A Comment on Kerala Magistrates' Association V. State of Kerala1

[2001 (L)KLT 920 (Sc)]

Generally speaking, our Courts are bound by precedents. Indeed, the Supreme Court of India if the need arises, can revise the precedents. The doctrine of precedent requires the Supreme Court also to follow the precedents, laid down by its Division Benches if another Division Bench constituted by more Judges does not revise them. The position can be stated thus:-

A statement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision is binding, it is not required that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Since some conflicts on this issue arose in certain cases, it is suggested by the Supreme Court that for the purpose of imparting certainty and endorsing due authority, decisions of the Supreme Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible.2

Throughout the common law world the Courts maintain their relevance and accountability to the system by way of reasoning referring to the respective submissions and giving reasons for their acceptance of either submissions. Both these features are not reflected in the Supreme Court's decision in Kerala Magistrates' (Judicial Association) v. State of Kerala.3 Instead it refers to some discussions and consultations among the State of Kerala, High Court of Kerala and the petitioner Association.

The Counsel for the petitioner - Association advanced a three -pronged argument as follows:

1. There was absolutely no justification for not considering the seniority in the integrated cadre on the basis of their regular length of service, which usually forms the basis when integration takes place and in the absence of any special reason indicated by the rule-making authority, the basis has to be held to be arbitrary and irrational.

2. When the rule - making authority decided to have an integration of the two wings, it was expected of them to take into account the total number of posts in the entry grade of both the wings, the promotional avenues available to the incumbents of each wing and the promotional avenue which would be open in the integrated cadre and all other relevant facts and that not having been done, the fixation of quota under the Rule cannot, but be held to be invalid.

3. Provision for promotion in a cadre increases the efficiency of the public service while stagnation reduces the efficiency and makes the service ineffective and therefore, promotion is considered to be a normal incidence of service and, if this test is applied to the integrated cadre constituted under the Rules of 1991, it would appear that the incumbents engrafted from the criminal side have practically no prospect of promotion, as compared to the counterparts.

The Court responded to these submissions saying that the present formula was arrived at jointly by the Full Court in Kerala by referring to the meetings, discussions and consultations of the Government of Kerala and the High Court with different organisations of the Judicial Officers. The Court noted that the present ratio of quota is beneficial to the petitioner in comparison to officers from the civil side. The Supreme Court observed:

"The Court took notice of the fact that on the date of integrating 42 Magistrates, second class will be absorbed in the category of Munsiff Magistrates and all of them will be duly benefited in their scale of pay. The Court also considered that in view of the number of posts available, while Munsiff could expect promotion to 49 posts of Subordinate Judge, the Judicial Magistrate could expect promotion only to 18 posts of C.J.M's, as it existed. But by reason of integration, the chances of promotion of the Magistrates will be much more enhanced, compared to the chances of promotion to the Munsiff. The Court also considered the normal rate of promotion and found that for Munsiff, the rate being 1 - 25, for a Magistrate rate was only 0-30 and on account of integration, the ratio could come to 0-84, which indicates that overall chances of promotion to the Munsiff would get reduced from 1-25 to 0-84, whereas the chances of promotion of the Magistrate get increased from 0-30 to 0-84. The High Court therefore suggested that the ratio of 3:1 should be fixed both in the integrated cadre of the subordinate Judges and C.J.M's for promotion to the post of District Judge as well as in the cadre of Munsiff and Magistrate First Class for the promotion to the post of subordinate Judges. The High Court also was of the opinion that the effect of integration will be that while Munsiff would lose chances of promotion, the Magistrates will improve the chances of promotion, although some senior Magistrates individually will sustain some loss. But such loss is the usual consequence of any integration process. Notwithstanding the aforesaid recommendations of the High Court, the State Government, on receipt of representation from the Magistrates' Association, made further correspondence with the High Court and suggested that the ratio for promotion from the Munsiff and Magistrates to the Subordinate Judges should be fixed at 5:2. The High Court initially had some reservations but ultimately accepted the same and communicated its acceptance to the Government whereafter the Rules were promulgated and R.3(4) of the Rules embodies the aforesaid principles".4

This judgment thus embodies a recapitulation of legislative and administrative ancestry of the Rule rather than a decision on the question whether the Rule violates, the petitioners' Fundamental Rights under Art.14.

