8 July 2020.The Karnataka High Court has held that a Writ Petition under Article 226 of the Constitution of India is maintainable against private banks seeking implementation of the Circular issued by the Reserve Bank of India dated 27 March 2020.
Justice Suraj Govindaraj framed a specific question as to whether a writ of mandamus can be issued against a private bank to implement the Circular issued by the RBI dated 27.03.2020?. While answering this question, the judge has held that It is the obligation and duty of the RBI to regulate the financial institutions, its business as also the credit system of the country, by exercising the powers vested with it under the Reserve Bank of India Act, 1934. The RBI circular has permitted the grant of a moratorium to all borrowers so as to keep the viable borrowers/business running. It is therefore clear that the Circular is issued in the public interest and any aspect relating thereto would attract a public law element.
The court relied, inter alia, on the judgment of the Supreme Court in Punjab National Bank and another vs Astamija Dash (2008) 14 SCC 370 to the effect that the said bank was covered within the ambit of Article 12 of the Constitution. The Supreme Court issued a writ when the dispute before the Court was relating to the enforcement of the principle of equality amongst the employees of the Bank, holding that same is a public duty of the Bank.
Proceeding further, the Court held that though the Circular issued by the RBI dated 27 March is not mandatory in so far as the power to grant moratorium, it is mandatory for the Bank to ensure the continuity of viable business. Non-grant of moratorium should not result in adversely affecting the survival and continuity of a viable business. The court in paragraph 22.16 held that Once the banks have in the public domain on their respective websites expressed their solidarity with all their customers and stated that all the customers are eligible for grant of a moratorium in accordance with RBI guidelines, it is not permissible for such banks to nit-pick and later on refuse the grant of a moratorium to petitioner who is otherwise eligible. That is to say the Banks cannot take one sided stand in the public domain and a contradictory stand while implementing that they have stated in the public domain. Both the RBI and the banks have held out that all customers are eligible for a moratorium. The availing of or otherwise of the moratorium is at the sole discretion of the borrower more so when the borrower would be required to make payment of additional interest during the said moratorium period.
The Court further held that the moratorium under the Circular is applicable even to a structured loan like LRD availed by the customer since the appropriation of the monies of the LRD would have negative impact on the continuity of the petitioner. One bank cannot refuse extension of a moratorium when another or others are willing to extend the benefit or a moratorium.
Allowing the writ petition, the Court granted a writ of mandamus against the Reserve Bank of India to enforce the recovery package contained in the Circular dated 27 March 2020. The communications issued by the banks are also quashed. The Court has directed the Banks to grant moratorium to the petitioner as per the Circular subject to payment of interest portion. The court has also restrained the banks from recovering the loan repayment installment during moratorium.
Case details: Writ Petition 6775/2020 Velankani Information Systems Limited vs Secretary, Ministry of Home Affairs, Government of India and others. Decided on 8 July 2020
8 July 2020 – The Division Bench headed by the Chief Justice of Karnataka took strong exception to a discourteous email sent by an Advocate to Karnataka High Court Registry when a matter was sought to be listed before the Court. The Court summoned the Advocate to convey the displeasure. “We called you here to convey our compliments. Atleast you have the courage to tell that the Chief Justice of Karnataka High Court does not understand the emails sent earlier”, the Chief Justice said. The advocate promptly apologized for the mistake.
It is a matter of fact that the Registry, Judges and Lawyers are all working under extreme pressure. Many judicial officers and staff are affected by Covid-19. Listing of matters in High Court is preceded by permission to file. There is no automatic filing and listing of cases. It is advisable that all act with patience till normalcy is restored. Finding fault with registry for non-listing is certainly not the way, the court said. Many are addressing emails directly to Chief Justice on all types of issues. There must be restraint in this regard, the court expressed.
Karnataka High Court holds that Government Orders banning Online Coaching to children prima facie violative of Article 21 and 21A of the Constitution of India. Voluntary online coaching without additional fee permitted. (Interim Order)
Karnataka High Court 8 July 2020
Anumitha Sharma and others vs State of Karnataka and another. Writ Petition (PIL) WP 8168/2020 & connected matters. Chief Justice Abhay Shreeniwas Oka and Justice Nataraj Rangaswamy. 8 July 2020 (Interim Order).
Held: Prima facie we are of the view that both the orders of the Government imposing ban on Online classes encroach upon the fundamental rights under Article 21 and 21A of the Constitution of Indiasays the division bench.
The Karnataka High Court says though it is not for the Court to decide in matter online education has to be imparted, it is clear that both the Government Orders do not stand the legal tests. The High Court also says that the Government shall take steps to provide online education even in rural areas.
Interim Order Government Orders banning Online Coaching stayed subject to the condition that Online Coaching is voluntary and no additional fee is charged.
Last week, a lawyer from Bangalore was thrown out of a television news channel debate when he questioned the “constitutionality” of Indian soldiers shouting “Bholo Bharat Maata Ki Jai” during the Prime Minister’s visit to Ladakh. I made some research on this. Hence this write-up.
Article 1 of the Constitution of India which deals with ‘Name and territory of the Union’ reads as under:
“India, that is Bharat, shall be a Union of States.”
Perhaps the first reference to Bharata is found in Vishnu Purana (400-300 BC). A Sanskrit shloka reads thus;
उत्तरंयत्समुद्रस्यहिमाद्रेश्चैवदक्षिणम्।
वर्षंतद्भारतंनामभारतीयत्रसंततिः।।
This shloka means: “The country (Varsam) that lies north of the ocean and south of the snowy mountains is called Bharatam; there dwell the descendants of Bharata.
The Bharat Empire i.e.Bharatvarsha originally included the present day of Pakistan, Afghanistan, China, Iran, Tajikistan, Uzbekistan, Kyrgyzstan, Russia, Turkmenistan, North-West Tibet, Nepal and Bangladesh.
In ‘The Discovery of India’, a book that he composed in the Ahmednagar Fort during his years of captivity (1942-1946) and published in 1946, Pandit Jawaharlal Nehru (1946: 38-39) wrote:
“Often, as I wandered from meeting to meeting, I spoke to my audiences of this India of ours, of Hindustan and of Bharata, the old Sanskrit name derived from the mythical founders of the race.”
When ‘The Discovery of India’ was published, these names, Hindustan, Bharat (also Bharata), India, coexisted in the subcontinent. The constant usage also was ‘Jai Hind’ by Nehru and several other political leaders who liked to proclaim “Jai Hind” at the end of speeches.
Historians believe it was during Moghul rule rather than during British rule, when India was called Hindustan. This led to political and cultural unity of Bhārata, allowing Indians to develop a complete sense of belonging together, irrespective of their religions.
The name Hindustan got its proudest moment when in 1904 Sir Allama Muhammad Iqbalpenned his famous patriotic poem “Sāre jahāṉ se acchā, Hindositāṉ hamārā”. Sir Allama Muhammad Iqbal was a poet, philosopher, theorist, and barrister in British India. He is held as the national poet of Pakistan.
Sir. Allama Muhammad Iqbal (1877-1938)
The Constituent Assembly on 29 August 1947 constituted the Constitution Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar. From February 1948 to November 1949, the members of the Constituent Assembly examined the draft, moving and discussing in the process almost 2,500 amendments.
On 26 November 1949, we finally adopted the Constitution of India and signed it on 24 January 1950. On 26 January 1950, the Constitution of India officially came into force, and the Constituent Assembly became the Provisional Parliament of India until the first general elections of 1952. It was Dr. Ambedkar who favoured the name Bharat and wanted Constituent Assembly to adopt Article 1 without much debate. However the name was approved after prolonged debates among the members of the Constituent Assembly.
So, four years after the publication of Nehru’s Discovery of India, the drafters of the Constitution decided to write “India, that is Bharat, shall be a Union of States”. The alternative Article “Hind, or, in the English language, India, shall be a Union of States” was not accepted.
The last speech ofShri Hargovind Pant on this issue is memorable. Let me extract it in full.
“Mr. President, during the early sittings of the Assembly I had moved an amendment to the effect that for the name of the country, we should have the word “Bharat” or “Bharat Varsha” in place of ‘India’. I am gratified to see that some change in the name has at last been accepted. I, however, fail to understand why the word ‘Bharat Varsha’ is not acceptable to the House when the importance and glory of this word is being admitted by all here. I do not want to repeat what the other Members have said in regard to the acceptance of this glorious word, but I would make only a few observations in respect of this word.
