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parmanand katara v union of india: a case reviewTRANSCRIPT
Pt. Parmanand Katara v. Union of India: A Case Review
LEGAL METHODS
PT.PARMANAND KATARA
V.
UNION OF INDIA
(1989) 4 SCC 286
(A CASE REVIEW)
Submitted By: Annie Jain (1962)
Ist Year, Ist Trimester ,B.A. LL.B. (Hons.)
Date of Submission : September 25, 2012.
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Pt. Parmanand Katara v. Union of India: A Case Review
TABLE OF CONTENTS
Index of Authorities...................................................................................................................3
Table Of Cases.......................................................................................................................3
Table Of Statutes....................................................................................................................3
Introduction................................................................................................................................4
Research Methodology...............................................................................................................6
Section I:Case Summary............................................................................................................8
Holding Or The Ratio Decidendi :.........................................................................................8
Facts In Brief..........................................................................................................................8
Arguments..............................................................................................................................8
Judgement..............................................................................................................................9
Section II:Post Judgement........................................................................................................13
Developments that took place post judgement :..................................................................13
Future Application Of The Judgement In Other Cases.......................................................14
Section III:Case Analysis.........................................................................................................16
From The Angle Of Judicial Activism : Scope of the Judgement.......................................16
Section IV: Practical Implementation Of The Judgement.......................................................22
Conclusion................................................................................................................................25
Bibliography.............................................................................................................................27
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Pt. Parmanand Katara v. Union of India: A Case Review
INDEX OF AUTHORITIES
TABLE OF CASES
TABLE OF STATUTES
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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)
Pt. Parmanand Katara v. Union of India: A Case Review
INTRODUCTION
“It is my life. I am owner of my life. Who is the government to decide and force me to
go to a designated government hospital in case of an accident?”
Pandit Parmanand Katara
The decision rendered by the Supreme Court in Pt. Parmanand Katara v.
Respondent: Union of India (UOI) and Ors.1 is important in Indian
jurisprudence for both its unique solution and its application in subsequent cases. In this case
the Supreme Court has tried to achieve an equivalence between the civil rights and its
economic and social counterpart through the application of an expansive definition of the
right to life. Here “Right to Health” was the guarantee which was to benefit from this
approach. This case rendered a landmark judgement which laid down guidelines as to what
attitude and obligation ought to be adopted by medical practitioners in emergency medical
situations and not turn down the case on account of financial constraints or fulfilment of other
legal formalities. The Court ruled that every doctor whether at a government hospital or
otherwise has the professional obligation to extend his services with due expertise for
protecting life.
The Supreme Court went on to adopt an approach of harmonisation of Fundamental Right
enshrined in Article 21 and Directive Principles of State Policy in Article 47.The Court in this
prominent decision relied on various medical sources to conclude that the refusal of
immediate medical attention to a patient in need amounted to the violation of universally
accepted notions of medical ethics and “protection of life and liberty” guaranteed under
Article 21 and hence created a right to emergency medical treatment.2
In a country with a population of 1.3 billion where every two minutes a road accident takes
place and every five minutes a suicide or a case of infant mortality occurs, the vital question
which arises is whether our medical system equipped to handle emergencies?3 Hence a
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).
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Pt. Parmanand Katara v. Union of India: A Case Review
Codified law to compel hospitals and medical practitioners to attend on victims of accidents
those in emergency medical condition and women under labour is one of urgent necessity.
In the Research Paper, the Researcher has first traced the case summary and the judgements
rendered by the Court in this case. Then the Researcher goes on to analysing the
developments that took place post judgement and how the judgement was interpreted in the
subsequent cases and if there was an exercise of judicial activism played by the Court in
rendering its judgement. Thereafter the Researcher examines the genesis of the 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.
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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.
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Writing Style
An analytical and descriptive style of writing has been adopted.
Mode of Citation
A uniform mode of citation has been used.
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Pt. Parmanand Katara v. Union of India: A Case Review
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.
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Pt. Parmanand Katara v. Union of India: A Case Review
be rendered medical aid. The rationale behind this complicated procedure was to keep all
evidence intact. And in case the formalities were not observed, the doctors were harassed by
the police and were therefore unwilling to accept medico-legal cases. There were three issues
before the Supreme Court:
Firstly, whether there are any legal impediments that hindered timely treatment in 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.