In this context it may be worthwhile to recall that the Supreme Court in S.I. Rooplal v. Governor5 has categorically ruled that the seniority of a person in a Department to which he was sent on deputation would be the seniority he had in his parent Department. That was a case where a S.I. of Border Security Force was allowed to be absorbed in the Delhi Police with the seniority he had in the Border Security Force.

Though an analogy could be developed and a precedent created on its strong theoritical grounds, the court dismissed the argument observing thus:-

"This case will be of no assistance to the case in hand where the integration of the two wings of the judicial service has been made under a set of Rules framed by the Governor in exercise of powers conferred under Art. 234 and 235 of the Constitution, after due consultation with the State Public Service Commission and the High Court and the High Court itself has elaborately discussed this question before taking a final decision".5

This case could have been usefully applied as it also involved transfer of personnel from a post to a similar post. The demands of the work are also the same. The only difference could have been the expectation of officials for certain promotional posts.

Since the Court did not follow the policy of pegging this judgment on any jurisprudential principle it had to admit that the decision of the Kerala High Court and the Kerala Government as represented in the Rule may diminish the promotional avenues of officers coming from the civil side. In fact this kind of reasoning may have the tendency of tempting people of frequent litigation. What if the Association of Munsiffs petitions the Court on the ground that admittedly the present Rule may violate Art.14. The Supreme Court may again have to harp on the same note of compromise or reconciliation of the Rules rather than any sound principle as spelt out in Rooplal which was a decision of a 3 member-Bench and therefore a precedent necessarily to be followed by the 2 member-Bench of the decision under comment i f law of precedent meant anything.

Seniority is a hard earned qualification and a senior person should not be put to jeopardy in the name of deputation or integration. In fact it is time for our High Courts to examine the possibility of considering meritorious subordinate judicial officers for appointment to the post of District Judges when they consider Advocates with 7 years' experience as eligible for such appointment. Whether it is independent practice or judicial experience in lower courts, it is experience worthy of consideration for making appointment to senior positions. A review of the appointment procedure is surely the desideratum.

________________________________________________________________________

Foot Note:

1. Dr. K.N. Chandrasekharan Pillai, Professor & Dean, School of Legal Studies, CUSAT, Cochin - 22.

2. See observations in Union of India v. Raghubir Singh AIR 1989 SC 1933.

3. 2001(1)KLT 920 (SC).

4. Ibid 926 ,927.

5. A.I.R. 2000 SC 594

6. Supra n.2 at 925.

A Constitutional Imbroglio

(By Sri. Mayakrishnan, Advocate, Ernakulam)

Ms. Jayalalitha has now been sworn in as Chief Minister of Tamil Nadu. A debate is going on its legality. Jurists and political pundits have aired their divergent views. What would be the effect present and future of the conundrum?

Ms. Jayalalitha's nomination papers were rejected by the Returning Officers under the authority of S.8(3) of the Representation of People Act she being disqualified as a person convicted. Needless it to say that the R.P. Act holds ground as constitutional and has its sway.

Governor of a State appointed under Art.155 is subordinate to the Constitution; more than a representative of the President. Thus the Governor is to abide by the Constitution and any other law enacted under it. In that view, the actions of the Governor should also not be derogative to the provisions of R.R Act. On these lines we cannot assume that the orders of Returning Officers rejecting nomination papers of Ms. Jayalalitha should not have been taken note of by the Governor of Tamil Nadu. Art.163 of the Constitution envisages that there shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor in the administration of the State. Art.164(1) empowers the Governor to appoint the Chief Minister and other Ministers on the advise of Chief Minister. Constitution does not fetter the power or authority of the Governor to appoint the Chief Minister. Constraint placed otherwise under Art.164(4) is that the person so appointed as Chief Minister or Minister, if not an elected member of that house shall cease to be so if he does not become a member of that house within six months of the appointment. The moot question is, if a Chief Minister appointed thus cannot or is not expected to become a member of that House within the period prescribed under Art.164(4), as there is an expectation otherwise, whether that appointment is lawful?

