see that the person reaches the proper expert as

early as possible.10

8Per Ranganath Misra J., Parmanand, (1989) 4SCC 286.9Parmanand,(1989) 4SCC 28610 Per G.L.Oza, J., (1989) 4SCC 286.



SECTION II:POST JUDGEMENT

DEVELOPMENTS THAT TOOK PLACE POST JUDGEMENT :

Following the Supreme Court Judgement in 1989 in Parmanand case, the Motor Vehicles

Act 1988 was amended in 1994, to make it obligatory on both the driver/owner of the vehicle

to take the accident victim to the nearest doctor, every registered medical practitioner or

doctor on duty to instantly treat the victim without waiting for any kind of legal formalities to

be fulfilled prior to this utmost obligation.11

Also the Law Commission observing the prevailing conditions that when the injured victims

are not taken to medical practitioners in emergency situations, they are not only turned down

on the ground of the case being a medico legal case but are also sent to the Government

Hospital because they are not in a position to pay immediately or they do not have any

insurance or are not a part of a scheme which entitles them to some kind of medical

reimbursement. The Law Commission therefore took up the subject suo moto in view of the

observations in the Parmanand case and the fact that there is no appropriate legislation on the

subject, and has provided in its 201 Law Commission Report that no hospital shall refuse to

provide emergency medical care to victims of accident on any of the above grounds and if

they refuse, that will amount to an offence.12Also according to the report hospitals have to

initially screen the persons to decide if the patients require emergency treatment, and if not

the further provisions of the EMTALA Act13 will not apply. It laid down what all safeguards

need to be taken while making the transfer to another hospital in case the required facilities

are not available for emergency medical treatment in a certain hospital , in the Bill annexed to

the Report. The report also provided that the States must publish a scheme for reimbursement

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



of expenditures incurred by hospitals and medical practitioners. For this the States must

allocate separate funds for this purpose. The duty of the States in this behalf, according to

then Law Commissioner, can be traced to Article 2114 as well as the Directive Principles of

State Policy enunciated in the Constitution of India. The Law commission prepared the

Report annexing a Model Bill to be enacted by the States, as “hospitals” fall within the ambit

of State List, Seventh schedule and it will be for the State legislatures to enact law. It

emphasized on the urgency of law in this field and said that the huge gap in the law in this

behalf will be legislatively plugged.15

Again recently,as a prelude to ensuring ‘the right to emergency care,' the Union Cabinet

recently approved the Clinical Establishments (Registration and Regulation) Bill, 2010; the

hope is it will be placed before Parliament soon. The Bill makes it mandatory for all clinical

establishments in the country to provide treatment to any person in an emergency condition.

When the Bill becomes law, it will be the first piece of legislation to make it obligatory for

the clinical establishments to provide emergency treatment to the needy.16

FUTURE APPLICATION OF THE JUDGEMENT IN OTHER CASES

The judgement in Pt. Parmanand Katara v Respondent: Union of India

(UOI) and Ors. has been used as precedents in many subsequent cases which came

before the Courts. Illustrative of such cases are Paschim Banga Khet Mazdoor Samiti v State

of West Bengal where the Apex Court went beyond Parmanand Katara and held that the

Constitution envisages the establishment of a welfare State at the federal level as well as the

State level. In a welfare State the basic duty of the Government is to secure the welfare of the

people which it does by providing adequate medical facilities to its people. The Court

observed that Article 2117 imposes an obligation on the State to safeguard the right to life of

every person. Preservation of human life is thus of paramount importance.The Government

hospitals run by State and the medical officers employed therein are duty bound to extend

medical assistance for preserving human life.Failure on the part of the Government hospital

to provide timely medical treatment to a person in need of such treatment results in violation

14 Art. 21, THE CONSTITUTION OF INDIA, 195015 201st Law Commission Report, 4.

16S.Viswanathan, HEALTH CARE WOES: NEED FOR DOCTORS, FUNDS, THE HINDU (April 18, 2010) available at

http://www.thehindu.com/opinion/Readers-Editor/article402046.ece(Last visited on 16, 2012).17 Art. 21, THE CONSTITUTION OF INDIA, 1950



of his right to life guaranteed under Article 21.18 In the present case there was a breach of the

said right, guaranteed under Article 2119 when Hakim Seikh was denied treatment at the

Government hospitals which were approached, even though his condition was very serious at

that time and was in need of immediate medical attention.In respect of deprivation of the

constitutional rights guaranteed under Pat III of the Constitution, the position is well settled

that adequate compensation can be awarded by the Court in case of such violation by way of

redress in proceedings under Article 32 and 226.

