Managing Partner S Message

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Managing Partner’s Message

Ensouth's summer issue focuses on generic issues that have continued to vex lawyer and layman alike, at least one of which acquired a distinctly political overtone last year. In addition, we kick off a new off road adventure. This is the fare:

1. Concerns on the continuing commercialization of medical healthcare have become a source of tremendous concern in India in recent years. We examine the question whether doctors can be sent to jail for medical negligence in India.

1. Late last year, Tamil movie star Khushboo took a great deal of flak for expressing views sympathetic to a sexually permissive lifestyle culminating in the filing of criminal cases against her. If extra marital sex is not a crime, why should talking about it be a crime, we ask?

1. There is an unspoken assumption in India that all communication between a client and a lawyer is privileged. We examine how far this assumption is borne out by the law

1. We commence a new off road journey that started with an exploration of Lhasa followed by a drive to the beautiful Zamdrok lake, through Gyandse and Shigatse to Mount Everest's north face base camp and down to Nepal. Part One of this journey covers the discovery of Lhasa.

4.Finally, in continuance of the successful interactions we have had with the business community so far, we share with you our workshop schedule for the next two months.

2. Comment-1

(This column appeared in the November 30th, 2005 issue of Business World)

Criminalizing the Healer

Criminal law and medical negligence

Ranjeev C Dubey

Primary research by Ms. Sarah Rufus

Outraged relatives hurling the wildest of accusations at doctors claiming culpable negligence and worse has become common place but surely our view on all medical negligence cases cannot be the same? There is great difference between the simple bona fide error of judgment, the critically poised medical situation that an accomplished doctor may have controlled but the average doctor could not, the casually treated serious case that ends in disaster and the accident case – either scalpel or machine - that really should have been avoided.

Since prejudice drives philosophy, let me state mine up front: despite the touching naivety of our faith, our knowledge of the human body is rudimentary because we frequently understand symptoms but not their underlying causes. This is quite different from the hard core avoidable 'accident', the kind that occurred on October 26th 2005 when Aditya Pal from Meerut died at Apollo hospital because the laser machine being used to treat his lungs blew up severely burning his respiratory tract. Is the doctor culpable?

Since doctors don't generally start out to kill patients, the court will necessary determine if the doctor was acting in good faith? Under section 52 of the Penal Code, nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. Shorn of the legalese, this means that the court will first determine whether the doctor proceeded with 'due care and attention'. Section 80 of the Penal Code states that an accident occurring without "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 a crime. Section 81 materially improves our understanding of this principle when it states an act is not an offense merely because its done with the knowledge that it is likely to cause harm, if performed "without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property." Trying to help someone sick is by definition not something done with intent to cause harm! If neither carelessness nor criminal intent is established, a doctor cannot be convicted of a crime.

What if the doctor was trying to help the patient employing a truly dangerous procedure? Section 88 states that unless the doctor intends to cause death, a procedure that could or did cause harm is not an offense if it was intended to benefit the patient and was done in good faith after taking his consent. Section 88 actual has an illustration that fits many cases and this is what it says: "A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending, in good faith Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence." Almost every hospital these days makes patients sign consent forms when they are admitted.

Does this mean that if the doctor does not receive a signed consent form, he or she is that much easier to sue? Section 92 covers that possibility and provides that if a patient is incapable of giving consent, or if there is no one else "in lawful charge of him" who can grant consent, no offense can be made out.

Obviously, the dice is clearly - and in my view fairly – loaded in favor of the doctor in any criminal complaint. It gets even harder when we stop to examine the ingredients of a charge of criminal negligence. Section 304 A, used commonly in motor accidents but not so in medical negligence cases provides that "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished..." Culpable Homicide of course is pre mediated murder and does not concern us here. Section 338 covers cases where patients are injured but survive and Sec 337 covers cases where a patient is endangered but not actually injured. In all cases, the test remains the same: was the doctor rash and negligent?

