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.

Dismissal of Complaint Under S.203 Cr.P.C. A Misconception

(By E.P. Abu, Advocate, Mannarkkad)

In dissenting with the order reported in 2001 (2) KLT SN 48 (Cases No. 55), the writer of the article in 2001 (3) KLT, page 9 has misconceived or perhaps misinterpreted the order of Hon'ble Mr. Justice N. Krishnan Nair.

What the order implies is that the Magistrate should not dismiss the complaint strait away on seeing that there is no offence made out in the complaint itself.

What S.203 Cr.P.C. envisage is that after considering the statement of complaint and witnesses on oath the court sees that there is no offence made out, it is but to dismiss the complaint, not before that.

Certainly the court need not wait until the statement is recorded, but even if there the complaint itself does not reveal an offence, what the provision desires that the Magistrate should consider the statement of complainant and witness on oath and if this statement made out an offence then the Magistrate shall proceed with the case, lest ends.

It does not mean that the Magistrate should wait for the statements of complainant and witnesses, but only when the complainant render his presence to the access of the court and then, only then the Magistrate should enquire into the matter after considering the statements of the complainant and witnesses.

It is not mandatory on the part of the Magistrate that the court should wait for a long time to get the statements recorded, but, when complaint itself does not reveal any offence, the complaint should not be dismissed without filing statements on oath of the complainant and witnesses, if he himself made available to the access of the court.

That is what is intended by the decision, according to me.

No Retirement for Law

(By K. Ramakumar, Advocate, Ernakulam)

Members of the Bar may have felt bemused to read an opinion of one of the greatest Judges of India, which was published in the Hindu daily dated 3.11.2001 under the caption "Balance between the Bench and the Bar". Embellished as usual by his enormous and enviable command of language and inimitable style of writing, the comments were combative, confrontationist and spiky. Not a day passes in Kerala, without newspapers splashing speeches, comments, opinions from the irrepressible erstwhile Judge on almost every subject under the sun ranging from Molecular energy to the Mosquito menace in Kochi. Is there anyone else who can with ease and authority enthrall his audience alike, in such diverse gatherings as the Rationalist Forum and the Chinmaya Mission, the Indo American Friendship Association and the Iscus, the same day?

One thing must be said to the credit of the very eminent and energetic retired Judge. He did not choose the easy way of hitting the headlines (which he immensely enjoys) by opting for one Commission or the other, or arbitral assignments fetching fabulous fees fixed by oneself or hovering around the corridors of power seeking post-retiral positions. He, on the other hand is engaged even now in varied and variety of people's causes which keeps him in the centre of the public eye. Easily and undisputedly Sri. V.R. Krishna Iyer, a retired Judge of the Hon'ble Supreme Court continues to be one of the popular and eminent Judges of the country. It was inconceivable at one point of time, even to think of a Supreme Court without Sri. Krishna Iyer.

Yet, after his retirement he had developed a sort of sally to sneer and snipe at the very seat he had once occupied, and which he had strived hard to save from criticism, even of the fair variety. Remember, he was one of the parties to a judgment which extended the contempt jurisdiction even to the administrative side of the Court. See Barada Kanta v. Registrar reported in AIR 1975 SC 716. It is he, who now exhorts the Lawyers of Kerala who are chosen counsel for the Government to desist from furnishing their credentials in obedience to the directions issued by a Division Bench of the High Court consisting of the Hon'ble Chief Justice himself. Says Sri. Krishna Iyer:

"Any Government Pleader of self respect or self confidence will tell the court that it is not fair to ask for their credentials any more than it is for the bar to question the credentials of Judges."

The learned retired Judge must be knowing that in fact an enterprising lawyer did precisely that in Kumar Padma Prasad v. Union of India reported in AIR 1992 SC 1213 and succeeded too. For the first time in the country the Supreme Court ruled that its three top citizens, the President, the Prime Minister and Chief Justice of India erred in choosing an ineligible person to be the Judge of the Assam High Court.

To ask the members of the legal fraternity not to accept or accede to a direction issued from the court which deals with a "Lis" before it, concerning the validity of orders of appointment of certain lawyers as Government Counsel, amounts to a frontal assault on the Hon'ble Judges of the Court, their power and of course their prestige. Continues Sri Iyer:-

"I am sure the wise Judges of the Kerala High Court will act with restraint and not give room for the Bar one day to ask Judges about their own credentials. That will be chaos in the Cosmos".