‘The word “Bharat” or “Bharat Varsha” is used by us in our daily religious duties while reciting the Sankalpa. Even at the time of taking our bath we say in Sanskrit:
It means that I so and so, of Aryavart in Bharat Khand, etc………..
The most celebrated and word-famous poet Kalidasa has used this word in his immortal work depicting the story of his two great characters-King Dushyanta and his queen Shakuntala. The son born of them was named ‘Bharat’ and his Kingdom was known as “Bharat”. There are many fascinating descriptions of the heroism of Bharat in our ancient books. It is said that in his childhood he used to play with lion cubs and overpowered them. We are well acquainted with the story of Bharat. I fail to understand, in view of all this, why we are reluctant to accept, from the core of our heart the word ‘Bharat Varsha’ as the name of our country,
So far as the word ‘India’ is concerned, the Members seem to have, and really I fail to understand why, some attachment for it. We must know that this name was given to our country by foreigners who having heard of the riches of this land were tempted towards it and had robbed us of our freedom in order to acquire the wealth of our country. If we, even then, cling to the word ‘India’, it would only show that we are not ashamed of having this insulting word which has been imposed on us by alien rulers. Really, I do not understand why we are accepting this word.
‘Bharat’ or ‘Bharat Varsha’ is and has been the name of our country for ages according to our ancient history and tradition and in fact this word inspires enthusiasm and courage in its; I would, therefore, submit that we should have no hesitation at all in accepting this word. It will be a matter of great shame for us if we do not accept this word and have some other word for the name of our country. I represent the people of the Northern part of India where sacred places like Shri Badrinath, Shri Kedarnath, Shri Bageshwar and Manasarovar are situated. I am placing before you the wishes of the people of this part. I may be permitted to state, Sir, that the people of this area want that the name of our country should be ‘Bharat Varsha’ and nothing else.”
Shri. Hargovind Pant 1855-1957
Mahatma Gandhi preferred Vande Mataram, which is part of Bankim Chandra’s novel Anandmath published in 1882.
Bharath Matha: It is interesting to note that almost all countries call their Homeland as ‘Motherland’. Only Nazis called their land as ‘Fatherland’. Russians refer to Mother Russia as a personification of the Russian nation. Within the British Empire, many natives in the colonies came to think of Britain as the mother country of one, large nation. India is personified as Bharat Mata i.e. Mother India. The French commonly refer to France as “la mère patrie”. Hispanic Americans and 19th century-upper-class-Filipinos, commonly referred to Spain as “la Madre Patria”. Romans and the subjects of Rome saw Italy as the motherland. “Fatherland” was mostly featured in news reports associated with Nazi Germany.
The word “Bharat” has a primary place in the foundational document of this nation i.e. the Constitution of India, in the very first article. The insertion was after much debate and discussion by some of the greatest legal/constitutional minds.
Indians calling their homeland as motherland has naturally made the slogan “Bharath Matha Ki Jai” a patriotic gesticulation.
Proclaiming “Bharath Matha Ki Jai” by citizens and soldiers is part of our constitutional spirit. Nothing can inspire a solider in the frontline than proudly shouting this slogan.
The controversy over this issue is the result of half-baked knowledge of lawyers participating in serious debates. This needs to be avoided and curbed.
S.Basavaraj, Advocate, Daksha Legal, Member, Karnataka State Bar Council, 9845065416
B.V.Acharya, Senior Advocate & former Advocate General for Karnataka.
Constitution of India is hailed as one of the best federal Constitutions in the World. It has adopted parliamentary system of Government based on British model. It provides for three organs of the State viz., Legislature, Executive and Judiciary. It recognize separation of powers, though not with all rigidity. The Constitution has specified the powers, duties and responsibilities of each of the organs. Though each of the organs is equal; by its very nature, functions and power, the judiciary occupies a pre-eminent position. It has the responsibility to see that the other two organs function within the sphere earmarked to them under the Constitution. It has the power to invalidate any legislative or executive action if the same is unauthorized. However, if the judiciary and in particular the Supreme Court acts in excess of authority, there is no remedy available.
Since the Constitution has been in force for the last 70 years, it may be worthwhile to consider the relative status and powers of these organs as it existed at the commencement of the Constitution and as on today.
Legislature Let us first consider the position of the Legislature. By legislature, I mean the parliament, as there is not much of a change so far as State legislatives are concerned. Under the Constitution, the Parliament is empowered to legislate on subjects earmarked in List-I (Central List) and List-III (concurrent List). There has been no noticeable change in the power of the parliament in this regard.
However, in addition to the power to legislate as stated above, the parliament is also authorized to amend the Constitution as provided by Article 368 of the Constitution. Soon after the coming into force of the Constitution the parliament and State legislatures had enacted certain legislations by way of Land Reforms as also providing for reservation in service and admission to educational institutions for schedule castes and tribes and other backward classes. As these enactments were invalidated by the judiciary as unconstitutional being violative of fundamental rights, the parliament with a view to validate them, brought about constitutional amendments. These amendments to the Constitution were unsuccessfully challenged as the Supreme Court upheld the power of the parliament to amend the Constitution without any limitation on such power.
This position continued till about the year 1967 when, for the first time Supreme Court in the case of Golaknath ruled that the parliament had no power to amend Part-III of the Constitution which provided for Fundamental Rights. In the year 1973, in the case of Keshavananda Bharathi Vs State of Kerala (1973 (4) SCC 225) 13 Judge Bench of the Supreme Court considered the question of validity of the Kerala Land Reforms Act as also certain Constitutional Amendments effected by the parliament. The correctness or otherwise of the decision of the Court in Golaknath’s case also came up for consideration. The controversy in the case centered round the power of the parliament to amend the Constitution. For the petitioners it was contended that the power of the parliament to amend the constitution was not unlimited and that there were implied limitations on such power. The plea forcefully put forth was that the power does not include authority to amend the constitution which alters the basic structure / framework of the Constitution. Respondents strongly refutedthis contention and urged that the power to amend conferred by Article 368 is without any limitation or restriction, and implying any such limitation will be doing violence to the language employed.
The court after hearing the matters for about 68 days delivered a split verdict. Seven out of 13 judges (forming the majority) ruled in favour of the petitioners and held that the power does not empower the parliament to effect such amendment which will alter the basic structure of the constitution. It in fact also struck down latter part of Section 31-C (which precluded judicial review of legislationwhich was enacted in furtherance of any of the directive principles of State Policy) on the ground that it altered the basic structure of the constitution as power of judicial review is part of it. Six of the Judges, however, strongly maintained that the power of the parliament to amend any part of the constitution is without any limitation or restriction and that it is a constituent power vested with the parliament. Naturally majority decision angered the executive so much that soon thereafter the Government deviating from the convention, passed orders appointing Justice A.N.Ray as the Chief Justice of India, superseding 3 judges senior to him viz., Justice J.M.Shelat, Justice K.S.Hegde and Justice A.N.Grover. This decision of the Government evoked strong protest from the public and in particular legal fraternity. The three superseded judges resigned, which had no effect on the firm decision of the Government. After Justice A.N.Ray assumed office of the Chief Justice of India an attempt was made to get the majority decision in Keshavananda Bharati case reviewed and a 13 judge was constituted for the said purpose. However, the attempt proved futile on account of strong objection by team of Advocates led by late Sri N.A.Palkhivala and on the second day, as hearing of the review was in progress, the Chief Justice of India simply dissolved the Bench without any formal order. Thus the majority view in Keshavananda’s case became law of the land and continues to be so even now. Yet another attempt to curtail Supreme Court’s power of judicial review was thwarted by the judgment in Minerva Mills case. The net result is, the power of parliament to amend the constitution stood restricted and subsequently few amendments also stood invalidated on the basis of doctrine of basic structure.
Though purely on a point of law the judgment of the Supreme Court in the case of Keshavananda was considered erroneous by a section of the legal experts, the public in general welcomed the decision as it was felt that such a check on the power of the parliament to amend the constitution was quite necessary and imperative. It is widely believed that, but for this decision, by now the parliament would have amended the constitution many times and to such an extent that to-day we would not have had this constitution. In fact this decision virtually saved the constitution and in-turn the country. To-day we have this constitution only because of the decision in Keshavananda Bharati.
