No Forum Shopping

(By R. Muralidharan, Puducherry Civil Service Officer (Retd.), Director, Catalyst
                                                                                              [The Training People]

Forum shopping is a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favorable judgment. It is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. While forum shopping has not been given an exclusive explanation in India, the Indian judiciary through its observation has assisted in streamlining this concept in the country’s legal system. First of all, the practice of forum shopping is not permitted by Indian law. The judiciary has repeatedly criticized the practice and called it an abuse of law. A plaintiff cannot be allowed the ‘choice of forum’ and any attempt by them to go ‘forum shopping’ should be pulverized strictly.

Appeal and Revision under Co-operative Law

The term appealin legal parlance means ‘taking or carrying of a cause from a lower court or authority to higher court or authority for the purpose of rehearing and re-examination of legal issues for a fresh and final decision or disposal’. If the right of appeal is not provided to the affected or aggrieved party to the issue or dispute, it is quite possible that the decision making authority designated, established or created might decide the case arbitrarily, illegally and irrationally. Therefore, with a view to put checks on the proper exercise of power, the appeal provision is provided under law.

If the disputed or questionable decisions taken, orders passed, approval granted, etc., are by persons authorized by the Registrar of Co-operative Societies, then the appeal on the above mentioned subjects has to be preferred to the Registrar. On the other hand, if the said orders, decisions, etc., are passed by Registrar himself, then the matter has to be appealed to the Government.

Revision,in general sense refers to the act of undertaking re-look or re-examination or reconsideration of matters, subject, records, etc., with the intention to ensure correctness through improvement or amendment. Revision under co-operative law refers to the power vested upon the Registrar or Government to legally call for official records from their subordinate officers, committee of management, officers of the society, etc., and examine the same to ensure or satisfy the correctness, regularity, legality or propriety of decisions taken or orders passed by the said subordinate officers or authorities.

In almost all State Co-operative Societies Acts two appellate forums are available, viz., Co-operative Tribunal and Government. The Tribunal is headed by a judicial officer. There is a complete demarcation of issues which are to be referred to the Tribunal and to the Government. Revisional power is exercised by the Registrar and the Government in respect of proceedings for which appeal to Tribunal is not provided.

Appeal/Revision to the High Court

The person aggrieved by the decision of the Tribunal or the Government has his remedy before the High Court under Article 226 (writ jurisdiction) or under Article 227 (civil revision petition).

Now the moot question is whether the aggrieved person is at liberty to invoke either Article 226 or Article 227 to assail the decision of the Tribunal or authority or is there any inbuilt restriction/limitation on its jurisdiction. In the absence of any demarcation, will it not amount to forum shopping (see the prologue for its lexicon)?

Scope, powers and difference between Article 226 and Article 227

Article 226 empowers the High Courts to issue, to any person or authority, including the Government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces).

The first and foremost difference between the two articles is that proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors.

Under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted: (i) without jurisdiction, by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have, or has failed to exercise a jurisdiction which it does have, or the jurisdiction though available is being exercised by the court in a manner not permitted by law, and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

The jurisdiction of 226 and 227 is vast and has to be exercised sparingly. It can be exercised to correct errors of jurisdiction, but not to upset pure findings of the fact, which is within the domain of an appellate court only. This is where the power of revision comes into picture. The purpose of revision is to enable the revision court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal court. The jurisdiction of Article 226 cannot be used as a Revision or Appeal court as the rejection of the order by the subordinate court does not arise the question of violation of fundamental right when the alternate remedy of appeal is available to the aggrieved.

Is there a choice of remedy?

When the order of the Co-operative Tribunal, dismissing the appeal filed by the petitioner was impugned before the High Court of Madras in T.Rengarajan v. V. Ramachandran, Enquiry Officer, Pudukottai & Ors. (2018 (4) KLT OnLine 3126 (Mad.) = C.R.P.(MD).No.609 of 2017 dated 11.10.2018), the respondents maintained that against surcharge proceedings usually Writ Petitions are filed and not Civil Revision Petitions. It is a fact that questioning the orders passed by the Co-operative Tribunals in appeals filed against the orders of surcharge under Section 87 of the Tamil Nadu Co-operative Societies Act, Writ Petitions as well as Civil Revision Petitions are filed by the aggrieved parties. The Court observed that the aggrieved has no choice of remedy and the maintainability of Civil Revision Petition has to be decided first.

In Annamalai Mudaliar v. Unknown (1952 KLT OnLine 814 (Mad.) = (1952) 65 L.W.1229),it was held that a civil revision petition under Article 227 of the Constitution of India would lie against an appellate order passed by the Co-operative Tribunal in respect of surcharge proceedings under the Madras Co-operative Societies Act. Therefore, in the very nature of things, it is only the jurisdiction under Article 227 that is to be invoked and not the writ jurisdiction under Article 226. This conclusion is further fortified by a decision of the Supreme Court in Himalayan Co-operative Group Housing Society v. Balwan Singh (2015 (3) KLT Suppl.162 (SC) = (2015) 7 SCC 373).The issue that was framed by the Supreme Court was on the jurisdiction of the Court while dealing with the petition filed under Articles 226 and 227 of the Constitution of India. The Court observed that a Writ of Certiorari under Article 226 though directed against the orders of an inferior Court would be distinct and separate from the challenge to an order of an inferior Court under Article 227. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall within the purview of the scope of the supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked.