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Pt. Parmanand Katara v. Union of India: A Case Review
immediate medical relief and care to the injured persons and/or serious patients are available
without delay or without waiting for the legal formalities to be completed.The Medical
Council of India urged that Government Doctors as well as other doctors in private hospitals
or public hospitals attending medico-legal cases should be indemnified under law from any
action by the Government/police authorities/any person for not waiting for legal formalities
before giving relief to the injured upholding his professional duty, for which he has taken
oath as medical practitioner, superior to the various legal formalities involved. Criminal
procedure should be amended so that injured persons may be treated immediately without
waiting for a police report or completion of police formalities. The Indian Evidence Act
should also be amended so that the diary maintained by doctors in the regular course of their
work is admissible as evidence for the purposes of the medico-legal cases in place of their
presence during trial to prove the same..Also zonal regulations and classifications cannot also
operate as fetters in the process of discharge of the obligation.The Court gave directions for
giving adequate publicity to the decision in this case by the national media, the Doordarshan
and the All India Radio, as well as through the High Courts and the Sessions Judges.8There is
no legal impediment for a medical professional when he is called upon or requested to attend
to an injured person needing his medical assistance immediately.9There is also no doubt that
the effort to save the person should be the top priority not only of the medical professional
but even of the police or any other citizen who happens to be connected with the matter or
who happens to notice such an incident or a situation.The members of the legal profession,
our law courts and everyone concerned will also keep in mind that a man in the medical
profession should not be unnecessarily harassed for purpose of interrogation or for any other
formality and should not be dragged during investigations at the police station and it should
be avoided as far as possible.Law courts will not summon a medical professional to give
evidence unless the evidence is necessary and even if he is summoned, attempt should be
made to see that the men in this profession are not made to wait and waste time
unnecessarily.Also whenever on such situations the medical practitioner finds that his
assistance is not enough to save the life of the person but some alternative better assistance is
necessary, it becomes the obligation of the man in the medical profession so approached to
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.
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SECTION II:POST JUDGEMENT
DEVELOPMENTS THAT TOOK PLACE POST JUDGEMENT :
Following the Supreme Court Judgement in 1989 in Parmanand case, the Motor Vehicles
Act 1988 was amended in 1994, to make it obligatory on both the driver/owner of the vehicle
to take the accident victim to the nearest doctor, every registered medical practitioner or
doctor on duty to instantly treat the victim without waiting for any kind of legal formalities to
be fulfilled prior to this utmost obligation.11
Also the Law Commission observing the prevailing conditions that when the injured victims
are not taken to medical practitioners in emergency situations, they are not only turned down
on the ground of the case being a medico legal case but are also sent to the Government
Hospital because they are not in a position to pay immediately or they do not have any
insurance or are not a part of a scheme which entitles them to some kind of medical
reimbursement. The Law Commission therefore took up the subject suo moto in view of the
observations in the Parmanand case and the fact that there is no appropriate legislation on the
subject, and has provided in its 201 Law Commission Report that no hospital shall refuse to
provide emergency medical care to victims of accident on any of the above grounds and if
they refuse, that will amount to an offence.12Also according to the report hospitals have to
initially screen the persons to decide if the patients require emergency treatment, and if not
the further provisions of the EMTALA Act13 will not apply. It laid down what all safeguards
need to be taken while making the transfer to another hospital in case the required facilities
are not available for emergency medical treatment in a certain hospital , in the Bill annexed to
the Report. The report also provided that the States must publish a scheme for reimbursement
11 Sec. 134, Motor Vehicles Act, 1888 : Act 54 of 1994 (w.e.f 14-11-1994).Section 134 of the Motor Vehicles (MV) Act, 1988 states that the driver and / or the owner of the motor vehicle responsible for a road accident is required to take all reasonable steps to secure medical attention for the injured person by conveying him to the nearest medical practitioner or hospital, unless it is not practicable to do so on account of mob fury or any other reason beyond his control. Under Section 187 of MV Act 1988, whoever fails to comply with the provisions of the clauses of Section 134, shall be punishable with imprisonment for a term which may extend to 3 months, or with fine which may extend to Rs. 500, or with both. If it is the second time for the person concerned, then the penalty is harsher. The imprisonment may extend to 6 months, or with fine, which may extend to Rs.1000, or with both.12 201st report of the Law Commission of India, Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition AND women Under Labour ,4 (2006)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.
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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
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Pt. Parmanand Katara v. Union of India: A Case Review
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).
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SECTION III:CASE ANALYSIS
The World Report on Road Traffic Injury Prevention released by the World Health
Organization on World Health Day(7th April, 2004) has highlighted that nearly 12 lakh people
are known to die each year in road accidents globally.22There is an urgent need for the
interventions required at various stages relating to post crash care. On one hand relative
ignorance on part of the public to come forward to help the roads crash victims, for apparent
fear that they might be involved in police cases which is like a deterrence in building
confidence in public for helping road accident victims, and on the other hand research shows
that a number of the accident victims can be saved if they receive immediate medical
attention. Hence in the light of these given present situations in the real world, the researcher
whole heartedly agrees with the spirit of the judgement, and appreciates the 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.