For the purpose of this articles, suffice it to say that w.e.f. 1973 parliament was deprived of its very important power of amendment of the constitution without any limitation on account of the decision in Keshavananda Bharati. This is a case of loss of power of parliament and gain for the judiciary as will be explained later.
Few years ago, a Police Officer told me how Police add “alias” against names of few troublemaking petty criminals just to project them as anti-social elements hoping that bail would be refused by courts. It is also a fact that using alias by accused themselves enhances notoriety. However, law enforcing agencies deliberately using alias in first information reports would certainly add notoriety to the accused. Flipside of the coin is violation of fundamental right to reputation which is considered in this write-up
Usage of alias in FIR is often not supported by any documentary evidence such as change of name etc. Many a times, alias name is added to an ordinary person just to make him look notorious. The Karnataka High Court has recently called upon the Police to explain how and under what circumstances ‘alias’ was used against accused in a criminal case.
Wharton’s Law Lexicon 15th Edition defines ‘alias’ as a “second name applied to a person where he has been styled or has styled himself by more names than one”. Concise Oxford English Dictionary, 11th edition defends ‘alias’ as a “a false or assumed identity.”
‘Alias’ in crime world. Criminals use aliases,fictitious business names and dummy corporations (corporate shells) to hide their identity, or to impersonate other persons or entities in order to commit fraud. Aliases and fictitious business names used for dummy corporations have become extremely complex. However, usage of alias by persons involved in criminal activities undoubtedly enhances their notoriety. Many who became famous/notorious in Bangalore underworld had weird alias names which served their purpose for decades. Few were Krishnamurthy alias Korangu, Vijay Kumar alias Kavala, Soma alias Deadly Soma (names as shown in FIRs – persons already dead).
The above maybe cases where accused themselves used alias or did not object to usage of alias by their henchmen or Police. However, affixing alias by Police in FIRs without there being any justifiable reasons i.e. accused himself using alias or other documentary evidence such as change of name document, passport etc would be highly objectionable. Branding accused with prefix alias would seriously affect his reputation.
Right to reputation – Fundamental right. The right to one’s reputation is a fundamental right traceable to Article 21 of the Constitution of India. In Subramanian Swamy v. Union of India, (2016) 7 SCC 221, at para 144 the Hon’ble Supreme Court reaffirmed the legal position that reputation is an inextricable aspect of right to life under Article 21 of the Constitution and that the right to reputation is a constituent of Article 21 of the Constitution. The Supreme Court relied on the its earlier judgment in Charu Khurana v. Union of India (2015) 1 SCC 192 which held that dignity is the quintessential quality of a personality since it is a highly cherished value and that right to honour, dignity and reputation are the basic constituents of right under Article 21. The Hon’ble Supreme Court in Subramanian Swamy v. Union of India relied on several judgments, the reference to which is unnecessary here. Suffice it to say individual reputation is part of Article 21 of the Constitution of India.
There are more than 800 judgments of the Supreme Court where accused name contain alias. It is not clear as to whether these accused really had alias or names added by Police. Few reported judgments are; Pratap Singh alias Pikki v. State of Uttarakhand, (2019) 7 SCC 424. Mohmed Riyaz alias Goru (Criminal Appeal No. 144 of 2012) Tabrez Khan alias Guddu v. State of U.P., (2019) 4 SCC 615. State of H.P. v. Vijay Kumar alias Pappu (2019) 5 SCC 373. Kishan Singh alias Actor v. State of Uttaranchal, (2019) 11 SCC 807. Manish Solanki alias Bansi v. State of Rajasthan, (2019) 4 SCC 340. Mohd. Akhtar alias Kari v. State of Bihar, (2019) 2 SCC 513. Thangela Narendra alias Chinnu v. State of Karnataka (2019) 14 SCC 709. Jitendra alias Kalla v. State (NCT of Delhi), (2019) 13 SCC 691. State of U.P. v. Anil Kumar alias Badka (2018) 9 SCC 492. State of Maharashtra v. Bandu alias Daulat(2018) 11 SCC 163. Harpal Singh alias Chhota v. State of Punjab, (2017) 1 SCC 734. Harpal Singh alias Deputy v. State of Punjab (2017) 1 SCC 734
All these are cases involving heinous crimes. Branding accused with alias appears to be well-established rule for the Police/prosecution.
Conclusion: Examined from this angle andhaving regard to the notoriety it has gained in crime world, prefixing ‘alias’ to accused by Police in FIRs certainly tarnish reputation. This is so especially when accused has no such recorded pseudo name. In their eagerness to brand accused as a notorious criminal or anti-social element, if the Police were to prefix, it would destroy reputation of the accused for all time to come since FIRs are public documents. Even if the case foisted on accused ends in acquittal or quashed by higher courts, the damage done is irreversible. It is absolutely necessary for the Police to verify antecedents of accused before affixing alias. Even if the accused discloses his name with alias, Police must verify veracity of such a claim since few want to gain notoriety by proclaiming to have alias names. Self-branding is equally dangerous. Hence the courts at the very first instance, when accused is produced, must call upon the Police to explain reason/need for usage of alias. This will prevent violation of accused’s fundamental right to reputation protected under Article 21 of the Constitution of India.
S.Basavaraj, Advocate, Daksha Legal, Bangalore. Member, Karnataka State Bar Council. raj@dakshalegal.com
It’s time to go beyond “Attara Kacheri”constraints. Vertical construction or getting Bangalore Turf Club area for High Court, Karnataka State Bar Council, Advocates Academy and Advocates Association.
S.Basavaraj, Advocate and Member, Karnataka State Bar Council.
Karnataka High Court, the highest judicial institution of the State is crumbling for want of space. The principal bench building is suffering due to lack of space to meet some of the basic necessities such as Court halls, Judges’ chambers, offices and parking space.
Attara Kacheri, now High Court
The High Court building at Bangalore was once called Attara Kacheri. The name dates back to 1701 when Chikkadevaraja Wadiyar, fourteenth maharaja of the Kingdom of Mysore (1673 to 1704), inspired by Mughal emperor Aurangzeb’s style of governance, created 18 administrative departments i.e. kacheris. The plans for the building began by 1830s but were stalled due to the First War of Indian Independence of 1857. The plans were revived in 1864 under Lewin Bentham Bowring, Commissioner of Mysore, and the offices were functional by 1868. It was built in Greco-Roman style by then Chief Engineer Richard Hieram Sankey. After governor general Lord William Bentinck’s consent, the construction was executed by British firm M/S Wallace & Company, which was sub-contracted to Rai Bahadur Arcot Narainswamy Mudaliar and RaiBahadur Bansilal Ramrathan. The structure, which was then known as ‘Bowring Attara Kacheri’, was completed at a cost of Rs. 4,27,980.
The original Attara Kacheri building consisted of only half of the existing building and with fewer wings. There was an annexe built on the north-east corner in 1917. The structure suffered its first demolition scare in early 1950s when former Chief Minister Kengal Hanumanthaiah wanted to build a legislative office with Indian-style architecture. The opposition for demolition eventually led to construction of Vidhana Soudha in 1956, right opposite the Attara Kacheri.
The High Court of the then State of Mysore was established in 1864 and was known as the Mysore High Court. In 1956, when the legislature was shifted to the bigger Vidhana Soudha, Mysore High Court occupied the entire Attara Kacheri building. In 1973, when the state’s name changed, the court was also renamed as ‘High Court of Karnataka’.
The second demolition scare in the 1980s was prevented by a public interest litigation by citizens.The court intervened and the building was saved from demolition.
The vision of the then Chief Justice P.C. Jain and positive response from the then Government resulted in construction of a new block facing Cubbon Park. The extension of entire building was made in 1995 that spanned across an area of 2,40,508 sq.ft, built in the same style of architecture. However, to maintain architectural integrity, the new building was built almost as an exact replica of the old building without much provision for many aspects such as required number of Court halls, Judges Chambers, Offices etc. Even the basic requirement of parking at basement level could not be made since the design of the new building was to synchronise with the old one almost in all aspects.
High Court new building
The Karnataka High Court is currently functional in Bangalore, Dharwad and Kalaburagi. The new benches at Dharwad and Kalaburagi were inaugurated on 4 and 5 July 2008, respectively. Dharwad circuit bench became a permanent bench from 25 August 2013 and Kalaburagi circuit bench became a permanent bench from 31 August 2013.
While the benches at Dharwad and Kalaburagi are spacious enough to meet the requirement, the principal bench at Bangalore is facing severe space crisis.
