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(1999)

Citizens Council Jamshedpur v. State of Bihar 
AIR 1999 pat.1 (RANCHI BENCH), R. A. Sharma and B. P. Sharma, J. J.
 
In the instant case the writ petition was filed against permission granted to hold handloom, handicraft exhibition on open ground, which would cause health hazards, create traffic, law and order problems and sound pollution. There was nothing on record to indicate any traffic, law and order problem. At the time of hearing of petition, exhibition was already commenced and expected to have been over and by passage of time no effective relief could be granted.

Before parting with this case, it was observed by the court that "if and when, in future, permission to hold exhibition/mela is granted, it is the duty of the concerned authority and officials to see that such exhibition/mela do not create water, air, and environmental pollution.

Mukthair Chand V. State of Punjab 
AIR 1999 SC 468

In this case the petitioners(1) have preferred appeals before the Supreme Court by special leave challenging the decision of the Rajasthan and Punjab and Haryana High Courts regarding the validity of clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945(2) and the right of the Vaids/Hakims to practice modern medicine which is covered by the Indian Drugs and Cosmetics Act, 1940.(3)

In this case, one Dr. Sarwan Singh Dardi, i.e., the petitioner who was a medical practitioner registered with the Board of Ayurvedic and Unani System of Medicines, Punjab and who was practicing modern system of medicines was served with an order of the District Drugs Inspector, prohibiting him from keeping in his possession any allopathic drug or administration of allopathic medicines to patients and a general direction to the chemists not to sell allopathic drugs to any patient on the basis of the prescription of the said doctor.

Earlier, the State Governments had issued notifications under Cl (iii) of Rule 2 (ee) of the Rules under which, notified Vaids/ Hakims have right to prescribe allopathic drugs covered by the Act. The petitioner assailed the action of the Drug Inspector before the Punjab and Haryana High Court and claimed that he was covered by the said notification and was entitled to prescribe allopathic medicine to his patients and store such drugs for their treatment. However, the Division Bench of the High Court held that the said notification was ultra vires the provisions of sub-clause (iii) of clause (ee) of Rule 2 of the Rules and also contrary to the provisions of Indian Medical Council Act 1956 and accordingly dismissed the writ petition. 

A similar case came up before Rajasthan High Court as well. The Jodhpur branch of Indian Medical Association filed a writ petition seeking declarations that rule 2(ee) (iii) of the Rules were void and ultra vires the provisions of the Act and the Medical Council of India Act. The Rajasthan High Court held that the notification was illegal and void. 

The Supreme Court was called upon to address the following issues, namely
(i)the legislative competence on the part of the State to promulgate such rule and consequently the legality of the notification and 
(ii) who is the medical practitioner under Rule 2 (ee) 
(iii)It was contested that in view of the fact that the qualified allopathic doctors are not available in the rural areas and persons like the petitioners have been catering to the medical needs of the residents of such areas there is a legitimate need to pass such rule. Further, it was argued that the rule cannot be said to be illegal as the S.33 of the Act confers very wide powers on the Central Government to frame rules and as the class of medical practitioners postulated by clause (iii) of the rule, can be identified by the State Governments. They are empowered to declare, such notifications issued by State Governments to be within the ambit of the rule.

Regarding the issue of the validity of the notification, the
Supreme Court disagreed with the decision of the Punjab and Haryana High Court and held that the said notifications issued by the State Governments as valid in law. The Supreme Court also observed that it is necessary for the rule-making authority to define the expression registered medical practitioners for the purposes of the Act and the Rules. Held that, "Rule 2(ee) does no more than defining that expression which is within the scope of Section 33(i) as well as 33(2). Therefore it cannot be said that the rule making authority was lacking legislative competence to make Rule 2(ee).(4) 

While answering the second issue, the Court held that clause(iii) takes in non-allopathic practitioners also if the State Governments declare it in the notifications. And as practitioners of Homeopathic medicine are specifically excluded, it becomes evident that this category comprises of practitioners who are enrolled in a medical register of a State. By this sub-clause, a de facto practitioner of modern medicine is recognized as a registered medical practitioner and is enabled to prescribe drugs covered by the Act. 

