Impact of New Criminal Laws on Prosecution for Medical Negligence

When the new criminal laws were being tabled in the Parliament, several doctors raised objections to Section 106 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Specifically, they sought exemption from criminal prosecution in cases involving death caused due to medical negligence. The Indian Medical Association took up the matter with the Ministry of Home Affairs, which promised to ‘free the doctors from this criminal negligence’. Pursuant to this, Section 106(1) of the BNS, which provided for a prison term of up to 5 years, was amended to the following effect:

…and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

However, this amendment does not free doctors from the noose of criminal prosecution; in fact, it mandates a prison term for death due to negligence by registered medical practitioners. While under Section 304A of the Indian Penal Code, 1860—analogous to Section 106, BNS—the court had the discretion to impose only a fine instead of imprisonment, this is not the case under BNS. Under the new regime a fine is no longer an alternative to, but mandatory with a sentence of imprisonment that may extend up to two years. In fact, the amended law has significant consequences for the investigation and  launch of criminal prosecution for medical negligence, as discussed in this blog post.

Applicability of Preliminary Enquiry

An unintended consequence of the amended laws under the BNS is the change in the applicability of preliminary enquiry. Preliminary enquiry is a procedural safeguard applicable to medical negligence cases as per the Supreme Court judgement in Jacob Mathew v State of Punjab,[1] and upheld in Lalita Kumari v State of Uttar Pradesh.[2] Conducted prior to the launch of investigation and registration of a First Information Report (FIR), the purpose of preliminary enquiry is to ascertain whether the information received reveals any cognizable offence. While the old law, i.e. Criminal Procedure Code, 1973 (CrPC), did not contain an express provision outlining the contours of preliminary enquiry, it has now been given statutory recognition under Section 173(3), BNS.

The BNS takes a broad-based approach to preliminary enquiry and invokes it depending upon the quantum of the punishment for an offence, irrespective of the nature of the offence. Under Section 173(3) of the BNS, preliminary enquiry may be conducted where information pertains to cognizable offences punishable for three to seven years ‘to ascertain whether there exists a prima facie case for proceeding’.

It is important to note that there are many cognizable offences for which the prescribed punishment is less than 3 years. By a strange logic, or lack thereof, the benefit of preliminary enquiry has not been extended to such cognizable offences. Consequently, cases involving medical negligence resulting in the death of a person are ineligible for preliminary enquiry as the punishment under Section 106, BNS for registered medical practitioners is up to a term of 2 years.

Given an express provision for preliminary enquiry under the BNS, the Supreme Court judgements in Jacob Mathew and Lalita Kumari will no longer help doctors seek preliminary enquiry as these cases were decided specifically to address the absence of relevant procedural safeguards in the CrPC. When the legislature subsequently removes the very basis of a judgement, it is the legislation that prevails over the judgement.

Complaint Cases

Under the IPC, when a complaint was made to a magistrate, the onus was on the complainant to satisfy the Court with the existence of a prima facie case.[3] If found lacking in basis or frivolous, the court would dismiss the complaint. In effect, the accused had no role to play in the pre-summoning stage, i.e. till cognizance was taken, and this protected doctors from false and frivolous accusations. However, the BNS makes room for the accused to be heard before cognizance is taken.[4] While this provision seems to be a manifestation of the principles of natural justice, it is premature and unconstitutional. Firstly, it is not in consonance with the right of the accused to remain silent, which is guaranteed under the Constitution. Secondly, it will be a futile exercise to hear the accused before the court has come to a prima facie conclusion.

This provision will be particularly troublesome for doctors as they will have to show cause and present their defense before the Court has applied its mind to the complaint. While the complaint may ultimately be dismissed, the accused doctor will still have to undergo the hassle of being present in the Court and presenting their version of events.  This will not only waste the precious time of doctors but also lower their morale.

Provision of Deemed Sanction

Another change that should worry doctors, especially those working in government establishments, is the newly introduced provision of deemed sanction.[5] To prosecute a public servant for an act performed during the discharge of their official duty, previous sanction of the relevant government is mandatory. It is the prerogative of the government to grant or refuse sanction. This enables public servants to discharge their duty fearlessly, without bothering about the consequences of frivolous litigation. However, often despite a prima facie case against a public servant, sanction is either withheld or inordinately delayed. The concept of deemed sanction ensures that if the concerned government does not take a decision within a prescribed period (under the Bharatiya Nagarik Suraksha Sanhita, 2023, or BNSS, this is 120 days from the date of the receipt of the request for sanction), sanction is deemed to be granted. This appears to be an attractive solution to overcome the tardiness of government officials who sit over a file. However, this argument is shallow as it seems to suggest that the concept of sanctions is otiose and an unnecessary legal hurdle. The provision of deemed sanction does not in any way incentivise officials to take a decision within a reasonable timeframe. In fact, it penalises those who could have otherwise challenged the grant or refusal of sanction on the basis of administrative grounds or non-application of mind.

Together, these developments make it difficult to dismiss the new criminal laws on the prosecution of medical negligence as old wine in a new bottle. The subtle changes brought into the law under the BNS regime could have farreaching implications, especially for doctors and other healthcare professionals.

About the Author

Nanditta Batra is a Consultant to the Centre for Health Law and Ethics, NLSIU and a practicing advocate at the Supreme Court of India.

Notes

[1] Jacob Mathew v State of Punjab, (2005) 6 SCC 1.

[2] Lalita Kumari v State of Uttar Pradesh (2014) 2 SCC 1.

[3] Code of Criminal Procedure 1973, s 200-203.

[4] Bhartiya Nagarik Suraksha Sanhita 2023, s 223(1), first proviso.

[5] Bhartiya Nagarik Suraksha Sanhita 2023, s 218(1), second proviso.