A probe into the legislative intent of S.8(3) of R.R. Act would reveal that a person convicted of any offence and sentenced lo imprisonment for not less than two years shall be disqualified from the date oi conviction and shall continue as such for a further period of six years since his release i.e. the disqualification runs to a minimum period of eight years for that person to become a candidate for election to Parliament or State Legislature. Ms. Jayalalitha could neither claim protection under S.8(4) nor immunity from the mischief of S.8(3) of R.P. Act in as much as her nominations were rejected under S.8(3) when she staked her claim to form the Government at Tamil Nadu. A perceived doubt nonchalantly arises; whether a disqualified contestant appointed as Minister under Art.164(1) can aspire to contest another election within six months. Such an eventuality can be only in imagination or on the fall out of a series of happenings in her favour. One can wish it. But, if all the wishes are dismounted and the ambitions left astray, a political error of perception stand created. The Chief Minister shall have to vacate the office and the Ministry become the prey. The obstinate members of the Legislature if again, after six months elects the outgoing disqualified Chief Minister as its leader and the Governor is required to appoint the same person as Chief Minister, a political imbroglio crops up. What next ? Nomination to the upper house under Art.171(3)(e). An action under Art.356 of the Constitution or a fresh election or ask the legislature party to elect a different leader, to which they are not obliged to. Will there be cogent reasons warranting an action under Art.356. Shall the Constitution be rendered otiose? These are all matters to be debated. However such a situation would put all concerned back lo the original dilema. Obviously the Governor shall have to exercise powers again. The Constitution does not limit the powers of the Governor and if it can be foreseen as discernible from S.8(3) of R.P. Act that disqualification (if not likely to overcome) can be for a period of sentence and coming six years) what shall be the plausible step?

Our Constitution is silent whether the Governor can act otherwise or not. But it connote the choice of the Governor is not limited, leading to an implicit understanding that the Governor is empowered to exercise discretion. Governor's role as a guardian of Constitution is undisputed. A scrutiny of Art.164 does not unleash a supposition that the Governor has abiding duty to invite the chosen leader of the legislature party, though we follow it as a convention, to form the Government, when that person is not a member of the legislative assembly obviously by disqualification under R.R. Act. Exercise of discretion is necessarily demanded when a fair presumption of elimination of disqualification is an obscure trajectory. The question remains whether the Governor is bound to invite the elected leader when that leader is disqualified for past deeds to become a member of the house for the time being. The answer is in the negative going by the Constitution. We are entitled to import such a logical conclusion that the Governor can decline to invite the elected leader to form the Government, if the Governor in exercise of the discretion is satisfied that such invitation is apparent to the Constitutional mandates, if it cause a ruin of spirit of the Constitution or ushers a stalemate. The word 'Discretion' has been subject of judicial scrutiny more than once. Hon'ble Supreme Court, quoting Lord Halsbury reiterated; "Discretion means, when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion:............; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confer himself" (AIR 2001 SC 24 at page 33). Thus while exercising discretion, action pursuant to it is in consonance to the ideals and aspirations, of the founding fathers of the Constitution, nay to the citizens of the country, that exercise satiates the constitutional requirement.

We interpret the articles of the Constitution. The endeavour is not complete nor can we find the other end of it. Limitless are the missing links glaring at us. There are oblique manifestations therein. Art.164(4) transposes an expectation that a Minister who is not a member of the House shall become so within six months or at least can be expected to be so. As on date Ms. Jayalalitha is disqualified and may continue so unless happenings turn otherwise. Is there any legitimate expectation that the disqualifications shall whittle away before six months? Can the invitation to form the Government be extended to any on the strength of that expectation? Will it be legal? In the context, it has already come on record that the AIADMK legislature party has made it known that they are not prepared to consider a second name as their leader for the time to come. A subtle choice for them on the symmetry of our legal structure was to wait till the termination of the cases.

In Kerala, Shri. R. Balakrishna Pillai, a member of the dissolved assembly, also convicted for corruption charges during the period he was a member, filed his nomination to contest the assembly election. Protection under S.8(4) was extended to him. His nomination was accepted and he was declared the returned candidate. United Democratic Front, of which Kerala Congress (B) is a constituent, acquired absolute majority. Leader of the UDF was invited to form the Government. Being the Legislature Party leader of his party, Shri. Pillai was the unprofaned choice. But as we understand the Governor of Kerala revealed his reservations against the induction of Shri. Pillai in the Ministry and unrelentingly the UDF leader heeded to the advice of the Governor. It cannot be ignored that Constitution does not prohibit the appointment of Shri. Pillai as a Minister. There cannot be another opinion that he was left out for upholding democratic values and political ethos.