After a detailed analysis of the rule in question, the court observed " (a) It takes in persons who are registered medical
register of a State (it may be noticed here that such a register
should not be meant for registration of Homeopathic practitioners but it need not be a register meant for registration of persons practicing modern system of medicine); ss(b) they must be declared as persons practicing modern system of medicine by general or special order made by the State Government in that behalf, (c)they must be declared as persons practicing modern system of medicine by general or special order made by the State Government in that behalf: and (d)such a declaration would operate only for purposes of the Drugs Act and the Rules made there under"(5) 

Further, it was held that " for the purpose of Clause (iii) of the
rule 2(ee) what is required is not the qualification in modern
scientific system of medicine but a declaration by a State
Government that a person is practicing modern scientific
medicine and that he is registered in a medical register of the
state(other than a register for registration of Homeopathic
practitioner). A notification can be faulted with only if those
requirements are satisfied." 

M. Shobha V. Dr. Mrs. Rajakumari Unnithan
AIR 1999 Ker 149

In the instant case, the plaintiff Sobha, aged 35 years, working as a teacher in the Central School at Coimbatore, decided to have a
second child and for that purpose she approached the defendant doctor. She was advised to have a Tube Testing. This was intended mainly to clear the obstructions if any, in the fallopian tube blocking the delivery of ovum into the uterus. The procedure was simple viz, blowing of air through an apparatus into the vagina under a controlled pressure. The procedure lasts only about 5 minutes and is quite safe when applied with average
skill and after taking normal precautions. She underwent this test on 18/6/1988 in the morning hours. After that she felt some uneasiness and a sense of vomiting. On that night she was taken to the hospital where the first defendant was working. It was noticed that she had pain in the abdomen, discomfort and the pelvic region were distended. Medicines and treatment were prescribed and on 19/6/1988 she was discharged. The
final diagnosis according to the doctor was "abdominal distension relieved".
On 22/6/1988 again the plaintiff developed fever and met first defendant doctor on 24/6/1988. Then she was referred to a Physician Dr. T.L.P Prabhu and he noted "left tube patent, right partial block", "slight pulling from left side, temperature above normal", and also noted PID (standing for pelvic inflammatory disease). 

He diagnosed the inflammatory condition of the pelvic region and in consultation with the first defendant prescribed medicines to cure the infection. In spite of the medicines the infection did not subside and so she wad admitted as in patient in the second defendant's hospital and her condition was described as UTI i.e. urinary tract infection. Then she was discharged and on request of her husband, she was referred to Dr. Asha Saraf (Gynaecologist) and was under treatment from 29/6/1988 to
9/7/1988. Thereafter at the request of the plaintiff, Dr. Prabhu referred her to Dr. Sasikala Prabhu, a Gynaecologist and found a persistent discharge from the vagina and pus was coming through the vagina. Ultra Sound Scanning was done on 18/8/1988, it showed that uterus was normal by echo appearance, multioculated cystic masses were seen on both sides of uterus, both kidneys normal by sonographic appearance and no back pressure was noticed. It was noticed that uterus was normal but
the right tube show hydrosalpinx i.e. blockage of tube distended with fluid. The right ovary contained a cyst or cavity of abnormal character of 5 cms in diameter which is adherent to the intestine, caecum and appendix. Left ovary was found enlarged. The ovary fallopian tube, uterus and the intestines were found infected and there was danger to the life of the patient. For second opinion she was referred to Professor of Gynecology Medical College, Trichur Dr. Navaneetham who examined the patient and suggested an immediate surgery of laparotomy or hysterectomy at the earliest. Thereafter Dr. Sasikala performed the surgery and removed the
ovary, tube and uterus of the plaintiff. 

Thereafter a suit was filed claiming damages to the tune of Rs.68,000/- towards loss of income, mental and physical pain and loss of vital organs etc. 

During examination Dr.Sasikala who performed the surgery observed that laparatomy was performed on the plaintiff because she felt that otherwise her life would be in danger. She gave the evidence that infection can be caused by several reasons, firstly after a delivery or abortion, secondly after surgery to the uterus and thirdly by usage of unhygienic pads after sexual intercourse. She made a very important statement in evidence that the plaintiff had no complaint that first defendant was negligent or careless in performing the tube testing. She also admitted that in the second defendants Hospital good care are taken regarding the sterilization of the implements to prevent infections.

The next witness examined was Dr. Navaneetham, Professor of
Gynecology, Medical college, Trichur. She found her condition to be dangerous and suggested either laparotomy or hysterectomy. Her evidence was, Tube Testing is an intra uterine manipulation and if any injury is sustained to the organ in the course of it, it could cause infection but that will not necessitate removing the uterus. She also pointed out that if the normal pressure is not maintained during Tube Testing rupture in the uterus can occur and if the said rupture is not treated it could
cause infection. She suspected a malignant ovarian tumor, but Dr. Sasikala who performed the surgery did not say that there was a malignant tumor. She also submitted that she was unable to arrive at a cause for infection, and it can be determined after studying the whole history and analysis of the organs removed for pathological examination. 