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Pt. Parmanand Katara v. Union of India: A Case Review
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.
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Pt. Parmanand Katara v. Union of India: A Case Review
paramount, laws of procedure whether in statutes or otherwise which would interfere with the
discharge of this obligation cannot be sustained and must hence give way. The court held this
matter as quite urgent and important assuring the doctor of the position that he does not
contravene the law of the land by proceeding to treat the injured victim on his appearance
before him either by himself or being carried by others.30Hence this case is important because
in one sense it acts as a reminder to the doctors of their Hippocratic oath implying that the life
of a person is more important than other formalities. However some doctors may be
indifferent towards obeying this Hippocratic oath considering it not to be legally binding on
them because it is only a moral obligation. They should be made aware of the fact that that
modified version of Hippocratic oath is now part of the Indian Medical Council(Professional
Conduct, Ethics and Etiquettes) Regulations-2002, and is now binding and have force of
law.31
Nowadays health care has become more of a money-making scheme as is mentioned in
Bernard 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.
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Pt. Parmanand Katara v. Union of India: A Case Review
civil rights and their economic and social counterpart has been through the application of an
expansive definition of the right to life, and unsurprisingly as seen in this case, Right to
Health was one of the guarantees to first benefit from this approach.35
Even in the later judgement in 1996 in Paschim Banga Khet Majdoor Samity v. State of West
Bengal 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.
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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
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Pt. Parmanand Katara v. Union of India: A Case Review
prerogative of private healthcare providers,who practice the medical profession in order to
earn their living in a situation where cost of living is rising and the cost of treatment is
prohibitive.
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SECTION IV: PRACTICAL IMPLEMENTATION OF THE JUDGEMENT
Even after twenty years of the landmark and monumental judgement, Padmanand Katara is
still bitter about the missed opportunity that the aeon making judgement provided the country
with. The implementation of the judgement in real terms is still lagging behind in the sense
that the medical fraternity and the government both failed in their duties to implement the
judgement.
“Twenty years hence, road traffic accident victims are still refused admission in private
hospitals.The protectors of the law, the police, themselves are the biggest hindrance to the
implementation in spirit of the judgement.An average policeman in India still forces the
accident victim to a government hospital” is the agony that stares Katara in the face.42
In absolute terms RTA43 and fatalities have been increasing despite a lot of efforts made by
the central and state ministries and other organizations. As against 94000 lives in
2005,105749 lives have been lost in 2006.44 A very recent case that can be cited is that of the
much talked about Investigative journalist Jyotirmoy Dey who was shot at in Poway around
2.45pm on Saturday was still breathing when he was taken to Powai Polyclinic at 2.55pm.
The hospital refused to treat him saying they were ill-equipped to handle such an
emergency.Dey was then taken to Dr LH Hiranandani hospital where he was declared dead
on arrival at 3.05pm. Had Powai Polyclinic treated Dey immediately, he could have stood a
chance.45
The Medical Council of India had long before the Parmanand Katara case got the Code of
Medical Ethics approved on 23rd Oct., 1970,which contains two explicit clauses namely
clause 10 and 13,the former talking about the “obligations to the sick” and the latter stating
that “the patient must not be neglected”,but still the news item which was the starting point of 42 EMS INDIA edit team, Pt. Parmanand Katara - The Man & His Work(2003) available at http://www.emsindia.in/uploaddir/magzine/article/Article_14108-A-03-ParmandKatara.pdf (Last visited on September 9, 2012).43 Road Traffic Accidents.44 Supra note 24.45 Rosy Sequeira, Could journalist J Dey have been saved? DNA (Mumbai edn., June 14, 2011) available at http://www.dnaindia.com/mumbai/report_could-journalist-j-dey-have-been-saved_1554755(Last visited on September 9, 2012).
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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.
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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
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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.
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Pt. Parmanand Katara v. Union of India: A Case Review
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
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Pt. Parmanand Katara v. Union of India: A Case Review
BOOKS
Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE
MANGEMENT, 531(5th edn., 2010).
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Sharma and Goyal, HOSPITAL ADMINISTRATION AND HUMAN RESOURCE
MANAGEMENT, 531(5th edn., 2010).
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Sonali Vij, Legally Matters (2010) available at
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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
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(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
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Pt. Parmanand Katara v. Union of India: A Case Review
http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm (Last visited
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Rosy Sequeira, Could journalist J Dey have been saved? DNA (Mumbai edn., June
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http://www.thehindu.com/opinion/Readers-Editor/article402046.ece(Last visited on
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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
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Pt. Parmanand Katara v. Union of India: A Case Review
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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