Health Care, Ethics and the Law :
A Study of Judicial Attitude in India
Dr. Paramjit S.Jaswal*
Dr. Nishtha Jaswal**
INTRODUCTION
T
he term "health" implies more than an
absence of sickness. Health is a state of
complete physical, mental and social well-
being. Medical care and health facilities not
only protect against sickness, disease or infirmity but also
make right to life meanigful.1 "Health Care" of citizens is a
problem with various facets. It involves ever-changing
challenge. There appears to be, as it were, a constant
competition between the nature on one side and human
ingenuity engaged in research and finding out curative
processes. This being the situation, the problem has an
ever-shifting base. It is common that what is considered
to be the best medicine today for treatment of a particular
disease becomes out of date and soon goes out of the
market with the discovery or invention of new drugs. Also
what is considered to be incurable at any given point of
time becomes subject to treatment and cure with new
finds.2
Accourding to "Code of Medical Ethics", though a
physician is not bound to treat each and every one asking
his services except in emergencies for the sake of
humanity and the noble traditions of profession, he should
not only be ever ready to respond to the calls of the sick
and injured, but should be mindful of the high character
of his mission and the responsibility he incurs in the
discharge of his ministractions, he should never forget
that the health and the lives of those entrusted to his care
depends on his skill and attention. Ethically speaking, the
physician should not neglect the patient and he should
not commit an act of negligence that may deprive his
patient or patients from necessary medical care.3 The
human life is more valuable and it must be preserved at
* B.Sc, LL.M. (Gold Medalist), Ph.D., Reader, Department of Laws,
Panjab University, Chandigarh-160014 (India).
** B.A. (Gold Medalist), LL.M., Ph.D., Reader, Department of Laws,
Panjab University, Chandigarh-160014 (India).
all costs and members of the medical profession are
ethically bound to provide necessarty medical care to the
patients who are brought to them.There can be no second
opinion that preservation of human life is of paramount
importance. This is so on account of the fact that once
the life is lost, the status quo ante cannot be restored as
resurrection is beyond the capacity of man.4
Because of the vibrant interpretation given by the
Summit Court to artical 21 of the Constitution, it has
become the thrust and throb of the Contitution itself. The
judicial grammer of interpretation of article 21 has
expanded the meaning and scope of the word "life". It
has been judicially interpreted that the word "life" does
not mean mere animal existence - it has to mean a life
befitting human dignity. The right to livelihood is also a
part of this article.5 Since a man cannot earn his livelihood
without being healthythe health of a person would also
become an integral facet of his right to life.The Apex Court
accepted the right to health as a fundamental right when
it observed:
A healthy body is the very foundation for all human
activities. That is why the adage "Sariramadyam
Khalu Dharma Sadhanam". In a welfare State,
therefore, it is the obligation of the state to ensure
the creation and the sustaining conditions
congenial to good health.6
Thus, right to live with human dignity includes the
right to health care and to provide facilities in this regard
is the responsibility of the government. 7 Different
international human rights instruments also recognise
beyond any dispute that the right to health of a person is
an integral fact of his right to life.
In order to see that the dream of World Health
Organisation (WHO) towards "Health for All" by the year
2000, a reality, the crying need of the hour is to study the
different aspects of health care, ethics and the law.

Therefore, in this paper an attempt has been made to
discuss the following aspects :
What are the Constitutional mandates which are aimed
at ensuring health care and a life of dignity to all?
What is the position of right to health and right to live
a dignified healthy life in the international Human
Rights Instruments?
To what extent medical professionals are bound to
take care of patients and in protecting life in
emergency of medicolegal cases?
What is the extent of professionl skill required from
medical professionals?
How to balance the fear of medical profession and
claims of the patients?
Do the medical professionals enjoy any immunity if
they fail to exercise the reasonable professional skill?
Can the government take the plea of "financial crunch"
to justify its inability to provide health facilities?
Can the government claim "soverign immunity" from
its liability for the negligence of its employees in
providing health care?
What has been the role of judiciary in ensuring health
care to workers, and in solving other socio-medico-
legal problems?
II. RIGHT TO HEALTH AND CONSTITUTIONAL
MANDATE
In a social-welfare state like India, it is the obligation
of the State to ensure the creation and the sustaining of
conditions congenial to good health.8 The Preamble of
the Constitution of India promises to secure all its citizens,
inter alia, 'justice social, economic and political". If socio-
economic justice is to to be ensured to all, it requires
interaction of many social and economic factors including
just and favourable conditions of work, periodical treatment
and prevetion of other disabilities. Social justice is an arch
of the Constitution which ensure life to be meaningful and
liveable with human dignity. In a developing society like
ours steeped with unbridgeable and everwidening gaps
of inequality in status and opportunity, law is catalyst,
rubicon to the poor to reach the ladder of social justice.9
Article 14 ensures "equality before the law" and "equal
protection of the laws" to all-persons within the territory of
STUDY OF JUDICIAL ATTITUDE IN INDIA
India. There can be no valid law which arbitrarily denies
to persons right to health. Article 19 (1) provides six
fundamental freedoms10 to all its citizens which can be
restricted only on the grounds mentioned in Clauses (2)
to (6) of article 19 of the Constitution." These fundamental
freedoms can be effectively enjoyed only if a person has
a healthy life to be lived with dignity and free from any
kind of exploitation which is further ensured by the
mandate of article 21 of he Constitution of India.12
The concept of public interest litigation (PIL) as
developed and conceptualised by the Apex Court under
article 32 of the Constitution has helped in securing right
to health to many people in different ways.13
The right to live with human dignity enshrined in article
21 of the Constitution of India derives its life and breath
from the various directive principles of state policy
enshrined in part IV of the Constitution.
