NOW OR NEVER

Deaths and Aweful Conditions in Jails

Joginder Singh, IPS (Retd.)
Former Director, CBI

Apart from the heavy pendency (the backlog as on February 27,2006 is Supreme Court 33,635, High Courts 33,41,040, Subordinate Courts 2,53,06,458), in the criminal justice system, the jail administration is in a mess. In fact, improving the jails, is the last priority of any government, because the undercurrent, of the thinking is, that jails are meant for the criminals, and so no improvement may be done or is necessary, to make life easy, for the depredators of the society. Only when some VIP or a top politician is sent to the jail, the government wakes up to the need to ensure at least human conditions for the prisoners. For instance, when a former Chief Minister of Bihar was sent to Beur Central Jail Patna, the building construction department, spent Rs 2.52 crore on improving the jail.
Whatever funds were sanctioned to provide human conditions, dried up as soon as the VIP prisoner, left the jail. This is something not exclusive to Bihar, but the same story is repeated all over the country, in a bigger or a smaller degree.
In a suo moto move, Delhi High Court has set up a five member Committee, in June 2007, to visit Tihar Jail and submit a report on the medical facilities available there, following the death of half dozen prisoners in one week. Of course, the jail authorities are blaming the deaths on extreme heat in Delhi, during the period in question. On an average, about 24 prisoners or 2 prisoners a month die every year. The real truth is, that there is not enough infrastructure, to cater to pressure of increasing prison population.
Tihar jail, in the National Capital has a capacity of 6,250 inmates. At present it houses some 13,750 prisoners. Naturally, when the infrastructure, whether of medical or living space or supervision, or medical facilities, is exposed to cater to the needs of the double, the conditions are likely to be even more worse than desirable.
If this can happen in the National Capital, in the full glare of the media, one can imagine, the conditions in the States. I happened to be sitting in a popular restaurant some time back. I could not help over hearing the conversation at the next table. It appeared that one of the well dressed and apparently well off person on the next table, was telling his friend his experiences in jail. He said, “I spent a full month in jail and I had the best of life there. I paid Rs. 1000 a day for staying in a separate air conditioned room.” This package, however did not include, the use of mobile phone, TV, DVD, meals of his choice and meeting people privately, for which he had to pay separately. A jailed citizen has to pay for each item separately, at almost astronomical rates. Jail is not a bad place, if you have money and can splurge it.
There are 90 doctors for the 13,750 inmates in Tihar, a downward curve from the 100: 7,000 doctor prisoner ratio in 1995. People are sentenced to undergo punishment for breaking the law, or are kept there as undertrial prisoners. Death in the course of serving a jail sentence is not part of the penalty.
As Bible says “Abandon hope, all ye who enter here”, is the apt condition of Indian jails.
According to one report, the NHRC has taken up the cases of four men awaiting trial in Assam:
1. Khalilur Rehman has been in custody for 35 years,
2. Anil Kumar Burman for 33 years, and
3. Sonamani Deb for 32 years, while 4. Parbati Mallik has been detained in a psychiatric unit for 32 years. In 2002, it was reported that some three quarters of all persons held in Indian prisons had not been sentenced to jail, but were “under trial”—that is, awaiting trial. The largest number of under-trial or remand prisoners is to be found in the jails of Uttar Pradesh, Manipur, and Meghalaya, where more than 90 percent of the prison population, have reportedly not faced trial. According to a National Crime Research Bureau (NCRB) study, Crime in India 2002, nearly 220,
three quarters of all persons held in Indian prisons had not been sentenced to jail, but were “under trial”—that is, awaiting trial. The largest number of under-trial or remand prisoners is to be found in the jails of Uttar Pradesh, Manipur, and Meghalaya, where more than 90 percent of the prison population, have reportedly not faced trial. According to a National Crime Research Bureau (NCRB) study, Crime in India 2002, nearly 220,000 cases took more than 3 years to reach court, and about 25,600 exhausted 10 years before they were completed. A staggering number of prison inmates awaiting trial have already been imprisoned longer than the most rigorous sentence that they could ever be given for the offence they are alleged to have committed.
Good governance is nothing, but ensuring justice for all. Too many laws make criminals out of ordinary men. Out of 525 sections of the Indian Penal Code, which define offences only about 100 or so are used. It is time to revise the Laws, so that most cases get disposed of as summary trials. We have the jail system devised, developed and implemented by the Britishers. It has failed to provide even basic justice to the inmates of the jails, before even conviction. If a prisoner wants human treatment, he has to bribe jail staff at almost every alternate step, if not, at every step. Moreover, the antique jail staff, has not been trained to handle Terrorists or Naxalites attacking jails, in some States, like Chhattisgarh, Orissa, Bihar and many others, where they succeeded, in freeing their fellow travellers from the jails. This is the age of privatisation, then why not Government think of privatising the prison administration. Of course, the experiment can begin with, under-trials involved in ordinary crime, while the Government can keep the incarceration of criminals involved in serious crimes, like terrorism, murder, extortion and other serious offences under its own charge.