On the above premised reason, the Court held that the order passed by the Co-operative Tribunal disposing of an appeal under Section 152(1)(a) of the Act against the surcharge proceedings under Section 87 will be exclusively amenable to the revisional jurisdiction under Article 227 and a Writ Petition under Article 226 will not be maintainable.

The Division Bench of Patna High Court in the case of Vijayanand Puri v. Deorani Devi & Anr.reported in (2019 (4) KLT OnLine 3142 (Pat.) = 2019 SCC OnLine Patna 1808
observed that the law has concretized that there are manifold differences between
Articles 226 and 227 of the Constitution of India and one of the parameters to test whether an order has been passed under Articles 226 or 227 is that under Article 226, a High Court can annul or quash an order or proceeding but under Article 227, a High Court can, apart from annulling a proceeding in question, can also lay down the boundaries within which the inferior court is supposed to exercise its jurisdiction in order to rectify any error of law and fact apparent on the face of the record. 

If the judgment under appeal falls squarely within four corners of Article 227 of the Constitution of India, it goes without saying that intra-Court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226 of the Constitution of India, although Article 227 of the Constitution of India is also mentioned, and principally, the judgment appealed against falls under Article 226 of the Constitution of India, appeal would be maintainable.

A writ of certiorari to correct a judicial order is not permissible and therefore does not stand the scrutiny of procedural law.

In E.S. Sundara Mahalingam v. The Special Tribunal for Co-operative Cases (District Judge), Tirunelveli & Ors. (2019 (4) KLT OnLine 3143 (Mad.) = W.A.No.4021 of 2019 dated
22.11.2019), the appellant was unsuccessful before the learned single Judge in challenging an order of surcharge passed against him by the Co-operative Tribunal. When the judgment of the learned single Judge was taken on appeal before the Division Bench, the Division Bench applied the ratio in Vijayanand Puri v. Deorani Devi and another [supra].

The fact remains that the decision that was under challenge before the learned single Judge was admittedly that of a Tribunal. The jurisdiction of the Court therefore which could be exercised was under Article 227 of the Constitution and the petition could have been treated to be that under Article 227 only. But the aforesaid issue does not appear to have been dealt with by the learned single Judge. Since the Writ Petition filed under any caption whatsoever, was against the order of the Tribunal, it is the learned single Judge who could and should have treated the petition under Article 227 of the Constitution of India. The Writ Appeal against the jurisdiction exercised under Article 227 would not be maintainable.

Upshot

An analysis of the above judgments would lead to the following propositions:

l An order passed by the Co-operative Tribunal disposing an appeal is amenable to the revisional jurisdiction under Article 227 of the Constitution.

l Such an order cannot be challenged invoking writ jurisdiction under Article 226.

l An order passed by the Registrar or the Government or any other authorities can be assailed under Article 226.

l If a Civil Revision Petition under Article 227 is filed, there cannot be any further intra-Court appeal. The appeal would be only before the Supreme Court.

l There is no choice of remedy to the litigant and hence there is no forum shopping.

Criminal Liability of Medical Professionals

Is there any Need for A Revamp?

(By Soumya James, Advocate, High Court of Kerala)

We havea lot of laws in our country to regulate the medical field. However when we conduct a deep analysis of the existing laws, we can clearly understand that these laws are not at all competent to control and regulate the medical malpractices and unethical activities committed by certain medical practitioners. Therefore it is essential to revamp the law relating to medical offences and fixation of criminal liability for the violators in this field. Following are some of the reasons which pointed the necessity for a relook into the law relating to medicine.

1. Different standards for the same offence:

Our Judiciary, while applying the provisions of I.P.C. in determining the criminal liability of accused in respect of the same offence, provides a special treatment to medical professionals. The Apex Court laid down the following principle while dealing with the criminal liability of accused for rash and negligent acts. A doctor is not criminally responsible for a patient’s death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the state. Not only that here the degree of negligence required is that it should be gross, and neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. Therefore the court must be very cautious of imputation of a criminal negligence to a medical professional who act in the course of his profession¹.

In Suresh Gupta v. Government of NCT, Delhi ², the Supreme Court held that, “Between civil and criminal liability of a Doctor for causing the death of his patients, the court had a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor”³. However this was the view of the single judge which was doubted by the two judges bench of

Supreme Court, in Cr.Appeals (144-145 of 2004) which assigned the following reasons for the disagreement with the above view:

•    Negligence or recklessness being gross is not a requirement of S.304 In many case particularly in Gupta’s case, the court observed that “For fixing criminal liability on a doctor or surgeon the standard of negligence required to be proved should be so high as can be described as gross negligence or recklessness.......mere inadvertence or some degree of want of care and caution might create a civil liability and if the view taken in Suresh Guptas case is to be followed then the word gross shall have to be read into S.304 A of I.P.C. for fixing criminal liability on a doctor. Such an approach cannot be countenanced.

•    Different standards cannot be applied to doctors and others. In all cases coming under S.304 A, the court has the obligation to confirm whether the impugned act was a rash or negligent one before fixing a criminal liability on the accused. In the case of doctors, the court is extending a special treatment for them in such cases by introducing a new degree of rashness or negligence. This would definitely be a violence committed to the plain and unambiguous language of S.304A.

Later, the matter was referred to larger bench. There the Supreme Court after an elaborate discussion of English and Indian judgments summed up the law on criminal negligence as follows:

•   Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. The essential components of negligence are three: duty, breach and resulting damage.