Charges against Ms. Jayalalitha in the pending cases are unmasked to one and all. What shall be its fate she being at the helm of administration of the State? Will she be naive and have an unabashed mind against the cases. No one need to assert a dissent but dispassionately acknowledge that Ms. Jayalalitha is an uncanny political strategist. From the filing of the nominations culminating to the ceremony of taking oaths of office and secrecy that has been vociferously before us. She has been mightily successful to lead her followers to ride the crest of the wave to a remarkable victory. It is argued that the outcome of the election is the will and verdict of the people. But the Constitution and other laws are not to put to the shelf for the time on the political will and verdict of the people. Indeed law is for the society. It should also change on the need of the society. Social needs confined for long conforming to the custom become confirmed law. But there will be no buyers to the proposition quid pro quo Constitution for the facts in issue.

We have experiences seeing succeeding Governments give primacy to search of the skeletons of past regime to settle political scores resorting to vindictive measures to rout political opponents. Statute also empower Governments to withdraw from prosecutions. Brandishly it is used in cases undermane to the interests of those in power to avoid cascading political effects. S.321 of Code of Criminal Procedure 1974 empowers every Public Prosecutor to apply for withdrawal from prosecution with the consent of the court. Though function under this section is discretionary, misuse of this section is rampant. If Tamil Nadu Government decides to withdraw all cases pending against its Chief Minister holding high the 'People's will and verdict', what shall be the repurcussions? It is not disheartening that this executive function of the Government cannot be questioned (AIR 2001 SC 116). Opinions may differ but misuse of S.321 Cr. P.C. will be an aggression on the independence of judiciary which has to be preserved. However, any such action can be tested pitting against the touchstone of Art.164(3) under which the oath of office and secrecy are taken. The maxim 'Nemo debit esse judix inpropria causa' - No man shall be judge of his own cause - is relevant here.

This is only a loud thinking as a possible turn out of the events for the ensuing time. The fear is how sovereign the Constitution we gave unto us more than half a century ago.

Dismissal of Complaint Under S.203 Cr.P.C. When the Complainant Abandons the Complaint Without Offering Statements - Legality –Regarding

(By Vakkom P.S. Balasubramaniam, Advocate, Thiruvananthapuram)

In the decision reported in 2001 (2) KLT SN 48 (Case No. 55), it has been ruled that S.203 of the Code of Criminal Procedure, 1973 (for short "the Code") is attracted only after considering the statements on oath of the complainant and of the witnesses and the result of inquiry or investigation under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding the complaint.

But an instance of dismissing a complaint under S.203 (for short "the Section) of the Code, even in the absence of such statements might be legal, if the complainant absents himself from appearing before Court and if he fails to produce witnesses. A careful examination of the section read along with an illustration may rejuvenate this aspect.

S.203 of the Code reads as follows:-

"203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

On a reading of the said section, it could be seen that the section has two parts. The first part lays down the materials, if any, which the magistrate must consider. The second part says that if after considering those materials there is in his view no sufficient grounds for proceeding, he shall dismiss the complaint.

So, under S.203 of the Code, the statements, if any, made by the complainant on oath before Court read with the allegations in the complaint, constitutes the material for determining the fate of the complaint. Here, the cardinal aspects to be considered by the Magistrate is whether the complaint has the essential ingredients of the offence alleged and it would be a waste of time to proceed with the complaint.

As stated earlier, what the Code empowers the Magistrate is to consider, the statements. if any, on oath of the complainant. In other words, the code does not direct the Magistrate to wait for the complainant's statement on oath, if the complainant fails to appear before the Court. That is why, the words "if any" is included in the provision.