Space Issue. The sanctioned strength of the Karnataka High Court is now 62. As of now 45 Judges are appointed. Few more judges are likely to be appointed soon. Even the strength of the High Court is likely to be increased. The numbers of court halls as of now are 38 and the judges’ chambers are 40 as against the immediate requirement of 45 each. The High Court, to be fully functional, must have 62 Court halls and same number of Judges Chambers. Presently, it is impossible to add even a single Judge’s chamber let alone a court hall. One hall is cannibalised into two court halls and Judges chambers are used by rotation.
Basement: About 60,000 sq.ft of area in basement is being used for various offices purposes. A publicinterest litigation is pending which questions usage of basement. If a decision were to be taken to vacate this area, the High Court needs another 60,000 sq.ft.
Advocates Association. Advocates Association at High Court is just two big halls which are not composite. One hall is in the old building and the other, in new building. A single composite block is absolutely necessary given the fact that AAB is one of the largest advocates associations in the world.
Karnataka State Bar Council. The Bar Council which was established in 1961 has been in search of ‘Promised Land’ for last more than 50 years. Hitherto KSBC occupied a portion of KGID building. Even now, it does not have a space of its own forget about a standalone building.
KGID Building
It was only in 2019 the old Election Commission building adjacent to KGID building was given to KSBC that too subject to condition that KSBC should shift when alternate accommodation is provided by the government. Being the premier most statutory body representing more than 1 lakh lawyers, KSBC must have its own building with chambers, offices and auditoriums.
Law Academy: There is no place for Academy to conduct its programmes. Even the Bar Council enrolments are being done in the premises of the existing building in a constrained atmosphere.
In contrast, the building opposite i.e Vidhana Soudhahas four floors above and one floor below ground level and sprawls across an area of 2,300 by 1,150 feet (700 m × 350 m). The building is rectangular in shape measuring 700 feet north-south and 350 feet east-west, with two inner open quadrangles on either side of the central wing measuring about 230 feet by 230 feet each. The northern wings with a ground and three upper floors is 63 feet 6 inches high, while the southern wing with a cellar floor, a ground floor, and three upper floors is 73 feet 6 inches high from the ground level. The Central Wing with a Banquet Hall on the ground floor and the Legislative Assembly Chamber above is 112 feet high. It is one of the largest Legislative buildings.
Vidhana Soudha
The space crunch led to construction of a replica i.eVikas Soudha. It was built to house numerous government and legislative offices which would in turn take away the load from the Vidhana Soudha. It was built over a land area of about 8 acres. The building comprises eight floors housing 15 conference halls and 360 rooms.
Vikas Soudha
Future plan: High Court building facing Cubbon Park is a new building which can withstand many additional floors. As of now, only ground and first floor are constructed to synchronise with the old building. While Vidhana Soudha and Vikas Soudhacan boast of lavish spaces for almost everything, High Court building lacks built up area even for basic necessities.
The only option is to go vertical. The new building can easily withstand load of three-four more floors. Though architectural integrity is an issue, construction of identical three-four floors on top of new building with facelift of façade towards VidhanaSoudha will make the building a magnificent structure. This will solve the space problem to a great extent. It may be noted that by constructing additional floors, not an inch of land will be encroached since the building goes vertical. Moreover, the adjacent buildings, both Vidhanasoudha and Vikas Soudha have many floors without posing any problems. The present basement can also be used for parking of vehicles.
Alternates option – Bangalore Turf Club: The Karnataka State cabinet has already decided to shift Bangalore Turf Club. The entire land area is 85 acresand it belongs to Government. Shifting of Bangalore Turf Club is imminent. The entire area is available for a planned development with greenery ensured.
Bangalore Turf Club
Since BTC area is 85 acres, half of this area or about 40 acres can be given to house High Court, Karnataka State Bar Council, Advocates Academy and Advocates Association – High Court branch. If the entire area is given to High Court High Court, Karnataka State Bar Council, Advocates Academy and Advocates Association High Court branch, the same can be converted into magnificent judicial layout housing even more institutions such Judicial Academy and other related offices.
The institution of judiciary has to be provided with own standalone buildings with sufficient space and infrastructure. It’s time to overcome constraints of Attara Kacheri with vertical construction or shift to Bangalore Turf Club area.
The High Court, Karnataka State Bar Council and Advocates Association have to work in coordination to achieve this mega dream. Given the present incumbents in all three institutions, I am sure the dream will be a reality soon.
S.Basavaraj, Advocate, Member, Karnataka State Bar Council, 11, Jeevan Buildings, Kumara Park East, Bangalore 560001.
Disaster is considered as a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. (Section 2(d), Disaster Management Act, 2005.)
Loss due to disaster is both demographic and economic. The loss of life in recent events alone is staggering. Some 2,50,000 were killed across several countries in the 2004 tsunami. An estimated 1,40,000 lives were lost in the 2010 earthquake in Haiti. In Myanmar, 120,000 perished when Cyclone Nargis hit in 2008. The Kashmir earthquake in Pakistan in 2005 and the Sichuan earthquake in China in 2008 each killed more than 85,000. The earthquake and tsunami that hit Japan in 2011 resulted in the death of 18,000 people. Extreme drought was one cause of 2,30,000 deaths in Somalia between 2010 and 2012. Every one of those lives was precious—individual, intricate, human. The glare of numbers sometimes blinds us to this.
Pandemics can cause significant, widespread increases in morbidity and mortality and have disproportionately higher mortality impacts on LMICs (low and middle income countries). Pandemics can cause economic damage through multiple channels, including short-term fiscal shocks and longer-term negative shocks to economic growth. Individual behavioural changes, such as fear-induced aversion to workplaces and other public gathering places, are a primary cause of negative shocks to economic growth during pandemics. Some pandemic mitigation measures can cause significant social and economic disruption. In countries with weak institutions and legacies of political instability, pandemics can increase political stresses and tensions. In these contexts, outbreak response measures such as quarantines have sparked violence and tension between states and citizens.
Measures during a pandemic: The systemic insurance that is needed for demands of a government-led effort are in four main areas:
(a) Redirecting the economy’s existing productive capacity to overcome the rapidly growing shortages of equipment and services required to respond effectively to the pandemic.
(b) Supporting firms that are not directly involved in efforts to combat the crisis, so that they can continue to supply essential goods and services.
(c) Ensuring that the population has sufficient means to purchase these goods and services.
(d) Creating a financial facility to help those unable to pay their mortgage and meet other obligations, thereby mitigating cataclysmic risks to the financial sector.
Such systemic insurances go well beyond current proposals to spend trillions, much of which is marked for policy initiatives that misdiagnose the crisis as one of deficient aggregate demand or as the result of an ordinary supply shock. Substantial sums are to be dedicated to bailouts without conditioning the money on a firm’s participation in the effort to combat the health crisis and its economic consequences.
Government officials around the world will have to consider large outlays to combat the pandemic crisis. The most immediate question that comes to doubt is whether the policies currently under consideration provide sufficient insurance against the systemic risks that are now rising. The criteria are;
(a) Is government spending sufficiently laser-focused on overcoming the public-health crisis?
(b) Is the economic rescue package adequate to sustain the population’s wellbeing?
Considering the second criterion first, expanding unemployment benefits, together with expanded eligibility for food and other payments, would also help provide the means to pay for essential goods and services.
In order to repurpose existing capacity, the government should support any private firm on the firm’s commitment in producing vital equipment (specified by medical experts) and meet its payroll at reasonable wages. To avoid price-gouging, medical supplies must be priced at pre-crisis levels.
This conditionality should not apply to firms producing equipment. The systemic approach to allocating taxpayer funds would require that large service-sector companies such as airlines or hotel chains receive bailouts only if they repurpose their capacity to support the fight against the pandemic. Rather than standing idle waiting for passenger travel or resume, airlines should be able to provide funds to re-equip their airplanes to transport medical supplies and equipment, or to move sick patients to locations with the capacity to care of them. Recent transportation of Indians stranded in abroad for example. Similarly, hotel chains should be supported by the government only if they agree to repurpose their hotels to serve as temporary hospitals. Beyond repurposing existing capacity, systemic insurance would require that employees of bailed-out companies continued to be paid an adequate wage. The bailouts should not be allowed to divert to the management pay raises, stock buybacks, or dividends.