Taking all these evidence, the lower court negative negligence on the part of the defendant. 

According to the Court, "negligence" means more than careless conduct. In connotes- (a) duty to take care, (b) breach of the duty and (c) damages thereby suffered by the person to whom the duty was owed. Such a duty may arise from a contract but it can arise independently out of a contract, is based upon the fact that he has undertaken the treatment of the patient. The test is standard of an ordinary skilled man exercising and professing to have special skill. Such a man need not possess higher expert skill. It is well established that it is sufficient if he exercises the ordinary skill of an ordinary competent man practicing that
particular profession. In this connection learned counsel for the appellant plaintiff referred to the decision reported in Dr. L.B. Joshi v. Dr. T. B. Godbole (7), in which their Lordships summed up the position thus: 

"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 knowledge 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 the administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very high nor a very low degree of care and competence judged in the light of the particular circumstances of each case in what the law requires(8): 

The decision reported in Pinnamaneni Narasimha Rao v. Gundavarapu Jayaprakasu(9), is another case containing an exhaustive discussion of what constitute negligence by the medical men and what is the standard of skill and care caution expected of them. In this his Lordship relied on a passage from the law of Torts by John G. Flemming, which reads as follows: 

"Special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession" 
His Lordship has observed thus: 
"Failure to conform to the required standard of care resulting in material injury is actionable negligence if there is proximate connection between the defendant's conduct the resultant injury. A surgeon or anesthetist will be judged by the standard of an overage practitioner of class to which he belongs or holds himself out to belong. In the case of specialists a higher degree of skill is called". 

What is held by the English courts was followed and approved by the Indian Courts also. 

In Achutrao Haribhau Khodwa v. State of Maharashtra(10), the Supreme Court has to consider a Gynecologist's skill and negligence. There is an illuminating discussion on the aspect of
doctor's negligence(11). their Lordships quoted a passage from
Kanchanmala Vijay sing Shirke's case(12) describing negligence as follows: 

"Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the material produced before the court" 

There Lordship also relied on Roger v. Whitakes(13), Where doctors negligence was discussed; "the question is not whether the doctor's conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court to decide and the duty of deciding it cannot be delegated to any profession or group in the community".

Also a passage from A.S.Mittal v. State of UP(14), was relied on: 
"A mistake by a Medical Practitioner which no reasonable competent and a careful practitioner would have committed is a negligent one". 

In the decision reported in New India Assurance Co. Ltd., v. Dr. Kiritkumar S,. Sheth(15), the duty of care expected of and the situation in which doctrine of res ipsa loquitur can be applied was considered by the Gujarat High Court. In paragraph 13 their Lordship stated thus: "What is reasonable care or skill would also again be a matter depending upon varieties of factors. It must be noted that there is a difference in the degree of care, caution and skill in normal times and in case of emergence nobody can expect the same degree and amount of care,
caution and skill. Amount of care, skill and caution expected of a
reasonable and prudent medical practitioner may not be the same extent at times in case of emergent situation"
The court while dealing with the doctrine of res ipsa loquitur observed(16)

"The phrase 'doctrine of res ipsa loquitur' means 'thing speaks itself' which is normally applied in vehicular accidents. But the same principle can be extended even incase of an injury on account of medical treatment" 

"A doctor is never presumed to be infallible. He is also not obliged to achieve triumph in every clinical case that he treats. He cannot be held negligent simply because some thing goes wrong. He can be found guilty only if he falls short of standard of reasonable skillful medical practice. The true test, therefore, to hold a medical practitioner guilty of negligence is to have a positive finding of such failure on his part as no doctor of ordinary
skill would be guilty of acting with reasonable and ordinary care"(17).

While adverting to the issue of medical negligence, the Court went on record by saying: 
"It is true that her misfortune started after Tube Testing. But the question is whether first defendants' negligence was the cause for his misfortune. As it is not established that the first defendant did not act with average skill that is expected of her while giving advice or diagnosing or treating the plaintiff. It is not proved that as a result of the Tube Testing any of her organs were ruptured; nor is there evidence to show that proper sterilization of the equipment was not done or proper care and caution was not taken. The doctor who treated the patient subsequently has
not stated anything to show that first defendant was negligent in the performance of her duties. Plaintiff's reproductive system has to be removed because of the infection, to save her life from danger. The experts have opined that it can happen due to various reasons, after delivery, after abortion or a surgery of the uterus. None of the above reasons are applicable to this case. There is no case that implements used for Tube Testing were not sterilized and evidence on that aspect is in favor of the doctor. The doctors have stated that they were unable to find out the reason for infection".

