case commentaries

7/28/2019 case commentaries

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CASE NAME: A.S. Mittal & Others v. State Of U.P. & Others

CITATION: 1989 AIR 1570

DECIDED ON: 12/05/1989

BENCH: Misra Rangnath, Venkatachalliah, M.N., JJ

FACTS: Lions Club, Khurja (Uttar Prdesh) with the desire to provide relief and facilities of

ophthalmic surgical services particularly to the persons residing in rural areas, suffering from

eye-troubles, arranged and opened an "Eye Camp" at Khurja after obtaining necessary

permission from the Chief Medical Officer, Buland Sahar. For this the Club invited Dr. R.M.

Sahay of the Sahay Hospital at Jaipur and team of Doctors to do the surgical job. The camp got

substantial amount of participation from people with eye problems.

Dr. Sahay arrived in Khurja and examined about 122 patients. 108 patients were operated upon,

88 of them for cataracts. Dr. Sahay then left to Moradabad to attend a similar eye camp.

The camp turned out to be a disastrous medical misadventure, as the operated eyes of the patients

were irreversibly damaged, owing to a post-operative infection of the intra Ocular Cavities of the

operated eyes and the eyes were completely damaged. Similar mishap happened at Moradabad

also though on a lesser scale, the number of affected persons being 15 only. Though doctors gave

the necessary treatment to remove the infection, it was of no avail.

Two social activists, Shri A.S. Mittal and Shri Om Prakash Tapas, acting on behalf of an

organisation called 'Union for Welfare and Human Rights' filed a Writ Petition in the form of a

Public Interest Litigation to carry justice to the victims. Originally, the four respondents were the

State of U.P., Dr. R.M. Sahay, the Chief Medical Officer, Buland Sahar District (U.P.) and the

Lions Club of Pottery Town, Khurja. However, the Court directed that Indian Medical Council

and the Union of India to be impleaded as parties to the proceedings. The petitioners prayed that(i) the victims of this medical mishap be given expert treatment and appropriate compensation,

(ii) that the Government do conduct a thorough investigation as to the conditions which rendered

a medical misadventure of such a scale possible and evolve proper guidelines which will prevent

recurrence of such tragedies and (iii) that appropriate legal action be instituted against Dr. Sahay

and his team and other Government officials concerned.


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JUDGMENT: Disposing of the Writ Petition, this Court, HELD: Modern techniques in

opthalmic surgery render cataract a minor operation. The eyes of patients selected for operation

has the potential for restoration of sight. In the instant case, they have become totally blind In the

operated eyes.A mistake by a medical practitioner which no reasonably competent and careful

practitioner would have committed is a negligent one.

Law recognises the dangers which are inherent in surgical operation. Mistakes will occur on

occasions despite the exercise of reasonable skill and care.. The necessity of the highest

standards of aseptic sterile conditions at places where ophthalmic surgery or any surgery is

conducted cannot be over-emphasized. It is not merely on the formulation. of the theoretical

standards but really on the professional commitments with which the pre- scriptions are

implemented that the ultimate result rests.

On humanitarian consideration, the victims should be afforded some monetary relief by the State

Government. In addition to the sum of Rs.5, 000 already paid by way of interim relief, the State

Government shall pay a further sum of Rs. 12,500 to each of the victims. The victims entitled to

receive the additional payment shall be the same as those who had the benefit of the interim

relief of Rs.5, 000.

COMMENTARY: This judgment has turned out to be a landmark one in cases relating to

medical negligence. The case was instrumental in revising and modifying guidelines prescribingnorms and conditions for the conduct of "Eye Camps" so that unfortunate events that occurred in

this case will not repeat in future. Court pressed for necessity for strict compliance with

guidelines issued by Government for conduct of eye camps.

The Indian Medical Council, after its impleadment in the proceedings of this case,

constituted a sub-committee made recommendations in setting norms for the conduct and

management of eye-camps. The Court suggested Union Government to incorporate these

recommendations made by the Indian Medical Council and other Expert Committees in the

revised guidelines.