Article 38(1) lays down the foundation, for human
rights. It provides that "the State shall strive to promote
the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social,
economic and political, shall inform all the institutions of
the national life".Thus, in order to secure socio-economic
justice to the people and to promote their welfare, the
state is under a constitutional duty to take effective steps
for providing proper health care and ensuring a life of
dignity to them.
Article 39 enumerates certain principles to be followed
by the State. It provides that the State shall, in particular,
direct its policy towards securing, inter alia, that the health
and strength of workers, men and women, and the tender
age of children are not abused and that citizens are not
forced by economic necessity to enter avocations unsuited
to their age or strength,13A and that children are given
opportunities and facilities to develop in a healthy manner
and in- conditions of freedom and dignity and that the
childhood and youth are protected against exploitation
and against moral and material abandanment.14
Under Article 41, the State is under an obligation
within the limits of its economic capacity and development,
to make effective provisions for securing, inter alia, the
right to education and public assistance in cases of
sickness and disablement, and in other cases of
undeserved want. Article 42 further requires the state to
make provision for securing just and humane conditions
37
 INTERNATIONAL CONFERENCE ON GLOBAL HEALTH LAW - 1997
of work. Article 43 enjoins upon the State to make
endeavour to ensure a decent standard o life and full
enjoyment of leisure and social and cultural opportunities.
Article 47 of the Constitution provides :
The State shall regard the raising of the level of
nutrition and the standard of living of its people
and the improvement of public health as among
its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the
consumption except for medicinal purposes of
intoxicating drinks and of drugs which are
injurious to health.
The underlined meaning of contents of this article
recognise the truth of a saying thafliving precedes living
well" or "being precedes well being".15 From the persual
of article 47 it is evident that the state shall regard the
raising of the standard of living of its people and the
improvement of public health by ensuring proper health
care and health facilities as among its primary duties. This
provision is the only provision in Part IV of the Constitution
of India which specifically mentions the primary duties of
the State. Thus, obligation to ensure proper health care
is the "primary duty" of the State.
Article 48-A further provides that "the State shall
endeavour to protect and improve the environment and
to safeguard the forests and wild life of the country".
Similarly the Constitution of India makes it a fundamental
duty of every citizen to "protect and improve the natural
environment" under article 51-A (g). It is submitted that
an healthy environment is a must for good health. It is of
common knowledge that nursing homes and hospitals
have become major polluters. They dump in the vicinity
of their buildings such hazardous waste matters which
become health hazards. There is a close relationship
between environment and health. The deteriorating
environmental condition threatens to reverse the gains
made in public health and medicine. It also seriously
threatens socio-economic progress and cultural values.
In view of article 37 of the Constitution all the directive
principles given in Part IV are "fundamental in the
governance of the country and it shall be the duty of the
State to apply these principles in making laws." Hence
the State cannot treat these Constitutional obligations
regarding "the raising of the standard of living of its people
and improvement of public health" as mere pious
38
obligations. Theyn are part of the Supermen Law of the
land and they must be implemented. These are the
minimum requirements which must exist in order to enable
a person to live with human dignity and no State has the
right to take any action which will dignity and no State
has the right to take any action which will deprive a person
of the enjoyment of those basic essentials. Infact, failure
to take any positive action, ensuring the life of dignity and
free from any kind of exploitation would amount to breach
of Constitutional commitments. No doubt, in view of article
37 of the Constitution, the directive principles cannot in
the very nature of things be enforced in a court of law, but
it does not mean that directive principles are less important
than fundamental rights or that they are not binding on
the organs of the State. In fact, the Court can in a fit case
direct the executive to carry out the directive principles of
the Constitution and whenever there is inaction or
slow actrbn by the executive, the judiciary must
intervene.16
The Superme Court of India in ABSK(Sangh) v. Union
of India17, has rightly observed :
(M)anitenance and improvement of public health
have to rank high as these are indispensable to
the very physical existence of the community and
on the betterment of these depends the building
of the society which the Constitution makers
envisaged. Attending to public health, in our
opinion, therefore, is of high priority-perhaps the
one at the top.'8
In fact, the directive principles of state policy in our
Constitution are fore-runner of the UNO Convention of
Right to Development as inalienable human right and all
people are entitled to participate in, contribute to and enjoy
economic, social, cultural and political developmment in
which all human rights and fundamental freedoms would
be fully realised. The directive principles now stand
elevated to inelised. The directive principles now stand
elevated to inelienable fundamental human rights. Even
they are justiciable by themselves.19
Thus, right to public health is considered at the top of
the our Constitutional agenda and the State is duty bound
to ensure it to all in all circumstances. It is in this context
the right to health care and medical aid to protect the
health and vigour is considered to be a fundamental right
under article 21, read with articles 38, 39(e) & (f), 41, 42.
43, 48-A and 51-A(g) and all related articles and
 HEALTH CARE, ETHICS AND THE LAW : A STUDY OF JUDICIAL ATTITUDE IN INDIA
fundamental human rights make the life meaningful and
purposeful with dignity of person.20The jurisprudence of
personhood or philosophy of the right to life envisaged
under article 21, enlarges its sweep to encompass human
personality in its full blossem with invigorated health.Thus,
the right to life with human dignity covers within its fold,
some of the finer facets of human civilisation which n»akes
life worth living. It includes the quality of life as understood
in its richness and fullness by the ambit of the
Constitution.21
III. R1GHTTO HEALTH AS BASIC HUMAN RIGHT AND
INTERNATIONAL COMMITMENT
The United Nations has defined human rights to mean
generally as'those rights which are inherent in our nature
and without which we cannot live as human beings.
Human rights and fundamental freedom allow us to fully
develop and use our qualities, our intelligence, our talents
and our conscience and to satisfy our spiritual and other
needs.They are based on mankind's increasing demand
for a life in which the inherent dignity and worth of each
human being will receive respect and protection.22 In our
submission right to health is a basic inherent human right
without which we cannot live as human beings or enjoy
the life of a dignity and quality and satisfy our basic needs.