The Government should remember that Extremism in the defense of liberty and justice is no vice. Moderation in the pursuit of justice is no virtue.

We’ll Miss you, Dr. Kala

Fali S. Nariman

A President whose simplicity and integrity were unquestioned. A President we could have asked to stay on.
We will miss him—that unconventional figure who became India’s First Citizen in July 2002. Never pompous, not even ‘Presidential’ (in either deportment or demeanour), he walked into the Palace at Raisina Hill with few worldly goods — he now leaves with even fewer: “I will go with only two small suitcases,” he wistfully said. We could have asked him to stay; but we didn’t.
There were excuses (there always are). It was said that apart from Rajendra Prasad there had been no ‘precedent’ for a second term. But as any lawyer will tell you, if you have a good case in court there is no need for a ‘precedent’; it is the good case that makes the precedent! But all this is in the realm of wishful thinking; as the poet says: “We look before and after and pine for what is not...”
The stark reality is that this lovable figure—popular, sometimes even populist, but never ostentatious—exited from Rashtrapati Bhavan in the same frame of mind as he entered it; with an overriding concern for the ‘underdog’. Hear this: one year into office, on the morning of July 14, 2003, at 8.40 am, the RAX in the office of the secretary to the President rang. President Kalam was at the other end. “Mr Nair,” he said in a voice that was (as always) cool and composed, “last night I could not sleep because my bedroom was leaking...” P M Nair froze and muttered something. “Any other President,” he now recalls, “and my head would have rolled, although for no fault of mine.”
At the other end of the line, the President (sensing Nair’s embarrassment), continued reassuringly, “Don’t worry Mr Nair, I know you will immediately set things right in my bedroom. What I am worried about are those houses on the President’s Estate where they may not have a second bedroom to shift to when the only one that is available leaks.” So Nair got moving, and with the help of the CPWD, the old staff quarters—until then dilapidated and neglected—were transformed into bright new leak-proof houses, in almost record time. Nair tells me that he was greatly impressed at the concern and compassion shown by the President—not for himself but for other inmates on the Presidential Estate. It has been said that no man, however great, is a hero to his own secretary or his own valet. But as with all such sayings there are exceptions—from that point on, Nair had found his hero!
Now another revelation—so far kept under wraps at Rashtrapati Bhavan (under presidential orders). In May 2006, President Kalam’s relatives from the south decided to descend on him (as relatives tend to often do). On instructions of the President they were welcomed by his staff at the railway station, and were looked after right up to the time they departed. But the Controller of Household was under strict instructions to keep a meticulous account of all the expenses incurred on behalf of the relatives—all 53 of them. Not once was an office vehicle used for any of them.
It was made clear by the President that he would pay—not only for the transport of all his relatives to and from Delhi, and also within Delhi, he would also pay for the various rooms occupied by them at Rashtrapati Bhavan and the food that was consumed by them—the rooms at the prescribed rate, the food on the basis of expenses actually incurred.
When his relatives left after a week’s stay, the President was, of course, sad to see them all go, but he was also lighter in his pocket, the total expenses debited to his personal account was Rs. 3,54,924! As we practising lawyers often say in court “The facts speak for themselves”, President Kalam has set a high benchmark of rectitude in public office—worthy of emulation. And as a living embodiment of ‘Transparency-National’, his parting words of advice were: “Don’t accept gifts.” Delicately put, what he meant to say of course was, “Don’t accept gifts for favours in return.”
Yes, we will all miss him. Me, too. Although I had publicly criticised him for putting his signature on the Bihar Dissolution Proclamation, and for not insisting on a personal meeting with Aung San Suu Kyi during his Presidential trip to Myanmar, in retrospect, these were but aberrations—small lapses—in a hugely successful Presidency.

Of him it can be said, as Winston Churchill once said about his departed king: “He nothing common did, or mean, upon that memorable scene.” Memorable scenes are rarely re-enacted, but they are always remembered

Cover Story

Sting Operations on deathbed?

Though the question of morality might always be a valid question with respect to a public servant, the question must not be put through questionable means. Public interest must not be confused with all that ‘interests’ the ‘public’, says HEMRAJ SINGH

