WP(C) No.8832/2006 Page 1 of 20 * THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: January 19, 2011 % Pronounced on: February 21, 2011 + WP (C) No. 8832 of 2006 Scheduled Castes and Scheduled Tribes Medical Association (Regd.) Delhi ..... Petitioner Through: Mr.Prashant Bhushan with Mr.Rohit Kr. Singh & Mr.Bharoo Sood, Advs. versus Union of India and others ..... Respondents Through: Mr.Rajeev Saxena, Sr.Govt. counsel with Mr.Neeraj Chaudhary, CGSC with Mr.Khalid Arshad & Mr.Rohan Ahuja, Advs. for R-1/UOI. Mr.Darpan Wadhwa, Adv for R-2/GNCDT. Mr.Praveen Khattar, Adv. for R-4/DMC Mr.Rajat Katyal, Adv. for R-5 Mr. Kirtiman Singh, Adv. for R-6. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ In this public interest litigation preferred under Article 226 of the Constitution of India, though number of issues have been raised, yet on a considered scrutiny and regard being had to the proponements advanced at the bar, we are disposed to think that three principal issues arise for WP(C) No.8832/2006 Page 2 of 20 consideration, namely, whether the doctors, interns and junior residents in AIIMS can go on strike for whatever reason and further coerce the willing doctors not to discharge their duty on any count whatsoever; whether the competent authorities in charge of the said institutions are accountable to take appropriate action against the erring doctors on proper identification or show leniency for such transgression and delinquency; and whether the report submitted by the Committee headed by Professor Sukha Deo Thorat (known as Thorat Committee report) should be given effect to for the purpose of any previous acts before the report was submitted. 2. The facts which are imperative to be stated for adjudication of the writ petition are that the doctors of All India Institute of Medical Sciences (hereinafter referred to as „the AIIMS‟) went on strike on four occasions, i.e., for 17 days in May, 2006 on the issue of reservation of seats for Other Backward Class in institutions of higher education; from 05.7.2006 to 07.7.2006 on the issue of removal of the then Director of AIIMS; from 29.8.2007 to 30.8.2007 on the issue of refusal of the Health Minister for signing the degrees and certificates of students because of certain dispute regarding the continuance of the Registrar of AIIMS; and then on 29.11.2007 on the issue of passing the Amendment Bill fixing the age of retirement of the Director of AIIMS. It is urged that as far as the strike of May, 2006 is concerned, the same was called off by virtue of the order passed by the Apex Court and the directions issued that the punitive orders passed against the doctors and others should be recalled if they join WP(C) No.8832/2006 Page 3 of 20 the duties. As setforth, they joined the duties but thereafter, as the factual matrix would manifest, they went on further strike. Thus, the present petition is really concerned with the strikes excluding the strike that took place in the year 2006. 3. As setforth, the strikes had a tremendous impact and the patients suffered as emergency services were shut down; the patients waiting for treatment remained in the hospital being untreated in serious condition; the patients who were admitted to have surgery and other advanced treatment remained in agony; and further certain doctors, who wanted to help, aid or assist the patients, were coerced and compelled not to attend the patients. It is urged that the doctors, regard being had to their nature of duties, responsibilities, professional ethics and the right of a citizen under Article 21 of the Constitution to avail treatment cannot go on strike or take recourse to demonstration or protest paralyzing the system. In this backdrop, prayers have been made to declare that the doctors and the teaching faculty at AIIMS or for that matter any government or private hospitals cannot go on strike or demonstration or coerce the willing doctors to attend the patients and appropriate disciplinary action be taken against the doctors who had gone on strike. The other issue which has also been raised relates to indiscrimination caused to the students and doctors belonging to reserved category in AIIMS and compliance of the report of the Thorat Committee which was constituted in this regard. WP(C) No.8832/2006 Page 4 of 20 4. At the very outset, we are obliged to state that we will be only dealing with the first two issues and grant liberty to the petitioner to raise the third issue in a comprehensive writ petition with proper particulars so that it can be appositely addressed. 5. A reply has been filed by the respondent No.1, Union of India, averring that the doctors at AIIMS went on strike from 5th July, 2006 to 7th July, 2007. Reference has been made to the Code of Ethics Regulations, 2002 according to which a physician is required to uphold the dignity and honour of his profession. 