5/Right to life is a fundamental right of the citizens of India as guaranteed by the

Constitution. When a person falls sick it is his fundamental right to seek medical treatment.
Discuss with the help of judicial decision? Or
The Supreme Court of India has stated that right to health is a bundle of rights which
includes within its ambit several other fundamental rights. State the relevant constitutional
provisions in this regard and support your answer with case laws?
Ans- According to Article 25(1) of Universal Declaration of Human Rights “Everyone has the right to a
standard of living adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control”.
India is a Sovereign, Socialist, Secular, Democratic, Republic country of the world. Part III of the Indian
Constitution provides for Fundamental Rights. The preamble of the Indian Constitution provides that India
is a socialist country. The Constitution of India not only provides for the health care of the people but also
directs the State to take measures to improve the condition of health care rights of the people. The
Constitution of India does not expressly recognize Right to Health as a fundamental right under Part III of
the Constitution (Fundamental Rights). However, through judicial interpretation, this has been read into the
fundamental right to life & personal liberty (Article 21) and is now considered an inseparable part of the
Right to Life. Article 23 of the Constitution of India also indirectly contributes to protecting the Right to
Health as it prohibits human trafficking and child labour.
In (Francis Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 . The Supreme
Court has observed that the expression “life” in Article 21 means a life with human dignity and not mere
survival or animal existence Right to life has a very broad scope which includes right to livelihood, better
standard of life, hygienic conditions in the workplace & right to leisure. Right to Health is, therefore, an
inherent and inescapable part of a dignified life.
In Vincent Parikurlagara v. Union of India the Supreme Court held that right to maintenance and
improvement of public health is included in the right to live with human dignity as enshrined in Article 21.
A healthy body is the very foundation of all human activities. In a welfare State, it is the obligation of the
State to ensure the creation and sustaining of good health to each and every situation.
In Shantisar builders v. Narayanan Khimalal Totame , the Supreme Court has laid down that the right to
life under Article 21 would include the right of food, clothing, decent environment and reasonable
accommodation to live in and suitable accommodation which allows him to grow in all aspects-physical,
mental and intellectual. Hence the concept of life has been interpreted in a very expansive manner so as to
include a number of rights. Life means a right to live a dignified life.
In Pashim Bang Khet Mazdoor Samity v. the State of W.B. it was held that denial of medical aid by
government conditions congenial to good health hospitals to an injured person on the ground of non-
availability of beds amounted to violation of the right to life under Article 21 of the Constitution. In this
case, the petitioner, Hakim Singh, who was a member of an organisation of agricultural labourers, had
fallen from a running train and had suffered serious injuries and had a brain haemorrhage. He was taken
to various Government hospital but due to non-availability of bed his treatment was not provided. Finally,
he was admitted to a private hospital where he had to incur an expenditure of Rs 17,000 which was very
high for the petitioner. Finally, the Supreme Court directed the State to pay Rs 25,000 as compensation to
the petitioner. The Supreme Court has also held that the health of the citizens should be a great concern in
a welfare country. The Court made certain extra bearing in regard of genuine clinical cases:
 ➢ Sufficient offices are given at the general health habitats where the patient can be given essential
treatment and his condition balanced out.
➢ Medical at the locale and sub divisional level ought to be redesigned with the goal that genuine
cases be treated there.
➢ Offices for given authority treatment ought to be expanded and having respect to the developing
needs, it must be made accessible at the area and sub divisional level emergency clinics.
➢ So as to guarantee accessibility of bed in any crisis at State level medical clinics, there ought to be
a concentrated correspondence framework with the goal that the patient can be sent promptly to
the emergency clinic where bed is accessible in regard to the treatment, which is required.
➢ Legitimate game plan of rescue vehicles ought to be made for transport of a patient from the
general health place to the State emergency clinic.
➢ Emergency vehicles ought to be sufficiently given vital types of gear and clinical faculty.
In Consumer Education and Research Centre v. Union of India the Supreme Court has held that the
right to health and medical care is a fundamental right under Article 21 of the Constitution as it is
essential for making the life of the workman meaningful and purposeful with dignity of the person. Right
to health includes the protection of the health and strength of the worker. The expression ‘life’ in Art.21
does not connote mere animal existence. It has a much wider meaning which includes the right to
livelihood, better standard of life, hygienic conditions in workplace and leisure.
The Supreme Court reading Articles 21 and 47 together in the case of Vincent Panikurlangara v. Union
of India held that maintenance and improvement of public health have to be ranked high as these are
indispensable to the very physical existence of the community and on the betterment of these depends on
the building of the society of which the Constitution makers envisaged.
In the case of State of Punjab v. Ram Lubhaya Bagga, the Supreme Court addressed the right to health
in the specific context of prisoners. The court held that prisoners, despite being in the custody of the state,
retain their fundamental rights, including the right to life and, by extension, the right to health. The state
was directed to ensure that adequate medical facilities are provided to prisoners, and any negligence in this
regard would amount to a violation of their constitutional rights. This decision highlighted the duty of the
state to safeguard the health of individuals in its custody, emphasizing the humane treatment of prisoners.
It reiterated that the right to health is not contingent upon one's legal status but is a universal right applicable
to all, regardless of their circumstances.
Common Cause (A Regd. Society) v. Union of India (2018):
In the recent case of Common Cause (A Regd. Society) v. Union of India, the Supreme Court dealt with
the issue of the right to die with dignity, which also has implications for the right to health. The court, in
its judgment, recognized that the right to live with dignity includes the right to die with dignity, and
individuals suffering from terminal illnesses have the right to refuse medical treatment. While not explicitly
framed as a right to health case, the judgment has broader implications for healthcare decisions and the
autonomy of individuals in matters related to their health. It reinforces the idea that individuals have the
right to make decisions about their own bodies, including decisions that may impact their health and well-
being.
Conclusion:
The right to health has emerged as a significant and indispensable component of the right to life under
Article 21 of the Constitution of India. Landmark judicial decisions have progressively expanded the
understanding of this right, emphasizing the state's duty to provide healthcare services and facilities for
the well-being of its citizens. These cases have established that the right to health is not a mere statutory
entitlement but an inherent and constitutional imperative.
While the judiciary has played a crucial role in recognizing and protecting the right to health, challenges
persist in ensuring its effective realization. Addressing issues related to healthcare infrastructure, equitable
distribution of services, affordability, and public health challenges requires concerted efforts from the
government, policymakers, and society at large. The judiciary's progressive interpretation of Article 21 has
laid the foundation for a comprehensive understanding of the right to life, encompassing the right to health
in all its dimensions. The ongoing dialogue and engagement with these principles are essential for fostering
a society where every individual can access quality healthcare and lead a life of dignity and well-being.