•  Doctors must be treated differently. It observed that negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer a rashness or negligence on the part of a professional, particularly in the case of a doctor, additional considerations must apply.

•  Bolam’s test is applicable in India;

•  Gross negligence alone comes under the purview of Criminal negligence;

•  Therefore gross has to be read into section 304-A I.P.C. i.e., though the word has not been used in section 304-A, the expression rash or negligent act has to be read as qualified by the word grossly.

•  Res ipso Loquitorhas a limited application in trial on a charge of criminal negligence. According to the view of SC, it is only a rule of evidence and operates in the domain of civil law especially in cases of torts and helps in determining the onus of proof in actions related to negligence. It cannot be pressed in service for determining the per se liability for negligence within the domain of criminal law.

However the SC till now in any case did not provide a common standard for identifying gross negligence from an ordinary negligence. Even today there is uncertainty to determine and distinguish a gross negligence from a mere lack of care, skill or attention. In Guptas case the court held that “this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extent to criminal liability and expose them to the risk of imprisonment for alleged criminal negligence”.

The intensity or gravity of negligence shall be the prime factor for determining it as a crime punishable under criminal law. Therefore whether a medical negligence amounts to crime or not is a question of fact in each case for the jury. In order to identify the existence of criminality in a medical negligence, the court usually follow various test and use many epithets such as culpable, clear, gross, wicked, complete etc.

These issues were decided by the Supreme Court in Jacob Mathew v.State of Punjab⁴. In this case the court directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressures in performing their duties. It also provides certain guide lines to deal the matter until a comprehensive law is framed by the government. The court itself had the opinion that the offences committed by medical professional are distinct from the ordinary offences. Therefore it requires special attention.

Burden of proof in Criminal negligence: In case of criminal negligence, the burden of proof is on the complainant. So if a patient alleges malpractice in medical, the law will require a higher standard of evidence to support it. But to an ordinary man or a patient, it becomes very difficult to determine the exact damage and the causal relation between injury and the fault of the doctor. The prosecution has to submit the evidence in support of medical negligence from the part of doctor. To an ordinary man the medical field is unexpected and unpredictable. Therefore the prosecution may not be able to prove guilty of doctors beyond reasonable doubt. The admissibility of evidence is based on Bolam test i.e. it requires the opinion of the experts of some competent medical professionals. Here the problem is that no doctor makes an opinion about the other doctor in such a way that it affects his reputation in the profession except in some rare cases. A comprehensive law should be made to protect the rights of patients against the unpredicted medical malpractices by the doctors. All the above analysis pointed out the need for a comprehensive penal law to regulate the medical offences.

2. Is there any need to amend I.P.C.?

In India I.P.C. is considered as the substantive criminal law. Though it has amended its main structure has continued intact till now. It is an admirable compilation of substantive law because most of its provisions are as suitable today as they were when they were formulated. But the social and economic structure of India has changed to such a large extend that in many respects the code does not truly fulfills the needs of the present day. Though it consist of all major crimes such as offences against person, property and state, it is too adequate to deal with the criminal tendencies in the field of medicine. The medical offences what we can call it as one of the white collar crimes is distinct from the ordinary offences. We cannot blindly apply the provisions in the I.P.C. to punish a medical professional because the situation under which a medical offence is committed by him is truly different from an offence committed by an ordinary person. The I.P.C. 1860 is too adequate to deal with the medical offences. Therefore a law defining the medical offences and the procedures to regulate and control such offences must be enacted and such law must be harmoniously constructed with the provisions of I.P.C. The provisions of IPC dealing with medical offences should also be amended in such a way as to enhance punishment to the blame worthy medical professionals and thereby providing justice to the patient and their relatives and to prevent unnecessary and frivolous petitions against ethical doctors.

3. Criminal liability of Quacks:

India being the 2^nd largest population of the world has an obligation to ensure adequate health care facilities to all its citizens. In India we have mainly four varieties of medical profession⁵ such as

• Allopathic: This method of treatment outsmarted other methods because it can provide relief in emergencies.

• Homeopathic: The Homeopaths insisted that though these method of treatment is time taking, they cure the disease permanently by rooting out the cause.

• Ayurvedic: Ayurvedic medicines are being used from time immemorial. It was developed and practiced in India from Vedic days. The curative values of Ayurvedic medicines are enormous. However Ayurvedic system passed through a dull period when allopathic treatment showed remarkable achievement.

• Unani (Hekimi). These medicines are somewhat similar to Ayurvedic medicines and are few in numbers. There has not been any effort to modernize these medicines. Still it is a fact that it has a big potentiality to play a vital role to fight diseases.