In the recent case of Jacob Mathew (Dr.) v. State of Punjab [122 (2005) DLT 83], the Supreme Court held that a doctor is not criminally responsible for a patient's death unless "his negligence or incompetence …showed such disregard for life and safety of others as to amount to a crime against the State". The Supreme Court also approved of the Bolem's case (1 W.L.R. 582) test of negligence which states that to establish criminal negligence, the patient must prove that the doctor did or didn't do something which in the circumstances "no medical professional in his ordinary senses and prudence would have done or failed to do". It is very difficult to prove this.

The court also expressed the need to protect doctors where "complainants prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting unjust compensation". It asked the Government to frame guidelines in consultation with the Medical Counsel of India for those who seek to launch criminal complaints against doctors and till such time as these guidelines are framed, laid down some basic ones thus:

1. A court cannot entertain a criminal complaint without a credible opinion from another competent doctor to support the charge of negligence.
2. The doctor providing the opinion should preferably be in government service qualified in that branch of medical practice and one expected to give an unbiased opinion applying Bolam's test to the case.
3. A accused doctor may not be arrested unless his arrest is necessary for investigation or for collecting evidence or unless he is uncooperative

So far, no guidelines have been framed. The Court's opinion is also under challenge once again as a result of West Bengal Chief Minister Buddhadeb Bhattacharya's statement in July 2005 that doctors cannot be arrested without prior approval of a medical committee in cases of alleged negligence. Kunal Saha, an AIDS vaccine researcher at the Children's Hospital and OhioStateUniversity at Columbus, Ohio, has taken exception to this statement and taken it to the Supreme Court. Saha has been fighting against medical negligence in India after his wife died in a Delhi hospital in 1998. Over the past seven years, his case has gone from the lowest to the highest court and the Supreme Court is set to start final hearing in the case in February 2006.

Meanwhile, to close the loop on the subject, retribution apart, in practice, a criminal cases means that the prosecutor has at best a remote chance to get the doctor to jail. To achieve this, he has to expend substantial resources in time and money pursuing a difficult remedy in a difficult legal system. To top that, he is to do this having probably also paid some serious medical bills, for which bills, the criminal courts will not compensate him. It's hard to make a business case for this kind of litigation. But then, who said retribution ever made any commercial sense?

3. Comment-2

(This column appeared in the December 15th, 2005 issue of Business World)

Talking about Sex

If extra marital sex is not a crime, why should expressing a personal view on it be a crime?)

Ranjeev C Dubey

Primary research by Ms. Sarah Rufus

Has Tamil cine star Khushboo committed a crime in suggesting that she was okay with girls consenting to pre-marital sex if they took precautions to keep unwanted pregnancy and sexually transmitted diseases at bay? Was it an unpardonable act of wanton talk when she added that no educated man could expect his partner to be a virgin?

Lets get straight to the heart of the matter (or body, if cynicism is your thing!). Is extra-marital sex illegal? The Penal Code lists several kind of sexual offences: rape, custodial and otherwise in one category; adultery, enticing away a married women and fraudulent marriages in another category; and finally of course, 'unnatural offences' meaning gay or animal sex. In itself, sex outside marriage is not a crime though it is if your partner is married. If extra marital sex is not a crime, why should expressing a personal view on it be a crime?

Well, it depends not on the view but the manner in which it is expressed. Two different provisions of the Penal Code deal with this issue. First, Section 509 makes it a crime if anyone “intending to insult the modesty of any woman, utters any word, …intending that such word or sound shall be heard… by such woman, or intrudes upon the privacy of such woman”. Intention is the key to this provision, as it is to much of the Penal Code but even otherwise, I don't see how anything Khushboo said would have insulted the modesty of any women. She didn't demand that every woman have extra marital sex!

Second, Section 499 makes it a crime to utter an imputation “intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person”. Explanation 4 makes it clear that a reputation is harmed only if it lowers among others the “moral character” of that person in the estimation of others. Was Khushboo defaming anyone? Well possibly. To suggest that anyone who wants a virgin for a partner is not educated is defamatory but who is the person being targeted? She didn't name anyone: can any literate man drag her into a criminal court? In that case, if I said, ‘you have to be crazy to race cars’, Narain Kartikeyan can take me to court for calling him insane! Section 199 of the Criminal Procedure Code permits “some person aggrieved by the offence” to file a defamation case. Who is aggrieved here?