Again the Supreme Court in Consumer Education and Research Centre v. Union of India has

given much importance to the health of workers and observed that right to life includes right

to health. It said that right to health and medical care must be held as fundamental right.20

In Mr X v Hospital Z, the court again upheld the right to health over the right to privacy.21

Hence what the researcher observes that the Court has always upheld the spirit of judgement

as given in the Parmanand case and mostly using it as a precedent with a wider interpretation

of the judgement often leaving a scope for adding “Right to Health” as an express right under

the chapter on Fundamental Rights.

18 Paschim Banga Khet Mazdoor Samiti and Others v. State of West Bengal and another, AIR 1996 SC 2426 (Supreme Court of India).Hereinafter [“Paschim Banga”].19 Art. 21, THE CONSTITUTION OF INDIA, 1950.20 Consumer Education and Research center and others v.Union of India and others, AIR1995 SC 922 (Supreme Court of India).21 Mr 'X' v .Hospital 'Z, AIR 1999 SC 495 (Supreme Court of India).



SECTION III:CASE ANALYSIS

The World Report on Road Traffic Injury Prevention released by the World Health

Organization on World Health Day(7th April, 2004) has highlighted that nearly 12 lakh people

are known to die each year in road accidents globally.22There is an urgent need for the

interventions required at various stages relating to post crash care. On one hand relative

ignorance on part of the public to come forward to help the roads crash victims, for apparent

fear that they might be involved in police cases which is like a deterrence in building

confidence in public for helping road accident victims, and on the other hand research shows

that a number of the accident victims can be saved if they receive immediate medical

attention. Hence in the light of these given present situations in the real world, the researcher

whole heartedly agrees with the spirit of the judgement, and appreciates the Court’s decision

in Parmanand case and also the application of the judgement in future case, that human life is

of supreme importance and hence the patient whether he be an innocent person or be a

criminal liable to punishment under the laws of the society, it is the obligation of those who

are in charge of the health of the community to treat emergency cases in order to preserve life

so that the innocent may be protected and the guilty may be punished.

FROM THE ANGLE OF JUDICIAL ACTIVISM : SCOPE OF THE JUDGEMENT

Judicial Activism is defined as “A philosophy of judicial decision-making whereby judges

allow their personal views about public policy among other factors to guide their decision”.23

It involves that kind of judicial creativity whereby the judges not only create something new

but also fill in the gaps by examining and interpreting the law in a novel way and sometimes

in the process tend to enter the domain of the legislators which is often criticized.

In Pt. Parmanand Katara Vs. Respondent: Union of India (UOI) and

Ors. the Supreme Court provides scope or it can be said that it makes space for a wider

interpretation of Article 2124 of Indian Constitution which says “No person shall be deprived

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



of his life or personal liberty except according to procedure established by law”25.The court

seemingly assumed an activist posture and came forward to the rescue of aggrieved citizens

by interpreting the constitutional provision in its wider possible meaning to protect basic civil

liberties and enhance the practical implementation of the Right to life and personal liberty,

more so in the context of Article 25626 which provides that the executive power of every

state(in this case those in medical profession acting as government servants) shall be so

exercised so as to ensure compliance with the laws made by Parliament and any existing laws

which apply in the State.The Supreme Court laid down exhaustive guidelines as seen in the

judgement section in the paper. Thus the court converted what seemed a non-justiciable issue

into a justiciable one by invoking the wide sweep of the enforceable article 21.27

The broader interpretation of the guidelines laid down in the judgement can be seen as a

pathway to the enforcement of an altogether new right namely “Right to Health” seeing the

critical situations faced in medico-legal cases.The Right to Health has been perhaps the least

difficult area for the court in terms of justiciability, but not in terms of enforceability.