Measures After a Pandemic (Moving to a new normal)
Fiscal measures are needed to save companies and banks from bankruptcy, so that they can recover quickly once the pandemic is over. Policymakers should be considering various forms of tax relief and public guarantees to help firms borrow if necessary. But the most promising option is a short-time work allowance. This approach, which has been tried and tested in Germany, compensates for the underemployment of the workforce through the same channels that are already used for unemployment insurance. Better yet, it costs hardly anything, because it prevents the losses that would follow from increased real unemployment. All countries should be replicating this part of Germany’s policy to prevent job losses.
Stability is fundamental. It provides a deep insight to view the contours of the future. If we could make an informed guess as to whether the future will be more or less stable than the present, we would know a lot about what’s to come. That’s because we know how peoples and societies have reacted during past periods of instability.
Stability for ecologists, stable systems are characterized by attributes such as persistence and resilience. Resilience, for instance, enables a system to recover from shocks. These attributes aptly describe the post-World War II period, which saw the global economic order power through the collapse of the Communist empire, multiple financial crises (including 2008), religious fanaticism, and other shocks. Whether the present stability, with its reliance on globalization, will survive the shock of the ongoing pandemic remains an open question. Stability has benefits. A sense of innovation, investment, and technological experimentation and advance. There is also more social experimentation and blurring of cultural identity.
Helicopter Money (importance on Indian economy)
Helicopter money is the term used for a large sum of new money that is printed and distributed among the public, to stimulate the economy during a recession or when interest rates fall to zero. It is also referred to as a helicopter drop, in reference to a helicopter scattering supplies from the sky. It is a proposed unconventional monetary policy, when the economy is in a liquidity trap (when interest rates near zero and the economy remains in recession). Although the original idea of helicopter money describes central banks making payments directly to individuals, economists have used the term ‘helicopter money’ to refer to a wide range of different policy ideas, including the ‘permanent’ monetization of budget deficits – with the additional element of attempting to shock beliefs about future inflation or nominal GDP growth, in order to change expectations.
A second set of policies, closer to the original description of helicopter money, and more innovative in the context of monetary history, involves the central bank making direct transfers to the private sector financed with base money, without the direct involvement of fiscal authorities. This has also been called a citizens’ dividend or a distribution of future. This method however should be used only as a last resort
While advanced economies are not using helicopter money in the original sense as most of their liquidity infusion is through secondary market, they are printing money to buy these securities.
How does helicopter money work?
Normally, the Central/Reserve Bank prints money and gives it to the Centre for distribution to individuals or corporates, directly as cash or as tax cuts. Money can be transferred to the government as the central bank buys primary issuances of government bonds. But this method can work best in an extremely low interest environment. Also, it will increase government debt.
Helicopter money theory explains that since the central bank is but an arm of the government, when the balance sheets of the government and the central bank are consolidated, the bonds held by the central bank on the asset side will be cancelled by the same bonds held on the liability side of the government. Also, the future cash flows to the government through higher tax revenue, with demand getting stimulated, will enable it to repay the debt. Money transfer to the Centre can also happen by directly crediting the government’s account with the central bank by using the central bank’s existing reserves or equity. There are many supporters for this route of money transfer as well.
There are 7 ways in which the business industry can have a landscape shift globally embracing to a new normal
(a) The shift towards localisation: The supply chain disruption has brought to light the impact of pandemic events. This is expected to lead to more localisation of supply chains, especially of essentials and for sectors that are seen as strategically important.
(b) Digital gets a real push: Most companies have opted to work remotely and their employees are now ‘online’ and working from home. We have court hearings via Zoom even in High Court of Karnataka. While these trends were already ‘in-motion’, they have now hit the fast-forward button. Even the most brick and mortar organisations have been forced to experiment with digital channels. This presents a real and immediate opportunity to drive efficiencies through digital. At the same time, this crisis has highlighted the importance of investment in enabling technologies like cloud, data and cyber security. This will change the way we ‘work’ with far reaching implications on B2B, B2C, commercial real estate, e-commerce, e-governance, cyber security, process automation, data analytics, self-service capabilities, etc.
(c) Cash is king for businesses: Most situation has proven that cash is king – companies that are over leveraged and ‘living on the edge’ are the most vulnerable. The crisis has reiterated that it is important to be financially prudent and conserve cash.
(d) Move towards variable cost models: One of the biggest lessons, amongst others, is the importance of reducing overall business costs. One significant way to accomplish this is to convert fixed costs to variable costs wherever feasible. For instance, businesses will now determine what they must keep in-house, and explore outsourcing the rest so that fixed costs can be lowered. As with other trends, this will further impact the labour force and ‘how they work’, contract manufacturing, supply chain considerations, etc.
(e) Building sensing and control tower capabilities: This is especially necessary for areas where information is scarce. The downside to this is also challenges such as short histories, collection systems that are prone to change etc. Nevertheless, governments and companies have realised the importance of sensing capabilities, building transparency through ‘digital control towers’ and the ability to process are structured.
(f) Supply chain resilience is key: Individual companies will want to ensure their supply chains are resilient to remain competitive. Risks to supply chains are numerous and continuously evolving. Hence, it is imperative that resilience capabilities are developed in order to respond to repercussions of unexpected events and either quickly return to original state of business or move to a new and better state after being affected by the risk and continue business operations as efficiently as possible. Achieving this will require initiatives from both internal business as well as from the wider network.
(g) Building agility: Going forward, policies will need to evolve faster than the market and policymakers will need to be more responsive, inclusive and agile.
Legal provision – During disaster. In India we have Disaster Management Act, 2005 a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring measures by various wings of Government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.
The Act provides for setting up of a National Disaster Management Authority under the Chairmanship of the Prime Minister, State Disaster Management Authorities under the Chairmanship of Chief Ministers and District Disaster Management Authorities under the Chairmanship of District Magistrates. The Act also provides for concerned Ministries or Departments to draw up department-wise plans in accordance with the National Disaster Management Plan. It provides for constitution of a National Disaster Response Force and setting up the National Institute of Disaster Management. The Act also provides for the constitution of the National Fund for Disaster Response and the National Fund for Disaster Mitigation and similar Funds at the State and District levels. It also provides for specific role for Local Bodies in disaster management including Panchayati Raj Institutions as well as Urban Local Bodies like Municipalities.
Disaster Management is a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for prevention of danger or threat of any disaster; mitigation or reduction of risk of any disaster or its severity or consequences.
Under the Act, mitigation measures are aimed at reducing the risk, impact or effect of a disaster or threatening disaster situation; capacity-building; preparedness to deal with any disaster; prompt response to any threatening disaster situation or disaster; assessing the severity or magnitude of effects of any disaster; evacuation, rescue and relief; rehabilitation and reconstruction.
The Act provides for several plans to tackle disaster.
(a) National Planprovides for measures to be taken for the prevention of disasters, or the mitigation of their effects; measures to be taken for the integration of mitigation measures in the development plans; measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster; roles and responsibilities of different Ministries or Departments of the Government of India.
(b) State Plan includes vulnerability of different parts of the State to different forms of disasters; measures to be adopted for prevention and mitigation of disasters; manner in which the mitigation measures shall be integrated with the development plans and projects; capacity-building and preparedness measures to be taken; roles and responsibilities of each Department of the Government of the State in relation to the measures and the roles and responsibilities of different Departments of the Government of the State in responding to any threatening disaster situation or disaster.
(c) District Plan includes areas in the district vulnerable to different forms of disasters; measures to be taken, for prevention and mitigation of disaster, by the Departments of the Government at the district level and local authorities in the district; capacity-building and preparedness measures required to be taken by the Departments of the Government at the district level and the local authorities in the district to respond to any threatening disaster situation or disaster; response plans and procedures, in the event of a disaster, providing for allocation of responsibilities to the Departments of the Government at the district level and the local authorities in the district; prompt response to disaster and relief thereof; procurement of essential resources; establishment of communication links; and dissemination of information to the public;
The District Authority is empowered to give directions for the release and use of resources available with any Department of the Government and the local authority in the district; control and restrict vehicular traffic to, from and within, the vulnerable or affected area; control and restrict the entry of any person into, his movement within and departure from, a vulnerable or affected area; remove debris, conduct search and carry out rescue operations; provide shelter, food, drinking water and essential provisions, healthcare and services; establish emergency communication systems in the affected area; make arrangements for the disposal of the unclaimed dead bodies; recommend to any Department of the Government of the State or any authority or body under that Government at the district level to take such measures as are necessary in its opinion; require experts and consultants in the relevant fields to advise and assist as it may deem necessary; procure exclusive or preferential use of amenities from any authority or person; construct temporary bridges or other necessary structures and demolish structures which may be hazardous to public or aggravate the effects of the disaster; ensure that the non-governmental organisations carry out their activities in an equitable and non-discriminatory manner and take such other steps as may be required or warranted to be taken in such a situation.