On the other hand, if the Magistrate was bound to wait till the complaint appears and offers his statement on oath, then the section would have been drafted excluding the words "(if any)". As such it could be seen that the words "(if any)" had been included purposely to avoid waste of precious judicial time and thereby to avoid the abuse of the process of law. Same is the case in the matter of an inquiry under S.202 Cr.P.C, envisaged in S.203 of the Code, if the complainant fails to produce witnesses before the Magistrate.

Therefore, S.203 of the Code might be applicable to cases, where a complainant absents himself, as a result of which he fails to offer statements on oath and when he fails to produce witnesses.

The following illustration may explicate the aspect further: (This may be one of the several possible situations)

'A' files a complaint against 'B' alleging an offence punishable under S.324 IPC before a Magistrate. But before offering his statements on oath or of the witnesses, 'A' gets advice that he may not-succeed in the case and may become liable for malicious prosecution. So, 'A' abandons the complaint. Thenceforth, 'A' does not appear before Court and produce witnesses. As a result of this, the Magistrate cannot record the statement of 'A' or any of the witnesses on oath.

In such circumstances, what would be the course of action open to the Court? Whether the Magistrate has to keep the case on file till 'A' offers his statements on oath?

In those situations, it would be a waste of precious judicial time to proceed with the complaint. Further, the Code does not authorise the Magistrate to supplement the sworn statement of the complainant to determine the fate of the complaint under S.203 of the Code. Whereas, the Code, by way of the usage "(if any)", empowers the Magistrate to dispense with the complainant's statements on oath and to dismiss the complaint on merits by recording the reasons thereof. So, it could be seen that S.203 of the Code could be applied even without examining the complainant and holding inquiry under S.202 of the Code, if he fails to appear before the Magistrate and if he fails to produce witnesses and the Magistrate feels from the conduct of the complainant that he is abstaining from appearing purposely.

If the complaint could be dismissed only after the complainant offers his statement on oath and only after producing witnesses before the Magistrate, then the complaint might have to be kept on file (for ever), till the complainant shows mercy to the Court.

A Comment on 2001 (2) KLT 767

(By Yesudasan Varghese, Advocate, Thiruvananthapuram)

The Honourable High Court of Kerala, very recently in Gopalakrishnan v. State of Kerala 2001 (2) KLT 767 ruled that 'the accused has no absolute right to cross examine the prosecution witnesses under S.244, Cr.P.C With utmost respect to the Honourable Justice and the High Court, the writer begs to disagree with the said ruling firstly for the reason that the said section neither confers an absolute right on the prosecution to examine its witnesses, as such. What is exactly provided under S.244 is a combination of a duty or power of the court coupled with a right of the prosecution. The right accrued to the prosecution thereby is a right to a hearing and the production of evidence (not witnesses as such). The examination of witnesses for prosecution is only an incidental or consequential right, accruing therefrom. It is humbly submitted that neither Criminal Procedure Code nor Civil Procedure Code confers on either party an absolute right to examine their respective witnesses. The right to examination of witnesses is conferred by the Evidence Act by necessary implication. According to the Evidence Act, when there is an examination in chief of a witness by any party, it must be followed by a cross-examination, unless waived by the adverse party (Please see S.138).

The judgment proceeds to record that from a reading of sub-s. (1) of S.244 along with sub-ss.(4) and(5) of S.246 it is clear that the legislature does not intend to confer on the accused an independent right of cross-examination under S.244 of the Criminal Procedure Code (Sic). It is humbly submitted that the provisions under sub-ss.(4) and (5) of S.246 only indicate the intention of the legislature to afford an opportunity to the accused to cross-examine the prosecution witnesses who were earlier examined under S.244 and whose cross examination was either waived or incomplete or could not be had for any reason whatsoever. Because oral evidence cannot be good evidence unless it is gone through the three stages enumerated under S.137 of the Evidence Act and tested under provision of S.138 of that Act. Of course. the concerned parties have a right to waive either cross-examination or re-examination.

It may also be please noted in this context that even though the words, "the Magistrate shall proceed to hear etc." in sub-s. (1) of S.244 have been used, it is not mandatory to hold an enquiry under that section as the word, "shall" can mean "may" in view of the provision under S.246(1) which lays down that "if, when such evidence has been taken, or at any previous stage of the case......etc". Under the circumstance, the observation recorded in para-4 of the judgment that the trial in a warrant case instituted otherwise than on a police report does not start till the evidence is taken under S.244 of the Criminal Procedure Code' (Sic) is respectfully dissociated with. It is also humbly submitted that any criminal trial starts only with the framing of charge and, to be more precise, by the reading over of the charge to the accused.