The case is yet to be argued and the 'lis' yet to be resolved. Can a citizen, merely because, he happens to be a former Judge of the Supreme Court make such caustic comments or a strident call to the litigants, about a pending case telling in advance that the Judges are plainly wrong in calling for the details of the qualifications of the lawyers to help them adjudicate the issue? Can a retired Judge continue to sit in judgment over the Judges who are seized of an issue, before they themselves pronounce on it? Not, in the view of the Supreme Court, of which Sri. Krishna Iyer was himself an inseperable part, for some time. In Re P.C. Sen (Criminal Appeal No. 119 of 1996) the Apex Court elucidated the law on the point as follows:-

"The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of Court: R. v. Gray, (1900) 2 QBD 36 at P.40. Contempt by speech or writing may be by scandalising the Court itself or by abusing parties to actions, or by prejudicing mankind in favour of against a party before the cause is heard. It is incumbent upon Courts of Justice to preserve their proceedings from being misrepresented for prejudicing the minds of the public against persons concerned as parties in causes, before the cause is finally heard, has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving refelction on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal, is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere with the due course of justice. The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice."

The test evolved and applied by the Supreme Court was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and due administration of law. The comments made by the erudite retired Judge, evidences an inclination to ridicule the Hon'ble Judges who ordered the Advocate General to produce the certificates in support of the appointment of certain lawyers as Counsel for the Kerala Government. They do, affect the public minds by casting a doubt that the direction issued by the Bench was of doubtful validity or propriety. They therefore undoubtedly interfere with the due course of justice and is an attempt to deflect it. This is not to suggest that the Judges constituting the Bench are not made of sterner stuff and are likely to cave in at cheap jibes at them. That, hardly is relevant as what is important in such cases is not whether the comments did affect the pending proceedings but only whether they have a tendency to do so. The motive or intention of the commentator are wholly irrelevant. So is his status in life "Law is the king of kings, for more greater than they" says one of our Upanishads. "May you ever be so high the law shall be above you" - believes the British.

Less, severe comments have been condemned by the Division Benches of the Kerala High Court itself:-

"Any publication on a pending judicial proceeding with the likely effect of interfering or tending to interfere with the administration of justice would be contempt, notwithstanding the fact that it was made as a continuation of a public debate on a matter of general importance. The statutory provisions in the Act are clearly indicative that comments or statements in relation to pending judicial proceedings, with objectionable tendencies as envisaged under the Act, would be outside the pale of contempt only subject to the satisfaction of the requirements of the exceptional provisions such as Ss.4 and 5". - See 1986 KLT 303.

"It is well settled that abusing and vilifying parties to a pending proceeding in relation to the proceeding, amounts to contempt. The fact that the writer did not desire or intend to prejudice the case is immaterial (except as to the extent of his punishment), if the court is satisfied that such was the obvious and necessary result of his words. If the publication is of such a nature calculated to obstruct or interfere with the due course of justice the person who published, will be guilty of contempt whatever be his intention in publishing the same. It would, therefore, be contempt of court to publish in papers during the pendency of a case, matters derogatory to the parties which must necessarily prevent them from obtaining a fair trial of the action. It is no defence to a charge of contempt that the offensive article never reached the eyes of the court or that the court was not prevented from performing its duties fairly and properly or that the respondent had no disrespectful or contemptuous design of reflecting upon the dignity of the court, or that the respondent did not know the nature of the publication or that the articles published during the trial were true and impartial statements of news and facts, or that they were published without intent to injure the parties or interfere with the administration of justice." - said the Court in 1965 KLT 871.

Nor does the view expressed by the eminent jurist on the legal issue involved represents the correct position in law. He appears to altogether ignore the progress made probably after he left the Supreme Court, in the law relating to the fields of public contracts and to appointments to public offices. Today, the position in law is that unlike a private party every order of the Government is amenable to be tested on the touch-stone of Art.14 of the Constitution of India including in the field of contract. See for instance, the observations of the Supreme Court in Sreelekha Vidyarthi's case:

"Thus the wide sweep of Art.14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the district and the other rights, contractual or statutory, which the appointees may have."