However in terms of judicial decisions the court has always recognized the right to health as

being an integral part of the right to life.28 Article 47 of Directive Principles of State Policy

provides for the duty of the state to improve public health. Hence Right to instant medical

aid: ALL DOCTORS INCLUDING PRIVATE DOCTORS OBLIGED TO RENDER IMMEDIATE

MEDICAL AID IN INJURY CASES which has been seen as forming a part of article 21 itself

finds a corresponding expression in the Directive Principles of State Policy in Article 47

which makes improvement of public health a primary duty of the State. Public health can be

improved by making available the best of doctors, specialists and super specialists.29

The court in this case has interpreted Article 21 as casting an obligation on the State to

preserve life emphasizing that every doctor whether at a Government hospital or otherwise

has the professional obligation to extend his services with due expertise for protecting life.

Entering the domain of legislation, rendering a wider interpretation of the existing statute, the

judgement said that no law or State action can intervene to obtain avoid/delay the discharge

of the utmost obligation imposed upon them and this obligation being total, absolute and

25 Art. 21, THE CONSTITUTION OF INDIA, 1950.26 Art.256, THE CONSTITUTION OF INDIA, 1950.27 Art. 21, THE CONSTITUTION OF INDIA, 195028 Right To Health (2007) available at http://www.civilserviceindia.com/subject/Law/notes/fundamental-right-health.html (Last visited on September 9, 2012).29 Art. 47, THE CONSTITUTION OF INDIA, 1950.



paramount, laws of procedure whether in statutes or otherwise which would interfere with the

discharge of this obligation cannot be sustained and must hence give way. The court held this

matter as quite urgent and important assuring the doctor of the position that he does not

contravene the law of the land by proceeding to treat the injured victim on his appearance

before him either by himself or being carried by others.30Hence this case is important because

in one sense it acts as a reminder to the doctors of their Hippocratic oath implying that the life

of a person is more important than other formalities. However some doctors may be

indifferent towards obeying this Hippocratic oath considering it not to be legally binding on

them because it is only a moral obligation. They should be made aware of the fact that that

modified version of Hippocratic oath is now part of the Indian Medical Council(Professional

Conduct, Ethics and Etiquettes) Regulations-2002, and is now binding and have force of

law.31

Nowadays health care has become more of a money-making scheme as is mentioned in

Bernard Shaw’s play “The Doctor’s Dilemma”. The medical profession being a noble

profession should not be brought down to the level of a simple business or commerce. Since

most of the people in India are poor the consequence is that for most of them proper medical

treatment is next to impossible and they are bound to rely on quacks,which comes as a

disgrace to the noble profession.32

Hence in the light of this judgement, judicial activism can prove to be a boon to the victims

of arbitrary, illegal and unconstitutional actions of state as well as of public servants, the

doctors in this case. Right to life and personal liberty has been given a wider and an elaborate

meaning to include all the essential rights for human life with dignity and those rights are

easily made available through the channels of an activist judiciary. No doubt, the right to

health under Article 2133 is not an expressed right but can only be implied, but nevertheless, it

cannot be diminished. In the Bandhua Mukti Morcha case34, the Apex Court has stated that

right to life does not mean a right to a mere vegetable existence but a right to a dignified

life.The Right to Health, according to the researcher was elevated to the status of fundamental

rights which could not be taken, defeated or abridged by statutes or other legal formalities.