I further most humbly disagree with the observation made in the judgment (para-4 itself) that even if no opportunity is given to the accused to cross-examine the witness during the enquiry, no prejudice would be caused to him, since he gets the opportunity to cross-examine the witnesses at the trial stage', (sic). If it is so, the witnesses get an additional opportunity to learn and discuss what they have already told the court, to get advised and tutored on the anticipated questions in cross, there by mitigating the prospect of a good cross-examination and then come prepared to stand the test of cross-examination at the trial stage. Of course, the accused also get a similar opportunity of learning and discussing the deposition in chief and prepare unanticipated questions in cross as far as possible. However, tension continues in the minds of the witnesses examined in chief as to what is going to be asked in the cross and in the mind of accused as to what is going to be answered in the cross till the suspense is broken at the trial stage. So, it cannot be said that no prejudice is caused to the accused if he is not allowed to cross-examine witnesses at the enquiry stage. It can be said that prejudice is caused to both parties. So, it is always fair and safe to avoid a contingency. Please also note that the postponement of the cross-examination of a prosecution witness is a discretion of the court under the proviso to S. 242 of the Code in the trial of a warrant case.

S.309(1) of Criminal Procedure Code lays down that "in every enquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded" obviously, the section is applicable to an enquiry also and there is nothing to indicate that a witness cannot be cross-examined in an enquiry. The words, "have been examined" must only mean that the witnesses have been examined in accordance with the provisions under the Evidence Act. So also, S.244 does not expressly or impliedly prohibit the cross-examination of a prosecution witness. It is not a discretion of the court to permit cross-examination at the enquiry stage as observed in the judgment, but an independent right itself.

For the above reasons, it is humbly submitted that the refusal of a Magistrate to allow the accused to cross-examine the witnesses examined under S. 244 of the Criminal Procedure Code is per se illegal.

It is humbly submitted further that the law as laid down by the Supreme Court in AIR 1979 SC 94, which the Honourable High Court has relied on the case, ruling that once charge is framed Magistrate cannot cancel it or discharge the accused - Order of discharge after framing of the charge is illegal, etc. does not now hold good in view of the decisions of the Honourable Supreme Court itself in Pepsi Foods v. Special Judicial Magistrate 1997 (9) Supreme 279, laying down that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless and in Satish Mehra v. Delhi Administration 1996 (5) Supreme 742 holding that when it is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure.

The most humble submission of the writer is that the framing of a charge is only an interim order which does not come within the ambit of S.362, Cr.P.C. and hence it can be reconsidered, altered or rescind by the same court that framed it.

Medical Negligence Aspects of Litigation

(By M.J. Kuruvilla, Advocate, Cochin)

Tremendous changes that took place in the last few years have shattered many concepts governing human relations. Real property has receded to the back yard. Intellectual property has taken its place. A variety of goods hitherto unknown and provision of services never contemplated before have made their appearance on the scene. Defective goods and deficient services have appeared in abundance everywhere. Exploitation of the consumer has reached an all time record. The Consumer Protection Act, 1986 should be viewed against this background.

The Act had been amended in 1991 and in 1993. The amendments were made so that the Act became more comprehensive. The services of the professionals like the doctors were not in the ambit of the Act till the Supreme Court judgment in 1996 in IM.A. v. V.P. Shanta. The patient became a consumer of service and the doctor the provider of such service.

Let us examine whether the provisions of the Act bite or only bark. It may also be examined whether they are in fact made applicable. So too whether this Act has boomeranged and adversely affected the patient's interest. No doubt this Act has served as an open invitation to speculative litigation. The inexpensive nature of litigation and the gambling instinct in human nature together have played havoc.

To impose deterrent penalty on the litigant if he is found guilty of malice or is motivated by extraneous considerations to curb vexatious and frivolous litigation is a step in the right direction. But the very purpose of the Act will be defeated if the deserving patient is scared away. While the patient should never suffer the doctor should never be penalised unjustifiably. Mass education and spread of legal literacy alone could provide a comprehensive solution.