The United Nations has further explained that'the denial
of human rights and fundamental freedoms not only is an
individual and personal tragedy, but also creates
conditions of social and political unrest, sowing the seeds
of violence and conflict within and between societies and
nations.23
Secion 2(d) of the Protection of Human Rights Act,
1993 has defined the human rights "to mean the rights
relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodies in the
International Covenants and enforceable by Courts in
India. Thus, we find that even our national legislation on
human rights, recognises the right to life, liberty, equality
and dignity as recognised by the Constitution of India and
International Human Rights Covenants. In other words,
right to health comes squarely within the definition of
human rights.
The Charter of the United Nations in its preamble
reinforces in most sonorous terms the faith in fundamental
human rights and in the dignity and worth of human person
as envisaged in the various provisions of the Constitution
of India. Article 1 of the Universal Declaration of Human
Rights (UDHR) rightly asserts the human sensitivity and
moral responsibility of every State that'all human beings
are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act
towards one another in a spirit of brotherhood."
Article 3 of UDHR provides that 'everyone has the
right to life, liberty and security of person". Article 25(1)
of the Universal Declaration of Human Rights (UDHR),
1948 assures that everyone has the right to standard of
living adequate for health and well-being of himself and
of his family, including medical care sickness and disability.
Article 29 of the UDHR provides that everyone has duties
to the community in which alone the free and full
development of his personality is possible.
Thus, according to the mandates of the UDHR
everyone of us is having a right to a standard of living
adequate for health and well-being and it is the duty of
the community as a whole to create an environment of in
which there is health care for all and full developments of
human personality. In view of this, health care is not an
individual problem of the suffering person or of the nation
to which he belongs, it is a problem of humanity and
human existence which has to be solved by coordinated
efforts of "we the people of all nations".
Under Article 3 of the International Covenant on
Economic, Social and Cultural Rights, 1966 (ICESCR)
the State parties to the Covenant undertake to ensure
the equal right of men and women to the enjoyment of all
economic, social and cultural rights set forth in that
Covenant. Article 7(b) of the ICESCR also recognises
the right to everyone to the enjoyment of just and
favourable conditions of work which ensure, in particular
safe and healthy working conditions. Article 12 of the
Covenant further provides:
1. The State Parties to the present Convenant
recognise the right of everyone to the enjoyment
of highest attainable standard of physical and
mental health.
2. The steps to be taken by the State parties to the
present Covenant to achieve the full relasation
of this right shall include those necessary for:
(a) The provision for the reduction of stillbirth-
rate and of infant mortality and for the healthy
development of the child;

INTERNATIONAL CONFERENCE ON GLOBAL HEALTH LAW - 1997
(b) The improvement of all aspects of
environmental and industrial hygiene;
(c) The prevention, treatment and control of
epidemic, endemic, occupational and other
diseases;
(d) The creation of conditions which would
assure to all medical service and medical
attention in the event of sickness. (Emphasis
added).
Under article 6 of the International Convenant on Civil
and Political Rights, 1966 (ICCPR) it is recognised that
every human being has the inherent right to life. The right
to peaceful assembly is recognised in article 21 of the
ICCPR which can be restricted on the grounds, inter alia,
of public health or morals or the protection of the rights
and freedoms of others.
From the perusal of the above provisions, it is evident
that under various international Covenants right to health
is considered as a basic human right. It stresses on
highest attainable standard of physical and mental health
by improving all aspects of environment by creating
conditions which would assure to all medical services and
medical attention in the event of sickness, disease or
infirmity.
Article 12 of the Convention on the Elimination of All
Forms of Discrimination against Women provides that
State parties shall take all appropriate measures to
eliminate discrimination against women in the field of
health care, and that they shall ensure to women
appropriate services in connection with pregnancy,
confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition
during pregnancy and lactation.
Article 19 of the 1969 Declaration on Social Progress
and Development calls for 'the provision of free health
services to the whole population and of adequate
preventive and curative facilities and welfare medical
services accessible to all."
It is submitted that it the above said provisions are
given full play and implemented in true relity. With the co­
ordinated efforts of "We the people of all Nations" only
then the dream of World Health Organisation (WHO), i.e.
"Health for all by the year 2000" can be realised.
The provisions of International Conventions/
"40l
\?~ Jf J
■>SC
Covenants, which elucidate and effectuate the
fundamental rights guaranteed by the Constitution of India,
can be relied upon by Courts in India as facets of the
fundamental rights and hence enforceable as such.24 The
judiciary in India applied the potent provisions of
fundamental rights enshrined in the Constitution of India
as also of the basic international Covenants and protected
and promoted the right to health as basic human right of
the people.
IV. RIGHTTO HEALTH AND JUDICIAL RESPONSE
The judiciary in India has shown its deep concern for
maintenance and improvement of public health. The
judiciary has relied upon various provisions of International
Covenants/Conventions and fundamental rights
guaranteed in the Constitution of India ;and thus elevated
the right to health and health care as basic human right
capable of enforcement in the Courts. The judiciary has
also stressed the need for maintaining high standard of
professional ethics in providing health care to the people
and suitably compensated the victims of medical
negligence.The study of following cases will illustrate the
role of judiciary in this regard.
A. HEALTH CARE, PROFESSIONAL ETHICS AND
MEDICAL NEGLIGENCE
The case of Parmanand Katara v. Union of India,25
deals with professional ethics of medical profession.This
case came up before the Superme Court by way of public
interest litigation (PIL) filed by a human rights activist on
the basis of report entitled "Law helps the injured to die"
published inThe HindustanTimes. In the said publication
it was alleged that a scooterist was knocked down by a
speeding car. Seeing the profusely bleeding scooterist, a
person picked up and took him to the nearest hospital.
The doctor refused to attend the injured and told the man
to take the patient to a named different hospital, located
at 20 KM away, authorised to handle medico-legal cases.