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CASE NAME: Bihar Legal Support Society, through its President, New Delhi v. The Chief

Justice of India & Another

CITATION: 1987 AIR 38

DECIDED ON: 19/11/1986

BENCH: BHAGWATI P.N. (CJ), MISRA RANGNATH, KHALID V. OZA G.L., DUTT M.M.,

JJ

FACTS: This writ petition has been filed by the Bihar Legal Support Society which is a

registered Society having as its main aim and objective provision of legal support to the poor and

disadvantaged sections of the community with a view to assisting them to fight for theirconstitutional and legal rights through the process of law.

The reason for filing the writ petition is as follows: a Bench of the Supreme Court had sat late at

night on 5th September 1986 for considering the bail application of industrialists Shri Lalit

Mohan Thapar and Shri Shyam Sunder Lal. The petitioner wants same anxiety which was shown

by this Court in taking up the bail application of these two gentlemen must to be applied in all

matters where questions relating to the liberty of citizens, high or low, arise and that the bail

applications of "small men" must receive the same importance as the bail applications of "big

industrialists." The petitioner, therefore, prayed that special leave petitions against orders

refusing bail or anticipatory bail should be taken up by this Court immediately in the samemanner in which the special leave petition of these two "big industrialists" was taken up by the

Court.

JUDGMENT:. Justice Bhagwati in his judgment held thatthe special leave petitions of "small

men" are as much entitled to consideration as special leave petitions of "big industrialists". And

that the Supreme Court has always recognized the poor and the disadvantaged as entitled to

preferential consideration than the rich and the affluent, the businessmen and the industrialists.

The question whether special leave petitions against refusal of bail or anticipatory hail should be

listed immediately or not is a question within the administrative jurisdiction of the Chief Justice.

The court further reminded that Supreme Court was never intended to be a regular court ofappeal against orders made by the High Court or the sessions court or the Magistrates. It was

created as an apex court for the purpose of laying down the law for the entire country and

extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of

the Constitution so that it could interfere whenever it found that law was not correctly enunciated

by the lower courts or tribunals and it was necessary to pronounce the correct law on the

subject. Granting every case where special leave is applied creates backlog of cases which will


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then be bound to accumulate in the Court. The judgment re-iterated a decision was held by the

same court in a prior case which stated that Supreme Court should not interfere with the orders

granting or refusing bail or anticipatory bail and that these are matters in which the High Court

should normally become the final authority. The judgment held that this Court should not

ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or

anticipatory bail, because these are matters in which the High Court should normally be the final

arbiter.

COMMENTARY: This is one of few cases in which the suit is instituted against theChief

Justice of India. Impartiality of judiciary, one of the basic pillars on which Indian judiciary is

built, is questioned in this case. Justice Bhagwaty, through his eloquent judgment in this case had

tried to state how the Supreme Court of India treats the poor and disadvantaged sections of the

society on par, if not than on a higher pedestal, with the rich and the affluent. The fact that one of

the drawbacks of the justice delivery system has been the denial of access to justice to thecommon man is reflected in this judgment. The judgment is therefore regarded as one among

those many from Justice Bhagwaty which upheld the position of the downtrodden regarding

access to justice. However on examining the facts of the case and the outcome of it, we can find

that the prayer which the petitioner sought for was not achieved in the case. Though the Supreme

Court allowed the Special Leave Petition of the big Industrialists prior to this case, the judgment

of this case provided that granting of special leave petition is a discretionary power of Supreme

Court and therefore one cannot be guaranteed of his Special Leave Petition to have an immediate

listing. In other words, the position of those who applies for SLP remained unchanged after the

judgment as it was before the rendering of the judgment.


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CASE NAME: Nandini Sundar & Ors. vs State Of Chattisgarh

CITATION: (2011) 7 SCC 547

DECIDED ON: 05.07.2011

BENCH : Hon'ble Mr. Justice B. Sudershan Reddy, Hon'ble Mr. Justice Surinder Singh Nijjar

FACTS: .The instant writ petition was filed, in 2007, by: (i) Dr. Nandini Sunder, a professor of

Sociology at Delhi School of Economics, (ii) Dr. Ramachandra Guha, a well known historian,

environmentalist and columnist and (iii) Mr. E.A.S. Sarma, former Secretary to Government of

India, and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The

petitioners have alleged, inter-alia, widespread violation of human rights of people of Dantewada

