Dismissed

Balu Gopalakrishnan v. State of Kerala

Kerala HC1 Dec 2020WP(C)/22965/2020

Case brief

AI extract

What is this about?

A PIL challenging alleged negligence by government doctors resulting in the death of a pregnant woman's twins. The court examined an internal inquiry report finding the patient was discharged at the relatives' request after stable vitals, rejecting allegations of culpability.

What did the court decide?

Reliefs sought for registration of crime, investigation, and monetary compensation were not granted.

Balu Gopalakrishnan Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 1ST DAY OF DECEMBER 2020/10TH AGRAHAYANA, 1942

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WP(C).No.22965 OF 2020(S)

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PETITIONER:

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BALU GOPALAKRISHNAN S/O.A.B.GOPALAKRISHNAN, PJRRA-G2, SILENT NAGAR, POTHUJANAM ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.

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BY ADV. SHRI.JAYKAR.K.S.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY, MINISTRY FOR HEALTH, SOCIAL JUSTICE AND WOMAN AND CHILD DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT, COLLECTORATE, CIVIL STATION, MALAPPURAM-676505.

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3 THE DISTRICT COLLECTOR, KOZHIKKODE DISTRICT, COLLECTORATE, CIVIL STATION, KOZHIKKODE-673020.

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4 GOVERNMENT MEDICAL COLLEGE, MANJERI, REPRESENTED BY ITS PRINCIPAL, VELLARANGAL, MANJERI, MALAPPURAM-676121.

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5 THE DISTRICT POLICE CHIEF, MALAPPURAM, DISTRICT POLICE CHIEF'S OFFICE, UP HILL, MALAPPURAM-676504.

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6 THE DISTRICT MEDICAL OFFICER, MALAPPURAM, DMO OFFICE, CIVIL STATION ROAD, UP HILL, MALAPPURAM-676505.

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7 GOVERNMENT WOMAN AND CHILD HOSPITAL, REPRESENTED BY ITS RMO, KOTTAPARAMBA, KOZHIKKODE-673001.

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8 THE DISTRICT MEDICAL OFFICER, KOZHIKKODE, CIVIL STATION, KOZHIKKODE-673020.

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9 N.C.MOHAMMED SHERIFF, FATHER OF THE DECEASED INFANTS, ADDRESS AND DETAILS UNKNOWN, TO BE SERVED THROUGH THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT, COLLECTORATE, CIVIL STATION, MALAPPURAM-676505.

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***[R9 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 30/11/2020 IN WPC]**

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SRI.TEK CHAND SR. GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“ C.R. ”

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JUDGMENT

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Dated this the 1^st day of December, 2020

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S. Manikumar, CJ.

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Mr. Balu Gopalakrishnan, the petitioner herein, is a lawyer by profession. He wants to bring to the attention of this Court an untoward incident, wherein a fully pregnant lady, who according to him, was made to run for 14 hours, by the District Medical authorities, resulting in the death of her twin children.

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The incident happened as a result of sheer apathy of the Government machinery, having scant regard to human lives. It had happened before also at the same Medical College Hospital, which is supposed to be the tertiary care centre in a district. A month before, four pregnant ladies were denied admission to the Medical College, citing they had COVID symptoms, and were referred to Perinthalmanna Government Hospital, 25 Kms and 40 minutes away. The public had to intervene and the 4^th respondent was constrained to take the patients in. On 26.09.2020, the hapless lady was turned away citing that the

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Medical College was a COVID Treatment Centre and non-COVID patients should seek medical care elsewhere. The 4^th respondent is

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expected to devise its own methods for critically ill patients and not let the patients in a lurch.

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Even though the Government Doctors are prohibited from private consultation, it is seldom followed. The State should come down heavily on such doctors and be booked under relevant provisions of criminal law. Accountability is about the relationship between the State and its citizens, and the extent to which the State is answerable for its actions. If people in responsible positions are non accountable for such dastardly acts, then the State loses its credibility. It is unfortunate that the police department has not till date registered a crime and started investigating into the deaths. This is not a case of medical negligence. But a brutal crime orchestrated by the system, where there is no value for a precious human life.

