 received presidential approval, awaiting final notification by the Central Government to replace the Indian Penal Code (IPC), 1860.){kind=link}
On December 25, 2023, the Bharatiya Nyaya Sanhita Act (BNS) received presidential approval, awaiting final notification by the Central Government to replace the Indian Penal Code (IPC), 1860. This imminent transition prompts questions about the criminal liability of doctors under the new law. Is their immunity unchanged, or has the severity of their punishment increased? Similar uncertainties arose when the Consumer Protection Act of 2019 was enacted, specifically regarding its applicability to doctors.
The examination of doctors’ criminal liability traces back to the 2004 Supreme Court case, Suresh Gupta v. Govt. of NCT, Delhi. In this instance of a patient’s death during cosmetic surgery, both surgeon and anesthetist faced charges under Section 304A of the IPC, dealing with negligent acts causing death. The court ruled that doctors cannot be held liable unless there is gross negligence, setting a higher standard that some criticized as an error. This interpretation faced scrutiny until the 2005 case of Jacob Mathew v. State of Punjab, where the Supreme Court not only reaffirmed its position but elucidated the need for a differentiated standard for doctors under Section 304A. This marked the first layer of protection, safeguarding the medical profession from undue harassment.
The Apex Court also established guidelines for additional safeguards, stating that private complaints against doctors for criminal liability should not be entertained without prima facie evidence, requiring a second opinion from another competent doctor. This procedural layer acts as a second ring of protection before legal proceedings can be initiated against a doctor, a step not mandatory for others under Section 304A.
Section 106 of BNS, corresponding to Section 304A of the IPC, deals with ‘causing death by negligence’ and imposes a punishment of up to five years, an increase from the IPC’s two-year penalty. However, a special provision in BNS applies to Registered Medical Practitioners, reducing the punishment to up to two years for allopathic doctors, with a mandatory fine. This change means that, compared to Section 304A of the IPC, the imprisonment term for doctors remains the same, but a mandatory fine is introduced. Section 106’s Explanation specifies that Registered Medical Practitioners refers to individuals with medical qualifications recognized under the National Medical Commission Act, 2019. Consequently, the reduced punishment outlined in Section 106 applies exclusively to allopathic doctors, excluding other medical professionals like those in the Indian System of Medicine, Homoeopathy, or dentistry.
Contrary to some sources, there is no evidence in the Select Parliamentary Committee’s report suggesting a reduction in punishment for doctors under the new law. Reports suggesting a two-year imprisonment for criminal negligence align with the existing law under IPC Section 304A, offering little relief to the medical fraternity.
There are speculations about a potential amendment by the Home Ministry proposing complete immunity for doctors from criminal liability. However, granting absolute immunity to doctors as a specific group is deemed unlikely and challenging. As of now, there is no blanket immunity for doctors from criminal liability in the law, and such immunity is unlikely to be introduced in the future. Consequently, doctors remain subject to criminal liability under the new law, with punishment equivalent to the existing law and the addition of a mandatory fine.