The court further observed that 
"it cannot impose the liability on the first defendant who treated her, unless we are able to establish the nexus between the plaintiff's injury and negligence on the part of first defendant. Also the plaintiff was unable to establish that her sufferings were due to the want of average skill on the part of the first defendant or due to her want of care and attention. Here the principle of res ipsa loquitur does not apply. The plaintiff had to remove organs only because of her infection and none of the organs were ruptured due to the Tube Testing. This is supported by the evidence of other experts also. So it will not be justified in invoking the doctrine of resipsa loquitor in finding that the first defendant was negligent(18)" 

Hence, the appeal has been dismissed. 

K. Ramakrishnan v. State of Kerala
AIR 1999 Ker 385 A.R. Lakshmanan, Ag. C.J. & K. Narayana Kurup, J.

In this historic case Kerala High Court took a stand by saying that smoking of tobacco in any form in public places is illegal, unconstitutional and violative of Art. 21 of the Constitution.

The court held that "smoking of tobacco in any form whether in the form of cigarettes, cigars, beedis or otherwise in public places like Educational Institutions, Hospitals, Shops, Restaurants, Commercial establishments, Bars, Factories, Cinema theatres, parks, walkways, stadium, places of amusements, Bus stops, Bus stations, Railway stations, Railway compartments, Buses and other public transport vehicles, highways or any other public transport vehicles, highways or any other place were people congregates illegal, unconstitutional or violative of Art. 21. 

Maintenance of health and environment falls within the purview of Art. 21 of the Constitution as it adversely affects the life of citizens by slow and insidious poisoning thereby reducing the very life span itself. Exposing, unsuspecting individuals to environmental tobacco smoke (ETS) with ominous consequences amounts to taking away their life, not by execution of death sentence but by a slow and gradual process by robbing him of all
his qualities and graces, a process which is much more cruel than sending a man to gallows. To convert human existence into animal existence, no doubt amounts to taking away human life, because a man lives not by his physical existence or by bread alone but by his human existences.

Smokers dig not only their grave prematurely but also pose a serious threat to the lives of lakhs of innocent non smokers who get themselves exposed to ETS thereby by violating their right to life guaranteed under Art. 21 of the Constitution of India. A healthy body is the very foundation for all human activities. In a welfare state it is obligation of the state to ensure the creation and the sustaining of conditions congenial to good health.

The High court in this regard issued the following directions :
i) Directions to the District Collectors of all the Districts of the State of Kerala to promulgate an order under Section 133(a), Cr.P.C. prohibiting public smoking within one month and direct the Director General of Police, to issue instructions to his subordinates to take appropriate and immediate measures to prosecute all persons found smoking in public places treating
the said act as satisfying the definition of "public nuisance" as defined under Section 268, IPC. 
ii) There will be a further directions to District Collectors of all Districts to issue appropriate directions of all Districts to issue appropriate directions to the respective R.T.Os to strictly enforce the provisions contained in Rule 227(1), (d) and 227(5) of the Kerala Motor Vehicle Rules, 1989.
iii) Tobacco smoking in public places falls within the mischief of the penal provisions relating to "public nuisance" as contained in Indian Penal Code and also the definition of `air pollution' as contained in the statutes dealing with the protection and preservation of the environment, in particular the Air (Prevention and Control of Pollution) Act, 1981.
iv) The State Government repositories of wide statutory powers and enjoined by the Statute and Rules to enforce the penal provisions therein are duty bound to require that the individuals practice of smoking in public places, a positive nuisance, is discouraged and offenders visited with prosecution and penalty as mandated by law. Accordingly, the State Government is liable to be compelled by positive directions from High Court to act and take measures to abate the nuisance of public smoking in
accordance with law. Directions in the above line are hereby issued. 
v) The continued omission and inaction on the part of the respondents to comply with the constitutional mandate to protect life and to recognise the inviolability of dignity of man and their refusal to countenance the baneful consequences of smoking on the public at large has resulted in extreme hardship and injury to the citizens and amounts to a negation of their constitutional guarantee of decent living as provided under Art.21 of the Constitution. 

Also asked the media, print and electronic to take note of this Judgment and caution the public about penal consequences of violation of the ban on public smoking.

 

   

 

 

 

 

 

 

 

 

 

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