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This Writ Petition is filed to shake the Government from its slumber and to devise methods to safeguard the life of citizens. It is filed on behalf of the two dead children whose fundamental rights to life was curtailed by State apathy. It is filed to tie accountability of the deaths on the erring government servants. It exhorts the need for an investigation to the deaths by the State. It is an endeavour to bring out

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the unholy nexus between the private hospitals and the doctors who illegally get benefited from the gratis they receive from them, at the cost of a common man. It is filed with a prayer for monetary compensation to the parents of the deceased children, to be levied on the officials who will be held liable for the deaths, after investigation.

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The reliefs sought for in the writ petition are as follows:

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“i) Issue a writ in the nature of mandamus or any other appropriate writ or order, commanding the 1^st respondentState of Kerala, represented by Secretary, Ministry for Health, Social Justice and Women & Child Development, Thiruvananthapuram, to register a case and investigate into the foul play, which lead to the deaths of infants;

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ii) Issue a writ in the nature of mandamus or any other appropriate writ or order, commanding the 5^th respondentDistrict Police Chief, Malappuram, to investigate into the matter of doctors in the 4^th respondent Medical College and 7^th respondent hospital having private consultation, and their nexus with the private hospitals.

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iii) Issue a writ in the nature of mandamus or any other appropriate writ or order, commanding the 1^st respondent, to declare all emergency care patients to be taken care of without emphasising for COVID certificates.

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iv) Issue a writ in the nature of mandamus or any other appropriate writ or order, commanding the 1^st respondent, to

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pay a compensation of Rs.50 Lakhs or such other amount this Court deems fit, to the parents of the deceased children, and to recover the same from the erring officials.”

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6. In support of the reliefs sought for, petitioner has raised the

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following grounds:

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“A. The fundamental duty of the State to protect its citizens, when, in need, is breached, thereby warranting interference of this court in the issue. The machinery put in place did not help the common man and was only for the benefit of the bureaucratic officials. The poor family was made to run pillar to post. The officials responsible for the act did not even have the basic sensitivity to understand that a lady in the last stages of pregnancy should be given utmost care. When such patients visit a hospital, it becomes the duty of the officer in-charge to make sure all tests are done, with minimum trouble to the patient. In fact, the responsibility is on the hospital and not on the bystander to make all medical facilities available to her. But here she was shunned from place to place. No one wanted to take responsibility for the delivery. Everyone wanted minimum trouble and they did not care for the still born children. This is nothing but a criminal act. They are persons who know the repercussions of their actions. They are not common laymen. Yet they chose to wash their hands and shuttle the lady from one hospital to the other. They are men who are experts in the field, men who teach medical students, men who have performed hundreds of medical procedures, men who are thought to be saviors. They turned a blind eye. This act of omission on part of the doctors who had attended to the patient, both in the government hospitals as well as the private hospitals is a criminal act and has to be dealt with.

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B. Petitioner has further contended that it is a situation where a set of doctors think only about their salary and personal safety. It may not be the case with the medical fraternity as a whole. But, the alleged doctors chose not to attend to the patient on flimsy grounds. They put procedure and red tapism first and the precious life of the infants at bay. This cowardly act is also attributable to the other Government servants who did not attend the patient. The divinity attached to the profession warrants them to rise up to the occasion and attend to the needy. But sorry to say that, they themselves have set up procedures according to their convenience and are in their own cocoon of safety.

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C. It is further contended that most of the gynecologists in the 4^th respondent and 7^th respondent hospitals are having their private practice. It extends to other departments also. Doctors in Government service are actually expected to be a bit more service oriented than their peers in the private sector. That is the respect that they command. By having a flourishing private practice, they are jeopardizing the lives of those patients who can only afford Government facilities. Why should a doctor attend to patients privately, while he can do so at the Government hospital. The greed and insensitivity to precious lives determine such attitudes of such people. Hence, he prays that the 5^th respondent or his men conduct an investigation into the aspect and pull those doctors who are practicing in violation of the norms prescribed.

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D. The procedure adopted by the State machinery has violated the fundamental right to life, of the deceased, as well as the parents. If the same protocols are followed, then there will be more deaths. The patient was made to travel for more than 175 kms and for 14 hours, before the mishap happened. The Government is having a COVID tracking digital platform. We wonder for what purpose the Application is developed,

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without benefit for the citizens. If the application has to be used in the proper manner, the data has to be shared to all the medical stakeholders, and thereby minimising the unwanted effort of the patients to take multiple COVID tests while getting treatments at the hospitals. Now it only services the COVID number games of the Government.