The public and the medical and the legal professionals should clearly understand what constitutes professional negligence. In a nutshell, it is the knowledge about the legal injury resulting in the course of care or service rendered by a professional due to lack of his due and reasonable care. We will confine our attention to medical negligence. The fact that something went wrong or the patient suffered is no solid ground for litigation. The basic question in litigation is whether the patient has suffered due to negligence on the part of the doctor who provided the service for consideration.

The ingredients of negligence are well known. The first ingredient is the duty of care on the part of the doctor. As soon as the doctor accepts a patient this duty starts. The question is whether the doctor has accepted the patient and if so at what point of time. The moment a patient walks into a doctor's chamber the doctor patient relationship is not established. The patient should make sure the type of service he wants to obtain from the doctor and whether the particular doctor can provide that service. If a patient goes for a consultation what the patient can legitimately expect is just advice regarding his ailment and may be advice regarding its management, but not the actual managements. This is grossly correct. But if the patient is in need of urgent medical help which the doctor is capable of providing and there is a risk involved in delay if he is referred else where the doctor has an implied responsibility to render that emergency care. In technical terms it means that the doctor has to stabilize his patient, if it is within his competence, before he is referred elsewhere. Neither should the doctor embark on any therapeutic adventure that is not in the patient's interest. It could even be disastrous.

Ordinarily the doctor has a right to choose his patient. But in an emergency he has no choice but to take up responsibility if he is available and capable of such service. It has been said time and again that there are situations where a surgeon has to perform surgery even in a kitchen with the patient on the kitchen table with the kitchen knife as the only tool. This is not just his moral or ethical duty but his legal duty. Tracheotomy is such a procedure if a patient is choking with a foreign body in his throat. Indecision kills, so does undue delay.

The second aspect is the breach of the duty to care. The doctor has the duty to decide the modality of treatment. The judgment can go wrong. But the process of decision making must be faultless. If there are more than one method of dealing with clinical situation, he should choose that which is best for the patient. In any clinical situation there is only one best treatment. Others are all but the next best ones. When a doctor chooses an alternative he must have reason to do so. The infrastructure, the feasibility, the tangibility and various other factors may contribute to his decision. But he has the duty to elaborate and be transparent.

There is a general apprehension among the public that it is difficult to establish medical negligence. Many lawyers share this apprehension as well. The truth is that one cannot prove negligence where it does not exist. On the other hand where there is negligence, there is absolutely no difficulty to establish it. The initial task of the lawyer is the precise location of the negligent act. The next is a proper description of the act so that it stands out against the clinical background.

It is clear from the discussion that unless the patient or his counsel knows clearly what is the 'right approach in a particular clinical situation' one cannot put his finger and say 'this is the negligent act of omission or that is the negligent act of commission'. So too the doctor should, not only know what the law expects him to do, but also do that and properly account for his act before law.

We often quote Lord Denning's judgment in which his Lordship said that he could not attribute negligence if the doctor has followed one standard method of treatment. What was really admitted was the inability of the court to decide the case. His Lordship's judgment was just and correct in 1953. Not so in 2001. Now we know better. We are able to decide what the doctor should have done in a particular case. Prudence and reason should prevail over emotion and foolhardiness. It may not aways be possible to offer the best for the patient. But the doctor should account why he deviated. Error in judgment is not culpable. But with the information available and with the facility that is present a culpable error is one that "a reasonable doctor would not make under identical circumstance. That is the criterion for making a decision.

The third aspect concerns the damage suffered. In spite of duty to care and breach of that duty if the patient has not suffered damage, a verdict of negligence will not be forthcoming. The cause effect aspect has to be positively established.

The patient and the relations depend on the symptoms and feelings of wellbeing for the assessment of their disease and the outcome of the treatment. The interpretation of investigation and tests is equally difficult. They have little idea about the advantages and disadvantages of the different modalities of treatment. Unfortunately the doctor seldom offer a satisfactory explanation for his action. This is not because there is none, but due to the inability of the doctor and his counsel to explain his nonculpability.

There are a lot of misconceptions about investigations. It is settled medical practice that an investigation should be done only if that helps in the diagnosis or treatment. Even when an investigation is indicated the doctor should make sure that the risk involved in the investigative procedure does not outweigh the disadvantages.