6. A counter affidavit has been filed by the respondent No.2, Department of Health and Family Welfare, Government of NCT of Delhi, stating, inter alia, that the said respondent had put all its efforts for keeping the medical services operational and functional at the critical event of strike by the doctors and medical students in the month of April and May, 2006. Summer vacation of all faculty members had been cancelled to maintain alternative arrangement and the striking doctors had been issued show cause notices to join back their duties and to recruit junior doctors and senior doctors during the strike period, but no one turned up for the interview. The coercion by the striking doctors to the other doctors to participate in the strike and to abstain from work has not been reported in any of the hospitals administered by the Delhi Government during the aforesaid period and in case it is reported, strict action would be taken. WP(C) No.8832/2006 Page 5 of 20 7. A counter affidavit has been filed by the Delhi Medical Council stating, inter alia, that the said Council has been constituted under the Delhi Medical Council Act, 1997 and is responsible for the maintenance of a register of medical practitioners who are engaged in the practice of modern scientific system of medicine and all its branches and for the regulation of registered practitioners in the National Capital Territory of Delhi. The power, duties and functions of the Council have been enumerated. It is urged that the Delhi Medical Council shall initiate appropriate disciplinary proceeding whenever any complaint is made as regards the professional misconduct by a medical practitioner registered with it in quite promptitude. 8. A reply has been filed by the AIIMS admitting the fact that the doctors were on strike from 5th July, 2006 to 7th July, 2007. Reference has been made to the letter addressed by the Resident Doctors Association, AIIMS. The steps taken by the AIIMS authorities against the doctors who had gone on strike on the first occasion has been highlighted. 9. Rejoinder affidavits have been filed to highlight that no steps have been taken by AIIMS against the erring doctors who had gone on strike for the period of three days, i.e., from 5th July, 2007 to 7th July, 2007 and no responsibility has been fixed. 10. Before we delve into the issue whether strike can be taken recourse to and the willing doctors or students can be coerced to participate in the WP(C) No.8832/2006 Page 6 of 20 said strike, we think it appropriate to highlight the significance of duties in a hospital by a doctor in whichever post he is, para medical staff, nurses, chowkidars, sweepers or any other staff involved with the hospital. The said aspects, needless to emphasize, have inextricable nexus with health. Health is the basic requirement for the preservation of body- the human frame which is the manifestation of life that is seen. It should be borne in mind that life is a glorious gift from God. It is the perfection of nature, a master-piece of creation. Human being is the epitome of the infinite prowess of the divine designer. Great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life. Health is life‟s grace and efforts are to be made to sustain the same. The Government is required to assist people and its endeavour should be to see that the people get treatment and lead a healthy life. Healthy society is a collective gain and no institution should make any maladroit attempt to smother it. 11. Regard being had to the aforesaid concept, we shall refer with profit to certain citations which deal with the concepts of preservation of life, the duties of a doctor and the constitutional mandate under Article 21 and the responsibility of any authority or law abiding citizen. 12. In Pt. Parmanand Katara v. Union of India and others, (1989) 4 SCC 286, the Apex Court has held thus – “7. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante WP(C) No.8832/2006 Page 7 of 20 cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment. 8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.” 13. In Paschim Banga Khet Mazdoor Samity and others v. State of W.B. and another, (1996) 4 SCC 37, the Apex Court has expressed that in a welfare State the primary duty of the Government is to secure welfare to the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to persons seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals WP(C) No.8832/2006 Page 8 of 20 run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of the Government hospitals to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. 14. In Surjit Singh v. State of Punjab and others, (1996) 2 SCC 336, the Apex Court has observed thus - “It is otherwise important to bear in mind that self- preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it. Attention can usefully be drawn to Verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine: 17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit. 18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life. 20. Sharirarakshanopaayaah kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah WP(C) No.8832/2006 Page 9 of 20 The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. 22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself.” 15. In State of Punjab and others v. Ram Lubhaya Bagga and others, (1998) 4 SCC 117, the Apex Court has held that the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47 and it is for the State to secure health to its citizen which is its primary duty. 16. At this point, we would like to sit in a time machine and refer to certain ancient texts and sayings about the importance of healthy body, primacy of health and duties of a doctor. Mahakavi Kalidas had composed thus:- “sariramadyam khalu dharmasadhanam.” “The body is the ultimate means for performing religious duties.” 