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A counter affidavit has been filed by the Principal, Government

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Medical College, Manjeri/4^th respondent, contending as follows:

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“(a) The Manjeri Medical College is the 6^th Government Medical College in the State which commenced its functioning in 2013. The hospital has 500 beds and 12 operation Theaters for the treatment of patients. During the Covid pandemic period, 1038 positive pregnant patients were treated and 507 deliveries, including complicated cases, were undertaken by the hospital. The hospital has now had an experience of treating more than 54000 Covid related out patients and more than 15000 inpatients during this pandemic period. Unlike other districts, the institution in question is the only hospital in Malappuram District to treat Covid positive pregnant cases till late September.

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(b) It is further contended that a patient named Smt. Sahala Thasneem, 20/F, (hereinafter referred to as 'the patient') wife of the 9^th respondent was admitted in this hospital thrice during the Covid pandemic period. She was pregnant with the Expected Date of Confinement (EDC) on 26.10.2020. When the patient became Covid positive, she was admitted in the hospital on 05.09.2020 for the first time. After becoming negative, she was discharged on 15.09.2020 and was advised home quarantine for 7 days as per the State protocol. Again, she got admitted on 18.09.2020 with lower abdominal pain and got discharged on 19.09.2020. Thereafter, the patient came to the hospital casualty on 26.09.2020 at

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5.30 a.m. with lower back pain and lower abdominal pain. The patient was transferred to the labour room and got admitted at 8.22 a.m. While in hospital, she was properly monitored. As per the advice from the Head of Department, Obstetrics and Gynecology Department (hereinafter referred to as `OBG' for short), it was decided to keep the patient in the hospital itself for 24 hours and to shift her in case of necessity to a non-Covid treatment centre. While in the hospital, her vitals were stable and there were no signs of preterm labour. The patient was having Dichorionic Diamniotic (DCDC), twin pregnancy. As per the hospital records, the uterus was relaxed, nontender, cervix was closed, Fetal Heart Sounds (FHS) was good and Non Stress Test (NST) reactive.

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(c) It is further contended that at 11.30 a.m. on 26.09.2020, the patient was discharged and referred to Kottapparamba Government Hospital, Calicut by the duty Gynaecologist as per the instructions of the 2^nd call OBG Medical Officer following a telephonic request from the husband of the patient, 9^th respondent. Since the patient was having mild abdominal pain, the 9^th respondent was informed that the patient can be discharged only when there is no pain. The first call duty doctor attended all patients in the duty room and cesarean section at the operation theatre, came back at 11.30 a.m., and examined the patient. The patient was found to be not having active pain and was not in labour. Since the relatives insisted on getting referred, the patient was discharged with a reference letter to Kottapparamba Government Hospital, Calicut. Though the hospital arranged an ambulance for transportation, the relatives did not accept it stating that they have their own private vehicle with them. Thereupon, it is from the media that the hospital authorities came to know that the patient visited many hospitals and finally reached Medical College Hospital, Calicut, and got admitted there.

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(d) It is further contended that based on the untoward incident that happened wherein the patient lost her twins, an internal preliminary enquiry was conducted on 28.09.2020 by constituting a team of two Deputy Superintendents of the hospital and a nursing officer. After enquiry, a report Exhibit-R4(a) was submitted to the 4^th respondent, the District Medical Officer and the District Collector. On the same day, a team from the District Medical Office, Malappuram has also conducted an enquiry. Therefore, it is clear that the hospital did not deny treatment to the patient. On the other hand, it is clear that the patient was discharged and was forced to refer to Kottapparamba Government Hospital because of the repeated request from the patient and their relatives.