The Act empowers the authorities and the officers to requisition (subject to payment of compensation) any resources (men and material resources) any premises (any land, building or part of a building and includes a hut, shed or other structure or any part thereof) are needed or likely to be needed for the purpose of rescue operations; or any vehicle (vehicle used or capable of being used for the purpose of transport, whether propelled by mechanical power or otherwise) is needed or is likely to be needed for the purposes of transport of resources from disaster affected areas or transport of resources to the affected area or transport in connection with rescue, rehabilitation or reconstruction.
Loan repayment: The National Authority may, in cases of disasters of severe magnitude, recommend relief in repayment of loans or for grant of fresh loans to the persons affected by disaster on such concessional terms as may be appropriate.
The State and subordinate authorities work in tandem with the National Authority and the policy laid down by it.
State Plan includes,—
(a) the vulnerability of different parts of the State to different forms of disasters;
(b) the measures to be adopted for prevention and mitigation of disasters;
(c) the manner in which the mitigation measures shall be integrated with the development plans and projects;
(d) the capacity-building and preparedness measures to be taken;
(e) the roles and responsibilities of each Department of the Government of the State in relation to the measures specified in clauses (b), (c) and (d) above;
(f) the roles and responsibilities of different Departments of the Government of the State in responding to any threatening disaster situation or disaster.
The steps undertaken by few States, especially State of Karnataka worked well to mitigate the vulnerable scenario. However, the issue of migrants who want to return to their places and the inability/failure of the Government of Karnataka to effectively deal with this issue haunts us for time to come.
Article 123 of the Constitution of India speaks about the power of President to promulgate Ordinances during recess of Parliament. Ordinances can be issued to deal with extraordinary situations. The issuance of Pandemic Diseases (Amendment) Ordinance, 2020 is one such measure. The Ordinance makes assault on health workers a non-bailable offence. The recent order by Government of Karnataka regarding collection of fee by Schools is under the executive power of the Government read with Karnataka Education Act.
Going ahead: Legal measures.
Tax holidays, rebates and incentives to small scale industries, consumer care industries are very essential. Legislations at the State and Central level can be enacted providing for fresh provisions or amendments to deal with unforeseen circumstances such as relocation of migrants, outsourcing work etc.
Apart from migrants issue, one more tragic scenario we witnessed during this pandemic is our farmers losing their products and on many occasions throwing away for want of transportation and sale. The APMC was shut down during the lockdown resulting in untold misery to farmers. Apart from providing monetary compensation, suitable legislations can be enacted and Government orders be issued for movement of goods vehicles carrying agricultural produce and sale to end customers.
Judiciary may consider increasing working hours to deal with pendency issue on war footing. The actual working of courts may not be possible for few months. This results in huge burden on judiciary both in terms of pendency of cases and filing immediately after court re-opening. The Supreme Court has passed an extraordinary order extending period of limitation in exercise of power under Article 142 of the Constitution of India. This, perhaps, first time in judicial history.
Law creating separate fund for lawyers who suffer due to loss of work is required. The present legal provisions, schemes and rules do not deal with this issue at all. The Bar Councils must be empowered under the Advocates Act to create a separate funds to help needy lawyers in distress. Today’s judgment of Karnataka High Court shows how badly a legislation is required.
• Nithin Basavaraj, I year MBA, Greenwich University, Cutty Sark London
• S.Basavaraj, Advocate and Member, Karnataka State Bar Council, Bangalore.
Indian Medical Assn. v. V.P. Shantha, (1995) 6 SCC
651. Para 55
(1) Service
rendered to a patient by a medical practitioner by way of consultation,
diagnosis and treatment, both medicinal and surgical, would fall within the
ambit of ‘service’ as defined in Section 2(1)(o) of the Consumer Protection Act.
(Except where the doctor renders service free of
charge to every patient or under a contract of personal service).
(2) Medical
practitioners are subject to the disciplinary control would not
exclude the services from the ambit of the Act.
(3) In the
absence of a relationship of master and servant between the patient
and medical practitioner, it is a service.
(4) Service
rendered by a medical officer to his employer under the contract of
employment would be outside the purview of ‘service’.
(5) Service
rendered free of charge by a medical practitioner attached to a hospital/nursing
home where such services are rendered free of charge to everybody, would
not be ‘service’. Token amount for registration purpose only
at the hospital/nursing home would not alter the position.
(6) Service
rendered at a non-government hospital/nursing home where no charge
whatsoever is made from any person availing of the service and all
patients (rich and poor) are given free service — is outside
the purview of the expression ‘service’. Token amount for
registration purpose only at the hospital/nursing home would not alter
the position.
(7) Service
rendered at a non-government hospital/nursing home where charges
are required to be paid by the persons availing of such services falls
within the purview of the expression ‘service’.
(8) Service
rendered at a non-government hospital/nursing home where charges
are required to be paid by persons who are in a position to pay and
persons who cannot afford to pay are rendered service free of charge would fall
within the ambit of the expression ‘service’ irrespective of the fact that the
service is rendered free of charge to persons who are not in a position to pay
for such services. Free service, would also be ‘service’ and the recipient
a ‘consumer’ under the Act.
(9) Service
rendered at a government hospital/health centre/dispensary where no
charge whatsoever is made from any person availing of the services
and all patients (rich and poor) are given free service — is outside the
purview of the expression ‘service’. Token amount for registration purpose
would not alter the position.
(10) Service
rendered at a government hospital/health centre/dispensary where
services are rendered on payment of charges and also
rendered free of charge to other persons availing of such services would
fall within the ambit of the expression ‘service’.
(11) Service
rendered by a medical practitioner or hospital/nursing home cannot be
regarded as service rendered free of charge, if the person availing
of the service has taken an insurance policy for medical care where
under the charges for consultation, diagnosis and medical treatment are borne
by the insurance company.
(12) Where, as a
part of the conditions of service, the employer bears the
expenses of medical treatment of an employee and his family members dependent
on him, the service rendered to such an employee and his family members
by a medical practitioner or a hospital/nursing home would be ‘service’.
Bolam Test
Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582 “If a doctor reaches the standard of a responsible
body of medical opinion, he is not negligent”. “The test is the standard
of the ordinary skilled man exercising and professing to have that special skill.
A man.need not possess the highest expert skill, it is well established law
that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising’ that particular art (a health care professional), is
not guilty of negligence if he has ‘acted in accordance with a practice
accepted as proper by a responsible body of medical man skilled in the
particular act” Bolam test says that to term the act of doctor as
negligent we should consider the act of another doctor in the ‘similar circumstances
and facilities as existed with the treating doctor. Also the professional
knowledge andskill of the treating·doctor should be compared with another
doctor having same educational background. Courts in a multiple number of’
cases’ have very well settled these issues worldwide
V.
Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513
Bolam was
suffering from mental illness of the depressive type and was advised by the
doctor attached to the defendants’ Hospital to undergo electroconvulsive therapy.
Prior to the treatment Bolam signed a form of consent to the treatment but was
not warned of the risk of fracture involved. Even though the risk was very
small and on the first occasion when the treatment was given Bolam did not
sustain any fracture but when the treatment was repeated for the second time,
he sustained fractures. No relaxant drugs or manual control were used except
that a male nurse stood on each side of the treatment couch throughout the
treatment. About this treatment there were two bodies of opinion, one of which
favoured the use of relaxant drugs or manual control as a general practice, and
the other opinion was for the use of drug that was attended by mortality risks
and confined the use of relaxant drugs only to cases where there are particular
reasons for their use and Bolam case was not under that category. On these
facts the expert opinion of Dr. J. de Bastarrechea, consultant psychiatrist
attached to the Hospital was taken. Ultimately the Court held that the doctors
were not negligent. A Doctor is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art.
Kusum
Sharma v. Batra Hospital, (2010) 3 SCC 480
The ratio of Bolam
case is that it is enough for the defendant to show that the standard of
care and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The fact
that the respondent charged with negligence acted in accordance with the
general and approved practice is enough to clear him of the charge. Two things
are pertinent to be noted. Firstly, the standard of care is judged in
the light of knowledge available at the time (of the incident), and not
at the date of trial. Secondly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time on which it is
suggested as should have been used.