The Fourth Pillar of Indian democracy is under scanner and Parliament of India is just about to deliberate a Bill that supposedly aims at regulating irresponsible reportage in general and sting operations in particular. While it is not advisable to put fetters on free dissemination of information, as it forms the very basis of a democracy, it too has to be understood that the privacy of those individuals whose actions are largely in public domain is also protected. Therefore, though the question of morality might always be a valid question with respect to a public servant, the question must not be put through questionable means. Public interest must not be confused with all that ‘interests’ the ‘public’. The private life of a public servant, thus, has to be necessarily separated from his public life and all his actions that have no bearing on his public functions must be kept away from media glare. Right to the freedom of press, implied within the right to freedom of speech and expression, is not an unlimited privilege for its own sake. It is a limited right to be exercised for public good.
News Entertainment
Freedom of press started with dissemination of relevant information about public affairs or the happenings that had a direct bearing on public welfare. Today, the scene has changed. With 24X7 news channels, everything that interests people has a news value. Whatever non-fictional drama makes people stay glued to their television sets is ‘news’. It may be an old man declaring that he would die at a certain hour on a certain day or a man eating raw flesh of snakes, it is all news so long as it grabs the attention of the people. No matter how visually outrageous the images be, the shock value they have lures the TV channels into beaming them right into our bedrooms. The ‘public’ element of ‘news’ seems to have taken a backseat because news is entertainment now, and the more entertaining the news is, the better the viewership. And the better the viewership, the better the returns for the news channel. It is in this mad race to grab attention that journalists – especially TV journalists – are likely to overstep the demarcation that separates the legally permissible from the illegal. And this is where regulation becomes desirable so that individual rights are not violated for public entertainment.
Sting operations began with a laudable objective of exposing corruption in high places and degenerated into cheap entertainment when a movie star was shown ‘accepting’ sexual favours ‘offered’ by an aspiring female actress to assist her in furthering her acting career. She seemingly did it specifically to catch him accepting the offer on camera. The channel claimed to telecast it in public interest because according to them the public had the right to know that ‘casting couch’ existed in the film industry. But somehow the ‘couch’ seemed to have been brought by those holding the camera for the purpose of proving that the couch existed. This was cheap entertainment deceptively packaged as news. It had no public angle to it. It is from here that a debate on the misuse of sting operations started.
The debate on sting
The entertainment sting is definitely objectionable, but a serious and sincere sting operation, too, is not absolutely unquestionable because the heated debate on sting operations is basically a debate about the means a journalist uses to procure information that might not be available otherwise. And sometimes the means might not be legally clean, which is where the law has to step in. Conventionally, the official records and other such records that are easily available are gone through and the story is pieced together like a puzzle. Investigative journalism proceeds much the same way as a police investigation minus specific legal mandate. The only right that a journalist has is the right to ask questions and have access to the records available to any member of the public in ordinary course. Of course, compared to a police officer, he is bound by much fewer and far less stringent rules. Besides, the commoners tend to speak more freely to a journalist speaking to them informally than to a uniformed police officer – a symbol of state power – demanding answers. A journalist might record the statements on a camera or recorder so long as the person speaking is aware of it and has expressly or implicitly consented to such recording. However, it is when his statement is clandestinely recorded that the journalist treads a legally questionable path. The exercise becomes further questionable when a journalist makes an offer in the nature of bribe so as to make a public servant act illegally abusing his office to the advantage of the one making the offer. This is considered to be akin to abetting a crime. In such cases a journalist acts as an ordinary member of public and makes an offer to get his work just like any other person would do. The fact that all of it is being recorded and the journalist is not actually interested in getting the work done does not change the position of the person accepting the bribe. It is just another instance in his busy official life. This kind of sting operation is relatively clean because this kind of corruption can only be exposed either by making an offer and showing the public servant accept it or by showing that the official has amassed wealth that his disclosed sources of income could produce in the disclosed period of time. Moreover, in such sting operations a journalist does not commit any brazenly illegal act to make the official abuse of his office.
            However, it becomes slightly more complicated when what is offered is itself illegal to the extent that it borders on a criminal offence. For instance, offering sex workers as bribe. Undoubtedly, if a public officer accepts the paid services of a sex worker as bribe from the person who paid the sex worker, it is certainly a rotten form of corruption. However, this kind of exposure necessitates that the journalist involved also commits a crime to film the wrongdoer committing the wrongful act. Now, in such a case while the public official is liable for punishment, the journalist, too, cannot escape criminal liability. That he committed a crime in public interest is no defence. A criminal offence is necessarily not in public interest, which is exactly why it is punishable with imprisonment. This means that by enacting a penal law prohibiting such an act, the society has already stated what it does not consider in its best interest. Therefore, unless legally permitted, no man – journalists included – can stand up and say that since by doing an illegal act he has exposed a ‘larger’ or ‘more unlawful’ act, he has the right to be pardoned.
Right to privacy
Right to privacy is another important issue involved with sting operations. It is a valid point that at a certain point all sting operations do violate right to privacy in some degree because during a sting operation, in nearly all the cases, the person being filmed is not aware of the presence of a hidden camera. This means that he does not consent to be filmed, without which, in ordinary course, no one has the right to film anyone. The right to privacy is, thus, breached. However, it may be argued that an illegal act being committed by a public servant during his office hours and in abuse of his office are not worthy of protection under right to privacy law. Besides, what a public servant does while discharging his duty is in public domain. In such cases, public interest does seem to weigh heavier compared to the right to privacy. But in cases where it is not about the abuse of public office but about a moral wrong committed by a private individual, the scales would conclusively tilt in favour of the right to privacy. Public interest, therefore, has to be seen in close relation with public duty. If a person has no duty towards general public, his morally questionable conduct is not open to public scrutiny unless he violates the law by such conduct.
Every individual has the right to make a life of his choice and pursue such goals as he thinks best for himself or herself. This is the very essence of all freedoms. To put it differently, every individual has an inviolable right to be left alone in his own pursuit so long as he does not do any harm to any other individual or to the society at large. Therefore, without right to privacy, right to all other freedoms would still fall short of giving the desired completeness to the right to life as envisioned under the Constitution. Therefore, it is important that right to privacy is not allowed to be lightly interfered with. At the same time right to freedom of speech and expression has also to be allowed its fullest scope because restricting it without compelling reasons is harmful to the democratic rights of the citizens. It is maintaining this delicate balance between the right to privacy and freedom of speech that regulation of press freedom is all about.
The Broadcasting Bill and Sting Operations
The draft Broadcasting Bill is considered to be very stringent when it comes to content regulation. However, so far as sting operations are concerned, it merely warns the TV channels against using such material that relates to one’s ‘personal or private affairs’ unless, of course, there is ‘an identifiable public interest reason’ involved. Quite clearly, the Bill is concerned only with separating the ‘private’ and the ‘public’, but even private might become ‘public’ if there is ‘public interest’ involved. This simply means that the Broadcasting Bill does nothing more than restate the existing law. It neither loosens nor tightens the strings. And the issues pertaining to privacy and public interest remain unchanged. Probably, it is in better public interest if the ‘private’ and ‘public’ are not strictly compartmentalized because in many situations they tend to flow into each other and any attempt at putting them in watertight compartments might produce absurd legal position in certain cases.