In Aruna Asaf Ali vs. Purna Narayana, {1984 Cri LJ 1121 (Guwahati)} where an article was dismissive of the Assam agitation, the Guwahati High Court held that "agitationists" does not connote a definite or identifiable body and cannot be aggrieved. In Ananda Bazar Patrika (P) Ltd. Vs. State of West Bengal (C.R.R. No. 2023/03) the Calcutta High Court did not accept the contention that any particular lawyer had been defamed because an article made generic scandalous statements against “lawyers” and their obstructionist ways in going on strike to enforce lower court fees. By that logic, since no crime has been committed against any specific women, no one has any locus standii to sue Khushboo.

So far, we have discussed if it is a crime to support permissive behavior: what about civil wrong? Has Khushboo committed a civil wrong in not publicly objecting to extra marital sex, whatever her private views? Since this is a free country and extra marital sex is not a crime, is she free to support extra marital sex if she chooses. Just how free is her freedom to free speech?

Article 19(1)(a) of our Constitution categorically states, “All citizens shall have the right to freedom of speech and expression”. Article 19(2) clarifies that the state can make laws "imposing reasonable restrictions… in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” Clearly, there are limits to this freedom.

Traditionally, Indian courts have fiercely guarded free speech. The Supreme Court put it well in Sheela Barse v. Union of India & Ors. {(1988) 4 SCC 226} when it observed “it is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind, though not, perhaps, always with the best of tastes; and speak perhaps, with greater courage than care for exactitude." Brilliant words, those. What are the exceptions to this wide principle?

First, you can't use your freedom of speech to abuse a court. The Supreme Court last dealt with this issue in the celebrated case of Arundhati Roy {AIR 2002 SC 1375} where suo motu contempt proceedings were initiated because of the contemptuous language with which Ms. Roy framed her environmental arguments in a national publication. Although no judge was personally accused, the Supreme Court observed that the author had “tried to cast an injury to the public by creating an impression in the mind of the people of this backward country regarding the integrity, ability and fairness of the institution of judiciary.” You are, of course, free to abuse any other generic class in general terms without limit.

The other major exception is defamation. In the words of the Supreme Court in Dr.D.C. Saxena v. Hon'ble the Chief Justice of India {AIR 1996 SC 2481}, “Nobody has a right to denigrate others' right to person or reputation. Therefore, freedom of speech and expression is tolerated so long as it is not malicious or libelous so that all attempts to foster and ensue orderly and peaceful public discussion or public good should result from free speech in the market place. If such speech or expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right.”

Where does that leave Khushboo? She didn't address anyone specific and can't be accused of anything. I am not the one to tout a feminist cause here but isn't it odd that Mahesh Bhat can comment on sex and make movies on it but Khushboo cannot her views on that subject? The truth is Leander Paes can probably say what he likes but Sania Mirza is going to get a fatwa on it. Whatever is going on out there—and I think its just plain crass celebrity bashing—the law really doesn’t have a lot to do with it.

4. Comment-3

(This column appeared in the December 26th, 2005 issue of Business World)

Don’t confide in your lawyer

The law on client attorney communications

Ranjeev C Dubey

Primary research by Mr. Chetan Prabhakar

How transparent should a client be about his matters with doctors and lawyers? Absolutely, you might say. But in the case of lawyers, think again before you speak. A number of cases in recent times suggest that it definitely is not a good idea to pour out everything to your attorneys. Consider this recent case before a High Court.

Three young techies, owning between them 60 per cent of a company as sweat equity, decided to shaft out the financial investor holding 40 per cent stake. Given the way the Companies Act works, this did not take rocket science to implement. To begin with, the investor was thrown out of the information loop and was denied access to accounts. Then, his directors were not reappointed on the board. Later, an elaborate plan was unleashed to drive down the value of the company to compel the investor to sell out at a low price. Pushed to the wall, the investor began looking for a means to defend himself. Luckily, he did have access to the company's internal email! He found several mail exchanges between the young techies and their lawyer discussing ways to backdate minutes, obtain fake invoices, convert money from cheque to cash and show personal expenses as cost to the company.