The patient gets agitated and alleges negligence if something odd happens or if something does not happen the way the patient wants or anticipates. There is an ocean of difference between something happening in the natural course of events and the same or similar thing is made to happen.

There is confusion among the public regarding sequence and consequence. A surgeon operates and the patient dies the very next day. The events are in perfect chronological sequence. But to establish that the death is the consequence of the operation one has at least to provide conclusive evidence that the death would not have taken place had he not been operated.

Complication is another term that is often misunderstood. The word complication literally means something made worse or more difficult. An illustration may make matters clear. At one time the treatment for duodenal ulcer with gastric outlet obstruction was bypassing the obstruction. This is achieved by joining the stomach to the second part of the intestine called the jejunum by a side to side anastomosis. If instead of the proximal portion of the jejunum, the third part of the intestine viz. the ileum is used it is not a complication. It is an error in the technique. This is a negligent act. It is a disaster. The fact that it is referred to as a complication does not make it a complication. Nor the fact that bigger surgeons have made such, similar or worse mistake can be used to shield negligence.

Therapeutic errors are of two kinds. Procedural errors and executional errors. Procedural errors are due to errors in the sequence of the steps. These show lack of sufficient professional knowledge. The executional errors are errors in the performance of any one step. These are due to lack of professional skill. Both types of errors are culpable.

Several hazards are described in standard text books. They give details about difficult situations where caution should be exercised. The object is to ensure that the particular error or the group of errors does not occur. In the 60's the author was a student of surgery in England. He used to spend a lot of his time in a particular room in the Hunterian museum in Lincoln's Inn Fields. Specimens with the caption "Errors to be avoided" were the exhibits of attraction. One specimen was remarkable. It was the tracheo-broncheal tree of a soldier. The tracheotomy wound was demonstrated. Late Sir Barrette of Barrette Ulcer fame did the tracheotomy. A piece of arachnut was lodged at the tracheal bifurcation and completely occluded the right bronchus and partly the left bronchus and caused asphyxia death. The exhibit was intended to show the futility of a tracheotomy in such a situation. It cautioned against a possible mistake that should be avoided. It was never intended to provide a shield for those who make the mistake in the future.

Apparent health and wellbeing sometimes give wrong signals and even mislead. At times the actual state of affairs may be completely masked. The cataract patient provides the best illustration. Say, the patient was blind before surgery. He is blind after surgery too. The initial blindness was because of the opacity of the lens and could have been corrected by removal of the lens. But the blindness that followed surgery was because of the opacity that develops in the other refractory media of the eye. This blindness will not yield to simple measures. The patient has ended up worse than before though the patient will be oblivious of what has happened to him.

A number of tragedies can be cited. Worse still, some patients may feel better while really going downhill. The various bypass procedures done on patients with obstructive malignant growths that could be easily respected will bare testimony. They are crimes and fraud on the patients. It is true and the author cannot deny that sometimes one may have to pay a price to stay alive. In extreme circumstances one may have to part with a limb or a member just to survive.

Specialization and superspecialisation in medicine and law are not new. But the pace at which these are taking place now is phenomenal. Before separation of specialities there are common grounds. In course of time these areas become smaller and smaller and totally vanish. The pendulum has swung too far. Many specialities have drifted far apart. There are gray areas claimed by nobody. Medical negligence is in such a realm.

Defensive medical practice has been an anticipated problem. This amounts to the doctor starting to care more for his safety rather than that of his patient. The other problem is the increase in the number of complicated, invasive and expensive investigations resorted to. Of course this is to a large extent stage-managed by the industry and the business houses. A practical solution may be the introduction of a universal insurance scheme for doctors and hospitals. The scheme can be similar to the third party insurance scheme for motor vehicle accidents. The victims of medical mishaps could then be adequately compensated without burning the doctor's fingers. This will help the doctor to work without fear.

For fair dispensation of justice in medical negligence litigation the medical and legal professionals should clearly understand the concept of medical negligence. The terms like complication and the difference between terms like sequence and consequence should be properly comprehended. This information should not be stagnated and be confined to the professionals. It should percolate far and wide among the public at large.