Hence the main means through which the Supreme Court has achieved equilibrium between

30 Parmanand , AIR 1989 4SCC 28631 .The Indian Medical Council (Professional Conduct, Ethics and Etiquettes) Regulations-2002.32 Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE MANGEMENT,531(5th edn.,2010).33 Art. 21, THE CONSTITUTION OF INDIA, 195034Bandhua Mukti Morcha v. Union Of India & Others,(1984) 3SCC 161.



civil rights and their economic and social counterpart has been through the application of an

expansive definition of the right to life, and unsurprisingly as seen in this case, Right to

Health was one of the guarantees to first benefit from this approach.35

Even in the later judgement in 1996 in Paschim Banga Khet Majdoor Samity v. State of West

Bengal 36upholding the judgement in Parmanand case the Supreme Court did not stop

declaring the Right to Health to be a fundamental right and enforcing the right of the labourer

by asking the Government of West Bengal to pay him compensation for the loss suffered,

directing the government to prepare a blue print for primary health care with particular

reference to treatment of patients during an emergency.37 The Supreme Court used the Right

to Life to secure the Right to Emergency Medical Care, concluding that such an essential

obligation could not be avoided by pleading financial constraints.38The court, in holding that

there had been a violation of Right to Life under Article 21, and awarding compensation,

stated that the right to emergency medical care formed a core component of the Right to

Health which in turn was recognized as forming an integral part of the Right to Life. It did

this by reconceptualising the right to life as imposing a positive obligation on the state to

safeguard and protect the life of every person, stating that “preservation of human life was of

utmost importance” and that:“The Constitution envisages the establishment of a welfare state

… Providing adequate medical facilities for the people is an essential part of the obligations

undertaken by the government in this respect [and it] discharges this obligation by running

hospitals and health centres.”39 In line with its general approach of frequently offering

comprehensive remedies that go beyond merely providing redress for the victim, but also

laying down the necessary policy and administrative steps to be taken by the state in the

wider public interest, the judicial activism playing its role, the court not only ordered

compensation , but also directed the type of facilities that the state government had to provide

which included hospitals and emergency provisions(ambulances and communication) by

formulating a blueprint for primary healthcare with particular reference to treatment of

patients under an emergency as part of the state’s public health obligation under Article 47.40

35 Iain Byrne, Enforcing the Right to Health: Innovative Lessons available at http://www.swisshumanrightsbook.com/SHRB/shrb_03_files/37_453_Byrne.pdf (Last visited on September 9, 2012).36 Paschim Banga, AIR 1996 SC 426.37 Supra note 4.38 The petitioner had been taken to a succession of eight state medical institutions ranging from a local health centre to two medical colleges and was refused treatment at each, either due to lack of beds or lack of technical capacity. Eventually he was admitted to a private hospital where he had to pay for treatment.39 Paschim Banga, (1996) AIR SC 2426 at 2429.40 Paschim Banga, (1996) AIR SC 2426.



However this judicial activism by the court faced certain criticisms as well. In State of Punjab

v. Ram Lubhaya Bagga, the court stated no State or country can have unlimited resources to

spend on its projects and the same goes for providing medical facilities to its citizens

including its employees. Provision of facilities has to be to the extent finances permit.If no

scale or rate is fixed then in case private clinics or hospitals increase their rate to exhorbitant

scales, the State would be bound to reimburse the same.The principle of fixation of rate and

scale is justified and cannot be held to be violative of Article 21 or Article 47 of the

Constitution.41 Hence the cons of this judgement is the twisted interpretation of the Supreme

Court’s judgement in Parmanand Katara case in the sense that a fundamental right is one

which is enforceable against the state and not against a person. Hence right to health being

enshrined in the wider interpretation of the fundamental right: Right to Life, it imposes a duty

on the State rather to make available emergency services to the victims in road accidents and

even in other emergencies. In case of an accident taking place and if there happens to be a

doctor nearby, no duty is cast on him to provide immediate medical aid just because health is

a fundamental right. It should instead be the duty of the State that if it fails to make available

immediate and fail-safe arrangements for providing medical aid to citizens in emergent

situations through its own mechanisms and resources and if it wants to enumerate the services

of private practitioners/hospitals for this purpose, they should arrive at agreements with them

ensuring that the required payment for the services rendered is made. No such agreements

exist with private solo practitioners who spend their hard earned money to start practicing and

have to pay commercial rates for water, telephone and electricity etc. And also for the