6/ Everyone has a right to standard of living adequate for the health and wellbeing of himself
and her family” – In the light of the other statement discuss right to health as enshrined in
Part-III and Part-IV of the Constitution?
Ans- According to Article 25(1) of Universal Declaration of Human Rights “Everyone has the right to a
standard of living adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control”.

Right to Health as understood under Part iii of the Constitution; The Constitution of India
does not expressly recognize Right to Health as a fundamental right under Part III of the Constitution
(Fundamental Rights). However, through judicial interpretation, this has been read into the fundamental
right to life & personal liberty (Article 21) and is now considered an inseparable part of the Right to Life.
Right to health is also one of the rights, which is implied under right to life and personal liberty as
guaranteed by the Constitution of India.
In (Francis Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 . The Supreme
Court has observed that the expression “life” in Article 21 means a life with human dignity and not mere
survival or animal existence Right to life has a very broad scope which includes right to livelihood, better
standard of life, hygienic conditions in the workplace & right to leisure. Right to Health is, therefore, an
inherent and inescapable part of a dignified life.
In Vincent Parikurlagara v. Union of India the Supreme Court held that right to maintenance and
improvement of public health is included in the right to live with human dignity as enshrined in Article 21.
A healthy body is the very foundation of all human activities. In a welfare State, it is the obligation of the
State to ensure the creation and sustaining of good health to each and every situation.
In Shantisar builders v. Narayanan Khimalal Totame , the Supreme Court has laid down that the right to
life under Article 21 would include the right of food, clothing, decent environment and reasonable
accommodation to live in and suitable accommodation which allows him to grow in all aspects-physical,
mental and intellectual. Hence the concept of life has been interpreted in a very expansive manner so as to
include a number of rights. Life means a right to live a dignified life.
In Consumer Education and Research Centre v. Union of India the Supreme Court has held that the
right to health and medical care is a fundamental right under Article 21 of the Constitution as it is
essential for making the life of the workman meaningful and purposeful with dignity of the person. Right
to health includes the protection of the health and strength of the worker. The expression ‘life’ in Art.21
does not connote mere animal existence. It has a much wider meaning which includes the right to
livelihood, better standard of life, hygienic conditions in workplace and leisure.
 In the case of State of Punjab v. Ram Lubhaya Bagga, the Supreme Court addressed the right to health
in the specific context of prisoners. The court held that prisoners, despite being in the custody of the state,
retain their fundamental rights, including the right to life and, by extension, the right to health. The state
was directed to ensure that adequate medical facilities are provided to prisoners, and any negligence in this
regard would amount to a violation of their constitutional rights. This decision highlighted the duty of the
state to safeguard the health of individuals in its custody, emphasizing the humane treatment of prisoners.
It reiterated that the right to health is not contingent upon one's legal status but is a universal right applicable
to all, regardless of their circumstances.

Right to Health as understood under Directive Principles of State Policies (DPSP): Part IV
of the Indian Constitution deals with certain principles known as Directive Principles of State Policy.
Although the Directive Principles are asserted to be fundamental in the governance of the country, they are
not legally enforceable. They are guidelines for creating a social order characterized by social, economic,
and political justice, liberty, equality, and fraternity as enunciated in the Preamble. The following directives
are of relevance perspective of Right to Health.
Article 39: Certain principles of policy to be followed by the State: This Article secures health and
strength of the workers, men and women. It also mandates that children be given the opportunities and
facilities to develop in a healthy manner and in condition of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material abandonment. It is true to say that
Article 39 (e) and (f) indicates that the Constitution maker.
Article 42: Provision for just and humane conditions of work and maternity relief: In P Sivaswamy v.
State of Andhra Pradesh, the Supreme Court has held that Article 42 of the Constitution makes it the
obligation of the State to make provisions for securing just and humane conditions of work. There are
several Articles in Part IV of the Constitution which indicate that it is the State’s obligation to create a
social atmosphere befitting human dignity for citizens to live in. The gist of Article 42 is that it stands as
the basis of the body of labour law and welfare of the workers. The Court must interpret law to achieve the
goals set out in the DPSP.
Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve
public health: Article 47 enumerates that 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 medical
purposes of intoxicating drinks and of drugs which are injurious to health. In Vincent Panikurlangara v.
Union of India the Court stated that “maintenance 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 of which the Constitution makers envisaged. Attending to public health,
in our opinion, therefore is of high priority perhaps the one at the top”. The Supreme Court while
interpreting Article 47 has rightly stated
Article 48-A requires that, the State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country . It obligates the State to endeavour to protect and
improve the environment and to safeguard the forest and wildlife of the country. In M.C. Mehta V. Union
of India13 , it was held that, “Art 39 (a), 47 and 48-A by themselves and collectively cast a duty on the
State to secure the health of the people, improve public health and protect and improve the environment”
Conclusion:
The right to health, as enshrined in both Part III and Part IV of the Constitution, reflects a comprehensive
approach to ensuring the well-being of individuals and their families. The interplay between justiciable
rights and directive principles creates a constitutional framework that not only empowers individuals to
seek remedies for violations but also guides the state in formulating policies that promote social and
economic justice.
Recognizing health as a fundamental human right implies not only access to medical care but also the
creation of conditions that support a standard of living adequate for health and well-being. Striking a
balance between justiciable rights and directive principles is essential for building a society where every
citizen can enjoy the highest attainable standard of physical and mental health. Policymakers, the judiciary,
and civil society must work collaboratively to ensure that the constitutional vision of health and well-being
becomes a lived reality for all.

