In recent months, the doctors’ strike has been a major talk of the town, for one reason or the others. Generally, the doctors decide to go on strike after one of their colleagues is attacked by the relatives of a patient who dies on account of alleged medical negligence by the doctors.

One such incident in June this year in the Indian State of West Bengal started a nationwide debate on this issue. A patient named Mohammed Shaheed died in Nil Ratan Sircar Medical College and Hospital (NRSMCH), in Sealdah, Kolkata. The relatives of the deceased claimed that the death occurred on account of negligent attitudes of the doctors. They also claimed that the doctors in the said hospitals did not hand them over the body of the deceased on time.

This led to small skirmishes initially between the relatives and the doctors which later turned into a major clash. As per media reports, a mob of around 200 people, who were the neighbours of the deceased family attacked the hospital to destroy its property and assault the doctors. In the ensuing clashes, two of the junior doctors got seriously injured. One who sustained a serious skull injury had to even get admitted in the ICU of another hospital in Kolkata.

Subsequent to this incident, the doctors in NRSMCH hospital went on strikes demanding provisions for their protection. This strike started on the 11th of June. On the 13th of June, the Chief Minister of West Bengal issued an ultimatum to the striking doctors to resume their duties within four hours. This ultimatum, the striking doctors decided to defy. They also demanded a public apology from the Chief Minister.

Subsequently, the protests only intensified throughout the Country. The doctors in other hospitals of West Bengal and other parts of the country went on strike to show solidarity with their colleagues. Supports poured in their solidarity from the medical fraternity across the Country. A state-wide medical strike was organized by Delhi Medical Association on June 14. The Resident Doctors of AIIMS, Delhi and Safdargunj Hospital also boycotted their works.

In the State-run hospitals, more than 700 doctors submitted their resignations in protest. On June 17, the Indian Medical Association called for a nation-wide strike and demanded from the Union Government, a central law to curb violence against the doctors.

The Bhartiya Janta Party also tried giving this issue a communal colour. It accused Ms. Mamta Banarjee of not taking the Doctors’ security seriously. It’s another thing that the BJP conveniently forgot its present State Minister for Health and Family Welfare Mr. Ashwini Kumar Choubey’s open threat of chopping off the doctors’ hand in Bihar if they put obstructions in the functioning of the State-run hospitals when he was the health minister of Bihar.

This whole series of events bring to us a very crucial question that, ‘is special legal protection really required for the doctors or is it a superfluous demand altogether?’ The Indian Medical Association is demanding for a Central law with a throughout applicability across the Country to check violence against the doctors. This, despite the fact, that 19 states in India have already enacted special laws to extend protection to the doctors. However, notwithstanding these special laws enacted by these States, I wish to deliberate upon the essentiality of such demands in the first place.

Though there is no concrete data available, generally the attacks on doctors take place in government hospitals or sometimes in small private hospitals. Ordinarily, the poor or the medium class people go to these hospitals in the hope of better treatment. First, there is so much crowd in the government hospitals that the doctors too feel overburdened. This is one of their genuine concerns that no government has time to pay attention to. But, the doctors too hardly agitate about it.

Secondly, most of them indulge in private-practice out of their scheduled government-time and therefore fail to restrain their greed to call the patients to their private clinics in the hope of extracting a huge amount of money from an already distressed poor family. This, they more often don’t do expressly but through a range of implied behaviours. For instance, they unnecessarily harass the patients or their relatives in the procedural complexities of the hospitals. Any government system in India, including hospitals, has so much of procedural complexities that anyone can be easily harassed. This ‘procedural complexities’ gets more painful to the patient and their relatives in the wake of an unimaginable influx in the government hospitals.

Moreover, the doctors in the government hospitals hardly talk to the patients or their attendants in a decent manner and so do the other staffs of the hospitals. Many times, the doctors don’t even properly narrate to the patient or his attendant, the diseases he is suffering from, despite request. In recent times, I have seen many doctors chatting on WhatsApp and asking patients to explain their problems. It is said that when a doctor gets to listen to a patient’s problems politely and patience-fully, the patient feels mentally relieved and satisfied to a great extent. In India, this hardly happens. This goes against the fundamental medical ethics.

The procedural complexities are of course there in the prestigious government hospitals like AIIIMS as well but at least the doctors posted there behave properly and decently. This dearth of decency is more often seen in State-run hospitals, though there too remains some good doctors for whom humanity is supreme above self-interest. Sadly, the proportion of such doctors are largely less.

All these painful harassments and mental torture lead the patients and their family members to go through an extreme agony. When a patient gets admitted in a hospital, the whole family already gets perturbed and if in such a situation patients and their relatives are unnecessarily harassed additionally, the anger is bound to burst sometimes, after all, they too are humans.

These sort of ill-treatment in a government hospital by the doctors and the other staffs force the patient to ultimately land in a private hospital where the system is comparatively efficient but at the cost an exorbitant charge. This is why private practice is so flourishing. No political establishment can touch it because they are a party to this conspiracy. Many politicians have hugely invested in the private health business.