purpose of income tax, they are tagged together as those having their own business. In the

given conditions, the private practitioners having solo practices hence cannot be treated as

bonded labour by the government who can be asked to do their bidding without any right to

adequate remuneration. The confusion can also be said to have arisen due to the carelessly

worded affidavits submitted by the MCI and the IMA. The Council/Association is of the view

that though doctors are not bound to treat every case, all doctors should always be up and

ready for providing life saving treatment in emergency situations to the patients who come at

their door, not waiting for various formalities, including the modality of payments to have

been done with. Hence it can be seen in the light of the situation where the public, physicians

and even the lawyers have fallen into the habit of interpreting the Katara judgement as if the

Court has mandated that doctors are legally bound to provide free emergency treatment to

whosoever happens to come to them or be brought to them even though it should be

41 State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117 (Supreme Court of India). para. 29, p.130



prerogative of private healthcare providers,who practice the medical profession in order to

earn their living in a situation where cost of living is rising and the cost of treatment is

prohibitive.



SECTION IV: PRACTICAL IMPLEMENTATION OF THE JUDGEMENT

Even after twenty years of the landmark and monumental judgement, Padmanand Katara is

still bitter about the missed opportunity that the aeon making judgement provided the country

with. The implementation of the judgement in real terms is still lagging behind in the sense

that the medical fraternity and the government both failed in their duties to implement the

judgement.

“Twenty years hence, road traffic accident victims are still refused admission in private

hospitals.The protectors of the law, the police, themselves are the biggest hindrance to the

implementation in spirit of the judgement.An average policeman in India still forces the

accident victim to a government hospital” is the agony that stares Katara in the face.42

In absolute terms RTA43 and fatalities have been increasing despite a lot of efforts made by

the central and state ministries and other organizations. As against 94000 lives in

2005,105749 lives have been lost in 2006.44 A very recent case that can be cited is that of the

much talked about Investigative journalist Jyotirmoy Dey who was shot at in Poway around

2.45pm on Saturday was still breathing when he was taken to Powai Polyclinic at 2.55pm.

The hospital refused to treat him saying they were ill-equipped to handle such an

emergency.Dey was then taken to Dr LH Hiranandani hospital where he was declared dead

on arrival at 3.05pm. Had Powai Polyclinic treated Dey immediately, he could have stood a

chance.45

The Medical Council of India had long before the Parmanand Katara case got the Code of

Medical Ethics approved on 23rd Oct., 1970,which contains two explicit clauses namely

clause 10 and 13,the former talking about the “obligations to the sick” and the latter stating

that “the patient must not be neglected”,but still the news item which was the starting point of 42 EMS INDIA edit team, Pt. Parmanand Katara - The Man & His Work(2003) available at http://www.emsindia.in/uploaddir/magzine/article/Article_14108-A-03-ParmandKatara.pdf (Last visited on September 9, 2012).43 Road Traffic Accidents.44 Supra note 24.45 Rosy Sequeira, Could journalist J Dey have been saved? DNA (Mumbai edn., June 14, 2011) available at http://www.dnaindia.com/mumbai/report_could-journalist-j-dey-have-been-saved_1554755(Last visited on September 9, 2012).



this petition is of 1988.Judge G.L.Oza hence said “This only reveals an unfortunate state of

affairs where the decisions are taken at the higher intentioned for public good but

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

attractive to quote.”46

Hence not much has been achieved as yet. Despite the clear cut directions of the Government,

the Government departments and even the media act in a very passive and non concerted

manner to publicize the 1989 verdict and its implications which have left the general public

even today unaware of the law of land and wait and watch, helplessly due to fear of the

police, the injured die on the road.Urged by the Government inaction and the increasing

numbers of RTA,Parmanand Katara again filed another PIL asking for SC’s intervention in

order to force the government to give ample to its own judgement. The court reacted in a

touching manner, that brings tears in the eyes of this human rights activist, “You have done a

wonderful job for the good of the society, but let some other person come before us to take

your work forward.” which depicts the insensitivity of the Court towards the matter.47