It is not as if a "Progressive Judge" (Sri. Krishna Iyer would like to call himself one and likes others to call him so) is not aware of the substantial strides that the Supreme Court has made in the field of Administrative Law in India, even overtaking the conservative view that still prevails in the country of its origin, the United Kingdom.

With great respect therefore to one of India's front ranker in the forensic field, his comments do constitute contempt, do not represent the correct position in law and do have a tendency to interfere with the pending proceedings before the High Court of Kerala.

Concurrent and Consecutive Sentence

(By S.A. Karim, Advocate, Triruvananthapuram)

In a calender case No. 288 of 1993, under Ss.457 and 380 read with 34 Indian Penal Code, the learned First Class Judicial Magistrate of Neyyattinkara, a southern most Court of Kerala, convicted the accused under both the sections and sentenced to undergo rigorous imprisonment for two years each and sentenced to pay fine of Rs.500/- each. In default of fine, simple imprisonment for a period of six months more. The sentence shall run consecutively. The accused went in appeal, but the learned First Additional Sessions Judge, Thiruvananthapuram dismissed the appeal outright. So, the conviction and sentence stand confirmed. It means the convicted shall undergo prison for two years under S.457 first and then shall undergo prison for another two years under S.380 and lastly he shall further undergo prison for six months in default of fine. In the instant case, the convicted shall undergo four and a half years prison continuously. This is the effect of consecutive sentence of imprisonment. There are similar instances. If the sentences were concurrent, the convicted would have completed the prison term in two years. Therefore, one desires to know whether law permits consecutive sentence.

The Indian Penal Code, 1860, is the major penal law of our country. Every penal provision prescribes punishment. It may be either death, imprisonment for life, imprisonment for a term, or fine or both. There are several minor Criminal Acts and even the Criminal Procedure Code, 1973. No law stated when the prison sentence starts. If time is not stated, sentence take place immediately on pronouncement. This is the trend of the penal law.

S.389, Criminal Procedure Code, speaks about suspension of sentence pending the appeal and release of appellant on bail. It clarifies the trend. It reads-

(1) pending any appeal by a convicted person, the Appellant Court may, for reasons to be recorded by it in writing, order that the executions of the sentence or order appealed against be suspend and, also, if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present appeal, the Court shall –

(i) where such person being on bail is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is bailable one, and he is on bail,

order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain orders of the Appellate Court, under S.(1); and the sentence of imprisonment shall, so long as he is released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

S.389, Criminal Procedure Code, clearly indicated the prison sentence shall not take place in case of suspension of sentence either by the convicting Court or Appellate or Revisional Courts. The suspension period shall not affect the sentence, if the sentence remains unaltered. In every other case prison sentence starts immediate. If the Parliament and State Legislature intended to give holiday to any prison sentence, it would have stated so. Therefore, in a case of more than one offence in a transaction, if convicted and sentenced to prison, the sentence shall run concurrent and immediate. So, in my humble view consecutive prison sentence is unknown to Criminal Law of our country and therefore it is illegal.

The 'Mundu' (Not Mundane) Controversy

(By S. Parameswaran, Advocate, Ernakulum)

I. The issue of the Principal of Vazhichal Immanuel College, prohibiting the male students of the institution from attending classes wearing mundu (dhoti) is not to be brushed under the carpet with a compromise formula hatched out and adopted by the College authorities and the Parent-Teachers Association. It raises an issue of much larger significance, than meets the eye and sends a potentially dangerous and wrong signal to Keralites.

II. Apart from being a cloth worn by Keraiites in particular and Indians, especially, South Indian, in general the mundu is symbolic of a culture of the Malayalee who is fast losing his ethnic identity and cultural individuality through a consumer culture fast invading and enveloping this State of nature's beauty and man's brilliance. Even the women folk in rural Kerala, and orthodox Hindu, Christian and Muslim woman in different parts of interior Kerala, not to speak of men, wear mundu, which may carry the appellation, mundu, set mundu, kylee (lungi) etc. While wearing dresses according to one's own likes and notions of fashion is permissible as long as this does not border on obscenity, many industrial concerns, business establishments and professions like the legal profession prescribe - and legitimately too - a dress code. But, to prohibit students from attending college wearing mundu and to insist on wearing of pants and trousers reminds one of the sordid incidents of denial of admission to the great painter Hussain to a place as he did not wear chappals and to eminent Judge Justice V.R Krishna Iyer by a Madras Club for wearing mundu. which are fossilised vestiges of a purblind social system of the Victorian era.