However, this is not to say that sting operations would remain unaffected because a tight content regulation might, to a large extent, filter out or tone down the entertainment stings. A regulation of such stings that do not have news value distinct from their entertainment value is quite all right. However, it is still a dangerous path to take because at the end of the day the newsworthiness of a story has to be determined on case of case basis and there cannot possibly be a straight formula to calculate it. Freedom with all its drawbacks is still preferable over blanket state regulation.

CONSTITUTION OF INDIA

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next article in the series on constitutional provisions in order to aid our readers in understanding them.

Article 29 & 30

In a democratic country everybody is placed on equal footing with equal rights, to live with dignity and freedom. A duty is enjoined upon the State to ensure this to all. And this concept of equality and secularism is reflected under Article 29 and Article 30 of the Constitution that come under the category of Cultural and Educational Rights. But the very important point to be kept in mind is that to get a clear picture of these two Articles they should be read together. Independent reading of two will leave many doubts and many questions uncleared. They are interrelated as to the subject, essence and spirit and one Article furthers the object of the other.
Article 29. “Protection of interests of minorities.— (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
The word ‘minority’ is not defined in the Constitution but literally it means ‘a non-dominant’ group. It is a relative term and is referred to, to represent the smaller of two numbers, sections or group called ‘majority’. In that sense, there may be political minority, religious minority, linguistic minority, etc.; T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355: (2002) 8 SCC 481.
Article 30. “Right of minorities to establish and administer educational institutions.— (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”
The crucial words of Article 30 (1) are given in Shri Krishna v. Gujarat University, AIR 1962 Guj 86 (FB) as: (a) minorities; (b) establish and administer; (c) educational institutions; (d) of their own choice.
The important cases explaining the relation and defining the Article are as follows:
The Court observed in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., AIR 2003 SC 355, “Both Articles 29 and 30 form a part of the fundamental rights Chapter in Part III of the Constitution. Article 30 is confined to minorities, be it religious or linguistic, and unlike Article 29(1), the right available under the said Article cannot be availed by any section of citizens. The main distinction between Article 29(1) and Article 30(1) is that in the former, the right is confined to conservation of language, script or culture. As was observed in the Father W. Proost case, the right given by Article 29(1) is fortified by Article 30(1), in so far as minorities are concerned. In the St. Xaviers College case, AIR 1974 SC 1389, it was held that the right to establish an educational institution is not confined to conservation of language, script or culture. When constitutional provisions are interpreted, it has to be borne in mind that the interpretation should be such as to further the object of their incorporation. They cannot be read in isolation and have to be read harmoniously to provide meaning and purpose. They cannot be interpreted in a manner that renders another provision redundant. If necessary, a purposive and harmonious interpretation should be given.”
In re Kerala Education Bill, AIR 1958 SC 956, the Supreme Court held that Article 30 (1) gives two rights to the minorities: (1) to establish; and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.
In State of Bombay v. Bombay Educational Society, AIR 1954 SCC 561, it was held that the combined reading of the Articles 29(1) and 30(1) suggests that a minority community based, inter alia, on religion and language had the right to preserve its language, script and culture, and to establish and administer educational institutions of its choice. There was implicit in such fundamental right, their right to impart instruction to the children of such community in their own language, if Articles 29(1) and 30(1) were not to be deprived of the greater part of their content.
Under Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College Jamalia and Ors., AIR 1990 SC 695, it was held that Article 30 (1) does not contemplate that an autonomous Educational Board entrusted with the duty of regulating the aided and recognized minorities institution should be constituted only by persons belonging to minority community. Article 30(1) protects the minorities’ right to manage and administer institutions established by them according to their choice, but while seeking aid and recognition for their institutions there is no constitutional obligation that the Board granting aid or recognition or regulating efficiency in minority institution should consist of members exclusively belonging to minority communities.