One major issue, as of today is that there are no laws pertaining to critical care.48 The

guidelines which are followed are based on previous cases which makes dealing with the

cases even more challenging.With the increase in consumer awareness, the common scene is

the misuse of power by the patients in the name of their rights who threaten to reduce costs of

treatment, especially in cases of death they deny paying the bill as said by Dr.Jauhari,

Chairman, Medico-legal Committee, Sir Ganga Ram Hospital, Delhi.49Another issue is that of

consent in emergency. Lawfully, a doctor can give treatment to any patient incapable of

giving consent as long as the treatment to any patient as long as the treatment is in the best

interest of the patient.In case of emergency, explains Dr Suganthi Iyer, assistant Director,

Hinduja Hospital, all considerations regarding will be set aside and the doctor has to do

whatever he thinks best at the moment to save the patient’s life.Many times it so happens that

if a doctor doesn’t wait and proceeds with conducting a surgery in the best interest of the

patient and if he dies, the relatives often come and argue with the doctor for doing the same.50

46 Per G.L.Oza, J., (1989) 4SCC 286.47EMS INDIA, Supra note 25.48 Critical Care is a branch of medicine where life and death are those surreal lines between which the patient is wavering. Thus medico-legal cases are more significant in critical care than any department since it is the life of a patient which is at stake.49 Sonali Vij, Legally Matters (2010) available at http://www.expresshealthcare.in/201001/criticare01.shtml (Last visited on September 11, 2012).50 Vij, Supra note 31.



Hence, these act as deterrent factors for the doctors to not take up emergency cases and

hinder in the implementation of the judgement in medico-legal cases.

CONCLUSION



After having thoroughly analysed the judgements in the case and the issues pertaining to it

can be concluded that firstly, this case has brought the ‘right to get medical care’ within

the purview of Article 21 of the constitution as a fundamental right as a result of

which, every person in India gets the right to approach any hospital and get

medical aid even when the legal formalities have not been complied with. As a result, the

number of deaths occurring due to refusal of the doctors to treat the patients if it is a case of

an accident or any criminal case will go down. Then it will be justif ied to say that

doctors are the saviour of human life.

Secondly, it can be concluded that there is a need to add Right to Health as an express right

under the Chapter on Fundamental Right. Hence it can be enforceable even, as it is projected

as supplementing the content of Fundamental right Article 21. It should be the paramount

duty of the state to preserve life of all persons and one of the basic means of doing the same

is through providing adequate healthcare facilities without any apprehensions in the mind of

medical practitioners regarding legal hassles coming on their way.Hence the duty cast on the

State under Articles 47 in particular Part IV of the Constitution is to be read as conferring a

corresponding right on the citizens and, therefore the right under Article 21at least must be

read to include the same within the ambit.51What would be then crucial is the will of the State

to implement this constitutional mandate and this agenda of the State can be shaped to

considerable extent by a creative and activist judiciary. Since the Directive Principles of

State Policy contained in Article 47 are not enforceable in a court of law, it may not be

possible to compel the State through the judicial process to make provisions by statutory

enactment or executive fiat for ensuring these basic essentials which go to make up a life of

human dignity but where legislation is already enacted by the State providing these

fundamental requirements to the persons, particularly belonging to the weaker section of the

community and thus investing their right to live with basic human dignity, the State can

certainly be obligated to ensure observance of such legislation, for inaction on the part of the

State in securing implementation of such legislation would amount to denial of protection

under Article 21, more so in the context of Article 256 which provides that the executive

power of every State shall be so exercised as to ensure compliance with laws made by the

Parliament & any existing laws which apply in that State.52

51 University of Minnesota: Human Rights Resource Center,Circle of Rights Economic,Social & Cultural Rights Activism : A Training Resource available at http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm (Last visited on September 11, 2012).52 Supra note 39.