Due to the remarkable achievement and quick relief attained by allopathic medicines made the common people to opt allopathic treatments instead of other areas of medicines. But the problem is that the modern medical facilities are available only in the urban areas and in India, 70% of the population is living in the rural areas. The specialists and consultants are always wanted to practice in the urban areas because the people in these areas can afford the high costs of professional fees, medicines and facilities. Rural areas are inhabited mostly by the farmers and their economic capacity could not permit them to afford such a high cost medical services. Therefore they used those medical facilities which they can afford. This led to an emergence of a system of treatment in the rural areas which is offered by the quacks. They do not have the medical degrees either in the allopathic or Ayurvedic stream. They developed the idea of medicines from the prescription of doctors for a number of common diseases. They are easily approachable to villagers and the prices charged by them are very low. They even visit the patients at their homes. Therefore obtaining medical services at the door steps of the persons in need at low prices increases the popularity of quacks in the rural areas. There are cases when the medicines given by quacks caused severe consequences but the villagers accepted it as bad luck and treat quacks as their ‘doctors’ and ‘family physicians’. The doctors practicing homeopathy, Ayurvedic or Unani system of medicine especially in the rural areas are also started practicing Allopathic for their monetary gains. This has serious repercussions. The courts have also taken a serious note of this and ruled that if a person practice medicine without possessing the requisite qualifications or the enrollment under the medical council act, he becomes liable to be punished with imprisonment and fine. The court also added that since the law requires him to practice in a particular system of medicine, he is under a statutory duty not to enter in the field of other systems. According to the Supreme Court, a person who does not have knowledge of a particular system of medicine but practices in that system is a quack.⁶

Not only that in our country we have several other private practitioners who are not having any formal qualifications such as herbalists, tantriks, hakims, vaidyas and others. They are very popular among poor and illiterate people in the rural areas. Lack of education and general awareness among the common people in the rural areas and non availability of adequate medical services are the main reasons for the flourishing of quacks in the rural areas of our country. These culpable persons must be handled with heavy punishment. The Apex court in D.K.Joshi v. State of U.P. & Ors.⁷directed the district magistrates and chief medical officers of all the districts in UP to identify and take appropriate action against all persons practicing medicine without appropriate recognized qualifications. Therefore it is essential to amend the Indian penal laws in such a way to provide deterrent punishments for the quacks that are under the guise of fake degrees resort to rash and negligent act resulting in the death of innocent patients.

4. Role of medical council in protecting the interest of victims:

In India, the right to practice in allopathic, homeopathic, Ayurvedic, Unani and other systems of medicines are regulated by Central and State legislation. The prominent Central acts are as follows:

•   Indian Medical Council Act 1956

•   Dentist Act 1948

•   The Indian Medicine Central Council Act 1970

•   The Homeopathy Central Council Act 1973

•   The Pharmacy Act 1948

•   The Indian Nursing Council Act 1947 etc.

These legislative enactments provides for the setting up of Medical councils at national and state levels and empower them with the powers of to lay down minimum standards for medical education, enrolment of doctors and also regulate their professional conduct by formulating the code of medical ethics.

Indian medical councils act was enacted in 1956 mainly for the purpose of reconstitution of medical council of India, the maintenance of a medical register for India and matters incidental thereto. A detailed examination of the various provisions contained in the medical council of India act reveals that though the act has made provisions for the regulation of doctors, hospitals and nursing homes, it is silent with regard to the protection of the interests of the persons who have suffered any negligence or deficiency in the service rendered by members of the medical profession. The medical council of India provided for the setting up of state medical councils for the regulation of the conduct of medical professionals. The joint study undertaken by the Indian law institute and VOICE reveals that in many of the states these councils are not effective and have failed to serve their purpose⁸

If a complaint is made against a doctor or medical professional for professional misconduct, the general procedure is that the Medical Council of India forwards the complaint to the concerned State Medical Council for necessary action. If the complainant is not satisfied with the decision of the state council, he is advised to approach the concerned state government. In general, the doctors being the local members of concerned medical councils will be in a position to influence the state councils, resulting in grave injustice to the complainants. To tackle these types of injustices, suitable amendments must be made to empower the medical council with the powers to take disciplinary action to redress the grievances of the complainants.

5. Need for a legal frame work in clinical trials:

Due to new and highly advancements in science and technology, everything seems easier. The invention of more efficient painkillers, new discovery to prevent obesity, highly advanced research and findings in the area of stem cell, cloning alternate reproductive techniques etc. keeps us beaming at the wonderful discoveries of science. The process behind the success of above said scientific developments includes many trials, errors, rejections and other issues. This entire process from the very beginning is termed as ‘clinical trial’. The clinical trial is now the 2^nd leading industry in the world. But behind most of the clinical trials, there may be unethical inhuman horrible medical experimentations which are beyond the expectation of a common man.

Today in the modern era in spite of conducting experiments in the animals, the scientific researchers in the medicine and bio related aspects exploiting human subjects for making a breakthrough in the medicine. Behind all these miraculous achievements, there is a horrible past, present and probably future invents which are highly unethical, illegal and against morality and human values⁹

Even though there are strict rules and regulatory documents both at the national and the international level such as Nuremberg code, declaration of Helsinki, there exist some overambitious professionals who are having no ethical values. They treat other human beings as merely subjects for their professional achievement. The emerging of such professional will hold the human life at stake.

India has long been identified as a major resource centre for conducting clinical trials and data management services because of its large patient population, well trainees and enthusiastic and foreign educated investigators and significantly lower cost.¹⁰ Volunteer enrollment is also very high as people believe that participation in research trials could offer them access to quality health care and medicines, which otherwise would not be affordable. The result is that the subjects are compliant and keenly attend all study visits.¹¹

A major threat India faces in this area is its low literacy levels, which has always kept the regulators skeptical about the possibility of the volunteers being not adequately informed about the risks they are undertaking. However compliance to International Conference on Harmonization - Good Clinical Practice (ICH - GCP Norms), trained investigators, a growing population of experienced monitors and exposure to international protocols seem to provide some relief to such issues.