Before he could reach the said hospital, the victim
accumbed to his injuries.26
The Supreme Court of India laid emphasis on the
professional ethics of medical profession and relied upon
the Constitutional obligation of the State to preserve life
under article 21 of the Constitution. It was held that every
injured person brought for medical treatment should be
given medical aid instantaneously to preserve life and
 HEALTH CARE, ETHICS AND THE LAW : A STUDY OF JUDICIAL ATTITUDE IN INDIA
thereafter the procedural criminal law should be allowed
to operate in order to avoid negligent death. There is no
legal impediment for a medical professional when he is
called upon or requested to attend to an injured person
needing his medical assistance immediately. The court
further pointed out that the efforts to save the person
should be the top priority not only to the medical
professional but even of the police or any other citizen
who happens to be cannected with the matter or who
happens to notice such an incident or situation.27 The
Medical Council of India and the Medical Association of
India, which were impleaded as respondents in this case,
filed affidavit in the Court relying on the"Code of Medical
Ethics" which specifically provided that the patient must
not be neglected in emergency.
Justice Oza, while delivering separate but concurred
judgement in this case noted the apprehension on behalf
of the medical profession which sometimes prevents a
medical professional in spite his desire to help the person,
as he apprehends that he will be a withness and may
have to face the police interrogation which sometimes
may need to go to police station and that he may also be
a witness in the Court of Law where sometime
unnecessary cross-examinations becomes humiliating for
a man in the medical profession. In order to remove this
apprehension from the minds of those who are connected
with medical of the legal profession, our law courts and
everyone concerned will keep in mind that a man in the
medical profession should not be unnecessarily harrassed
for the purposes of interrogation or for any other formalities
and should not be dragged during investigations at the
police station and it should be avoided as far as possible.28
Paschmi Banga Khet Mazdoor Samity v. State of
W. B.29 is yet another case involving professional ethics
and the denial of emergency medical aid by government
hospitals. In this case the person, who suffered serious
head injuries and brain haemorrhage due to fall off from
Primary Health Centre to medical College Hospital in
Calcutta in the serious condition before he could be
admitted in a private hospital where he received his
treatment finally. All the first seven hospitals, including
the Calcutta Medical College Hospital, where the patient
was taken in serious condition at night, did not admit him
either on the ground that there was no bed available in
the concerned hospital or there was no neuro-surgery
facility available. Regarding the failure to provide the
medical treatment by the different government hospitals,
the Court observed :
Providing adequate medical facilities for the
people is an essential part of obligations
undertaken by the Government in a welfare State.
The Government discharges this obligation by
running hospitals and health centres which
provide medical care to the person Failure on the
part of a government hospital to provide timely
medical treatment to a person in need of such
treatment results in violation of his right to life
guaranteed under article 21. Since the said denial
of the right... was by officers of the State, in
hospital run by the State, the Siate cannot avoid
its responsibility for such denial of the
constitutional right.30
Having regard to the facts and circumstances of the
case the Court granted him compensation of Rs. 25,000.
As regards the Medical Officers who were responsible
for the lapse resulting in the denial of immediate medical
aid to the injured person in this case, the Court expected
the State Government to take appropriate administrative
action against those officers.
It is heartening to not that during the pendency of
this petition in the Court, the government made complete
and thorough investigation of the incident and took some
remedial measure to prevent the recurrence of similar
incidents. The Government appointed an Enquiry
Committee. On the basis of the recommendations of the
Committee, the State Government issued following
directions for dealing with the patients :
1. Proper medical aid within the scope of equipment
and facilities avilable at Health Centres and
hospitals should be provided to such patients and
proper record of such aid should be preserved.
The guiding principle should be to see that no
emergency patient is denied medical care.
(Emphasis supplied).
2. Emergency Medical Officers should get in touch
with Supdt./Dy. Supdt./Special Medical Officer for
taking bed on loan from cold wards for
accommodating such patients as extra temporary
measures.
3. If feasible, such patients should be
accommodated in trolley beds and, even, on the
floor when it is absolutely necessary till the bed
is arranged from other wards.
 INTERNATIONAL CONFERENCE ON GLOBAL HEALTH LAW - 1997
In addition to the above mentioned guidelines, the
Court also directed that in order to ensure proper medical
facilities while dealing with emergency cases, adequate
facilities should be available at the primary health centres
where the patient can be given immediate primary
treatment so as to stabilise his condition. The hospitals
at the District level and sub-divisional level should be
upgraded. At the state level there should be centralised
communication system so that the patient could be sent
to the hospital where the bed is available.The ambulance
should be adequately provided with necessary
equipments and medical personnel. The Court also
pointed out that the State cannot avoid its Constitutional
obligation in this regard on account of financial constraints.31
In order to see that private hospitals do not turn away
uninsured, indigent persons in need of urgent medical
care and dump them on public hospital resulting in delay
or denial of treatment leading sometimes to disastrous
consequences, the learned counsel for the intervenors,
Shri Rajiv Dhavan referred to the Consolidated Omnibus
Budget Reconciliation Act, 1986 (COBRA) which has
been enacted by the US Congress, under the said Act,
all hospitals that receive medicare benefits and maintain
emergency room are required to do two things before
they transfer or discharge the patient.
1. To perform a medical screening examination of
all prospective patients, regardless of their ability
to pay.
2. To stabilise the condition of patients in emergency
condition before he is discharged or transferred
for better treatment.32
Imposing penalties are provided against hospitals and
physicians that violate COBRA.
In our submissions, we in India also need to enact a
law on the lines of COBRA to regulate the conduct of
private hospitals and to ensure proper and immediate
medical care in emergency cases.
