2017 (8) TMI 1507 - HC - Indian Laws

Constitutional validity - test of Article 14 - scope of medical profession of doctors - vires of West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 - maintainability of writ petition - scope of relief sought for / prayed for - whether the provisions of the act are arbitrary, unreasonable and irrational - Held that - The prayer portion of the writ petition is not happily drafted. A member of the public would not be committing sacrilege, if such member was to observe that, the prayers made in the writ petition under consideration, imitates the level of diligence and care, the public have become accustomed to receive from the medical practitioners in the present day. However, it would be harsh to return a finding that, the writ petition is not maintainable as the prayers are not happily drafted. Even if the Court is to consider the challenges to the various provisions of the Act of 2017, notwithstanding the prayers as it stands in the writ petition, the Court would not be guilty of travelling beyond the pleadings. A medical consultation clinic will be used solely for the purpose of consultation and advice. The Act of 2017 does not take away the choice of an individual doctor to carry on its profession as a doctor and have a medical clinic or a medical consultation clinic. If a doctor is required to treat a patient in the course of consultation and advice, such a place would be considered as a medical clinic coming within the definition of clinical establishment under Section 2(c) of the Act of 2017 requiring such doctor to take a registration under the Act of 2017. Requirement to undergo a registration under the Act of 2017 by itself does not infringe or take away the right to carry on one s profession guaranteed under Article 19(1)(g). The right guaranteed under Article 19(1)(g) is not absolute and can be subjected to reasonable restrictions. The Act of 2017 does not militate against the right of the doctor to recover the reasonable and appropriate cost for the treatment advanced. It has been suggested that, the various provisions of the Act of 2017 which permits a service recipient to receive the service first and pay later will give rise to a situation where a service provider would not be in a position to recover the cost. With respect, such a view is contrary to the oath of a doctor. Moreover, the Act itself provides that, a doctor will be entitled to recover the costs from the service recipient or their representatives. What it essentially seeks to do is, address the malpractices obtaining in the health care sector. It can be said that the Act of 2017 is within the legislative competence of the State Government to legislate.

Summary

Issues Involved:
1. Maintainability of the writ petition.
2. Constitutionality of various sections of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017.
3. Reliefs entitled to the parties.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition:

The maintainability of the writ petition was questioned on two grounds: the absence of specific prayers challenging the sections of the Act of 2017 argued during the hearing and the lack of cause of action for the petitioners. It was argued that the petitioners, being unregistered under the Act, had no standing to challenge it. The court noted that the petitioners had raised contentions regarding the provisions of the Act in the body of the writ petition, although the prayer portion was not well-drafted. The court held that it would be harsh to dismiss the writ petition solely on the grounds of poorly drafted prayers, as the respondents were aware of the challenges to the provisions of the Act. The court found that the writ petition disclosed a cause of action and was maintainable.

2. Constitutionality of Various Sections of the Act:

The petitioners challenged the vires of several sections of the Act of 2017, arguing that they failed the test of Article 14 of the Constitution of India and infringed upon the fundamental right to practice one's profession under Article 19(1)(g).

a. Definition of Clinical Establishment (Section 2(c)):
The petitioners contended that the definition of 'clinical establishment' was unreasonable and impractical for individual medical practitioners. The court held that the Act did not take away the choice of an individual doctor to carry on their profession and that the requirement to undergo registration under the Act did not infringe upon the right to practice one's profession.

b. Conditions for Registration and Licence (Section 7):
The petitioners argued that the conditions imposed by Section 7 were impractical and onerous. The court found that the Act did not impede a doctor in the discharge of their professional duties and that the provisions were aimed at addressing malpractices in the health care sector.

c. Penalties and Compensation (Sections 27, 29, 30, 33):
The petitioners contended that the penalties and compensation provisions were excessive and arbitrary. The court held that the Act provided a mechanism for adjudicating complaints and awarding compensation and that the provisions were not in conflict with existing laws such as the Consumer Protection Act, 1986.

d. Regulatory Commission (Sections 36, 38):
The petitioners argued that the composition of the West Bengal Clinical Establishment Regulatory Commission, which included non-medical personnel, was prejudicial to doctors. The court found that the Commission's composition was broad and inclusive, allowing for a better view on matters and that the absence of medical personnel in a meeting did not vitiate the decision-making process.

e. Legislative Competence:
The court held that the Act of 2017 was within the legislative competence of the State Government under List II Entry 6 of the 7th Schedule to the Constitution of India, which relates to public health and sanitation.

3. Reliefs Entitled to the Parties:

Given the findings on the first two issues, the court concluded that the petitioners were not entitled to any relief. The writ petition was dismissed with no order as to costs.

Conclusion:

The writ petition challenging the vires of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017, was found to be maintainable. However, the court upheld the constitutionality of the various challenged sections of the Act, concluding that the provisions were reasonable, non-arbitrary, and within the legislative competence of the State Government. Consequently, the petitioners were not entitled to any relief, and the writ petition was dismissed.