Union Home Miniter Amit Shah while speaking on the debate on Bharatiya Nyaya (second) Sanhita Bill 2023 which was introduced in Lok Sabha, announced that he would decriminalise medical negligence which was cheered by the medical fraternity. But if one reads carefully sec 106(1) of the Bharatiya Nyaya (second) Sanhita Bill 2023 it has provision for 2 years of imprisonment for Registered Medical Practitioners (RMP). This has created confusion among the doctors as on one hand the Home Minister has said that he would decriminalise medical negligence but on the other hand there is provision for 2 years of imprisonment for doctors. In fact when a doctor is charged with medical negligence under sec 304(A) of the IPC the prison term for doctors is for 2 years which is the same as that of sec 106(1) of the Bharatiya Nyaya (second) Sanhita Bill 2023. So how does the old law dealt and how will the new law deal with medical negligence for doctors. Also, what did the Home Minister meant by stating that he would decriminalise medical negligence?
To understand the announcement of the Home Minister one has to understand the present provision of the CrPC which deals with the medical negligence. As far as the provision of CrPC are concerned doctors are mostly charged under sec 304(A), sometimes under sec 304 and rarely under sec 302. Sec 302 of IPC was applied in the controversial case of Dr.Archana Sharma which led to Dr. Archana Sharma committing suicide. Sec 304 (A) deals with charges of death caused due to negligence, sec 304 deals with charges of culpable homicide not amounting to murder and sec 302 deals with charge of murder. The term of punishment of the three section applied to doctors varies. For sec 304(A) the punishment is imprisonment upto 2 years; for sec 304 the punishment is life imprisonment or imprisonment upto a period of 10 years along with fine; for sec 302 the punishment is death or life imprisonment. Effectively as per the prevent provision of CrPC a doctor could be booked under sec 304(A), 304 or 302 for the death of the patient being treated by them.
On the other hand section 106(1) of the Bharatiya Nyaya (second) Sanhita Bill 2023 applicable to doctor’s states
“106. (1) Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; 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.
Explanation: For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.”
Effectively, Sec 106(1) of the new law clearly distinguishes the doctors from others and also ensures that if a doctor is found of medical negligence that led to the death of the patient, the doctor will be charged under sec 106(1) of the new law and shall face a maximum of 2 years of imprisonment. The new law has snatched the arbitrary approach and authority of the police while dealing with doctors in criminal medical negligence case. Previously the police could book the doctors under sec 304(A) or 304 or 302 depending on the evidence placed before them. With this new law the police can book doctors only under sec 106(1) which will nullify the arbitrary power of the police which was used by the police to exploit the doctors. To conclude though the criminal liability on the doctors is not completely waived off but has been reduced drastically. As it is reflected in sec 106(1) of the new act that case of medical negligence has drawn a line between doctors and others who are guilty of causing death due to negligence. The doctors have been given a lenient punishment of imprisonment upto 2 years others are being punished with imprisonment upto 5 years though the crime is same “Death caused by negligent act”.
Adv Khalil Girkar
Advocate, Mumbai High Court