In Dr. Haniraj L. Chulani v. Bar Council of
Maharastra & Goa33, a short but an interesting question
before the Court was whether the respondent State Bar
Council was justified in refusing enrolment of the appellant
as an advocate under the Advocates Act, 1961, as he
was a medical practitioner who did not want to give up
his medical practice but wanted simultaneously to practise
law.
42
It may be relevant to mention here that in this case
the Medical Council of India to whom notice was issued,
had referred this matter to its Executive Committee which
was of the view that Medical Council of India has no
objection to any medical practitioner holding registerable
recognised medical certificate who is qualified in law,
practising medicine and law simultaneously.
While upholding the rule of the State Bar Council
which prohibited the practice in medicine and law
simultaneously the court pointed out that legal profession
requires full time attention and would not contenance an
advocate riding two horses or more at a time. He has to
be a full time advocate or not at all. If he chooses to cater
to the needs of his clients and his legal work, his patients
may suffer and may in given contingency even stand to
lose their lives without the aid of his expert hand as a
surgeon. On the other had if he is permitted to
simultaneously practise as a doctor then the requirement
of his fuil time attention to legal profession is bound to be
adversly affected. Thus, he would be torn between two
conflicting loyalities. Such a person will thus be like
'trishanku' of yore who will neither be in heaven nor on
earth.34
It is submitted that the judgement of the court is based
on professional ethics and loyalities to both the
professions.
Members of the medical profession are governed by
code of conduct, Certain unethical conduct such as
immorality involving abuse of professional relationship will
make a member liable to have his name removed from
the register. In the recent years there has been
deterioration of professional standards due to which
difficult situations have come into existence. There has
been shift from the prime object of according primacy to
rendering service to humanity to achieving financial gain
or monetary reward for the service rendered.
One of the most important questions for our
consideraiton is as to the standard of care to be adopted
by medical practictioners to avoid any liability for
negligence. Negligence as a tort is the breach of a duty
caused by omissions to do something which a reasonable
man would do, or doing something which a prudent and
reasonable man would not do.Thus, negligence has three
constituents, i.e., (a) legal duty to exercise due care,
(b) breach of the duty; and (c) consequential damages.
 HEALTH CARE, ETHICS AND THE LAW : A STUDY OF JUDICIAL ATTITUDE IN INDIA
As far as persons engaged in medical profession are
concerned, Mc Nair, J., has laid down the following
standard of care which is required from medical
practitioners:
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. In
the case of medical man negligence means
failure to act in accordance with the standards of
reasonably competent medical men at the time.35
The above test covers the entire field of liability of a
doctor, namely, liability in respect of diagnosis, liability in
respect of doctor's duty to warn his patients of risks
inherent in treatment and liability in respect of treatment.36
In an action for negligence in tort aganist a surgeon,
the Supreme Court in the case of Laxman Balkrishna
Joshi v. Trimbek Bapu Godbole,37 has held.
The duties which a doctor owes to his patient are
clear. A person who holds himself out ready to give
medical advice and treatment impliedly undertakes that
he is possessed of skill and knowldege for the purpose.
Such a person when consulted by a patient owes him
certain duties, viz., a duty of care in deciding whether to
undertake the case, a duty of care in deciding what
treatment to give or a duty of care in the administration of
that treatment. A breach of any of those duties gives a
right of action for negligence to the patients. The
practitoner must bring to his task 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 competce judged in the light of the
particular circumstances of each case is what the law
requires.38
Thus, every doctor whether at a government hospital
or otherwise has the professional obligation to extend his
services with due expertise for preserving life. No law or
state action can intervene to avoid/delay the discharge of
the paramount obligation cast upon the members of the
medical profession.
The Himachal Pradesh High Court in the case of
Kalawati v. State of HP,39 while exercising its-writ
jurisdiction awarded damages of Rs. 50,000/- to be paid
by the state Government to each petitioner for the loss
suffered by the neligence of the hospital staff including an
anaesthetist for having failed to take care which resulted
in interchange of tubes containing oxygen and nitrous oxide
in the operation theatre which resulted in the death of the
patients.
I n Indian Medical Association v. V.P. Shantha,40 the
Supreme Court while holding that remedy against medical
malpratice or neligence of medical practitioners, hospitals
and nursing homes is available under the Consumer
Protection Act of 1986, also observed that medical
professionals are liable for damages on ground of
negligence or malpractice, in tort and can also be sued in
contract. In case of their failure to take reasonable skill
and care, they cannot claim any immunity from such
liability on the ground that they are subject to disciplinary
control under Medical Council of India or State Medical
Councils.41
The case of Achutrao Haribhu Khodwa v. State of
Maharashtra,42 is a classic case depicting medical
negligence. In this case mop (towel) was left inside the
abdomen while conducting sterlisation operation by doctor
in the hospital causing pus formation and peritonists. By
second operation performed by another surgeon to
ascetain the cause of ailment, the mop was removed but
the patient ultimately died.
The Supreme Court while relying on the test with
regard to the regiigence of a doctor as laid down in
Bolam43 and Laxman Balkrishna Joshi,44 held that the
doctrine of res ipse loquiture (things speak for themselves)
was applicable to instant case. Her^e the doctor was liable
for negligence under the law of tort. The court also held
that running of hospitals, not being an exclusive function
of the govt., maintaining a hospital by govt. not an exercise
of sovereign power so as to enable it to claim immunity
from its liability for the tourtious sets of its employees.
However, the Supreme Court made following significant
observations.
Courts would indeed be slow in attributing negligence
on the part of a doctor if he has performed his duties to
the best of his ability and with due care and caution.