Thirdly, the Researcher has observed that it is indeed a major leap that the Fundamental right

to Health and health care has been recognized by the Supreme Court. Still it has a number of

limitations because fundamental rights are available only against State and not against private

individuals or organizations and also again its enforceability is subject to financial

availability.Time has come for the courts to realize that the right to health and health care is a

positive fundamental right which cannot be contingent on the financial capacity of the State

and which would mandate the State to take up proactive measures. Unregulated

commercialization of the healthcare should be checked for further violation of right to

healthcare.

Fourthly and most importantly from the perspective of the landmark judgement in

Parmanand Katara case and the subsequent cases which used it as precedent to arrive at their

decisions, it can be concluded that Right to Health inclusive of right to instant medical

care(especially in emergency) have been given a high level of importance putting forward a

wider interpretation of Right to Life. Hence judicial enforcement has been seen to have taken

a creative and a generous interpretation of the existing guarantee under Article 21,Article 32

and Article 47.This is to ensure a true meaning to the principles of indivisibility and

interdependence of rights. Hence the researcher supports the spirit of the judgement that

immediate medical aid should be administered to the injured in the emergency and not waste

time in procedural formalities because once life is lost, the legal form (filled up by a police

man) would be a piece of waste paper because the victim would not remain alive to see the

result of it.

Using the Right to Life as the broader framework, the Court rulings would be useful tools for

all those who join hands to pursue a vision ‘Health for All, Now’.

BIBLIOGRAPHY



BOOKS

Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE

MANGEMENT, 531(5th edn., 2010).

BLACK’S LAW DICTIONARY, 850 (Bryan A.Garner ed., 7th edn., 1999).

Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE

MANAGEMENT, 531(5th edn., 2010).

ARTICLES

Sonali Vij, Legally Matters (2010) available at

http://www.expresshealthcare.in/201001/criticare01.shtml (Last visited on September

11, 2012).

EMS INDIA edit team, Pt. Parmanand Katara - The Man & His Work(2003)

available at http://www.emsindia.in/uploaddir/magzine/article/Article_14108-A-03-

ParmandKatara.pdf (Last visited on September 9, 2012).

Iain Byrne, Enforcing the Right to Health: Innovative Lessons available at

http://www.swisshumanrightsbook.com/SHRB/shrb_03_files/37_453_Byrne.pdf

(Last visited on September 9, 2012).

Nayantara Som and Sushmi Dey, Desperately Seeking Timely Care (2007) available

at http://www.expresshealthcare.in/200701/coverstory01.shtml (Last visited on

September 16, 2012).

Right To Health (2007) available at

http://www.civilserviceindia.com/subject/Law/notes/fundamental-right-health.html

(Last visited on September 9, 2012).

University of Minnesota: Human Rights Resource Center, Circle of Rights

Economic,Social & Cultural Rights Activism : A Training Resource available at



http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm (Last visited

on September 11, 2012).

Rosy Sequeira, Could journalist J Dey have been saved? DNA (Mumbai edn., June

14, 2011) available at http://www.dnaindia.com/mumbai/report_could-journalist-j-

dey-have-been-saved_1554755. (Last visited on September 9, 2012).

S.Viswanathan, Health Care Woes: Need for Doctors, Funds, THE HINDU(April 18,

2010) available at

http://www.thehindu.com/opinion/Readers-Editor/article402046.ece(Last visited on

September 16, 2012).

“Right to Health in the Present Perspective with Special Reference to HIV Infected

Persons” available at

http://www.law-essays-uk.com/resources/sample-essays/human-rights/right-to-

health.php (Last visited on September 16, 2012).

REPORTS

201st report of the Law Commission of India, Emergency Medical Care To Victims Of

Accidents And During Emergency Medical Condition and women Under Labour ,4

(2006)

World Health Organization, Road Safety Is No Accident (2004) available at

http://www.who.int/mediacentre/news/releases/2004/pr24/en/index.html (Last visited

on September 11, 2012).

ONLINE SOURCES

http://www.civilserviceindia.com



http://www.dnaindia.com

http://www.emsindia.in

http://www.expresshealthcare.in

http://www.law-essays-uk.com

http://www.thehindu.com

http://www.who.int

http://www1.umn.edu

www.swisshumanrightsbook.com


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