This is true that many times the patients die out of medical negligence of the doctors, due to their ill-attitude and not attending them on time. And, if a person dies out of someone’s negligence who had a moral duty to save his life, it is difficult to restrain one’s emotional turbulence and rage towards one causing his death. This, sometimes, results in skirmishes between the doctors and the kith and kin of the patient which in some cases also lead to violence. The people in India still treat doctors as a God. So, the doctors too need to treat people humanely, not just as a consumer.

Now, coming to the demand of making a Central law to curb violence against doctors having a throughout applicability across the country, it really requires an extensive public discussion in my opinion. First and foremost, it has huge legal hurdles since ‘Public Health’ as well as ‘Crime’ both are enumerated in the ‘State-List’ of the Indian Constitution. Only States are constitutionally empowered to make laws on these subject. Any attempt by the Union government to make law on these subjects will be violative of the federal structure of our Constitution.

Secondly and most importantly, doctors can feel the need for a special central law to protect them because they are doctors and they think that their lives are far more precious than the life of an ailing human who is generally left to their mercy in a ‘Sarkari Hospital’. Right? We have recently witnessed the dark side of the doctors, apart from the government, in Muzaffarpur, Bihar.

Doctors can feel this need because they have the potential to get their demands executed through ‘unparalleled forceful means of strikes’. I am calling it an ‘unparalleled forceful means of strikes’ because strikes done by doctors are lethal for many patients. No strikes by the other class of people, howsoever big, are lethal in nature for another class of people. Doctors can protest for every issue but not for increasing the strength of doctors and facilities in the government hospitals which is the root cause of all the problems, because, it carries with it the risk of antagonizing governments. When did you last see the doctors outraging and agitating on the roads for increasing the strength of doctors and better facilities in the hospitals?

Doctors can sense an urgent need for security because they have a nationwide organizational banner of doctors who are quick to show solidarity and shoulder their colleagues’ concerns. The patients and their relatives do not have or cannot have any such organizational banner at any level, and therefore, doctors can unilaterally proffer their concerns alone. Doctors have the luxury to lock the hospitals’ gates and go on strike leaving the patients to cry and die at hospitals’ gate because they know that this will exert exemplary pressure on the government to negotiate with the doctors and many times the government has to succumb ultimately. But, who will listen to the concerns of the patients and their relatives? Media ordinarily do not take an interest, unless and until the situation becomes catastrophic for a huge number of people. Unless a huge number of people die, Media do not turn up generally, and even though it does in small cases, it has little effects. We have seen in Muzaffarpur case that despite so much of strong Media pressure nationally and even internationally, so many children continued to die.

If such a law is enacted, it is prone to be abused by doctors. Seeing the ill-attitude of many doctors in government hospitals, the possibility of its misuse cannot be ruled out. Imagine, if a patient is serious and his attendant requests the doctor to see him, but he doesn’t listen. If he rightfully asserts and persists, the doctor may threaten to get him jailed under this law. Seeing, the rampant corruption in police-department and a failing criminal justice administration system, the patient’s and his relatives’ lives will turn into a living hell. After all, the doctors of a government hospital remain in an influential position, socially as well as economically than a poor patient getting treatment in a ‘Sarkari hospital’. This is quite a real situation. One who has been to a government hospital ever understands the ground-realities.

In the case of West Bengal also, the family members of the deceased have alleged that they too were beaten up by the doctors. Taiyab Hussain, talking to the Indian Express had said, “We lost a family member. The doctors also beat us up and the CCTV footage will prove it. Every citizen should have equal access to justice. Five of our neighbours were arrested and are now in jail. What about the doctors? Let the guilty be punished, be it our neighbours or the doctors.” The clash was not a one-sided one. We lost a family member and one of us got emotional. One of us might have pulled a hand of a doctor urging him to see the patient. They took it as misbehaviour and heckling. I apologized twice, once in presence of the policemen. But the doctors refused to accept our apology. They did not allow us to take the body of my grandfather out of the hospital. They armed themselves with hockey sticks and bamboo poles. The policemen were present there when all of these happened,”

I mean to ask that what special recourse is available to those aggrieved family members whose near and dear ones die as a result of doctors’ negligence. To loiter around the consumer forum for a decade for a paltry sum of money as compensation of death due to negligence, that too marred in gross uncertainties? If patients or their family members do not have a special recourse against the ill-treatment by the doctors, why should doctors have special legal protection for them against occasional violent behaviour of the patient’s family?

The last and the most important point is that if there comes a demand for special laws on every such issue in the Country, what is the need for ‘Indian Penal Code’ in the first place? The IPC has more than sufficient provisions to deal with any such violent situation. When doctors are attacked, why can’t they seek legal recourse under the existing provisions of Indian Penal Code? There is no legal vacuum at all and hence such demand is the outcome of an arrogance of power and influence the doctors to enjoy in the society. More than enough remedies are available under the existing legal provisions and hence such demand should not be paid heed to. In fact, in my opinion, all the existing State laws extending special protection to the doctors should be scrapped, unless and until patients and their family members are also extended special legal recourse against the ill-treatment by the doctors and death occurring due to their medical negligence.

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Rohit Kumar

Rohit Kumar is a law graduate, an RTI activist and a former SBI Youth for India Fellow (2017-18) Batch.