The legislative framework governing medical researchers in India are as follows:

•    Drugs and cosmetics act 1940

•    Drugs and cosmetics (II Amendment) Rules, 2005

•    ICMR Guidelines, DBT Guidelines

•    Medical Council of India Act 1956 (Amended in the year 2002)

•    Central Council for Indian Medicine Act 1970

•    Guidelines for Exchange of Biological Material ( MOH Order 1997)

•    Right to Information Act 2005

•    The Constitution of India

•    The Bio medical research on human subjects( regulation, control and safeguards) Acts, rules and codes of ethics of professional bodies regulating the practice of medicine in India such as the medical council of India, Department of Ayurveda, Yoga, Unani, Siddha and Homeopathy (AYUSH) Bill- 2005.

Apart from these regulations, The Indian Council of Medical Research or the ICMR which was established with a view to foster a research culture, improve and develop infrastructure and foster community support plays a significant role in controlling clinical trials in India. The Drugs and Cosmetics Act and the Medical Council of India Act states that all clinical trials in India should follow the ICMR Guidelines of 2000. The ICMR has a mechanism of review for its own institutions.

Today India is one of the hottest destinations for global clinical trials¹². At the same time we cannot deny the fact that our country has witnessed several gross violations of human rights and ethical values while conducting trial on volunteers enrolled in studies. For eg: In 1999, in a government run regional cancer centre at Trivandrum, an experimental drug tetraglycinyl nor-dihydro- guaiaretic acid was administered on some patients without obtaining their consent. Though there was an established treatment for their condition, they were not informed that they were taking part in an experiment or that they were being denied the established treatment.

Similarly in 2002, the Pharma giant Norva Nordisk conducted multi centre phase III clinical trials of a diabetes drug even before receiving the result of the animal studies. The study report found that the drug ragaglitazaar caused urinary bladder tumors in rats, and this should have been known before the drug went for phase I trials. The trials were conducted on 650 people from North America, 200 from Latin America, 100 from Australia/ New Zealand, 800 from the European Union and 200 from non EU Europe and 550 from Asia.

In 2003, Mumbai based sun pharmaceutical industries Ltd. Launched a promotional cum research programmes by getting private doctors to prescribe the anti cancer drug Letrozole to more than 400 women as a fertility drug for ovulation induction. The company then publicized the doctors, reports to other doctors as “research” using their network of medical representatives. The drug was prescribed despite the fact that it was known to be toxic to embryos.

Therefore to rely simply on minimum standards of non binding and vague medical ethics is not enough to combat the present situations. In order to address the key issues and challenges in this area, India should evolve various effective policies and ensure implementation in legislative, intellectual property rights structure and regulatory issues.

6. Need to protect medical professionals from false or frivolous cases:

There are reveal that false and frivolous cases have been filed against medical professionals. This tendency should be discouraged because this may create a fear in the mind of doctors/medical professionals that they may be harassed by police or by the law courts particularly in medico legal cases which inhibits them in handling of such cases. The judiciary and police therefore avoid summoning medical professionals for interrogation, unless it is absolutely necessary. Therefore it is essential to evolve certain guidelines and sensitize the police and medical professionals about the judgment of the Apex Court.

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Foot Notes:

1.   Legal Framework for Health Care in lndia (S.K.Verma, SC Sriyastava, Syed Sadiq Ahamed Jilani), Lexis Nexis (A Division of Reed Elsevier India Pvt. Ltd),New Delhi, Year 2002. pp.69.

2.   2004 (3) KLT 14 (SC) = (2004) 6 SCC 422.

3.   Suresh Gupta v. Government of N.C.T. of Delhi & Anr. (2004 (3) KLT 14 (SC) = AIR 2004 SC 4091 = (2004) 6 SCC 422).

4.  2005 (3) KLT 965 (SC) = AIR 2005 SC 3180.

5.   LAW AND MEDICINE; Dr. NANDITA ADHIKARI; Central Law Publications; 3rd Edition, 2012; pp.31-33.

6.   Poonam Verma v. Ashwin Patel & Ors.(1996 (2) KLT SN 2 (C.No.3) SC= (1996) 4 SCC 332.

7.  (2000) 5 SCC 80.

8.   Legal Framework for Health Care in lndia (S.K.Verma, SC Srivastava, Syed Sadiq Ahamed Jilani), Lexis Nexis (A Division of Reed Elsevier India Pvt. Ltd.), New Delhi, Year 2002. pp.166.

9.   Medical Crime - The Horrors of the Horrors written by Dr.enozia vakil and medically reviewed by Dr.Nithin Jayan available at www.mediindia.net>patient>patientsinfo

10.  Clinical trials in India: Ethical concerns ; Patralekha Chatterjee reports in the Bulletin of the World Health Organization. http://www.who.int/bulletin/volumes/86/8/08_010808/en/

11.  Clinical trial regulation in India: The Reality by Deepak.M .B. www.legalservicesindia. com/article/clinical-trial-regulation-in-India-678-1.html.