17. Another author emphasizing on “healthy body” had spoken thus:- “naro mitaharabiharasebi samiksakari bisayesbasaktah. Dani param satyaparah ksamaban aptopasebi ca bhabatyarogah.” “A man, who takes moderate food and moderate exercise; who performs his duties/works after applying his mind properly, who is not attached to sensory pleasures, who is charitable, who adheres to the path of Truth, who has the capacity of tolerance and patience and who follows advices of his elderly persons on health; remains diseaseless.” WP(C) No.8832/2006 Page 10 of 20 18. Prescribing the capacity of a „Doctor‟, Charak had stated thus:- “daksah tirtharthasastrarthah drstakarma sucirbhisak, (carakah)” “A doctor is he; who is efficient (an expert in the field), who has studied, assimilated all the scriptures on medicine, who has seen other seniors doing surgeries and treating the patients and who is pure or honest.” 19. The great principle giver and a man with multifaceted wisdom, Chanakaya, while speaking about the role of a „Doctor‟, has pronounced thus:- “ayurbedakrtabhyasah sarbesam priyadarsanah. Aryyasilagunopetah esa baidyo bidhiyate..” “A doctor is he; who has mastered and practised all the scriptures on health, who is well-behaved to all and who is endowed with the noble qualities of honesty, simplicity and purity.” 20. The negative response of people to certain categories of doctors have been enumerated thus by an eminent writer:- “kucelah karkasah stabdhah graminah sbayamagatah. Pancabaidyah na pujyante dhanvantarisama api..” “People don‟t like five types of doctors i.e. ill-dressed; rough in behavior, egoist, rustic and self-invited (come), even though they are experts like Dhanvantari.” 21. Another eminent author while speaking about the professional conduct of a doctor laid down thus: “Pratyutpannamatirdhiman. Byabasui priyambadah. Satyadhurmaparo yascha. Vaidya idrk prasasyate.” WP(C) No.8832/2006 Page 11 of 20 “A doctor, who has got presence of mind and wisdom, who is professional and soft spoken, and who follows the path of Satya (truth) and dharma (code of conduct), is appreciated by all.” 22. Presently, we shall advert to the significance of All India Institute of Medical Sciences. The All India Institute of Medical Sciences came into existence by virtue of a legislation called All India Institute of Medical Sciences Act, 1956 (for brevity „the AIIMS Act‟). The statement of objects and reasons of the Act is relevant to be reproduced:- “For improving professional competence among medical practitioners, it is necessary to place a high standard of medical education, both post-graduate and under-graduate, before all medical colleges and other allied institutions in the country. Similarly, for the promotion of medical research it is necessary that the country should attain self-sufficiency in post-graduate medical education. These objectives are hardly capable of realisation unless facilities of a very high order for both under-graduate and post-graduate medical education and research are provided by a central authority in one place. The Bill seeks to achieve these ends by the establishment in New Delhi of an institution under the name of the All-India Institute of Medical Sciences. The Institute will develop patterns of teaching in under-graduate and post- graduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical colleges and other allied institutions, will provide facilities of a high order for training of personnel in all important branches of health activities and also for medical research in its various aspects. The Institute will have the power to grant medical degrees, diplomas and other academic distinctions which would be recognised medical degrees for the purpose of the Indian Medical Council Act, 1933.” 23. Section 13 deals with the objects of the Institute which is as follows: - “13. Objects of the Institute. – The objects of the institute shall be – WP(C) No.8832/2006 Page 12 of 20 (a) to develop patterns of teaching in under-graduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical colleges and other allied institutions in India; (b) to bring together in one place educational facilities of the highest order for the training of personnel in all important branches of health activity; and (c) to attain self-sufficiency in postgraduate medical education.” 