7/ Discuss in brief the National Health Policy, 2017 of India and comment on its
practical implementations?
Ans-
Introduction - The National Health Policy of 1983 and the National Health Policy of 2002 have served
well in guiding the approach for the health sector in the Five-Year Plans. Now 14 years after the last health
policy, the context has changed in four major ways. First, the health priorities are changing. Although
maternal and child mortality have rapidly declined, there is growing burden on account of
noncommunicable diseases and some infectious diseases. The second important change is the emergence
of a robust health care industry estimated to be growing at double digit. The third change is the growing
incidences of catastrophic expenditure due to health care costs, which are presently estimated to be one of
the major contributors to poverty. Fourth, a rising economic growth enables enhanced fiscal capacity.
Therefore, a new health policy responsive to these contextual changes is required.
The primary aim of the National Health Policy, 2017, is to inform, clarify, strengthen and prioritize the role
of the Government in shaping health systems in all its dimensions- investments in health, organization of
healthcare services, prevention of diseases and promotion of good health through cross sectoral actions,
access to technologies, developing human resources, encouraging medical pluralism, building knowledge
base, developing better financial protection strategies, strengthening regulation and health assurance.
Launched in 2017, the National Health Policy replaces the existing policy previously established in 2002.
This policy has introduced four significant goals:
I. Changing health priorities This policy aims to tackle the increasing non-communicable and
infectious diseases in India.
II. Growth of the health care industry National Health Policy plans to strengthen the health care
industry by introducing newer and more advanced technologies.
III. Lower the expenditure This policy also aims to reduce medical expenses and other health-related
costs. They aim to provide superior services to poor and backward communities.
IV. Economic growth It aims to enhance fiscal capacity by boosting economic growth.

The National Health Policy aims to achieve the following goals:

I. It aims to offer superior health services to every age group and gender.
II. The policy focuses on providing universal access to excellent quality health care services at a
reasonable cost.
III. Promoting health care orientation in every developmental policy.
IV. Offering access to better treatment, lowering expenses related to health care services and improving
quality.
 V. It aims to reduce premature mortality from cancer, cardiovascular diseases, chronic respiratory
diseases and diabetes by 25% within 2025.
VI. This policy recognises the importance of sustainable development and time-bound quantitative
goals.
VII. National Health Policy in India improves overall health status through promotive, palliative, and
rehabilitative services.

Key Policy Principles

I. Professionalism, Integrity and Ethics: The health policy commits itself to the highest professional
standards, integrity and ethics to be maintained in the entire system of health care delivery in the country,
supported by a credible, transparent and responsible regulatory environment.
II. Equity: Reducing inequity would mean affirmative action to reach the poorest. It would mean
minimizing disparity on account of gender, poverty, caste, disability, other forms of social exclusion and
geographical barriers. It would imply greater investments and financial protection for the poor who suffer
the largest burden of disease.
III. Affordability: As costs of care increases, affordability, as distinct from equity, requires emphasis.
Catastrophic household health care expenditures defined as health expenditure exceeding 10% of its total
monthly consumption expenditure or 40% of its monthly non-food consumption expenditure, are
unacceptable.
IV. Universality: Prevention of exclusions on social, economic or on grounds of current health status. In
this backdrop, systems and services are envisaged to be designed to cater to the entire population- including
special groups.
V. Patient Centered & Quality of Care: Gender sensitive, effective, safe, and convenient healthcare services
to be provided with dignity and confidentiality. There is need to evolve and disseminate standards and
guidelines for all levels of facilities and a system to ensure that the quality of healthcare is not compromised.
VI. Accountability: Financial and performance accountability, transparency in decision making, and
elimination of corruption in health care systems, both in public and private.
VII. Inclusive Partnerships: A multistakeholder approach with partnership & participation of all nonhealth
ministries and communities. This approach would include partnerships with academic institutions, not for
profit agencies, and health care industry as well.
VIII. Pluralism: Patients who so choose and when appropriate, would have access to AYUSH care providers
based on documented and validated local, home and community based practices. These systems, inter alia,
would also have Government support in research and supervision to develop and enrich their contribution
to meeting the national health goals and objectives through integrative practices.
IX. Decentralization: Decentralisation of decision making to a level as is consistent with practical
considerations and institutional capacity. Community participation in health planning processes, to be
promoted side by side.
X. Dynamism and Adaptiveness: constantly improving dynamic organization of health care based on new
knowledge and evidence with learning from the communities and from national and international
knowledge partners is designed.

Policy Thrust
Ensuring Adequate Investment The policy proposes a potentially achievable target of raising public health
expenditure to 2.5% of the GDP in a time bound manner. It envisages that the resource allocation to States
will be linked with State development indicators, absorptive capacity and financial indicators.
Preventive and Promotive Health The policy articulates to institutionalize inter-sectoral coordination at
national and sub-national levels to optimize health outcomes, through constitution of bodies that have
representation from relevant non-health ministries. The policy identifies coordinated action on seven
priority areas for improving the environment for health.
Primary Care Services and Continuity of Care: This policy denotes important change from very selective
to comprehensive primary health care package which includes geriatric health care, palliative care and
rehabilitative care services. The facilities which start providing the larger package of comprehensive
primary health care will be called 9 „Health and Wellness Centers‟. Primary care must be assured. To make
this a reality, every family would have a health card that links them to primary care facility and be eligible
for a defined package of services anywhere in the country.
Secondary Care Services: The policy aspires to provide at the district level most of the secondary care
which is currently provided at a medical college hospital. Basic secondary care services, such as caesarian
section and neonatal care would be made available at the least at sub-divisional level in a cluster of few
blocks
Re-Orienting Public Hospitals: Public hospitals have to be viewed as part of tax financed single payer health
care system, where the care is pre-paid and cost efficient. This outlook implies that quality of care would
be imperative and the public hospitals and facilities would undergo periodic measurements and certification
of level of quality.
Urban Health Care: National health policy prioritizes addressing the primary health care needs of the urban
population with special focus on poor populations living in listed and unlisted slums, other vulnerable
populations such as homeless, rag-pickers, street children, rickshaw pullers, construction workers, sex
workers and temporary migrants.