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(e) It is further contended that the 4^th Medical College is providing maximum possible service to all patients in spite of shortage of staff and within the resources available. From September 2020, this hospital has arranged 125 dedicated beds for OBG Department. After becoming a dedicated Covid hospital, the monthly Covid related deliveries have increased from 8 in the month of April to 283 deliveries in the month of October 2020. Utmost care and quality treatment is being provided for all patients admitted at the hospital. It is reiterated that during this pandemic period, the hospital has catered to 1038 Covid pregnancies and 507 positive deliveries, which is double the number of such cases attended to by any other Government Medical Colleges in Kerala. Under the circumstances, there has not been any laxity or negligence on the part of the staff of this Medical College in providing treatment to the patient. The patient came to be discharged only on account of the persistent request made by the relatives of the patient. As regards the allegation that Gynaecologists from the Director of Medical Education are undertaking private practice, it is submitted that from March, 2020 Gynaecologists from the Director of

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Medical Education are working in this hospital. No complaints have been received about them regarding their private practice. Therefore, the allegation made in this regard is untrue and unsubstantiated.”

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Exhibit-R4(a) report of preliminary internal enquiry conducted

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on 28.09.2020 regarding alleged delay in getting treatment for a pregnant woman on 26.09.2020 at Government Medical College Hospital, Manjeri and death of her twin babies, produced along with the counter affidavit of the 4^th respondent reads thus:

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“Report of preliminary Internal Enquiry conducted on 28/09/2020, regarding alleged delay in getting treatment for pregnant woman on 26.09.2020 at Government Medical College Hospital, Manjeri and death of her twin babies following that.

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Dr. Sheena lal. L. Deputy Superintendent. Dr. Mohammed Afsal, Deputy Superintendent (General) & Smt. Nalini P. Nursing Officer were the Enquiry Officers.

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Statements of all concerned Medical Officers, Staff Nurses other supporting staff were recorded during enquiry.

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As per the statement of Dr. Nidheesh. U.C. who was the casualty duty medical officer on 25/09/2020 night shift, Smt. Shahla Thasneem came to casualty at about 5 am on 26/09/2020. After taking detailed history and conducting the basic examination, informed labour room, following which as per instructions of Gynecology Duty Medical Officer, the patient was shifted to labour room.

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As per the statement of Dr. Deepthi. K.R. Senior Resident and 1^st call duty medical officer, Gynecology department of night shift 25/09/2020, Smt. Shahla Thasneem came to the labour room and an examination was conducted. She was a Primi gravida (35 wks & 7 days) and was having Dichorionic Diamniotic Twin Pregnancy. She was

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admitted here on 18/09/9020 and got discharged on 19/09/2020. Her quarantine period was over. She came with low back pain. Her Blood pressure, Pulse rate, Respiratory rate, SPO2 were normal. No sign of preterm labour was there. For taking decision she contacted Gynecology HOD Dr. Jacob at 7 am on 26/09/2020 and he advised her to admit the patient and to decide on reference to a non covid centre only on the next day. But at that time Dr. Rehna. U. 2^nd call Gynecology Duty Medical Officer called Dr.Deepthi and told her that the husband of Smt. Shahla Thasneem, the pregnant woman was known to Dr. Rahna and they were not interested to continue treatment here since the patient was covid negative.

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As per the statement of Dr. Nishana, who was the call gynecology duty MO on 26.9.2020 morning, when she entered the labour room for duty, bystander of Smt. Shahla Thasneem approached her and discussed regarding discharge. Since the patient was covid negative and the quarantine period was over, he asked for a reference to Kottapparamba Hospital, Calicut. Dr. Nishana told him that it can be decided only after examining the patient. After making arrangements for the elective cesarean sections posted, she took rounds of all patients in the labour room including Shahla Thashneem. On examination, she was found to have twin pregnancy, with no signs of labour. But, as she was having low back ache, it was decided not to discharge the patient and necessary directions were given to the staff nurse and the same was explained to the patient. Then Dr. Nashana went for a cesarean section and came back. At that time, Smt. Shahla Thasneem told that she was not having a low back ache and she wanted to go to Kottapparamba Hospital. Dr. Nishana examined the patient again. Both foetal heart sounds were normal and there were no signs of labour. So, Smt. Shahla Thasneem was discharged. In the discharge card, at first it was mentioned that ' the discharge was at request '. But the bystander requested the doctor to avoid that statement since the patient may not get treatment from the referred hospital. As the patient was covid negative and as the quarantine period was over, she could be treated in a non covid

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hospital. So that statement in the discharge card was changed to ' referred to Kottapparamba Hospital, Calicut '. It was also mentioned that Dr. Nishana and staff had arranged a vehicle for transportation but they denied it stating that they have their own private vehicle for transporting the patient.