24. Section 14 deals with the functions of the Institute and such functions are linked to the promotion of objects specified in Section 13. The relevant aspects are reproduced below:- “(a) Provide for undergraduate and postgraduate teaching in the science of modern medicine and other allied sciences, including physical and biological sciences; (b) Provide facilities for research in the various branches of such sciences; (c) Provide for the teaching of humanities in the undergraduate course; (d) Conduct experiments in new methods of medical education both undergraduate and postgraduate, in order to arrive at satisfactory standards of such education; (e) Prescribe courses and curricula for both undergraduate and postgraduate studies; (f) xxxxxxxxxx (g) Train teachers for the different medical colleges in India. (h) Hold examinations and grant such degree, diplomas and other academic distinctions and titles in the undergraduate and postgraduate medical education as may be laid down in regulations; (i) Institute, and appoint persons, to professorships, readerships, lectureships and post of any description in accordance with regulations;” 25. In A.I.I.M.S. Students Union v. A.I.I.M.S. and others, AIR 2001 SC 3262, the Apex Court, while describing AIIMS, has opined thus:- WP(C) No.8832/2006 Page 13 of 20 “Delhi, the National Capital of the country is also the seat of the All India Institute of Medical Sciences, better known as „AIIMS‟ an autonomous premier institution of national importance, AIIMS- „an institution of excellence for excellence‟.” 26. On 1st April, 2009, this Court directed the AIIMS to produce copies of the relevant documents regarding the aforesaid strikes. It is relevant to reproduce the same – “We have perused the affidavit filed by the AIIMS. In para 5 of the affidavit, it is stated that the AIIMS is bound to take appropriate action in accordance with law against the erring medicos, in relation to the incidents of strikes and disruption of the patient care services etc., which took place in the past and might be attempted in future. However, learned counsel for the AIIMS is unable to explain as to why no action has been taken in respect of the strikers who took part in the strike which was held in July, 2006, after the order of the Supreme Court and subsequent strikes thereafter. The AIIMS is directed to produce copies of the relevant reports in respect of strikes by HOD or other competent authority within two weeks….” 27. On 22nd April, 2009, the document was tendered by the counsel for the AIIMS which showed the note of the Chief Administrative Officer, AIIMS signed by the Director of AIIMS that no faculty members of AIIMS was on strike from 5th July, 2006 to 7th July, 2006. 28. On 6th May, 2009, this Court directed the AIIMS to put the documents regarding the strikes on affidavit. On 20th July, 2009, the AIIMS filed an affidavit stating, inter alia, as follows: - “6. That details of the medicos who went on strike from 05.07.2006 to 7.7.2006 appears to have not been called for and as such is not available. However, it appears that there WP(C) No.8832/2006 Page 14 of 20 was strike at AIIMS from 5.7.2006 to 7.7.2006 as per the available news report on the internet……” 29. On a perusal of the same, it is manifest that though the strike is admitted, yet no information of doctors who went on strike is available. The petitioner has annexed certain newspaper reports to highlight that certain doctors had gone on strike and had given statement in support of the strikes. In essence, the same have been placed reliance upon to show that stand or plea regarding the non-availability of records is untenable. Emphasis is laid on how the patients have suffered and how the same has been reflected by the patients themselves. 30. We have referred to the objects and reasons and the provisions of the Act and the decision in A.I.I.M.S. Students Union (supra) only to highlight the significant, meaningful and pregnant role played by A.I.I.M.S. in the field of medical education and carrying on of research and delivering of sophisticated latest treatment facilities to the patients. 31. From the aforesaid, the institutional serviceability and utility is accentuated. The present controversy has to be adjudged in that backdrop. In this regard, we may refer to certain citations relating to „Doctors‟, or for that matter, “Professionals” going on strike. We would also like to refer to certain decisions which pertain to paralyzing or mummifying the sacred right of an individual when there is any kind of strike or „bandh‟. WP(C) No.8832/2006 Page 15 of 20 32. This Court in Court on its own Motion v. All India Institute of Medical Sciences, 2002 7 AD (Delhi) 530 has further opined thus:- “The impact of a strike in a hospital is totally different from that in the case of a factory or trading establishment. Ailing patients cannot be left waiting or un-attended. Hospital activity is not the same as the lifeless functioning of machines in a factory, or movement of trading material or other forms of commerce. Almost all the activities in relation to hospital are such as require constant and incessant attending and care and, therefore, unlike a factory or trading establishment, the patients cannot be permitted to be deserted by striking staff. Unlike financial losses, the loss of life or limb cannot be recouped. Reference may be made to the judgment of Single Judge of Bombay High Court in Baratiya Arogya Nidhi Sheth Kantilal C. Parikh General Hospital v. Bombay Labour Union, 2001 LLR 587 (Bom).” 33. In the said decision, the following directions were issued:- “There shall be the following Code of Conduct applicable to all employees of AIIMS:- (i) No employee of staff or faculty member will cease work for any reason whatsoever or disrupt the work, or aid, or abet such disruption or cessation; (ii) No use of loud speakers or shouting of