Practical implementations of this Policy Here are some practical examples highlighting the
implementation of specific components of the NHP 2017:
1) In order to realise the goal of Universal Health Coverage (UHC), the Government of India’s flagship
programme, Ayushman Bharat, was introduced as advised by the National Health Policy 2017. This
programme was created to fulfil the Sustainable Development Goals (SDGs) and their core
principle, “leave no one behind.” Ayushman Bharat represents an effort to transition from a sectoral
and segmented approach to the delivery of health services to a comprehensive need-based approach.
This programme aims to implement ground-breaking interventions to holistically address the
healthcare system at the primary, secondary, and tertiary levels (covering prevention, promotion,
and ambulatory care
2) Ayushman Bharat PM-JAY is the largest health assurance programme in the world. It aims to give
over 12 crore poor and vulnerable families—roughly 55 crore beneficiaries—who make up the
bottom 40% of the Indian population a health cover of Rs. 5 lakhs per family per year for secondary
and tertiary care hospitalisation.
3) The Swachh Bharat Abhiyan is a flagship initiative that aligns with the NHP's emphasis on
preventive healthcare. It focuses on improving sanitation and hygiene practices, reducing
waterborne diseases, and promoting a clean environment. The campaign includes the construction
of toilets, waste management, and behavior change communication to promote cleanliness.
4) National Program for Prevention and Control of Cancer, Diabetes, Cardiovascular Diseases, and
Stroke (NPCDCS) is a practical implementation of the NHP's commitment to addressing non-
communicable diseases. It includes initiatives for early detection, management, and control of
diseases like cancer, diabetes, cardiovascular diseases, and stroke. The program involves screening
camps, awareness drives, and setting up NCD clinics at primary healthcare levels.
5) Janani Suraksha Yojana (JSY) and Pradhan Mantri Matru Vandana Yojana (PMMVY) These
schemes are aligned with the NHP's focus on maternal and child health. JSY provides cash
 incentives to pregnant women for institutional deliveries, reducing maternal and neonatal mortality.
PMMVY extends financial support to pregnant and lactating women for improved nutrition and
health during pregnancy and childbirth.
6) National Health Mission (NHM) is a comprehensive initiative that integrates multiple components
of the NHP. It includes the implementation of the Reproductive, Maternal, Neonatal, Child and
Adolescent Health (RMNCH+A) strategy, family planning services, immunization programs, and
communicable disease control. NHM aims to strengthen healthcare infrastructure and improve
health outcomes.
7) Initiatives like the National Digital Health Mission (NDHM) aim to digitize health records, facilitate
telemedicine, and improve the overall efficiency of healthcare services. The NDHM aligns with the
NHP's emphasis on technology-driven healthcare solutions.
8) Community Health Workers and Accredited Social Health Activists (ASHAs) ASHAs and
community health workers play a vital role in implementing community-based healthcare
initiatives. They are involved in maternal and child health services, awareness campaigns, and
health education. This grassroots-level engagement aligns with the NHP's approach to community
participation in healthcare.
9) Health and Wellness Centers (HWCs): The transformation of primary health centers into Health
and Wellness Centers is a key initiative. These centers are designed to provide a range of services,
including preventive, promotive, and curative care. They play a crucial role in realizing the policy's
vision of strengthening primary healthcare.

Conclusion- The National Health Policy of India 2017 serves as a foundational document for the
country's healthcare sector, articulating a vision of accessible, affordable, and quality healthcare for all.
While progress has been made in implementing various initiatives aligned with the policy's objectives,
ongoing efforts are needed to overcome challenges and ensure the sustained improvement of the healthcare
system.
The policy's emphasis on universal health coverage, primary healthcare, preventive measures, mental
health, and technology-driven solutions reflects a comprehensive approach to addressing the diverse
healthcare needs of the population. The success of the NHP requires a collaborative effort involving
policymakers, healthcare professionals, communities, and all stakeholders in the healthcare ecosystem. As
India continues its journey towards achieving health for all, the NHP 2017 provides a guiding framework
for a healthier and more equitable future.

8/ What do you mean by medical negligence? What is the issue that does not come under
medical negligence? Discuss Supreme Court judgments on medical negligence cases in
India.
Ans- Medical negligence refers to a breach of duty of care by a medical practitioner or healthcare provider,
which results in harm, injury, or death of a patient. In India, medical negligence laws have been put in place
to ensure that patients receive adequate care and compensation for any harm caused by medical
professionals.
Meaning Of Medical Negligence
Medical negligence, also known as medical malpractice, is a legal concept that refers to the failure of a
healthcare professional to provide a standard of care that meets the required level of competence and skill.
This failure can lead to harm or injury to the patient, and can occur through an act of omission or
commission by the healthcare professional.
It is important to note that not all adverse outcomes in medical treatment are necessarily the result of
medical negligence. Medical treatment is not an exact science, and there can be many factors that
contribute to an unfavorable outcome. In order to establish medical negligence, it must be shown that the
healthcare professional breached their duty of care by failing to provide treatment that met the required
standard.
The legal framework for medical negligence in India is primarily based on tort law. The Indian courts
have developed the principle of "reasonable care" as the standard for medical practitioners to adhere to
when providing medical treatment to patients. This principle implies that a medical practitioner must
exercise a reasonable degree of skill and care while treating a patient. Failure to do so may result in legal
action against the practitioner for medical negligence.

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, also
provide guidelines for medical professionals to follow. These guidelines outline the duties and
responsibilities of medical practitioners, including the need to obtain informed consent from patients,
maintain medical records, and adhere to medical ethics.
Essentials Of Medical Negligence
To establish medical negligence, certain essential elements must be proven. These essentials include:
I. Duty Of Care: The healthcare professional must have had a duty of care to the patient. This means
that they had a legal obligation to provide care that meets the expected standard of care.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Anr., the Supreme
Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him
liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for
this profession.
II. Breach Of Duty: The healthcare professional must have breached their duty of care by failing to
provide treatment that met the required standard. This breach of duty can occur through an act of
omission or commission.
III. Causation: The breach of duty must have caused harm or injury to the patient. It must be shown that
the harm or injury was a direct result of the healthcare professional's breach of duty.
IV. Damage: The patient must have suffered harm or injury as a result of the healthcare professional's
breach of duty. This harm or injury can be physical, emotional, or financial.