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CONSUMER AWARENESS

Medical Negligence & the Consumer Protection Act
Anoop K. Kaushal
Advocate

There is a lot of anxiety within the medical profession regarding the scope and sanction of law available with the patients if they resort to filing complaints against the medical practitioners. Cases of medical malpractice are decided on certain general principles and guidelines laid down by the Courts. The same, and some facts, can be summarised as under:

Coverage under the CPA
-   Under the Consumer Protection Act, every patient who pays or has promised to pay for treatment, can sue the doctor for alleged negligence.
-   If the patient has died, the legal heirs have the right to sue.
-   All private clinics, nursing homes, hospitals who charge fee are covered under the Act.
-   Government hospitals are out of the purview of the Act.
-   Charitable organizations are also out of the purview of the Act.
-   Institutions managed, though, by a government organization, or NGO, but charging money for private treatment also, the patients unable to pay shall be treated as beneficiaries of the money so earned and are consumers.
-   Standard practice of the profession in managing a patient is not the most skillful or highly specialized but a minimum standard of professional skill is expected from the contemporaries in a given situation.
-   Current practices and sophistication of infrastructure, paramedical and sub-staff, hygiene and sterility should be observed at all cost.
-   Fees charged by doctors has never been the domain of courts.
-   Consumer Forums do not have, in their constitution, judges or members medically qualified.
-   There is very nominal court fee payable under the consumer law. It has encouraged filing of more and more petitions.
-   Ratio of cases decided against doctors is not very high. It is because the cases are not supported by medico-legal evidences.
-   Orders of Consumer Forums have the force of decrees passed by Civil Courts and can be similarly executed by attachment of property or arrest.
-    The general law requires a patient to prove his case, i.e. the onus is on the patient, and not on the doctor.
-    Prima facie negligence (legal principle of res ipsa loquitor) matters- the onus shifts on the doctor and he has to come out of the circle of obvious guilt.
-    The mere fact that a patient did not get expected relief need not be a case of negligence. There is no guarantee of cure, to say ‘medicine is an inexact science.’
-    Standard Medical Texts on a subject are acceptable as evidence in a court of law and can be relied upon for passing final judgment.
-    Limitation under the consumer jurisdiction is 2 years from the date of cause of action, i.e. occurrence of loss, death, injury or knowledge thereof, since in some peculiar cases the symptoms and complications may   not appear within 2 years.
-    One should not hesitate to seek expert or second opinion in case of doubt. At times, it becomes a vital piece of evidence. It is applicable both on the doctor as well as the patient.
-    In death related cases, post-mortem may solve the mysteries and lead to a logical finding. But due to sentimental and social reasons the body is cremated without it. This is yet another paradox in appreciation of evidence when the circumstances and facts are very narrow and not so probable.
-    The Hon’ble Supreme Court of India in Jacob Mathew v. State of Punjab has held that if the patient dies after treatment, and a case under the Indian Penal Code, section 304 is filed, doctor should not ordinarily be arrested by police on an FIR unless it has obtained a report on the case by a Medico-legal Board of experts. It may have come as a relief to the medicine men, but at the same time, it also ensures that there is collection of some piece of expert evidence at the initial stage itself, which otherwise is not so easy, sometimes impossible.
-    A court never superimposes its legal findings on the medical man. Medical testimony is a pre-condition for any judgment to follow. Unless a doctor speaks against another, or books explain the negligence, cases are hard to prove.
-    Negligence can be individual where a doctor treated a patient, say one on one.
-    Negligence can be collective, i.e. where a team of persons, say, general physicians, radiologists, surgeons, anesthetists, nurses, paramedics, pathological assistants worked together to treat a patient and some delinquence occurred.
-    Negligence can be contributory, i.e. the patient himself/herself was to be blamed, wholly or partly and accordingly the liability can either be extinguished or mitigated, as the case may be.
-    Negligence can be vicarious and several meaning thereby principals are also liable for the acts of their agents. Hospitals and Nursing Homes are, thus, parties to litigation involving their doctors.

Insurance
There is provision for collective or individual insurance to indemnify claims arising out of professional negligence. Doctors and hospitals can get themselves insured with an insurance company under the policies, like third party losses, and claims are then settled by the insurance company.