I.
Negligence is the breach of a duty exercised 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.
II.
Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
III.
The medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of the
particular circumstances of each case is what the law requires.
IV.
A medical practitioner would be liable only where his conduct fell below that
of the standards of a reasonably competent practitioner in his field.
V.
In the realm of diagnosis and treatment there is scope for genuine difference
of opinion and one professional doctor is clearly not negligent merely because
his conclusion differs from that of other professional doctor.
VI.
The medical professional is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as providing
greater chances of success for the patient rather than a procedure involving
lesser risk but higher chances of failure. Just because a professional looking
to the gravity of illness has taken higher element of risk to redeem the
patient out of his/her suffering which did not yield the desired result may not
amount to negligence.
VII.
Negligence cannot be attributed to a doctor so long as he performs his duties
with reasonable skill and competence. Merely because the doctor chooses one
course of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the medical
profession.
VIII.
It would not be conducive to the efficiency of the medical profession if no
doctor could administer medicine without a halter round his neck.
IX.
It is our bounden duty and obligation of the civil society to ensure that the
medical professionals are not unnecessarily harassed or humiliated so that they
can perform their professional duties without fear and apprehension.
X.
The medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurising the medical
professionals/hospitals, particularly private hospitals or clinics for extracting
uncalled for compensation. Such malicious proceedings deserve to be discarded
against the medical practitioners.
XI.
The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the interest
of the patients. The interest and welfare of the patients have to be paramount
for the medical professionals.
Samira
Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1.
(i) A
doctor is not negligent if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art.
… Putting it the other way round, a doctor is not negligent if he is acting in
accordance with such a practice, merely because there is a body of opinion that
takes a contrary view. At the same time, that does not mean that a medical man
can obstinately and pig-headedly carry on with some old technique if it has
been proved to be contrary to what is really substantially the whole of
informed medical opinion. (All ER p. 122 B-D)
(ii)
When a doctor dealing with a sick man strongly believed that the only hope of
cure was submission to a particular therapy, he could not be criticised if,
believing the danger involved in the treatment to be minimal, did not stress
them to the patient.
(iii)
In order to recover damages for failure to give warning the plaintiff must show
not only that the failure was negligent but also that if he had been warned he
would not have consented to the treatment. (All ER p. 118 H-I)
Bonafide Mistake, Error of
Judgment etc
Spring
Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39
1. Bona fide mistake under certain
circumstances may be excusable, but a mistake which would
tantamount to negligence cannot be pardoned. In the former case a
court can accept that ordinary human fallibility precludes the liability
while in the latter the conduct of the defendant is considered to have gone
beyond the bounds of what is expected of the skill of a reasonably competent
doctor.
2. An error
of judgment may, or may not, be negligent; it depends on the nature of the
error. If it is made by a reasonably competent professional man
professing to have the standard and type of skill and acting with ordinary
care, then it is not negligence.
3. Gross
medical mistake will always result in a finding of negligence.
4. Use of
wrong drug or wrong gas during the course of anaesthetic will frequently lead
to the imposition of liability
5. Delegation
of responsibility to another may amount to negligence in certain
circumstances. Delegates to his junior with the knowledge that the junior
was incapable of performing of his duties properly.
Suresh
Gupta (Dr.) v. Govt. of NCT of Delhi, (2004) 6 SCC 422Criminal Liability
To convict a doctor,
the prosecution has to come out with a case of high degree of negligence. Mere
lack of proper care, precaution and attention or inadvertence might create
civil liability but not a criminal one. Alleged criminal offence causing death of
his patient during treatment must show negligence or rashness of such a higher
degree as to indicate a mental state which can be described as totally
apathetic towards the patient. Such gross negligence alone is
punishable.
Doctor was
charged with Section 304-A IPC reads thus: “304-A. Causing death by
negligence.— “whoever causes the death of any person by doing any rash
or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or
with fine, or with both.”
The patient
was operated by him for removing his nasal deformity. While conducting minor operation for removing nasal deformity, doctor
gave incision at wrong part due to that blood seeped into the respiratory
passage and because of that patient immediately collapsed and died.
Death was due to ‘asphyxia resulting
from blockage of respiratory passage by aspirated blood consequent upon
surgically incised margin of nasal septum’. This indicates that adequate care
was not taken to prevent seepage of blood down the respiratory passage which
resulted in asphyxia.
The cause of
death is stated to be “not introducing a cuffed endotracheal tube of proper
size as to prevent aspiration of blood from the wound in the respiratory passage”.
Defence taken Sections
80 and 88 IPC “80. Accident
in doing a lawful act.—Nothing is an offence which is done by
accident or misfortune, and without any criminal intention or knowledge in the
doing of a lawful act in a lawful manner by lawful means and with proper care
and caution.
88. Act not intended to cause death, done by
consent in good faith for person’s benefit.—Nothing,
which is not intended to cause death, is an offence by reason of any harm which
it may cause, or be intended by the doer to cause, or be known by the doer to
be likely to cause, to any person for whose benefit it is done in good faith,
and who has given a consent, whether express or implied, to suffer that harm,
or to take the risk of that harm.
SC says “this
act attributed to the doctor, even if accepted to be true, can be described as
negligent act as there was lack of due care and precaution. For this act of
negligence he may be liable in tort but his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.
We find that no case of
recklessness or gross negligence has been made out against the doctor to compel
him to face trial for offence under Section 304-A IPC
Savita
Garg v. Director, National Heart Institute, (2004) 8 SCC 56.
Ordinary human
fallibility can be pardoned. A mistake which would tantamount to negligence
cannot be. In the former case a court can accept. In the latter, the conduct of
the defendant is considered to have gone beyond the bounds of what is expected
of the skill of a reasonably competent doctor.
Jacob
Mathew v. State of Punjab, (2005) 6 SCC 1.
In tort, it is
enough for the defendant to show that the standard of care and the skill
attained was that of the ordinary competent medical practitioner exercising an
ordinary degree of professional skill. The fact that
a defendant charged with negligence acted in accord with the general and
approved practice is enough to clear him of the charge. Two things are
pertinent to be noted. Firstly, the standard of care is judged in the light
of knowledge available at the time (of the incident), and not at the
date of trial. Secondly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would fail
if the equipment was not generally available at that point of time on
which it is suggested as should have been used.
A mere
deviation from normal professional practice is not necessarily
evidence of negligence. Let it also be noted that a mere accident
is not evidence of negligence.
So also an error
of judgment on the part of a professional is not negligence per
se.
Higher the
acuteness in emergency and higher the complication,
more are the chances of error of judgment.
At times, the
professional is confronted with making a choice between the devil and the deep
sea and he has to choose the lesser evil.
Medical professionals in
criminal law
Criminal law places
medical professionals on a different pedestal. IPC sets out examples. Section
88 in the Chapter on General Exceptions provides exemption for acts not intended
to cause death, done by consent in good faith for person’s benefit. Section
92 provides for exemption for acts done in good faith for the benefit of a
person without his consent though the acts cause harm to the person and that
person has not consented to suffer such harm.
Section 93
saves from criminality certain communications made in good faith. Illustrations
Section 88
A,
a surgeon, knowing that a particular operation is likely to cause the death of Z,
who suffers under a painful complaint, but not intending to cause Z’s
death, and intending, in good faith, Z’s benefit, performs that
operation on Z, with Z’s consent. A has committed no
offence.
Section 92
(a) Z is thrown from his horse,
and is insensible. A, a surgeon, finds that Z requires to be
trepanned. A, not intending Z’s death, but in good faith, for Z’s
benefit, performs the trepan before Z recovers his power of judging for
himself. A has committed no offence.
(c)
A, a surgeon, sees a child suffer an accident which is likely to prove
fatal unless an operation be immediately performed. There is no time to apply
to the child’s guardian. A performs the operation in spite of the
entreaties of the child, intending, in good faith, the child’s benefit. A
has committed no offence.”
Section 93
A,
a surgeon, in good faith, communicates to a patient his opinion that he cannot
live. The patient dies in consequence of the shock. A has committed no
offence, though he knew it to be likely that the communication might cause the
patient’s death.