➢ It is important to note that in order to establish medical negligence, all four of these elements must
be proven. The burden of proof lies with the patient or their legal representative to demonstrate that
the healthcare professional breached their duty of care and that this breach caused harm or injury to
the patient.
➢
Further It is important to note that the standard of care expected of healthcare professionals may
vary depending on factors such as the patient's medical history, age, and other individual
circumstances. In addition, not all unfavorable outcomes in medical treatment are necessarily the
result of medical negligence. It is only when the above-mentioned essentials are satisfied that
medical negligence can be established.
Res Ipsa Loquitur Legal Maxim In Medical Negligence
"Res ipsa loquitur" is a legal maxim that is often invoked in medical negligence cases to establish a
presumption of negligence. The phrase is Latin for "the thing speaks for itself."

In the context of medical negligence, "res ipsa loquitur" means that the circumstances surrounding the
injury or harm suffered by the patient are such that they would not have occurred without negligence on
the part of the healthcare professional. In other words, the injury or harm is such that it suggests that the
healthcare professional was negligent, and the burden of proof shifts to the healthcare professional to
prove that they were not negligent.
To establish "res ipsa loquitur" in a medical negligence case, the following conditions must be met:
I. The injury or harm must be of a kind that does not ordinarily occur in the absence of negligence;
II. The injury or harm must have been caused by an instrumentality within the exclusive control of
the healthcare professional; and
III. The injury or harm must not have been caused or contributed to by any action or fault on the part
of the patient.
If these conditions are met, the plaintiff can rely on the principle of "res ipsa loquitur" to establish a
presumption of negligence on the part of the healthcare professional, and shift the burden of proof to the
defendant to prove that they were not negligent.
It's important to note that the principle of "res ipsa loquitur" is not applicable in all medical negligence
cases, and each case must be evaluated on its own merits. Additionally, even if "res ipsa loquitur" is
established, the plaintiff must still prove all other elements of medical negligence, including duty of care,
breach of duty, causation, and damages.

For example, if a surgical patient suffered from a foreign object being left inside their body after surgery,
res ipsa loquitur may be applied, as this type of harm would not ordinarily occur in the absence of
negligence, and the facts suggest that the healthcare professional was responsible for leaving the object
inside the patient's body.
In such cases, the burden of proof shifts to the healthcare professional, who must prove that they were not
negligent. This means that the patient does not need to prove that the healthcare professional breached
their duty of care, but rather that the harm suffered suggests that negligence occurred.
In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole (1969)
In this landmark case, the Supreme Court of India held that the principle of res ipsa loquitur could be
applied in medical negligence cases when the facts and circumstances of the case suggested that
negligence had occurred, and when the burden of proving negligence was on the defendant.
Related Provisions For Medical Negligence In India
I. Section 304A of the Indian Penal Code: This section deals with causing death by negligence. If a
medical professional causes the death of a patient due to negligence, they can be punished with
imprisonment for up to two years or a fine, or both.
II. Section 337 of the Indian Penal Code: This section deals with causing hurt by an act endangering
life or personal safety. If a medical professional endangers the life or safety of a patient due to
negligence, they can be punished with imprisonment for up to six months or a fine, or both.
III. Section 338 of the Indian Penal Code: This section deals with causing grievous hurt by an act
endangering life or personal safety. If a medical professional causes grievous hurt to a patient due
to negligence, they can be punished with imprisonment for up to two years or a fine, or both.
IV. The Consumer Protection Act, 1986: Under this act, patients have the right to file complaints against
medical professionals and seek compensation for medical negligence.
V. In addition to civil courts and consumer forums, medical councils in India are responsible for
regulating the conduct of healthcare professionals. Patients can file complaints with medical
councils if they believe that a healthcare professional has breached their ethical obligations or
standards of care. If the council finds that the healthcare professional has acted negligently, it may
take disciplinary action against them, including revoking their license to practice medicine.
VI. In civil courts, victims of medical negligence can file a civil suit seeking compensation for damages
caused by the negligence. The burden of proof is on the victim to establish that the healthcare
professional breached their duty of care, and that this breach caused the harm suffered by the patient.
Defences
I. Section 80 of the Indian Penal Code, 1860, says that anything which happens as a result of an
accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act
in a lawful manner by lawful means and with proper care and caution is not an offense.
II. Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by the reason that
it is likely to cause harm but if the same is done without any intention to cause harm and in good
faith in order to avoid other damages to a person or his property is not an offense.
III. Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused of any offense
if he performs an act in good faith for the good of other people and does not intend to cause harm
even if there is a risk involved and the patient has given the consent explicitly or implicitly.

Issues that does not come under medical negligence

I. Unintended Complications: Medical procedures inherently carry risks, and sometimes unforeseen
complications may arise despite the healthcare professional adhering to the standard of care. If the
complication is a recognized risk and the practitioner has informed the patient appropriately, it may
not constitute negligence.
II. Standard Errors or Unavoidable Mistakes: Minor errors or mistakes that are considered standard in
the medical field and do not deviate from accepted practices might not be categorized as negligence.
The law recognizes that healthcare professionals are human and can make ordinary mistakes that
are not grossly negligent.
III. Informed Consent: If a patient has been adequately informed about the risks and potential
complications associated with a procedure or treatment, and they willingly consent, adverse
outcomes that are within the scope of the disclosed risks may not be deemed as negligence.
IV. Lack of Proximate Cause: To establish medical negligence, there must be a direct connection
(proximate cause) between the healthcare professional's actions and the harm suffered by the
patient. If the harm results from factors beyond the control of the practitioner and is not directly
linked to their actions, it may not be considered negligence.
V. Judgment Calls: Medical decisions often involve professional judgment based on the specific
circumstances of each case. If a healthcare professional makes a reasonable decision based on the
available information, even if it leads to an unfavorable outcome, it may not be considered negligent.
VI. Emergency Situations: In emergency situations where quick decisions are required, healthcare
professionals are often protected from allegations of negligence if their actions are in line with
standard emergency protocols and practices.