12.  How ethical are clinical trials in India? By P. Sree Sudha http://www.indianlawjournal.org/archives/volume2/issue_3/article_by_sreesudha.html

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Dissenting Note on Gopalakrishnan @ Dileep v. State of Kerala,
Reported in 2019 (4) KLT 853 (SC)

(By Sajeer H., Section Officer, Law Department,Government Secretariat,                                Thiruvananthapuram)

The crux of the case is that the appellant is a well known and popular cine artist and the de facto complainant (victim) is also on the same field in Malayalam film industry. It is alleged that the appellant maintained enmity towards the victim, believing that she is to be responsible for the breakdown of his wedlock. To retaliate, he allegedly conspired with the first accused to abduct the victim, for the purpose of sexuallyabusing her and to record the acts of sexual abuse and thereby black mail her by using the video graphed materials. In consequence of the above conspiracy, the first accused allegedly solicited the assistance of other accused. On 17.2.2017, while the victim was proceeding in a car along through the National Highway, she was intercepted by the accused and they abducted her to Ernakulum and on the way she was sexually abused inside the vehicle and the acts of sexual violence involving the first accused and the victim were video graphed by the first accused on his mobile phone. Painfully, the victim was abandoned thereafter and the accused were hidden in shadows. The data in the mobile phone was allegedly transferred by the first accused to a memory card. In the meanwhile, the incident was reported by the victim to the Nedumbassery police on the same day and they registered a Crime and commenced their investigation. On getting information about the registration of the crime, the first accused entrusted the memory card to a lawyer, who later produced it before the Judicial Magistrate. The appellant was arrested in the course of investigation, on a specific allegation that he had masterminded the entire crime and had hatched the criminal conspiracy with A1, who accomplished it with the aid of other accused. Investigation claimed to have unearthed materials to link appellant with the first accused. The offences were under Sections 120A, 120B, 342, 354, 354B, 366, 376D, 506(i), 201, 212 and 34 I.P.C. and Sections 66E and Section 67A of the I.T. Act. However, the mobile phone, which was used for recording the sexual abuse, could not be recovered in the course of investigation.

Pursuant to the filing of the final report, cognizance was taken and committal proceedings commenced by the Judicial First Class Magistrate. Pursuant to the summons, appellant and other accused appeared and they were furnished with the records relied on by the prosecution. The appellant raised an objection that, the memory card relied on by the prosecution was a crucial document, but a copy of it was not furnished to him. He accordingly filed a petition for a direction to the prosecution to hand over him a cloned copy of the video footage of the memory card and the transcript of human voice. In the meanwhile, the appellant was permitted to watch the video footage in the presence of his counsel and Magistrate. But he filed another petition, wherein he was stated that he needed a thorough examination of the contents of the memory card. He sought a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio contents in the same format, as obtained in the memory card and the transcript of human voices, both male and female recorded in it. But the same was rejected. Against which he preferred an appeal before the Honourable Supreme Court.

By partly allowing the appeal Honourable Supreme Court held that, 

Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised, in that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL, after analyzing the cloned copy of the subject memory card/Pen drive, shall be kept confidential and shall not be allowed to be accessed by any other agencyor person except the concerned accused or his authorized representative until the conclusion of the trial.

We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.

Needless to mention that, the appellant before us or the other accused are not claiming any expertise, much less capability of understanding forensic analysis of the cloned copy of the contents of the memory card/pen drive. They may have to eventually depend on some expert agency. In our opinion, the accused who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen drive produced before the trial court by the prosecution on which the prosecution would rely during trail ,are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

It is evidently clear that the appellant purposefully and intentionally used the name and identity of the victim throughout his appeal memorandum. The same was timely opposed by the State and the counsel appearing for the intervenor (the victim). The appellant counter blasted the same by saying that F.I.R., 161 Statements, 164 Statements, mahazer would also include the name of the victim and hence he had a qualified right to mention the name and identity of the victim in his appeal memorandum. By rejecting the argument of the respondents, the Honourable Court held that “the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code and the charge sheet/police report filed before the Magistrate”.

But in reality what Section 228A(1) of the Indian Penal Code says is that,

Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376A, Section 376B,
Section 376C or Section 376D is alleged or found to have been committed shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publi­cation of the name or any matter which may make known the identity of the victim if such printing or publication is, (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation,.....

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.                                 (underline supplied)

On going through the above section, it is ample clear that the mentioning of name and identity of the victim clearly come under the penal ambit of Section 228A(3) of IPC. Mentioning the name and Identity on F.I.R., 161 Statements and 164 statements by the prosecution are not offensive but are statutory for the purpose of proving the case of prosecution. But that may not be a ground for the accused, to disclose the name or identity of the victim in a proceeding before a court of law. Therefore the mentioning of name and identity of the victim in the appeal memorandum was intentional and purposeful and benefit ought not to have been given to the appellant, which it may lead detrimental to the interest of the victim.

It is pertinent to note that, the appellant alone approached the Honourable Apex Court for allowing and permitting him to obtain cloned copy of video, which was alleged to be taken by the accused. By allowing the same the benefit was also extended by the court to all other accused also. But the trial court by denying the application, says that “in order to uphold the esteem, decency, chastity and reputation of the victim and also in the public interest the prayer could not be allowed”. If it is to be presumed that the intention of the appellant may be fair and if he approached with clean hands, then, why the other accused who were allegedly and actively participated in the incident were permitted to watch the video which they had taken by, with a sadist mind.

Some of the relevant questions in this aspect are, whether the contents of memory card/pen drive produced with the police report can be treated as document?, covered under Section 3 of the Indian Evidence Act and defined under Section 29 of the Indian Penal Code and if so, whether it is permissible to the accused to claim copy of it?, whether the cloned copy of the memory card can be denied to the accused on the ground of infringement of privacy, dignity, decency, honour and chastity of the victim?.