Medical opinioin may differ with regard to the course of
action to be taken by a doctor treating a patient, but as
long as a doctor treating a patient, but as long as a doctor
acts in a manner which is acceptable to the medical
profession and the court finds that he has attended on
the patient with due care, skill and diligence and if the
patient still does not survive or suffers a permanent ailment,
[«"
 INTERNATIONAL CONFERENCE ON GLOBAL HEALTH LAW - 1997
it would be difficult to hold the doctor to be guilty of
negligence.45
Poonam Verma v. Ashwin Patel,46 is yet another
case of negligence perse and breach of legal duty by a
medical pracitioner. In this case the respondent holding
diploma in Homoeopathic Medicine and Surgery (DHMS)
and registered under Bombay Homoeopathic Practitioners
Act, caused the death of patient due to administration of
Allopathic medicine without getting any pathological test
done. It was held that respondent being not qualified to
practice Allopathy was a quack or pretender to the medical
knowledge and skill or a Charlatan Allopathy in
contravention of statutory provisions became liable to be
prosecuted under section 15(3) of Indian Medical Council
Act, and was guilty of negligence per se. Accordingly the
Court allowed the claim of appellant for a sum of
Rs. 3,00,000 against the respondent and also granted a
cost of Rs 30,000 to the appellant.
In Tabassum Sultana v. State of U.P.47 the victim, a
lady about 18-19 years married only a couple of months
ago was operated upon for involuntary tubectomy under
the Government sponsored scheme/Family Planning
Camp. She lost her precious possession, i.e., motherhood.
The Allahabad High Court directed the State Government
to pay Rs. 3,00,000 by way of compensation to her. It
was further held that the State Government could recover
the said amount from the salary or otherwise of the
employees if they are found guilty during departmental
proceedings. Further the State Government was directed
to take all necessary steps for her recanalysing operation
and to bear entire expenses.
It is submitted that a study of above mentioned cases
show that the courts have held medical professionals liable
only in extreme cases of negligence. The trend of the
court to recover the amount of compensation from the
guilty officials well certainly act as deterrent factor and
make more responsible in them/discharge of their
professional duties.
B. RIGHT TO HEALTH AND WORKERS
The judicial response has also shown its deep
concern to the right to health of the workers. In the case
of C.E.S.C. Ltd. v Subhash Chandra Bose,48 the
Supreme Court of India, relying on various International
Covenants/Conventions held that right to social and
economic justice is a fundamental right and thus right to
"SI
health of a worker, which does not mean mere absence
of sickness but complete physical, mental and social well
being, falls under article 21 of the constitution. The court
rightly pointed out that the periodical medical treatment
invigorates the health of the workmen and harnesses their
human resources. Prevention of occupational disabilities
generates devotion and dedication to duty and enthuses
the workman to render efficient service.
In Consumer Education & Reserach Centre v.
Union of India,49 a PIL was filed to enforce the right to
health of workmen as their fundamental right.
Occupational health hazards and diseases to the
workmen employed in asbestos industries were the
concern of the Court in this case. Workmen employed in
asbestos industries were affected by asbestosis and
becoming prone to lung other related ailments.
The Supreme Court held that the jurisprudence of
personhood or philosophy of the right to life envisaged
under article 21, enlarges its sweep to encompass human
personality in its full blossom with invigorated health which
is a wealth to the workman to earn his livelihood, to sustain
the dignity of person and to live a life with dignity and
equality.50Thus, right to health and medical care to protect
his health and vigour while in service or post retirement is
a fundamental right of a worker under article 21, read with
articles 39 (e), 41, 43, 48-A and all related articles.
Compelling economic necessity to work in an industry
exposed to health hazards due to indigence to bread-
winning for himself and his dependents should not be at
the cost of the health and vigour of the workman. Thus,
the state, the employer or the producer have legal, moral
and social responsibility to provide protective measures
to the workmen and to the public or all those who are
exposed to the harmful consequences of their products.51
The court directed the asbestos industries to maintain
health record of workmen during service and after
retirement conduct their Membrane Filter Test and
compulsory insure their health coverage. It was further
held that workers found to be suffering from occupational
health hazards were entitled to compensation of Rs. one
lakh payable by the factory concerned.52 The court also
held that the defence of sovereign immunity is not available
to the state where fundamental rights are sought to be
enforced.53
The above mentioned decision54 have been further
relied upon in Kirloskar Brothers Ltd. v. Employees'
 HEALTH CARE, ETHICS AND THE LAW : A STUDY OF JUDICIAL ATTITUDE IN INDIA
State Insurance Corpn.5SThus, in expanding economic
activity in liberalised economy, Constitution enjoins not
only the state and its instrumentalities but even private
industries to ensure safety of the workman and to provide
opportunities and facilities for health and vigour of the
workmen assured in different provisions of the
Constitution.
C. RIGHTTO HEALTH AND SOCIO-MEDICO-LEGAL
PROBLEMS
The judiciary in India has responded well to socio-
medico legal problems and tried to lay down different
guidelines or principles ensuring right to health to all
persons. The judiciary in India has declared right to live
in healthy environment as fundemental right.66 By giving
an extended meaning to the expression "life" in article 21
the Supreme Court has broght health hazard due to
pollution within it end so also the health hazard from use
of harmful drugs.57 In response to various public interest
litigations, the judiciary has tried to ensure right to health
to mentally ill persons and proper maintenance of different
mental asylums.58
However, it must be noted that the judiciary has been
very cautious in issuing different directions. For example,
in the case of Vincent v. Union of India,59 in response to
PIL seeking the banning of injurious drugs, the Supreme
Court highlighted the point that attending to public health
is of high priority but held that in such a case judicial
proceedings is not approriate forum. In this case issue
being of national importance, certain directions were given
by the Supreme Court.
In the case of Common Cause v. Union of India,60
a PIL highlighted serious deficiencies and shortcomings
in the matter of collection, storage and supply of blood
through blood centres operating in the country. Blood is
an essential component of the body which provides
sustenance to life. In view of the danger inherent in the
supply of contaminated blood it must be ensured that the
blood that is available with blood banks for use is healthy
and free from infection. Accordingly, the directions were
issued by the Supreme Court for establishing a National
Council of Blood Transfusion as well as state councils,
licensing of blood banks, elimination of system of
professional blood donors and strengthening of machinery
for enforcement of provisions of Drugs and Cosmetics
Act and Rules.