Landmark Cases on Medical Negligence

In Kusum Sharma v. Batra Hospital, it was held by the Supreme Court that a doctor often adopts a
procedure which involves a higher element of risk, but in doing so he honestly believes that it will
provide greater chances of success for the patient. If a doctor has taken a higher risk to redeem the patient
out of his/her suffering and it did not yield the desired result, this may not amount to medical negligence.
Bolam v. Friern Hospital Management Committee (1957) The Bolam test, established in this case for
assessing the standard of care in medical negligence cases. It states that a doctor is not guilty of
negligence if he or she acts in accordance with a practice accepted as proper by a responsible body of
medical professionals.
Martin F. D'Souza v. Mohd. Ishfaq (2009): The Supreme Court, in this case, held that the Bolam test is
not applicable in cases of gross negligence. It emphasized that gross negligence or recklessness on the
part of a doctor could lead to criminal liability. The case underlined the importance of distinguishing
between ordinary negligence and gross negligence.
Jacob Mathew v. State of Punjab (2005): This landmark case clarified the distinction between civil
negligence and criminal negligence in medical practice. The Supreme Court emphasized that an error of
judgment should not be treated as a criminal offense unless it is grossly negligent. The judgment
recognized the challenges faced by healthcare professionals in making split-second decisions.
In the case of Poonam Verma v Ashwin Patel and others the respondent had a diploma degree in
Homoeopathic Medicine and he administered some allopathic drugs to a patient who was suffering from
high fever. Subsequently, the patient was shifted to a nursing home where he died. The court held the
respondent liable as he was registered for providing Homoeopathic treatment but not under the Allopathy
system and his actions amounted to medical negligence. The Supreme court has also defined the term
“Medical Negligence”.
In Bhalchandra Alias Bapu & Another v. State of Maharashtra the Supreme Court opined that while
negligence is an omission to do something which a reasonable man would do or doing something that a
reasonable man would never do; criminal negligence is the gross neglect to exercise reasonable care and
precaution to guard against the public as well as against an individual.
Conclusion- The criminal liability of a medical practitioner in cases of death due to negligence involves a
delicate balance between holding professionals accountable for their actions and recognizing the challenges
inherent in medical practice. Establishing criminal negligence requires a careful examination of the facts,
adherence to legal principles, and a nuanced understanding of the complexities of healthcare.
People are losing faith in the medical profession due to some serious medical negligence cases which have
made them disabled for their remaining lives. Some serious introspection and analysis are required to be
done for the Medical profession. It has utterly failed in self-governance. The medical ethics need to be
reformed and developed so as to serve with complete righteousness.

9/ What are Industrial Accidents?

Explain principles of vicarious liability with the help of relevant judicial pronouncements
Ans- Industrial accidents refer to unexpected and often harmful incidents that occur in workplaces,
particularly in industrial settings. These accidents can result in injuries, fatalities, property damage, and
environmental harm. Industrial accidents can occur in a wide range of industries, including manufacturing,
construction, mining, chemical processing, and other sectors where industrial processes and machinery are
involved. These incidents may be caused by various factors, including human error, equipment malfunction,
inadequate safety measures, or external factors. These incidents can lead to legal consequences, and case
law often plays a crucial role in determining liability and setting precedents for future legal proceedings.
One notable case is the Bhopal Gas Tragedy.
Examples of Industrial Accidents:
I. Bhopal Gas Tragedy (1984): A chemical leak at the Union Carbide pesticide plant in Bhopal,
India, led to the release of toxic gases, resulting in thousands of deaths and long-term health
effects.
II. Chernobyl Nuclear Disaster (1986): A reactor explosion at the Chernobyl Nuclear Power Plant in
Ukraine caused widespread radioactive contamination, resulting in immediate deaths and long-
term health impacts.
III. Deepwater Horizon Oil Spill (2010): An offshore drilling rig experienced a blowout, leading to a
massive oil spill in the Gulf of Mexico.

Vicarious liability with the help of relevant judicial pronouncements

We use this kind of liability in industrial accidents for making the employer liable for any kind of
industrial accidents The term “vicarious liability” is made up of two words: “vicarious” and “liability.”
Vicarious means feeling or experiencing something by reading or watching about someone else doing it
rather than doing it yourself. Liability, on the other hand, refers to the state of being legally liable for
something. As a result, vicarious liability can be described as a term that is used to enforce strict liability
on someone who does not bear primary liability, i.e., someone who is not at fault. It is not a tort to be held
liable for anyone else’s actions. It literally means that one person is responsible for another’s wrongdoings.
The employer is responsible for his employee’s wrongdoings. And while the employee is behaving in the
course of his or her job should this responsibility occur.
When an employer’s duty of care is violated, but the complainant is unable to determine which employee
did so, vicarious liability may be created. An employer would not be exempt from responsibility if a specific
person cannot be confirmed as the perpetrator of the violation. In Roe v Minister of Health, it was held that
if the claimant established negligence on the part of one or more of the defendant hospital’s employees, the
defendant authority was vicariously liable, even if the claimant could not prove which of the employees
was negligent.

REASONS FOR VICARIOUS LIABILITY

1. The master has the “deepest pockets.” In certain instances, a defendant’s wealth or the fact
that he has access to capital through benefits has had an unintentional impact on the
formulation of legal standards.
2. Vicarious liability promotes injury avoidance by providing a financial incentive for an
employer to allow his workers to consider the welfare of others.
3. Because the employer profits from his employees’ operations, he should therefore cover
any expenses incurred as a result of such activities.