General precautions for doctors
•   Give no prescription without actual examination
•   Maintain privacy of patients
•   Go by symptomatic analysis, not mere version of patient
•   No smoking, alchohol etc. be allowed inside the clinic
•   No prescription/procedure is to be applied without justification
•   Banned drugs are not to be advised/given
•   Don’t over or under prescribe (qty., dose(s), time)
•   Avoid multiple drug rule
•   Don’t experiment unless necessary with informed consent
•   Don’t exceed your competence (individual & hospital)
•   Consult expert when in doubt
•   Don’t obstruct LAMA (leaving against medical advise)– record it
•   Don’t treat emergency calls lightly
•   Never order investigation casually (+ or -)
•   Don’t let diagnostic tests prevail clinical judgment, can be false positives
•   Don’t deal with angry patient lightly
•   Don’t be angry with attendants of terminally ill patients
•   Don’t challenge or threat anybody
•   Don’t deny information on diagnosis/treatment of terminally ill; instead break the bad news with tact
•   Never leave in haste if patient dies, condole in case of death occurring during surgery/procedure
•   Genetic consulting to couples with abnormalities to be given with care
•   Don’t issue false medical certificates
•   Don’t issue death certificate without verification
•   Don’t disclose the positivity of problem to HIV/AIDS patient without confirmation
•   Don’t fabricate records or mislead
•   Don’t refuse to tell details of bills
•   Don’t refuse to convey hospital rules or regulations
•   Don’t copycat others and buy expensive machines
•   Don’t recklessly throw away garbage/waste
•   Don’t criticize fellow doctors/referrals
•   Don’t boast/use false sign boards for qualifications
•   Don’t leave post-operative care to others
•   Injections – name/date/route/rate/site/sterlise/temperature/mixtures/dilutions etc.

Medical Records
The Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 in its Chapter 1 & 7 (relevant provisions) provides as under:
1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.
1.3. 2 If any request is made for medical records either by the patients/authorized attendant or legal authorities involved, the same may be duly acknowledged and document shall be issued within the period of 72 hours.
1.3.3 A Registered medical practitioner shall maintain a Register of Medical Certificates giving full details of certificates issued. When issuing a medical certificate he/she shall always enter the identification marks of the patient and keep a copy of the certificate. He/she shall not omit to record the signature and/or thumb mark, address and at least one identification mark of the patient on the medical certificates or report. The medical certificate shall be prepared as in Appendix 2.
The following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action:
7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of three years as per regulation 1.3 and refuses to provide the same within 72 hours when the patient or his/her authorized representative makes a request for it as per the regulation 1.3.2.
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Anoop K. Kaushal can be reached at : anoopkaushal@gmail.com

News

Compulsory Registration of Marriages

On the recommendations of National Human Rights Commission and National Commission for Women and as per the judgement in case of Smt. Seema v. Ashwani Kumar, dated 23.7.2007 of the Supreme Court, the proposal to enact a suitable legislation relating to Compulsory Registration of Marriages is under consideration with the Government. In view of the importance and complexity of the matter, it may take some more time before a Bill could be brought before the Cabinet.

Computerisation of Courts

A scheme for computerisation of seven hundred courts in the four metropolitan cities has been completed. In addition, computerisation of city courts in State capitals or in cities where High Courts are located was taken up under which 781 courts are reported to have been computerised by the National Informatics Centre (NIC), the implementing agency.

New Judges Appointed in Gujarat

The President has appointed (i) Shri Justice Shaileshkumar Ramanlal Brahmbhatt (ii) Shri Justice Harsha Nathalal Devani and Shri Justice Mukeshmumar Dahyalal Shah, Additional Judges of the Gujarat High Court to be judges of the Gujarat High Court.

English continues to be Language of Proceedings in Supreme Court

Article 348(1) of the Constitution of India provides that all proceedings in the Supreme Court and in every High Court shall be in English language until Parliament by law otherwise provides. The matter of use of Hindi in the proceedings of the Supreme Court has been examined by the Department of Official Language in consultation with the Registry of the Supreme Court. The matter has also been considered in the Supreme Court twice i.e. on 10.4.1990 and 26.9.1996. However, after ascertaining the views of the Bar Council of India, Supreme Court Bar Association and the Supreme Court Advocates-on-Records Association, it was unanimously resolved that it was not practically feasible to introduce Hindi in the proceedings of the Supreme Court on the ground that matters in this court are filed from all parts of the country and Hindi language is used only in Northern India. If introduced, it will cause great difficulties to the litigants, Judges as well as Bar members, particularly to those who hail from southern region of the country.
Under Article 348(2), the Governor of the State may with the previous consent of the President, authorise the use of the Hindi language or any other language used for any official purpose of the State, in the proceedings of the High Court having its principal seat in that State.
In four states namely Bihar, Uttar Pradesh, Madhya Pradesh and Rajasthan the use of Hindi language has been authorised for the proceedings of the High Courts.