The accused, other than the appellant herein, actually participated in the physical and sexual assault over the victim and thereby video graphed the entire thing. The accused were known criminals and theirs acts were not spontaneous but a preplanned one. All incidents were done for the appellant, who was the alleged mastermind of all the incidents. The material used for the commission of the crime was the mobile phone and after the incident the videos taken by the accused on the mobile phone were copied by the accused into a memory card. They alleged to be entrusted it to a legal practitioner, who in turn produced the same before the jurisdictional magistrate. Though the mobile phone wasn’t yet recovered, the same can be treated as a material object and the contents therein cannot be treated as documents. Because it was the end result of a crime as held by the Honourable High Court.

In addition to the grant of supply of cloned copy of image to the accused, the court had given certain directions to the magistrate. It allows the accused to obtain a second expert opinion from an independent agency, say, Central Forensic Science Laboratory .The court also directed the magistrate to provide an opportunity to the accused to obtain a second expert report from an independent agency, say, Central Forensic Science Laboratory regarding the authenticity of the videos and its contents. It also directed the Magistrate to provide an opportunity to the accused to view and inspect the video along with his counsel and an IT Professional of his choice. It is the IT Professional who will make queries about the authenticity and the contents of the video before the Central Forensic Science Laboratory and they are bound to answer the same. It can be said that these directions are not in accordance with the fair trial, but an overtake on the fundamental right guaranteed under Article 21 of the Constitution of India.

It is also directed that the inspection of the report of the CFSL is to be, only open to the accused and not to any other person including the prosecution also. Now the question is after these decision, which relevant thing will remain for the prosecution to reach the accused. The only link in between the prosecution and the defense is the report of the State Forensic Science Lab, which covered all area of the video and copied the same in to pen drive by using the most modern equipments having like that of the Central Forensic Science Laboratory But the same remained inoperative as a new report was called for. Hence the report of the State Forensic Science Laboratory has only value of a skeleton in the graveyard.

It is relevant to move to Chapter eighteen of the Criminal Procedure Code. Wherein Section 226 reads that when the accused appears or brought before the court in pursuance of a commitment of the case the prosecutor shall open the case and describe the charge brought  against the accused, Section 227 reads that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf  the judge considers that   not sufficient ground   for proceeding against the accused then he shall discharge the accused. If it presume that the accused has commissioned the offence it shall frame the charge against the accused. Section 231 of the Code reads that on the date so fixed the Judge shall proceed to take all evidence as may be produced by the prosecution. If it finds no ground for proceeding against the accused it shall acquit the accused. Or otherwise it shall call upon the defense to adduce the evidence. On going through these sections and Chapter XVIII of the Code in entirety, it can be seen that the right of the defense to adduce evidence comes only after adducing evidence of the prosecution and not before the prosecution. The decision of the Honourable Court had laid down a procedure that without awaiting the stage of pre trial steps, defense side can take up and adduce evidence by deviating from the statutory mandate of the Code. Definitely it may a precedent in every case having connected or incidental subject matter.

The case in hand may also be a precedent in all cases having the charge of sexual violence and cyber crimes having the background of or materials tendered on memory card or pen drive, the accused may claim for the copy of the same, before taking evidence of the prosecution, on the guise of right to have a free trail.

Another matter is that, the sadist accused in this case committed the brutal crime against a poor, innocent, helpless lady on 17.02.2017 at night and she was abandoned on the way after midnight. The accused allegedly copied the video from his mobile to a memory card and allegedly entrusted the same to their counsel. The counsel submitted the same before the Magistrate on the same day. On going through these facts in detail, one can see that there will be every chance for tampering, editing and alteration of the video before it reached the court.

Neither the appellant nor any accused had a case that the details in the memory card were forged one and they had not done the act as pictures in the memory card. Without considering these aspects the Honourable Court had given benefit to the accused for watching their videos again and again.

As far as the rape case is concerned the statement of the victim is sufficient for presuming that the rape was committed against her. In State of Himachal Pradesh v. Raghubir Singh (1993 (1) KLT OnLine 1029 (SC) = (1993) 2 SCC 622) Honourable Supreme Court held that evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which mitigate her veracity. On going through catena of decisions of the Honourable Supreme Court it can be seen that corroboration of the prosecutrix is not necessary on the cases of rape and its end in acquittal may be on account of mishandling of the crime by the police and the invocation of the theory of “consent” by the Courts who tried the offence.

Section 114-A of the Indian Evidence Act states that, in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause(g) or sub-­section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in heir evidence before the Court that she did not consent, the Court shall presume that she did not consent. This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. On a journey through all these decisions by comparing with the case in hand the memory card details alone is not a sufficient ground for escaping sanction from the accused from a court of law.

Rape is an aggression on the mind, body, reputation, morality, decency, dignity, honour, privacy and chastity of poor helpless women. A large number of women still fail to report rapes to the police, because, they fear of embarrassing and insensitive treatment by the doctors, the law enforcement personnel and the cross-examining defense counsels. In Bodhisattwa Gautam v. Subhra Chakraborty (1996 (1) KLT OnLine 912 (SC) = (1996) 1 SCC 490) our Apex Court held that, Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature. The justice dispensing, in these cases, should be considered the emotional and physical plight of the victims also. Therefore the decision in P.Gopalakrishnan@ Dileep v. State of Kerala is not a good law.