Constituents Of Vicarious Liability

So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
PRINCIPLES OF VICARIOUS LIABILIITY
1. QUI FACIT PER ALIUM FACIT PER SE Any individual who permits or procures the
commission of a tort by another is liable for the tort as though he had committed it himself. The
doctrine is based on the principle “Qui facit per alium facit per se,” which means “he who does an
act by another does it himself.” In this case, the individual who authorizes the tort is responsible not
just for the tort itself, but also for its direct effects.
2. RESPONDEAT SUPERIOR Even if no express order or privity of the master is proven, the master
is liable for any wrong done by the servant or agent during the course of the service. Let the
superior/principal be liable/responsible, according to the maxim. The rule stems from the legal
presumption that all acts performed by a servant in and about his master’s business are done with
his master’s express or implied authority, and are therefore the master’s acts. In this age of trade
and business, the injured party/innocent claimant has been granted the right to sue a financially
 liable defendant. As a result, the injured party would receive an adequate remedy if a superior
individual was held liable.

In Hewitt v. Bonvin, The son was given permission to use the car by his mother, who had the
right to do so. The son needed the car for his own use, so he could take his two female friends
home. The girls were unknown to both the father and the mother. The car was involved in an
accident on the way back due to the son’s careless driving, and a friend who had accompanied
the group was killed. In a case against the father, it was determined that the father was not liable
for his son’s careless driving because the son was not his servant or agent at the time, nor was he
driving for his father’s purposes.

CONTROL TEST

The so-called control test was the first significant test established by the courts. The first time this
was done was in the case of Yewens v Noakes in the nineteenth century. In this case, the
Respondent was a hops merchant who owned several houses with internal communication that
he used for his company. Keppel was a clerk in the Respondent’s pay who looked after the houses
and stayed in them for that matter. With his wife, a boy, and a servant, he lived in the houses. The
case involved the payment of inhabited house duty, and one of the main issues was whether
Keppel was the Respondent’s servant. It was decided that Keppel was not at fault in this case (and,
therefore, the Respondent was liable to pay the duty). The premises were kept solely for trade
purposes on appeal, and since Keppel’s role was merely that of a caretaker, the exemption
asserted was permitted. A servant, it was said, is a person who is subject to his master’s command
regarding the manner in which he shall perform his duties (Bramwell, LJ). The degree of control
exercised by the ‘employer’ over the worker determines whether or not an individual is an
employee, according to this test.

The final test, if there is to be a final test, and certainly the test to be generally applied, lies in the
nature and degree of detailed control over the individual alleged to be a servant. When applied
to qualified employees whose qualifications surpassed those of their employers, this test was
found to be faulty.

ORGANIZATION TEST

In Stevenson, Jordan & Harrison Ltd v MacDonald and Evans, Lord Denning invented this test.
Lord Denning noted in this case that “one aspect that seems to me to run through the instances
is that, under a contract of service, a man is employed as part of the company and his work is
done as an integral part of the business; while, under a contract for services, his work, while done
for the business, is not incorporated into it but is only an accessory to it.” However, this test has
been criticized because contracting out, particularly in today’s business environment, can be
critical to success, and therefore the test becomes inconclusive.

Conclusion- We use this kind of liability in industrial accidents for making the employer liable for
any kind of industrial accidents. How you were by the time people started developing exclusives
to vicarious liability and at the same time courts developed various other principles such as strict
liability and absolute liability to held livelihood with employers without any excuses for any kind
of industrial accidents.
10/ Bhopal Gas Leakage, Strict Liability and Absolute Liability?
Ans- The Bhopal gas tragedy occurred on December 2-3, 1984, in Bhopal, India. It is considered one of
the world's worst industrial disasters. A pesticide plant owned by Union Carbide Corporation (UCC)
released toxic methyl isocyanate (MIC) gas into the atmosphere, exposing thousands of people. The
immediate death toll was estimated to be around 2,000, and tens of thousands suffered severe health effects.
The incident raised serious concerns about industrial safety, corporate responsibility, and the need for
regulations to prevent such disasters. The legal aftermath involved compensation claims, environmental
and health impact studies, and debates about the accountability of the company. This case developed
absolute liability beyond strict liability.
Rule of strict liability
In pursuance of breaking down the origin of absolute liability, a crucial leg of this
journey would be to understand the rule of ‘Strict Liability’. Absolute Liability is often
described as Strict Liability- (minus) the exceptions of Strict Liability.

In the landmark judgement of Ryland vs. Fletcher the rule of strict liability was evolved
The defendants, who owned mills in Lancashire, constructed a reservoir on their land, which lay across
from the land of the plaintiff, who had an active coal mine functioning thereon.
The defendants employed a contractor, who, without knowing and without due diligence, constructed the
reservoir on top of make-shift shafts and an abandoned, unstable mine.
Through a filled-in shaft of an abandoned mine, water from the reservoir seeped into the coal mine across
the defendants’ land, onto the plaintiffs’ property, thus flooding and destroying the active mine on his
land.
Issues-
Whether the defendants were liable for negligence themselves irrespective of the proof negligence on
their own part, or on the part of anyone employed by them to make the reservoir?
Whether they were liable for the negligence of the contractor engaged by them to extract the reservoir?
Order- The trial court, therefore, passed the judgment in favour of the Defendants. The Exchequer
Chamber reversed the decision made by the lower court and held that a ‘strict liability’ was imposed on
the defendants. In 1868, when the defendants appealed to the House of Lords, the court reaffirmed the
judgment of the Chamber, but with some minor adjustments. Lord Cairns ruled that the principle of Strict
Liability as laid down by Blackburn J should only be applied to the ‘non-natural’ use of one’s land, as
distinguished from ‘any purpose’ as mentioned in the previous decision. Strict Liability is applied in an
event that harm occurs as a result of the miscarriage of any lawful activity, that, considering its manner
and place of use, is unusual, extraordinary, or inappropriate. Therefore, by taking into account the ratios
stated in the Chamber and the House of Lords, we can state that for an act to amount to strict liability, the
following preconditions should be fulfilled.