III. In this context, I am reminded of the famous words of the illustrious American Supreme Court Judge, Justice William Brennon in the famous Book Burning Case (Board of Education v. Pico (45) 1982 US 853). "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, if there are any circumstances which permit an exception they do not now occur to us". One may add that if there is any bedrock principle underlying our constitution, it is that State may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable to it. This must extend and apply to institutions as well, One's Philosophy, one's experience, one's exposure to the raw edges of human existence, one's religious training, one's attitude towards life and faith and their values and the normal standards one established and seeks to observe the avocation one should take up, the hobbies one would pursue etc. are all likely to influence and to colour one's thinking and conclusion about the dress one should wear.

IV. It is true that the Indian Constitution like its American counterpart, does not specifically mention any right of privacy; but it cannot be gainsaid that the Constitution recognises a right of personal privacy or a guarantee of certain areas or zones of privacy, the roots of the right being traceable to Part III of our Constitution dealing with fundamental rights. The right of privacy, with respect, is broad enough to encompass a man's decision whether to wear mundu or pants. The detriment imposed on them by denying the choice is too important to be ignored by the statutory authorities. The utter concern of the Governmental authorities on this issue - a Government proclaiming from roof tops of its "Manaveeyam Programme" is indeed regrettable. It is, of course, true that there is a saying that it should never formulate a rule of constitutional law broader than is required by the particular fact on which it is to be applied. It is equally that the freedom the Constitution provides us is not against deprivation either, but deprivation without the due process of law. At the same time, one should realise that the prohibition of mundu does not have a rational relation to a valid objection of the college, nor is arty compelling interest unsolved. By virtue of die University Statute and other forms of Government control, the Colleges in Kerala cannot claim total autonomy and private character.

V. An interesting case arose a few decades ago before the Andhra Pradesh High Court having a bearing on wearing a dress. A nun, who was expelled from the convent, was wearing a nun's religious habitat while teaching in a convent school in Andhra Pradesh. The Mother General issued a direction that she should attend the school wearing saree and blouses like a lady woman teacher. The nun questioned this by a Writ Petition before the Andhra Pradesh High Court contending that 'lie Mother General's instruction was illegal and unenforceable at law and that it was still open to her to wear the religious dress of a nun. A Division Bench of the Andhra Pradesh High Court comprising Chief Justice P. Chandra Reddy and Justice Narasimham held in Puthola Chinnamma v. The Regional Deputy Director of Public Instructions. Guntur and Ann (AIR 1964 AP 377) that under Art.126 of the Constitution of India the Roman Catholic Mission could establish and maintain the churches and manage their affairs in matters of religion. Any religious body has a right to establish and maintain instructions for religious and charitable purposes and manage their affairs. The term 'administer' in Art.30 is wide enough to take in enforcement of discipline in regard to dress and other matters by the educational institution. Thus, the direction that the expelled nun should not wear the 'religious habitat' of a nun, could not be questioned when undisputedly nuns have a distinctive dress known as the 'Religious habitat' which only nuns could wear. There is nothing in the chapter on fundamental rights embodied in Part in of the Constitution, whereunder such a right is expressed or could be inferred. The wearing of a nun's religious habitat by an expelled nun could not be a right which could be recognised under the Chapter of fundamental rights and much more so, when she ceased to be a nun. The Roman Catholic Mission, the Division Bench held, was a private body and the petition under Art.266 complaining of an infringement of a fundamental right does not lie against such a body. Though the decision rendered by the Andhra Pradesh High Court could be distinguished on facts from the mundu Episode in Kerala certain principles can be culled therefrom and held applicable to the present case.

VI. One acknowledges one's awareness of the sensitive and emotional nature of the muck that is raised about mundu the opposing views and of the deep and seemingly absolute views that the subject inspires. The prescription and prohibition by the principal cannot be lightly dismissed as the product of a Victorian social concern to streamline the students and regiment their ideas and outfits. Only the court will be able to resolve the issue by the constitutional measurement free of emotion and predilection and prejudices.