Indian medical jurisprudence

The Indian legal system governing medical practice operates at the intersection of criminal law (under BNS), procedural law (under BNSS), and various civil and regulatory frameworks. These statutes address criminal responsibility and procedural duties, while medical negligence is primarily shaped by judicial precedents. Healthcare providers also have legal obligations, including providing emergency treatment to victims as mandated by law and judicial directives (Section 397 BNSS). The judicial hierarchy in India defines the sentencing powers of courts from the Magistrate level to the Supreme Court, and procedural law (BNSS) governs inquests, primarily categorized as police and magistrate inquests. Magistrate inquests are mandated in sensitive cases such as custodial deaths, dowry deaths, and exhumations, which are conducted under judicial authorization when further investigation is required. Evidence is broadly classified into oral and documentary forms, and medical professionals may serve as both fact and expert witnesses. Testimony is recorded through examination-in-chief, cross-examination, and re-examination under oath. Dying declarations and depositions are important forms of evidence in homicide cases; while medical certification of the declarant’s mental fitness is desirable, it is not legally mandatory if the court is otherwise satisfied. Medical practice is regulated by the National Medical Commission (NMC) and State Medical Councils, which enforce professional and ethical standards and may impose disciplinary actions, including suspension or removal from the medical register. Specialized statutes, including the Medical Termination of Pregnancy (Amendment) Act, 2021, the Surrogacy (Regulation) Act, and the Protection of Children from Sexual Offences (POCSO) Act, further regulate reproductive rights and protect vulnerable populations.

Bharatiya Nyaya Sanhita

• The Bharatiya Nyaya Sanhita (BNS) is the primary criminal code of India.
• The BNS replaced the former Indian Penal Code (IPC) of 1860 and came into effect on July 1st, 2024.
• While much of the IPC's core remains, the BNS features key changes aiming to streamline the legal process and modernize definitions of crime.
  • Includes new categories of offenses (e.g., organized crime, terrorism act, petty organised crime)
  • Modernized punishment (e.g., community service introduced as a formal punishment)
  • Changes to controversial laws (e.g., provisions criminalizing adultery and consensual sex between people of the same sex have been omitted)

The BNS defines crimes and punishments, whereas the BNSS determines how those crimes are investigated, tried, and enforced.

Criminal responsibility & exceptions

The law establishes specific thresholds for criminal intent and responsibility based on age, mental state, and intoxication.

• Child < 7 years (BNS Section 20): not criminally liable
• Child 7–12 years (BNS Section 21): punishable only if they are mentally mature
• Insane person (BNS Section 22)
  • Not liable if unable to know the nature of the act or its illegality at the time of commission
  • Delirium tremens: In the event of a crime committed during delirium tremens, the individual is not liable under Section 22 BNS.
• Involuntary intoxication (BNS Section 23): not liable
• Voluntary intoxication (BNS Section 24): fully liable

These acts define the legal boundaries for specific medical procedures and provide a framework for protecting vulnerable populations.

Medical termination of pregnancy (amendment) act, 2021

This act regulates the conditions under which a pregnancy can be legally terminated. It was passed to amend the original act from 1971 to expand access to abortion services in India.

Overview

• Indications
  • Eugenic: substantial risk for fetal abnormalities (e.g., genetic disorders, congenital birth defects)
  • Medical: situations in which pregnancy would cause substantial physical harm or mental health issues and/or endanger the life of the mother
  • Social
    • Failure of contraception
    • Change in marital status, situations in which pregnancy
    • Situations in which pregnancy would cause mental distress due to economic or social reasons
  • Humanitarian: pregnancy resulting from rape, mass disaster
• Consent
  • Age ≥ 18 years: can consent
  • Age < 18 years/mentally ill: consent must be obtained from a guardian
• Records
  • Must be kept strictly confidential and preserved for 5 years
  • A summary report of all MTP cases needs to be sent to the CMO

Approval requirements

Provider requirements

To be allowed to perform medical termination of pregnancies (MTPs), RMPs must meet specific criteria:

• Having assisted in at least 25 medical pregnancy terminations
• Having six months of house surgeon experience in OB/Gyn or having a postgraduate degree or diploma in the field

Criminal abortion

Surrogacy Regulation Act

Surrogacy is an arrangement where a woman (the surrogate) carries and gives birth to a baby for another person or couple (the intending parents), with the legal intention of giving the baby to them after birth.

Legal and illegal surrogacy

The act distinguishes between permitted and prohibited forms of surrogacy and sets strict eligibility criteria.

• Permitted: altruistic surrogacy (no monetary compensation to the surrogate mother; only medical expenses and insurance are covered).
• Prohibited: commercial surrogacy (monetary compensation given to the surrogate mother).

Eligibility criteria

The act requires that the child be genetically related to at least one intended parent. Unmarried persons/couples and foreign nationals are not eligible for surrogacy in India.