Essentials of strict liability

➢ Dangerous Thing As per the principle, any item that can escape from the land and is likely to cause
damage to another person or property would be considered falling within the ambit of a ‘dangerous
thing’.
➢ Escape of such dangerous thing The dangerous substance should leave the premises of the individual
and escape from its containment so as to cause danger to the person or property of another.
 ➢ Non-Natural Use of Land For the use to be considered as a ‘non-natural use’, it must be for an
extraordinary purpose, followed by an increased danger to people and property.
Exceptions to strict liability
Act of God
Any event that exclusively and/or directly occurs as a result of natural causes that cannot be foreseen and
therefore prevented using due caution and care, is known as an ‘Act of God’. an Act of God would be in
play in an event that the ‘dangerous thing’ as explained hereinabove, has escaped from the land by a
means that is unforeseen, and without any intervention by the individual owning such thing.
Plaintiff’s own fault
It means that if the plaintiff has voluntarily participated in an act, knowing it to be dangerous and risky,
the plaintiff cannot sue the defendant in case any damage therein occurs.
Act of Third Party
When the escape of the dangerous thing is caused by the acts of a Third Party, the rule of Strict Liability
does not apply.

Rule of absolute liability

Absolute Liability, like its namesake, makes the individual absolutely liable for actions caused due to
escape of a dangerous object in the non-natural use of land, without any exception. The rule of Strict
Liability was considered to be saturated and concrete up until the 1980s in India, when the greatest disaster
of the Bhopal Gas Leak occurred, where the question of exceptions of Strict Liability came into the
forefront. It was in an unrelated case of the Oleum Gas Leak, wherein the Supreme Court of India finally
created an offshoot of the concept of Strict Liability, known as Absolute Liability, giving the defendant no
defence or exception to shy away from such liability.
Pursuant to the Bhopal Gas Tragedy and the Oleum Gas Leak, the Indian Judiciary found it imperative to
initiate a concept to address such rare occurrences, wherein the defendant should have no exception in
taking responsibility for the action that caused such large-scale damages.Therefore, in the case of M.C.
Mehta v. Union of India, the Indian Judiciary, under the guidance of Justice Bhagwati, finally introduced
the concept of Absolute Liability as being applicable in situations such as those of the case.
In M.C. Mehta v. Union of India
In this case, Mr M.C. Mehta, a social activist, filed a Writ petition for the closure of a ‘Shriram Industries’
since it was manufacturing certain hazardous substances and located in a close-knit, densely populated
zone. As a coincidence, in the pendency of the case in 1985, the same Industry leaked Oleum Gas from one
of its units causing one death and several other injuries.
The court held that the rule devolved in the precedent case in 1866 provided ‘that a person who for his own
purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must
keep it at his peril and if he fails to do so, is prima facie liable for the damage which is the natural
consequence of its escape’. However, the court stated that this rule was at a time when science and
technology had not yet reached the level it had reached then, and law should not hinder due to age-old
established practices.
The court further held that “we are of the view that an enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat to the health and safety of the persons working
in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature
of the activity which it has undertaken and if any harm results on account of such activity, the enterprise
must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say
that it had taken all reasonable care and that the harm occurred without any negligence on its part.”
The Court explicitly stated that the new concept of Absolute Liability was not subject to
any exceptions. There were two justifying reasons for the same, which were:

1. The enterprise involved in hazardous and inherently dangerous activities has a

social obligation to compensate people suffering due to the industries.
2. The enterprise alone has the power and resources to invent and install
safeguards against such hazards and dangers.

The origin of this rule in India thus emerged after the horrors of the Bhopal Gas
Tragedy and the Oleum Gas Leak were finally acknowledged, and the courts found it
necessary to find an alternative solution to address the liability issues in such
circumstances.

As a ‘next step’ in the process of giving the principle of Absolute Liability a sound
backing and reasoning in India, the Public Liability Insurance Act of 1991 was
introduced. The object behind implementing such an act is that the rapid increase in
the number of hazardous industries and operations in India has led to the incline in the
risk of accidents, injuries, and damages, not only to the employees but also to the
individuals and property located in the vicinity of such industries. This act was
implemented as a pursuant to the dangers propagated by hazardous industries, the
understanding of which came as an afterthought to the Bhopal Gas Tragedy, and the
ruling given in the Oleum Gas Leak case of the Supreme Court.
Essentials of absolute liability

1. Dangerous Thing
2. Escape
3. Hazardous or inherently dangerous substance
The major distinguishing factor in the essentials of Absolute Liability is the presence of a hazardous or
inherently dangerous substance on the land. This means that if the defendant has a hazardous substance on
his land, no matter what its use, such a defendant would be absolutely liable if such substance escapes his
premises. The liability does not lie in the use of an object or thing, but in the nature of such an object or
thing.
Need for the principle of absolute liability
The rule of Strict Liability was introduced in Rylands v Fletcher as seen hereinabove. This rule in the case
concerned has many exceptions, that the actual spectrum of the liability becomes very narrow. This old
principle as brought out in 1868, may not suit all countries as well as it did then, due to the dynamic nature
of technology and society. In the no-fault liability law, India followed the Strict Liability for itself, until it
realized that this could not be properly applied to the Indian context. The major push came from the two
incidents of the Bhopal Gas tragedy and the Oleum Gas Leak case, which instilled a realization of the need
for a new principle for liability in India, to meet its industrial and economical requirements.
Conclusion
After the Horror incident of Bhopal and Vizag Gas leakage India felt to develop a new rule of liability to
held liable the industries engaged in hazardous activities absolutesly.
Absolute Liability, as seen above, has not always been without any exceptions. Earlier, the unforeseen
nature of the incident and the absence of mens rea could help in the defence of an individual charged with
the same. The evolution of this concept with the evolution of industry and society rendered such exceptions
redundant, and the concept as we know it now grew to become what it is.
The progressive and forward-thinking role that the Supreme Court donned in the M.C Mehta v UOI case is
what India needs with respect to all laws and their relevance to the prevailing times. The evolution of
Absolute Liability has brought with it better justice and decisions due to its applicability, and therefore it
must be ensured that the growth of a principle as this is maintained by successive and just decisions of the
courts.