“The Tales of Three Cities”

(By.K.V.Narayana Menon, Advocate, Calicut)

It was midsummer in Madras. Dreaming when dawn’s loose jacket orange for the day was in the sky I woke up when “The Hindu” was dropped in my room. There was none to wake me up. Glancing through the columns of the “The Hindu” I learnt that the Madras Legislative Assembly was in session that day. It was my dream to visit a Legislative Assembly, the law making house. The legislature often does serious business in the fresh hours of the day and I was there by 8 a.m., close to Mount Road, the unmistakable land mark of Madras, as it then was.

As I entered the legislative assembly with mounting excitement I saw a young member in serene white, full sleeved shirt with beautiful cufflinks, addressing the speaker in brief British English. His bright eyes were visible through the black rimmed glasses. He had a light fade crop on the sides and was dressed impeccably. All the members present and visitors in the assembly were closely listening to the talk of the member. The speaker was not restraining him though the member was stretching beyond the assigned time.

The member I guessed, was highlighting the grievances and demands of the Malabar District, the jewel of the west coast of the Madras province. In terms of economic development, the Malabar District then was several years behind the rest of the province. The Honourable Chief Minister was seen standing up, repeatedly assuring the house that he will certainly look into the matter. The submission of the member was so effective and authoritative. It was not argumentative. He was literally carrying the day. Like several others, I had also enjoyed his “British Breakfast”.

Tremendous applause followed when the member completed and sat down. When he sat down I saw even other members in the assembly talking about him. His oratory had left an indelible impact on the august assembly. The applause lasted for a long time. The ovation was actually an approval of the Madras Legislative Assembly of the remarkable performance of the member. It was not only the beauty of the language but also the quality of the parliamentary practice, probably recommended by Erskine May that attracted the ovation. The member may have mastered May’s Parliamentary Practice (Originally published in 1844) before entering the assembly hall. And that was, V.R.Krishna Iyer, from the Malabar District of the Madras Province.

The Government Law College Emakulam must have witnessed many debates, discussions and discourses in its splendid history. But the debate on whether the Central Intervention under Article 356 of the Constitution in Kerala was justifiable or not, is unparalleled and shines almost alone a star.

The stage was set for a verbal duel between Panampilly Govinda Menon and V.R.Krishna Iyer. Never, never in the history of the Law College did so many students attend a debate with so-much patience for so long a time. Two of the most renowned speakers of Kerala on either side, a highly inflammable subject which required expertise in constitutional jurisprudence, coupled with current politics and above all at a venue close to the Queen of the Arabian sea-what else do you need?.

Long before the speakers came, the first year law students with boyish delight had fully occupied the front rows of the B.L. lecture hall. Once a Legislative Assembly of the Cochin State it was a comfortable hall with fine seating arrangements.

The patience exhibited by the students was remarkable. That quality of patience and discipline I later observed only among the visitors with children, from all over the world, standing in line for hours, to watch the ‘Wizarding world of Harry Potter’, in Universal’s Islands of Adventure at Orlando, in the United States of America.

Our beloved Principal was very happy, since the boys were behaving well. P.Govinda Menon started the debate, supporting of course, the dismissal of the elected government. He appeared relaxed like the captain of a cricket team, who had just won the toss. He was firm on his grounds and absolutely confident of what he was advocating.

V.R.Krishna Iyer, on the other hand, was vehement at the outset opposing the validity and propriety of the action taken. The speeches for about two hours kept the audience spell bound. Both speakers showed their phenomenal knowledge in constitutional law. They argued with meticulous thoroughness of facts as well. Occasional blending, of constitutional law with a bit of politics made the debate lively, sparkling and a truly unforgettable event. It was akin to diamond cutting diamond.

V.R.Krishna Iyer was one of the most sought-after speakers of the Calicut Bar Association, because he was a legal luminary. The centenary celebration committee of the Calicut Bar Association honoured Krishna Iyer by offering him the first law lecture of the law lecture series initiated by the committee. He gladly accepted it and delivered it in 1986. It was a master-piece, no doubt.

The Bhopal Gas Tragedy was the topic he had dealt with once when addressing the Bar Association. In his brilliant talk, he uncovered the intensity of the tragedy in his inimitable style. His account of the tragedy was as surprising as it was shocking. The tragedy had wounded his feelings so deeply. It is impossible to recapture his words, phrases and expressions when dealing with any topic effectively. Age had slightly withered him when he addressed the Calicut Bar Association in 2012. But his memory had not faded and it was sharp even at 94 and it was his razor sharp mind and crystal clear memory of a youngster that made me think of him reverentially.

The inaugural lecture of the V.K.Krishna Menon Lectures was delivered by V.R.Krishna Iyer way back in 1978 at the Senate Hall, Trivandrum. V.K.Krishna Menon was yet another powerful speaker from the legal fraternity. There are some similarities one could notice in Padmavibhushan V.K.Krishna Menon former Defence Minister of India and Padmavibhushan V.R.Krishna Iyer not only in names initials, career and outlook but also in the style of oratory.

The outright frankness in both speakers is unique. This city can be proud of the breakthroughs of the two precious speakers in the art of oratory. My humble tribute to all the illustrious lawyers.

The three cities viz Chennai, Cochin and Calicut have the same story to tell that, V.R.Krishna Iyer was one of their favourite speakers. Undoubtedly he was also the favourite of the legislature, the executive and the judiciary. But, Padmavibhushan Vaidyanathapuram Rama Iyer, Krishna Iyer, was my absolute favourite as a powerful speaker.