Transplantation of human organs act 1994 (2014)

This act regulates the removal, storage, and transplantation of human organs for therapeutic purposes and prevents commercial dealings in human organs.

Bharatiya Nagarik Suraksha Sanhita

• The Bharatiya Nagarik Suraksha Sanhita (BNSS) is the primary criminal procedures code in India.
• The BNSS replaced the Code of Criminal Procedure (CrPC) of 1973 and came into effect on July 1st, 2024.

The BNS defines crimes and punishments, whereas the BNSS determines how those crimes are investigated, tried, and enforced.

Procedural classification of offenses

• Cognizable offense
  • An offense for which the police can register and start an investigation immediately
  • Station House Officer is legally required to file a First Information Report upon receiving information about the offense
  • The suspect can be arrested without a warrant.
  • Examples include kidnapping, rape, and murder
• Noncognizable offense
  • An offense for which a police investigation cannot be started without a court order
  • The suspect cannot be arrested without a warrant
  • Examples include defamation, mischief, and public nuisance

Cognizable offenses allow the police to act immediately, whereas non-cognizable offenses require court permission and typically a warrant.

Procedural classification of cases

• Warrant case
  • Criminal case relating to an offense that is punishable by death, life imprisonment, or imprisonment exceeding two years
  • Requires a more detailed procedure than a summons case to ensure a fair trial because of the severity of punishment that is possible
  • Medical expert witnesses are often summoned to provide testimony in these trials
• Summons case
  • A criminal case relating to an offense punishable with imprisonment of up to two years
  • Can be handled through a simplified and faster procedure

Warrant cases involve serious offenses and follow stricter trial procedures, while a summons case concerns less serious offenses that can be handled through a simpler process.

The Indian legal system follows a tiered hierarchy of criminal courts, each with specific jurisdictions and powers to award punishments and fines.

Hierarchy of criminal courts and sentencing powers

The sentencing authority of a court is determined by its position in the hierarchy. While the Supreme and High Courts have broad authority, lower courts are restricted by statute.

Legal safeguards in death sentencing

Specific legal safeguards govern the awarding, confirmation, and commutation of the death penalty in India.

• Awarding vs. confirmation
  • The Sessions Court is the lowest court authorized to award a death sentence.
  • The sentence cannot be executed unless confirmed by the High Court.
• Commutation
  • A death sentence may be reviewed or commuted by higher courts, including the Supreme Court.
  • It may also be commuted through executive clemency by the President or a State Governor.
  • If a woman sentenced to death is pregnant, the sentence shall be commuted to life imprisonment (Section 456 BNSS).

Juvenile Justice Board (JJB)

• Specifically handles offenders who are below the age of majority (18 years)
• Presided by a First Class Magistrate and 2 social workers (one of which has to be female)
• Primary goal: rehabilitation instead of punishment
• Minors are usually not sent to adult prisons but stay in special homes
• Juvenile records are usually destroyed or sealed when a minor turns 18 to help them get a fresh start

Summons and attendance

• Definition
  • A Summons is a formal written order issued by a court or a public servant requiring a person to appear at a specific time and place.
  • Intentional failure to attend without a valid excuse is punishable under section 209 BNS
• Types
  • Summons to give evidence (subpoena ad testificandum): compels the witness to appear and provide oral testimony
  • Summons to produce documents (subpoena duces tecum): compels the witness to produce specific documents or records (section 94 BNSS)
• Priority of attendance: If an individual receives multiple summons for the same date, the order of attendance is prioritized as follows:
  1. Authority: higher court > lower court (e.g., High Court > Sessions Court).
  2. Nature of proceedings: criminal court > civil court.
  3. Chronological order: if courts are of equal status, the individual must attend the court that served the summons first.
• Witness fee
  • Civil cases: party summoning the witness must provide a fee to cover traveling and incidental expenses at the time the summons is served.
  • Criminal cases: state covers witness expenses as the witness is technically assisting the state

An inquest is a preliminary legal inquiry into the cause of an apparently unnatural, sudden, or suspicious death. Its purpose is fulfilled once the investigation into the cause of death is completed. In India, the procedure is governed by the BNSS.

Types of inquests

Inquest types are categorized based on the investigating authority and the sensitivity of the circumstances surrounding the death.

• India
  • Police inquest (194 BNSS)
  • Magistrate inquest (196 BNSS)
• Other systems outside of India
  • Coroner's inquest
  • Medical examiner system

Comparison of police vs. magistrate inquest

Mandatory magistrate inquest

A magistrate inquest is legally mandated in specific situations where a higher degree of transparency is required:

• Custodial death: any death occurring while the person is in police or judicial custody
• Police firing: fatalities resulting from police action or firing
• Death in a mental health institution: especially if there are concerns about neglect, restraint, treatment practices, and/or violation of patient rights
• Dowry death : the death of a woman occurring within 7 years of marriage under suspicious circumstances
• Exhumation: typically due to suspicion of foul play, new evidence, and/or the need for further forensic investigation

Medical evidence

Medical evidence serves as a critical link between clinical findings and judicial outcomes. It is classified by its source and the method of its presentation in court.