In State of A.P. v. McDowell & Co.61 th Supreme
Court while upholding the A.P. Prohibition (Amendment)
Act, 1995 which prohibited production and manufacture
of intoxicating liquor in the State, held that it cannot be
challenged on the ground of violation of article 19(1) (g)
of the constitution. In other words, the citizens do not have
fundamental right to trade in intoxicating liquors which
may be harmful to health.
Reminding the state and its agency of its obligation
to raise the nutrition level and improve public health, the
Supreme Court in Tapan Kumar Sadukhan v. Food
Corporation of India,62 held that Food corporation of
India, being an agency of the state, should not allow sub­
standard foodgrains to reach market for human
consumption without treating and upgrading so as to make
it fit for human consumption. Poverty-sticken people who
are consumers of substandard foodgrains need state's
protection from injurious effect of such foodgrains.
Similarly, in Laxmikantv. Union of India,63 imposition
of total ban on the use of tobacco in toothpastes and
toothpowders was held by the Supreme Court on the
ground that it is prone to cancer and such a ban is in the
public interest.
In State of Punjab v. Mohinder Singh Chawla,64
the Supreme Court once again reiterated that right to
health and health care is and integral part of the right to
life and the government is under a constitutional obligation
to provide health facilities. In this case the Court held that
reimburesement of medical expenses to the goverment
servant includes the room rent paid to the hospital and
thus the government servant is entitled to the
reimbursement of room rent actually paid by him and not
at a lesser rate chargeable at an other institute.
Thus, the judiciary has taken a balanced approach in
handling socio-medico legal cases and ensuring right to
health to the people.
V. CONCULSION
Health care involves the ever changing challenge. It
is not an individual problem. It is the problem of whole
humanity to live with human dignity. In order to solve this
problem co-ordinated efforts of "We the people of all
Nations" is required. In order to make right to health a
living reality for all, medical professionals and law have a
great role to play. Medical professionals must follow the
 INTERNATIONAL CONFERENCE ON GLOBAL HEALTH LAW - 1997
code of Ethics so that no one is deprived of health care
due to their negligence. Law is a regulator of human
conduct. Hence, it helps in fixing the accoutability of those
who do not perform their duties and obligations with
reasonable care and skill. By incorporating various
provisions in the constitution for the protection and
promotion of health care, the state and its instu/nentalities
are under an obligation to take effective steps for ensuring
right to health to the people. Improvement of public health
is rightly considered to be the "Primary duty" of the state.
Due to recognition of right to health in various Human
Rights International Covenants and Conventions, the state
parties are further bound to take effetive steps in achieving
this objective.
Therefore, concrete efforts on war footing are required
to ensure health care for all. The state and its
instrumentalities cannot be allowd to take the plea of
"financial crunch" to justify its inability in securing proper
health facilities for all.65 However, we must not be oblivious
of the problem of poverty and indigence in the developing
countres. In our submission the developed countries and
international organisations such as WHO must provide
finalcial support and other held to the developing nations
in securing the objective of "health for all"
The judicial response in India has been very positive
in securing right to health to the people. The judiciary has
rightly reminded the members of medical profession and
also to others about their social, moral, legal and ethical
duty to help those who are in need or health care in
emergency cases. It is suggested that the law of "Strict
liability" should be applied and "exemplary punishment"
should be imposed on those whose actions are found to
be immoral, illegal or unethical. It is submitted that the
References and Notes
1. See C.E.S.C. Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441 at 463.
2. Vincent v. Union of India, A.I.R. 1987 S.C.990 at 995.
3. See Clauses 10 and 13 of Code of Medical Ethics.
4. See Parmanand Katara v. Union of India, AIR.1989 S.C. 2039.
5. Olga Tellis v. Bombay Municipal Corpn., AIR.1986 S.C. 180; (1985) 3 SCC 545.
6. Supra, note 2 at 994.
46
Juciciary has rightly held that the medical professionals
do not enjoy any "Professinal immunity" In case of
professional negligence. Similarly the doctrine of
"Sovereign immunity" cannot be invoked by the
Government to escape its liability under the law. The
medical professional must realise that their obligation to
extend medical help with due expertise for protecting the
life is total, absolute and paramount. At the same time,
for the effective implementation of any health programme,
there has to be strong and sustained "political
commitment".
The judiciary has upheld various legislative and
executive actions aimed at ensuring health care to the
people and given suitable directions in appropriate cases.
This approach of the judiciary, however, should not be
understood as an encroachment on the powers and
functions of executive and legislature or that the courts
have assumed the role of "garbage supervision". The
judiciary being one of the organs of the state is duty bound
to remind the authorities about their fundamental
obligation to secure public health for all and it is high time
that the public authorities should shed their ego about
the court verdicts passed in public interest which must
be accepted in the right spirit bearing in mind the
paramount consideration of the health and well-being of
the people as imperatively implicit in the right to life
guarnateed under article 21 of the constitution of India.
Thus, all national and international efforts in achieving
health care must be supported by positive action of the
forward looking legislature, dynamic executive and
independent judiciary. The harmonious blend of ethics
and law is also needed to achieve the goal of "health for
all", by the turn of this century.
 HEALTH CARE, ETHICS AND THE LAW : A STUDY OF JUDICIAL ATTITUDE IN INDIA

7. See Chameli Singh v. State of U.P., (1996) 2 SCC 549 at 555; Jasbir Kaur v. State of Pb., A.I.R.1995 P&H 278 and State of Punjab
v. Mohinder Singh Chawla, (1997) 2 SCC 83.
8. Supra, note 2 at 994.
9. Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42 at 67.