Re-Appointment of High Court Judge

To maintain continuity in adjudication, the President under Article 224-A has given a re-appointment to Justice Om Prakash Srivastava, an Allahabad High Court Judge hearing Ayodhya matters, after his retirement. Justice Srivastava will “sit and act” as an Allahabad High Court Judge for hearing Ayodhya matters for a year from assuming charge or till the disposal of the matter, whichever is earlier.

Justice Krishna Iyer’s Letter to PM

Justice V R Krishna Iyer has written to Prime Minister about reconsidering his decision as to Indo-US nuclear deal. He said that signing a ‘‘treaty with a hegemonistic big power which has had Hiroshima, Kabul and Baghdad as its indelibly imperial record’’ should not be given priority. Further he said that there is no point to adopt a policy of reliance on nuclear power without deep scientific investigation.

Honour for Chief Justice of India

Chief Justice of India K.G. Balakrishnan became the third Indian, to be elected to the bench of the Hon’ble Society of Lincoln’s Inn in the UK, first and second being Justice Sujata V. Manohar, a former Supreme Court judge, and present Attorney-General Milon K. Banerjee. Justice Balakrishnan has visited there recently in June and addressed the Lincoln’s Inn at the Symposium of Judges and Lawyers on “The Independence of Judiciary”.

Delhi High Court Dismisses Case against Army JAG
The recent judgement of Delhi High Court in a matter challenging the validity of appointment of Maj Gen Nilendra Kumar as Judge Advocate General (Army) has squarely rejected the attempts to cast doubts on law degree awarded to the JAG in 1982 by University of Lucknow.
Naik Netrapal Singh, a soldier clerk, convicted for misappropriation of government funds at JAT Regimental Centre Bareilly had challenged Nilendra Kumar’s appointment on various counts. The allegations included taking up membership of SCBA, hosting a web site, promoting sale of books authored by him and a past disciplinary award though it had been later set aside. However, the judges held that “none of the allegations raised by the petitioner contained merit”.
Appearing for the respondent Addl. Solicitor General Vikas Singh and Advocate Rekha Palli presented irrefutable documentary evidence to establish that the JAG was physically present in Lucknow between the period May 1977 to November 1983, when he completed the studies for LL.B. three years course.
According to them the proxy writ petition was actually the handiwork of certain disgruntled officers of the JAG Dept. who wanted to tarnish the image of Maj Gen Nilendra Kumar due to their own personal agenda as they were alarmed at his untiring efforts to cleanse the military legal apparatus.
The division bench consisting of Justices Vikramjit Sen and S L Bhayana opined that having regard to the affidavit of Lucknow University, Jai Narayan College and Union of India, there was no reason to suspect Nilendra Kumar’s legal qualifications.
Maj Gen Nilendra Kumar is a distinguished author on security jurisprudence, human rights and military law. A number of titles bearing his name form the back bone of military law literature. Universal Law Publishing Co. Pvt. Ltd. has brought out a number of his books. He has been invited to numerous seminars in India and abroad including by Universities of Oxford and South Carolina.
The end of this litigation has given an opportunity to the Ministry of Defence to complete many pending projects relating to military law reforms. The setting up of the Armed Forces Tribunal is to be speeded up. A Tri Services Act in the form of a common code is to be designed in the backdrop of integrated formations already in place. Army Act and Rules enacted over six decades back warrant suitable changes. Judge Advocate General Dept. should be expanded and upgraded in conformity with
A K Upadhyay Committee set up on the directions of Delhi High Court. Institute of Military Law should be accorded permanency and relocated to its projected premises at Delhi. Lastly, military lawyers are to be designated as Government Law Officers.

SANJAY DUTT'S SENTENCE

What are we complaining about?

Sanjay ‘Munnabhai’ Dutt is all set to start a real life Gandhigiri now because prisons were an integral part of the Mahatma’s life. The only difference being that Dutt would not be remembered as father of anything for his suffering. His suffering is not the ‘act’ but a consequence. And all those who have rallied in support of the actor who has been the best celluloid underworld don in the last few decades fail to realize this. He played a don-turned-Gandhiwadi to perfection on screen, now he is supposed to repeat the feat off screen though he is a much lesser villain in real life. True, the decade that lay between his act and the sentence has made him look like a martyr and some people are questioning the relevance of the sentence, too. It is surprising that instead of being happy about the dispassionate approach of law towards the rich and the influential some people tend to imply that he should not be subjected to such punishment simply because he is Sanjay Dutt. They single him out for sympathy. Had he been meted out a lesser punishment, I am dead sure that those who today call the sentence harsh because it is him would have called the sentence light for the same reason and would have pointed scathing fingers at the criminal justice system. They would have resorted to the same old lines about the poor being punished and the rich being ‘handled with care’. Undoubtedly, Dutt was not treated like a hardcore criminal simply because no one, including the judge, believed that he was a ‘criminal’ or played any part in Mumbai bomb blasts but to say that he is ‘innocent’ or his guilt is lesser than what he has been punished for would be a delusional fallacy. It was not a complicated case involving unverifiable facts or complex questions of law. Dutt’s case was simple. His guilt was proven and admitted, he was convicted and sentenced in accordance with law. Now, for our part, we should be proud of our judiciary that it made no distinction between an ordinary person and a celebrity of Dutt’s stature. The judgment, once again, sends across the message that even the richest and the most influential are not above the law. What are we complaining about?