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Statements of Smt. Shaji Staff nurse in labour room on 25/09/2020 night shift and Smt. Sruthi mol, Staff nurse, labour room on 26/09/2020 morning shift were taken. They also explained the same incidence stated by Dr. Deepthi and Dr. Nishana. Though they arranged a vehicle for transportation of patients after discharge they refused. As the patient was not ready to go in the trolley, grade II attender shifted the patient in a wheelchair.

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Statement of Smt. Mini Karunakaran, Head Nurse, labour room who was on duty on 26/09/2020 morning shift was recorded. The statement of Smt. Khadeeja, head nurse on duty at the nursing superintendent office on 25/09/2020 night shift, staff nurses Smt. Vipisha & Sunitha, Nursing Assistants Smt. Latha & Lilly Kanjiral, grade II Attenders Smt. Soumini & Smt. Mini were also recorded. Nothing additional was there in their statements.

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As per the hospital records, casualty ticket for Smt. Shahla Thasneem 20 yrs., W/o. Muhammed Shareef was issued at 5.30 am. on 26/09/2020. She was admitted here with an IP Number of 19356, at 8.22 am and she got discharged at 12 noon on the same day. Previously she was Covid positive on 03/09/2020 and had got admitted here. She became negative on 15/09/2020 and had got discharged. Again she was admitted here on 18/09/2020 with back pain and had got discharged on 19/09/2020. Smt. Shahla Thasneem was a Primi, with EDC on 26/10/2020, gestational age of 35 weeks +5 days. Dichorionic Diamniotic Twins. Examination findings of Dr. Deepthi at 7 am was recorded as vitals stable, Uterus over distended, relaxed, non tender, cervix OS closed. The patient was Covid negative and had completed quarantine period and the patient wanted to go to a non covid hospital. At 9.00 am Dr. Nishana had examined the patient and had

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discussed with Dr. Jacob, HOD. and FHS was recorded as good. At 11.30 am relatives of the patient had discussed regarding discharging the patient with the gynecologist and also regarding reference to a non covid hospitalKottaparamba Hospital, Calicut. It was also recorded by Dr. Nishana that her abdomen uterus was relaxed and both FIIS were good. In the discharge summary if is recorded the vitals were stable. Uterus over distended. Relaxed, non tender, Cervix OS closed. Also recorded that Dr. Jacob. HOD was informed prior to reference and the patient was referred to Kottapparamba Hospital at request.

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Findings :

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The patient named Smt. Shahla Thasneem, 20 yrs. was admitted at Govt. Medical College Hospital. Manjeri on 05/09/2020 after becoming Covid positive and got discharged on 15/09/2020 after becoming negative.

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Smt. Shahla Thasneem came to GMCH Manjeri labour room at about 5 am on 26/09/2020 with low abdominal pain and low back ache. Dr. Deepthi, 1^st on call duty gynecologist had examined her. ‘There was no signs of labour. The same patient had got admitted in this hospital on 18/09/2020 with low back ache and had got discharged on 19/09/2020.

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At about 7 am on 26/09/2020 Dr. Deepthi informed Dr. Jacob, HOD gynecology department regarding this patient and their request to get discharged and referred to Kottapparamba Hospital, Calicut, since the patient was covid negative and had completed her quarantine period. But. Dr. Jacob directed Dr. Deepthi not to refer the patient at that time since she was having pain.

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After that time Dr. Rehna. U., 2^nd on call duty medical officer of gynecology department informed Dr. Deepthi that the husband of Smt. Shahla Thasneem had called her and told her that they had already made arrangements for admission at Kottapparamba Hospital, Calicut and they wanted to get discharged that day itself so as to reach Kottapparamba Hospital, Calicut before 1 pm. Also informed Dr. Deepthi that the patient should not be referred if there was pain.