District, and its neighboring areas in the State of Chhattisgarh, on account of the ongoing armedMaoist/Naxalite insurgency, and the counter-insurgency offensives launched by the Government

of Chattisgarh. In this regard, it was also alleged that the State of Chattisgarh was actively

promoting the activities of a group called Salwa Judum, which was in fact an armed civilian

vigilante group, thereby further exacerbating the ongoing struggle, and was leading to further

widespread violation of human rights. The contention of the plaitiffs were the violation of

fundamental rights as engraved in Art 14 and 21 of the illiterate youth who are employed in

deadlt combat against Naxalites by the State of Chattisgarh. The atrocities caused by the counter-

insurgency force were also mentioned in the plaint.

The defendants, ie State of Chattisgarh, in its counter-affidavit stated that counter- insurgencytroops are well- trained and equipped Special Police Officers(SPOs) who are appointed as under

provisions of Indian Police Act, 1861 and Chattisgarh Police Act, 2007. SPOs have the same

rights, duties and obligations that of the regular police and they are paid an honorarium of Rs

3000/- per month. The defendants further stated that these young, illiterate and uneducated SPOs

join the force voluntarily out of rage and hatred against the Maoists/Naxalites.

The court held that statement by Chattisgarh State that the young illiterates were well-equipped

to combat the insurgency by giving them necessary classes on subjects of law and order and withmartial training lacked credibility. Also the fact that, though the SPOs did the same works as that

of regular police force and still they were paid only an honorarium of Rs 3000 a month was held

to be clear violation of Right to Equality as provided in Article 14 of Constitution. Employing

ill-trained youth in fatal combat against Maoists proved to be violation of Right to Life as

engraved in Article 21 of Constitution.
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JUDGMENT: The following were the orders made by the court in this case:

(i) The State of Chattisgarh should immediately cease and desist from using SPOs in any manner

or form in any activities, directly or indirectly, aimed at controlling, countering, mitigating or

otherwise eliminating Maoist/Naxalite activities in the State of Chattisgarh;

(ii) The Union of India should cease and desist from using any of its funds in supporting, directly

or indirectly the recruitment of SPOs for the purposes of engaging in any form of counter-

insurgency activities against Maoist/Naxalite groups;

(iii) The State of Chattisgarh should make every effort to recall all firearms issued to any of the

SPOs along with any and all accoutrements and accessories issued to use such firearms.

(iv) The State of Chattisgarh should make arrangements to provide appropriate security, and

undertake such measures as are necessary, and within bounds of constitutional permissibility, to

protect the lives of those who had been employed as SPOs previously, or who had been given

any initial orders of selection or appointment, from any and all forces, including but not limited

to Maoists/Naxalites; and

(v) The State of Chattisgarh should take all appropriate measures to prevent the operation of any

group, including but not limited to Salwa Judum and Koya Commandos, that in any manner or

form seek to take law into private hands, act unconstitutionally or otherwise violate the human

rights of any person.

In addition to the above, court held that appointment of SPOs to perform any of the duties of

regular police officers, other than those specified in Section 23(1)(h)


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and Section 23(1)(i) of Chattisgarh Police Act, 2007, to be unconstitutional. It was further held

that tribal youth, who had been previously engaged as SPOs in counter- insurgency activities, in

whatever form, against Maoists/Naxalites may be employed as SPOs to perform duties limited to

those enumerated in Sections 23(1)(h) and 23(1)(i) of CPA 2007, provided that they have not

engaged in any activities, whether as a part of their duties as SPOs engaged in any form of

counter-insurgency activities against Maoists/Naxalites, and Left Wing Extremism or in their

own individual or private capacities, that may be deemed to be violations of human rights of

other individuals or violations of any disciplinary code or criminal laws that they were lawfully

subject to.

COMMENTARY: The judgment delivered by the division bench in this case has special place

in Indian judicial and political history. The act of arming illiterate youth for purpose of counter-

insurgency can lead to a situation of utter chaos. the court insists that The fight against

terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever

means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals

that constitutional democracies seek to be guided by, and achieve.The judgment in its initially

parts credibly states how socio-economic deprivation becomes the root cause of insurgencies in

India.

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