Lawyers’ Fitness
How To Avoid Back Pain

The kind of running an advocate has to undertake in the normal course of his profession makes him highly prone to back pain. It is, therefore, important for every lawyer to take all necessary precautions so as to avoid falling prey to the problem. Prevention, as they say, is better than cure. Besides, back pain can play havoc with a lawyer’s practice and throw one’s life out of gear. Since it is not a disease caused by bacterial or viral infection, it is possible to avoid back pain by taking certain precautions. It is simply about inculcating healthy habits.
Improve posture
First and foremost, back pain is mostly caused by wrong posture. So, the first precaution one could take is to keep one’s posture right while sitting, working, walking and sleeping. Keep your spine straight in all these positions. While walking do not slouch and walk straight with your head held straight and firm. When in bed, ensure that you lie straight and use the right pillow.
Get a good pillow
Now, pillow is something we are normally very careless about. We tend to feel that somehow pillow is just something that is needed to keep one’s head comfortable. In fact, the pillow’s being soft and velvety is not enough, for it needs to be firm and supporting, too. Therefore, do not settle for a pillow for the look or feel. Make sure that the pillow is neither too soft nor too hard and supports the head sufficiently. Also, you must know when your pillow needs be to thrown out. If it has gotten too plump and soft, and has depression in the center, it is time for you to get a new pillow for yourself.
And the right mattress
Surely, you do take care of mattress, which means that you go for the best and the most expensive in the market, and also the most comfortable. Now, ‘comfortable’ means that when you get on it, it simply cuddles you and makes you feel cozy and nice. Well, to tell you the truth, the motherly affection that your mattress showers upon you may not go down well with your spine because the mattresses that are too comfortable place one’s spine in comfortable but harmful postures. So, what you must look for in a mattress is that it supports your spine and keeps it in natural position all through the night. Again, like pillow, it has to be not too soft, and not too hard.
Lift right
Most often lower back pain is caused due to injury of some kind, which normally comes from lifting improperly. When we have to lift an object, most of us simply go down bending our backs and lift it up without realizing that even a slight overload on spine may give you a back pain and you would only come to know of it the next morning when you get out of bed and feel that something is not right with your back. Therefore, lifting properly is one of the simplest and the most important things you could do to avoid back pain.
To begin with, when you have to lift a heavy object, plan the lift. This means that you must think about the object, its probable weight and where it has to be moved. This would avoid unnecessary movements while you are holding the object. And if you are moving the object together with another person, make sure that you both understand where the object has to be moved and how. This way you would avoid discussions while holding the object. Besides, the possibility of injury from lack of coordination is also removed.
While lifting the object, squat by the object, hug it close to your body, get a firm hold on it, keep your feet firmly planted on the ground and then bring yourself back up with your spine straight. At no point during the lift your spine should bend. Before beginning to lift, apply some force to the object and see if it moves. If you feel that the object would need more power, call someone to help you with it because if your muscles could not bear the weight, your spine will have to bear it, which is clearly dangerous.
Start exercising
What prevents back pain best is a stronger back. So, start exercising at the earliest. A good lawyer’s diary never has any space. But you must sneak in at least half an hour of workout in your busy schedule. This would prevent you from having to take a week off work to have your back pain cured.
Cardiovascular exercises are not only good for heart but are also good for your back. Therefore, beginning with a set of aerobics exercises is a good idea. Then proceed to resistance exercises for back. Go slow with your back because back muscles is a large muscle group and a wrong move or a little additional weight can harm your back. Keep your trainer close by and seek his advice on what exercise to perform and what amount of weight to use and how many sets to do.
Core abdomen muscles are also important because they support back very effectively. Sit ups and abdomen crunches are considered to be good abdomen exercises.
Thigh muscles must also be exercised because they assist back in lifting weights. So, stronger thigh muscles support your back by taking quite a considerable part of load off your back. For thighs, squats are a good exercise. However, the weight one carries during squats should not be unbearable and one should be able to lift it quite effortlessly. Another thing that is very important during squats is your breathing pattern. Ask your trainer to tell you how you should breathe while you are performing squats.
Another thing that many of us tend to forget is warm up. Even if you have woken up late or have to go early, it is not advisable that you skip a good warm up. To make up for the lost time, you may do a set or two less but do not skip warm up because that could lead to injury. A warm up of five to ten minutes is sufficient to make your muscles ready for exercise.
It is not difficult to have a life free of back pain, just take good care of your back. After all, it bears the load of your back-crushing life every day.