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As per the statement of Dr. Nishana who was the day duty MO, gynecology department on 26/09/2020, Smt. Shahla Thansneem had paid when examined and decided not to refer her at that time and discharge could be considered once her pain subsides. After that Dr. Nishana attended the caesarian section and again examined Smt. Shahla at about 11 am. At that time she did not have any pain and had no sign of labour. Patient and bystanders were repeatedly asking for reference to Kottapparamba Hospital, Calicut. So she decided to refer.

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As per the statement of Dr. Nishana, it was recorded as ' discharge at request ' in the discharge card but it was changed to ' referred to Kottapparamba Hospital ' due to request from bystanders.

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Duty Medical Officer and staff offered Ambulance to the patient. But the relatives didn't accept it stating that they had their own private vehicle.

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It is understood from the statements that bystanders of the patient had asked for reference to Kottapparmba Hospital, Calicut, since patient was Covid negative on 15/09/2020 and as the quarantine period was completed and as Government Medical College Hospital, Manjeri is a dedicated Covid Hospital.

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From the records it is understood that the medical officer ensured that the patient was stable and was not having any signs of labour and Fetal heart sounds were good and NSTR was reactive, at the time of referral.

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Conclusions :

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Since March 21^st , 2020 Government Medical College Hospital, Manjeri is working as a dedicated covid hospital. At present there are more than 600 patients admitted here with more than 110 patients admitted for obstetric case.

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After examining the hospital records and statements from staff, Smt. Shahla Thasneem, 20 yrs., after reaching the hospital received proper care and treatment from this hospital. She was referred to Kottapparamba Hospital, Calicut which is a non covid hospital only because of the

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repeated requests from the patient and her relatives. Before referring the patient the medical officer on duty ensured that the patient was stable and was not having any signs of labour and she was in a transferable condition. Hospital staff had arranged Ambulance for transferring the patient but the relatives didn’t accept it stating that they had their own private vehicle with them. So the patient was referred in their own vehicle.

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Sd/Sd/Sd/Smt. Nalini. P Dr. Muhammed Afsal Dr. Sheena lal. L Nursing Officer Deputy Superintendent Deputy Superintendent” (General)

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Mr. K. S. Jaykar, learned counsel for the petitioner, made

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submissions on the averments and grounds. He further submitted that

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the fundamental rights of the foetus were taken away by the irresponsible conduct of the doctors. He further submitted that as the petitioner is not personally aggrieved, he may not be able to file a private complaint to the court of competent jurisdiction.

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Mr. V. Tek Chand, learned Senior Government Pleader, submitted that a preliminary enquiry was ordered, wherein it was found that there is neither culpability nor negligence in providing treatment to the pregnant woman. Based on the averments in the counter affidavit, he made submissions and prayed for dismissal.

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Heard the learned counsel for the parties and perused the material on record.

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Indisputably, all over the world, dedicated services of doctors, nurses, and health workers, in taking care of COVID-19 patients, have been recognised. No doubt, it is their duty. Petitioner has alleged culpability and not negligence. Any doctor, whose services, dedicated to the fellow men, would not intentionally act to cause death of a newborn baby, warranting registration of a crime, and consequently, compensation to be awarded to the alleged victim.

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Material on record discloses that Government Medical College Hospital, Manjeri has 500 beds and 12 Operation Theatres. During COVID-19 pandemic, 1038 pregnant patients affected with Corona virus have been treated. 507 deliveries have been made. Hospital, has so far treated 54000 COVID related outpatients and 15000 inpatients. It is the only hospital in Malappuram district to treat pregnant COVID patients, till September, 2020.

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Perusal of the counter affidavit of the 4^th respondent shows that the pregnant lady was admitted in the very same hospital thrice. When the patient was tested positive, she was admitted and treated in the hospital between 5.9.2020 and 15.09.2020. In paragraphs 3 and 4 of the counter affidavit, the Joint Secretary to the Government, Senior

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Administrative Officer, Government Medical College, Manjeri has explained the details of admission of the patient and treatment given.

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The number of deliveries as regards pregnant women, who were affected with Corona virus, have increased from eight, in the month of April, 2020, to 283, in the month of October, 2020. Statistics, disclose that adequate care and treatment have been provided to the COVID pregnant women, and there is no reason as to why, the doctors and nurses, who had treated the patient differently, and that too, with culpability. From the averments and the preliminary report, it appears that against the medical advice, the patient got discharged, and taken to other hospitals.