To impose
criminal liability under Section 304-A, Indian Penal Code, it is necessary that
the death should have been the direct result of a rash and negligent act of
the accused, and that act must be the proximate and efficient cause.
Conclusions summed upin Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
(1)
Negligence is the breach of a 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”.
(2)
Negligence in the context of the medical profession necessarily calls for a
treatment with a difference. To infer rashness or negligence on the part of a
professional, in particular a doctor, additional considerations apply. A case
of occupational negligence is different from one of professional negligence.
(3) A simple lack
of care, an error of judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure which
the accused followed.
(4) When it comes
to the failure of taking precautions, what has to be seen is whether those
precautions were taken which the ordinary experience of men has found to be
sufficient;
(5) Failure to use special or
extraordinary precautions which might have prevented the particular happening
cannot be the standard for judging the alleged negligence. So also, the
standard of care, while assessing the practice as adopted, is judged in the light
of knowledge available at the time of the incident, and not at the
date of trial. Similarly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would fail if the
equipment was not generally available at that particular time (that is, the
time of the incident).
(6) A
professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed
to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess.
(7) It is not
possible for every professional to possess the highest level of
expertise or skills in that branch which he practices. A highly skilled
professional may be possessed of better qualities, but that cannot be
made the basis or the yardstick for judging the performance of the
professional.
(8) The
test for determining medical negligence as laid down in Bolam case holds
good in its applicability in India.
(9) The
jurisprudential concept of negligence differs in civil and criminal law.
What may be negligence in civil law may not necessarily be negligence in
criminal law. For an act to amount to criminal negligence, the degree of
negligence should be much higher i.e. gross or of a very high degree.
Negligence which is neither gross nor of a higher degree may provide a ground
for action in civil law but cannot form the basis for prosecution.
(10)
The word “gross” has not been used in Section 304-A IPC. Criminal
law negligence or recklessness, to be so held, must be of such a high degree as
to be “gross”. The expression “rash or negligent act” as occurring in Section
304-A IPC has to be read as qualified by the word “grossly”.
(11) To
prosecute a medical professional for negligence under criminal law it
must be shown that the accused did something or failed to do something which in
the given facts and circumstances no medical professional in his ordinary
senses and prudence would have done or failed to do. The hazard taken by
the accused doctor should be of such a nature that the injury which resulted
was most likely imminent.
Malay
Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221
The essential
ingredients of Section 304-A are as under:
(i)
Death of a person.
(ii)
Death was caused by the accused during any rash or negligent act.
(iii)
Act does not amount to culpable homicide.
And to prove
negligence under criminal law, the prosecution must prove:
(i)
The existence of a duty.
(ii)A
breach of the duty causing death.
(iii)
The breach of the duty must be characterised as gross negligence.
Kishore
Lal v. Chairman, ESI Corpn., (2007) 4 SCC 579.
Cause of
action for negligence arises only when damage occurs and thus the claimant has
to satisfy the court on the evidence that three ingredients of negligence,
namely, (a) existence of duty to take care; (b) failure to attain
that standard of care; and (c) damage suffered on account of breach of
duty, are present for the defendant to be held liable for negligence. Therefore,
the claimant has to satisfy these ingredients before he can claim damages for
medical negligence of the doctors
Sterilisation
State
of Haryana v. Santra, (2000) 5 SCC 182.
Negligence may
be active negligence, collateral negligence, comparative
negligence, concurrent negligence, continued negligence, criminal
negligence, gross negligence, hazardous negligence, active and
passive negligence, wilful or reckless negligence or negligence
per se, which is defined in Black’s Law Dictionary as under:
Unwanted child
Poor labourer woman, who already had many children and had opted for
sterilisation, developed pregnancy and ultimately gave birth to a female child
in spite of sterilisation operation which, obviously, had failed.
Smt Santra,
claimed Rs 2 lakhs as damages for medical negligence. Decreed Rs 54,000 with
interest. Confirmed
State
of Punjab v. Shiv Ram, (2005) 7 SCC 1
40.
Failure of many a sterilisation operation, though successfully performed, is
attributable to causes other than medical negligence as we have already
discussed hereinabove. And, yet doctors are being faced with claims for
damages. Some of the claims have been decreed by the courts without arriving at
any finding providing a foundation in law for upholding such a claim. Mostly
such surgeries are performed on a large-scale and as a part of family welfare
programmes of the Government. Obviously, such programmes are in public
interest. Such like decrees act as a disincentive and have deterrent effect on
the surgeons performing sterilisation operations. The State, flooded with such
decrees is also inclined not to pursue family planning camps on large-scale
though in public interest.
State
of Haryana v. Raj Rani, (2005) 7 SCC 22.
A three-Judge
Bench of this Court has held in State of Punjab v. Shiv Ram that
childbirth in spite of a sterilisation operation can occur due to negligence of
the doctor in performance of the operation, or due to certain natural causes
such as spontaneous recanalisation. The doctor can be held liable only in
cases where the failure of the operation is attributable to his negligence and
not otherwise. Several textbooks on medical negligence have recognised the
percentage of failure of the sterilisation operation due to natural causes to
be varying between 0.3% to 7% depending on the techniques or method chosen for
performing the surgery out of the several prevalent and acceptable ones in
medical science. The fallopian tubes which are cut and sealed may reunite and
the woman may conceive though the surgery was performed by a proficient doctor
successfully by adopting a technique recognised by medical science. Thus, the
pregnancy can be for reasons dehors any negligence of the surgeon. In
the absence of proof of negligence, the surgeon cannot be held liable to pay
compensation. Then the question of the State being held vicariously liable
also would not arise. The decrees cannot, therefore, be upheld.
Childcare
B.
Jagdish v. State of A.P., (2009) 1 SCC 681.
A person should
not profess himself to be a child specialist unless he has the requisite
expertise. Unless a person has a special skill to treat a child, ordinarily
he could not have treated her, not because he was wholly incompetent therefor
but because it required a specialised skill keeping in view the nature
of the disease the child was suffering from.
Blood
Transfusion
Postgraduate
Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330.
Wrong blood
transfusion is an error which no hospital/doctor exercising ordinary care would
have made. Such an error is not an error of professional judgment but in the
very nature of things a sure instance of medical negligence. The hospital’s
breach of duty in mismatched blood transfusion contributed to her death, if not
wholly, but surely materially. Mismatched blood transfusion to a patient having
sustained 50% burns by itself speaks of negligence.
Without
examining the expert as a witness in court, no reliance can be placed on an
opinion alone. No expert would claim today that he could be absolutely sure
that his opinion was correct, expert depends to a great extent upon the
materials put before him and the nature of question put to him.
(i) that the expert must be within a
recognised field of expertise,
(ii)
that the evidence must be based on reliable principles, and
(iii)
that the expert must be qualified in that discipline.
Consent:
S.K.
Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 282.
The patient
had given express consent in writing to perform only “laparoscopy surgery” but
the appellant instead of performing “laparoscopy surgery” proceeded to perform
conventional surgery and in that process removed her gall bladder.
Clause 4 of
the Consent Form, the doctor was entitled to perform the conventional surgery
as a substitute. Having noticed some abnormalities at the time of performing
laparoscopy, it would not be possible for the team of doctors attending the
patient to continue further with laparoscopy of the gall bladder.
Supreme Court saidthat
there was no need to have another consent form to do the conventional surgery
in the light of authorisation contained in Clause 4 itself because the
substitute operation was of the same organ for which the former one was advised
except with a difference of another well-known method known in medical subject
to get rid of the malady.
Suffering of
ailment by the patient after surgery is one thing. It may be due to
myriad reasons known in medical jurisprudence. Whereas suffering of any such
ailment as a result of improper performance of the surgery and that too with
the degree of negligence on the part of the doctor is another thing. To
prove the case of negligence of a doctor, the medical evidence of experts in the
field to prove the latter is required. Simply proving the former is not
sufficient.
Unreasonable decision
Nand
Kishore Prasad v. Mohib Hamidi, (2019) 6 SCC 512,
at page 516 :
Unreasonable decision of the Operating
Surgeon to operate is different from “bit negligent” so as to absolve the
surgeon from the
allegation of medical negligence.
High reward case:
Balram
Prasad v. Kunal Saha, (2014) 1 SCC 384
182.
In summary, the details of compensation under different heads are presented
hereunder:
Loss of income
of the deceased Rs
5,72,00,550
For medical
treatment in Kolkata and Mumbai Rs
7,00,000
Daksha Legal 