10. The six fundamental freedoms are: freedom of speech and expression; to assemble peacefully without arms; to form associations or union;
to move freely throughout the territory of India; to reside and settle in any part of the territory of India and to practice any profession, or to
carry on any occupation, trade or business.
11. See State of A.P. v. McDowell & Co., (1996) 3 SCC 709 at 735 to 739. See also Laxmikant v. Union of India, (1997) 4 SCC 739 at 740-
741; Pratap Pharma (Pvt.) Ltd. v. Union of India, A I R . 1997 S.C. 2648 at 2650-51.
12. See Francis Coralie Mullin v. Delhi Admn., A I R . 1981 S.C. 746 and Bandhua Mukti Morcha v. Union of India, A I R . 1984 S.C. 802.
13. See for example, Parmanand Katara v. Union of India, supra, note 4; Vincent v, Union of India, supra, note 2; Paschim Banga Khet
Mazdoor Samity v. State of W.B., (1996) 4 SCC 37; Dr. Ashok v. Union of India, (1997) 5 SCC 10. For detail analysis of these cases
see infra under the sub-head-"Right to Health and Judicial Response".
13A. Article 39(e) of the Constitution of India. 14. Article 39(f) of the Constitution of India.
15. H.M.Seervai, Constitutional Law of India, Vol. II at 1610 (1984).
16 See State of H.P. v. Umed Ram Sharma, A I R . 1986 S.C. 847, and State of Maharashtra v. Manubhai, Pragajivashi, (1995) 5 SCC
730 at 741-742.
17 A.I.R.1981 S.C. 298. 18. Ibid. (Emphasis supplied).
19. Air India Statutory Corpn. v. United Labour Union, A.I.R. 1997 S.C. 645 at 668; (1997) 9 SCC 377 at 416.
20 See supra note 9 to 70. 21. State of H.P. v. Umed Ram Sharma, A.I.R. 1986 S.C. 847.
22. United Nations, Human Rights-Questions and Answers, 4 (1987). 23. Ibid.
24. People's Union For Civil Liberties v. Union of India, (1997) 3 SCC 433 at 442.
25. Supra, note 4. 26. Id. at 2040.
27. Id. at 2043-2045. 28. Id. at 2045.
29. (1996) 4 SCC 37. 30. Id. at 43-44.
31. Id. at 48 (Emphasis added).The Court relied on Khatri II v. State of Bihar, (1981) 2 SCC 627 wherein it was held that the State cannot avoid
its Constitutional obligation to provide free legal aid to the poor. See also infra note 65.
32. Id., at 47. 33. (1996) 3 SCC 342.
34. Id at 361.
35. Bolam v. Friern Hospital Management Committee, (1957) 2 All E.R. 118 at 121. This test has been accepted by House of Lords in a
number of cases. See, e.g., Whitehouse v. Jordan, (1981) 1 All E.R. 267; Maynard v. West Midlands Regional Health Authority,
(1985) 1 All E.R. 365; and Sidaway v. Governors of Bethlem Royal Hospitals, (1985) 1 All E.R. 643.
36. See Ratanlal Dhirajlal, Law of Torts, 415 (1987). 37. (1969) 1 S.C.R. 206; A.I.R.1969 S.C.128.
38. Id. at 213; These principles were reiterated by the Supreme Court in A.S.Mittal v. State of U.R, (1989) 3 SCC 223.
39. A.I.R. 1985 H.P. 5. 40. (1995) 6 SCC 651.
41. Id., at 666 (Emphasis added). 42. (1996) 2 SCC 634.
43. Supra, note 35. 44. Supra, note 37.
45. Supra, note 42 at 645-646. 46. (1996) 4 SCC 332.
47. A.I.R.1997 All. 177. 48. Supra, note 1.
49. (1995) 3 SCC 42. 50. Id. at 68.
51. Id., at 70. 52. Id., at 73-74.

"47"
53. Id., at 72. 54. Supra, note 48 and 49.
55. (1996) 2 SCC 682. See also Hyderabad Asbestos Cement Products Ltd. v. Employees Insurance Court, (1978) 1 SCC 194.
56. See, e.g., R.L.and E. Kendra v. State of UP, A.I.R. 1985 S.C. 652; M.C.Mehta v. Union of India, A.I.R. 1987 S.C.1086; T. Damodhar
Rao v. S.O. Municipal Corpn, Hyderabad, A.I.R. 1987 A.P 171; L.K.Koolwal v. State, A.I.R.1988 Raj 2; K.C.Malhotra v. State.
AIR.1994 M.P 48; Indian Council for Enviro-leagal Action v. Union of India, (1996) 3 SCC 212; Vellore Citizen's Welfare Forum v.
Union of India, (1996) 5 SCC 647.
57. Dr. Ashokv. Union of India, (1997) 5 SCC 10.
58. See, e.g., Sheela Barse v. Union of India, (1993) 4 SCC 204; Supreme Court Legal Aid Committee v. State of M.R, (1994) 5 SCC 27;
Rakesh Chander Narayan v. State of Bihar, 1994 Supp. (3) SCC 478; S.C.Legal Aid Committee v. State of M.P, 1994. Supp. (3) SCC 489;
Aman Hingorani v. Union of India, 1994 Supp. (3) SCC 601; Chandan Kumar Bank v. State of W.B., 1995 Supp.(4) SCC 505 and Sheela
Barse v. Union of India, (1995) 5 SCC 654.
59. Supra, note 2. See also Pratap Pharma (Pvt.) Ltd. v. Union of India, A.I.R.1997 S.C. 2648.
60. (1996) 1 SCC 753. 61. (1996) 3 SCC 709.
62. (1996) 6 SCC 101 at 110. 63. (1997) 4 SCC 739.
64. (1997) 2 SCC 83.
65. See Niyamakendram Kochi v. Secy, Corporation of Kochi, A.I.R. 1997 Kar. 152.
66. Ibid.