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On the aspect, as to whether there was any negligence, a preliminary enquiry has been conducted on 28.09.2020, by constituting a team of two Deputy Superintendents of the Hospital and a nursing officer, and a report dated 28.09.2020 has been submitted to the District Collector [Exhibit-R4(a)].

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Perusal of the said report shows that the patient was given treatment and discharged on request. Petitioner has alleged culpability, due to the death of twin babies, and sought for the reliefs stated supra.

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Though the petitioner has contended that, as he is not personally aggrieved, he cannot prefer a complaint to the court of competent jurisdiction, it is well known that criminal law can be set in motion by anybody. On the said aspect, after considering various decisions and the provisions of Code of Criminal Procedure, 1973, this Court in W.P. (C) No.14316/2020 dated 22.07.2020 [ Micheal Varghese v. Honourable Shri Pinarayi Vijayan and Others ] has passed detailed orders. As regards deprivation of fundamental rights to the foetus, it is to be noted that on request, the patient got discharged and travelled.

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For culpability, except the averments, there are no supporting materials to substantiate the case of the petitioner in the writ petition.

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On the aspect of filing of a Public Interest Litigation, in

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Guruvayur Devaswom Managing Committee & Anr. v. C.K.Rajan

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& Others [(2003) 7 SCC 546], the Hon'ble Supreme Court has summarised the principles, which are reproduced:

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“(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.

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The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. [See S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India (1982) 2 SCC 494, Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161 and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)]

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(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 81)]

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(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi

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v. Rani Jethmalani (AIR 1979 SCC 468), it was held:

¶146

"2. Assurance of a fair trial is the first imperative of

¶147

the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more

¶148

¶149

W.P.(C).22965/2020

¶150

substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” (See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138)

¶151

(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others reported in (2002) 2 SCC 333]

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(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.

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W.P.(C).22965/2020

¶155

(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 and Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri and others, (1986) 1 SCC 100 ]

¶156

(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India and Others 1989 Supp (1) SCC 251)

¶157

(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227).

¶158

(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such a Committee. (See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC

¶159

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W.P.(C).22965/2020

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718). In Sachidanand Pandey and Another v. State of West Bengal and others [(1987) 2 SCC 295], the Hon'ble Apex Court held thus,-

¶162

“61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."

¶163

That apart, in the unreported judgment dated 30.06.2020 in

¶164

B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C)

¶165

No.12109 of 2020], at paragraph 45, this Court held thus:

¶166

“45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in Mythri Residents Association v. Secretary, Tripunithura Municipality and Others, [2019 KHC 832], it has been summarised by the journal thus:

¶167

“(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

¶168

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W.P.(C).22965/2020

¶170

(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.

¶171

(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

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(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

¶173

(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.

¶174

(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

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(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

¶176

(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

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(9) The misuse of public interest litigation is a serious matter of concern for the judicial process.

¶178

(10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears.

¶179

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W.P.(C).22965/2020

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(11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes.

¶182

(12) This Court has a long list of pending cases where the personal liberty of citizens is involved.

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(13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice.

¶184

(14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda.

¶185

(15) This has spawned an industry of vested interests in litigation.

¶186

(16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention.

¶187

(17) Worse still, such petitions pose a grave danger to the credibility of the judicial process.

¶188

(18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law.

¶189

(19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services.

¶190

(20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.

¶191

(21) Courts resolve disputes about legal rights and entitlements.

¶192

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W.P.(C).22965/2020

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(22) Courts protect the rule of law.

¶195

(23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.

¶196

Moreover, it is not the case of any close relative of the

¶197

pregnant woman, that there was culpability or negligence on the part of the doctors or other staff.

¶198

Giving due consideration to the pleadings and material on record, particularly Exhibit-R4(a) preliminary enquiry report of the team of doctors and nursing supervisor dated 28.09.2020, we are of the view that the reliefs sought for by the petitioner cannot be granted. Accordingly, this writ petition is dismissed.

¶199

Sd/S. Manikumar Chief Justice

¶200

Sd/Shaji P. Chaly Judge

¶201

sou.

¶202

xxx

Balu Gopalakrishnan v. State of Kerala

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Balu Gopalakrishnan v. State of Kerala

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