By presentation

• Documentary evidence
  • Medical certificates, e.g., sick notes
  • Medico-legal reports
  • Post-mortem reports
  • Dying declaration
• Oral evidence
  • Statements made by witnesses in court
  • Superior to documentary evidence, as it allows for immediate cross-examination

By source

• Direct evidence
  • Proves a fact directly
  • No inference needed
  • Example: eyewitness testimony
• Indirect evidence
  • Suggests a fact through surrounding circumstances rather than direct observation
  • Requires logical deduction
  • Examples: forensic reports, CCTV footage

Stages of witness examination: the statutory sequence

The process of recording evidence in an Indian court follows a strict four-step sequence :

1. Oath or solemn affirmation
   • Mandatory for all witnesses before providing testimony
   • Children under 12 years are exempt from taking an oath if they do not understand the nature of it
2. Chief examination (direct examination)
   • Conducted by the party calling the witness to bring out the facts of the case in the witness's own words
   • Leading questions are not permitted.
3. Cross-examination
   • Conducted by the opposing lawyer to test the witness's accuracy and credibility and find potential inconsistencies
   • Leading questions are permitted.
4. Re-direct examination
   • Conducted by the original calling party to clarify any doubts or misinterpretations that arose during cross-examination
   • If new evidence is introduced, cross-examination by the opposing party is possible again
   • Leading questions are not permitted.

Witnesses in court

• Common witness
  • Testifies about facts perceived through their own five senses (e.g., "I saw the accused enter the scene of the crime.").
  • No special expertise required
  • Is usually not allowed to give opinions and interpretations
  • Testimony is usually substantive if the witness is credible
• Expert witness
  • Provides an opinion based on specialized knowledge, skill, and training (e.g., "The pattern of the wound is consistent with a heavy, sharp-edged weapon").
  • Is allowed to provide opinions and interpretations
  • Advisory in nature to help the court understand complex technical evidence

A medical professional may be called to testify in both capacities.

Special witness procedures

• Perjury (section 227 BNS): intentionally giving false testimony or fabricating evidence while under oath
  • Punishable by up to 7 years in prison under section 229 BNS
  • Key requirement for perjury: witness must deliberately make a false statement
• Hostile witness: a witness with a hostile disposition towards the calling party and does not want to tell the truth
  • The lawyer who called them may request the judge to declare them hostile, allowing them to cross-examine their own witness with leading questions.
  • Hostile witness testimony is not automatically discarded, but statements that can be corroborated by other evidence may still be considered by the judge

Overview

• Dying declaration: a statement made by an individual who believes their death is imminent, regarding the cause or circumstances of their impending death.
  • Admissible in legal proceedings as an exception to the hearsay rule.
  • Requires that the declarant has a settled, hopeless expectation of death and is of sound mind at the time of the declaration.
• Dying deposition: a formal legal statement made under oath by a person who is dying, which is recorded by a magistrate while the accused (and/or their lawyer) is present
  • Stronger and more compelling formal piece of evidence compared to a dying declaration
  • Cross-examination is permitted

Comparison

A dying deposition has greater evidentiary value than a dying declaration, as it is formally recorded by a magistrate, involves the presence of the accused, and allows for cross-examination.

Core ethical principles

See "Core ethical principles" in "Principles of medical law and ethics" for more details.

Medical ethics vs medical etiquette

Consent in medical practice

Consent is the voluntary agreement by a patient to undergo a medical procedure or examination.

Types of consent

• Expressed consent
  • Clearly stated either orally or in writing
  • Required for invasive procedures
• Implied consent
  • Inferred from the patient's actions (e.g., extending an arm for a blood draw, presenting for examination)
  • Sufficient for routine physical examinations and emergencies
• Substituted consent: given by a parent, guardian, or legal representative in case patient lacks capacity
• Blanket consent
  • Consent for all procedures at the time of admission
  • Not valid for invasive or specific procedures in India

Informed consent

• See "Informed consent" in "Capacity, competence, and consent" for more details.

Exceptions to informed consent

• Life-threatening emergencies (doctrine of necessity): consent is not mandatory in life-threatening situations (e.g., an unconscious trauma patient without a surrogate present) where the patient cannot consent (Section 30 BNS).
• Lack of capacity: Patient lacks decision-making capacity, but their surrogate has authorized intervention.
• Waiver: Patient decided to waive the legal right of informed consent.
• Therapeutic privilege: disclosing may pose a threat to the patient or affect their decision-making capacity
• Medico-legal examinations: e.g., examination of sexual assault victims as per the law

Age and validity of consent

In children < 12 years, consent is required from parents/person in charge.

Consent obtained from a child < 12 years, an insane person, or a person under the influence of intoxication or fear is legally invalid.

Treatment without valid consent may be legally classified as assault.

Confidentiality

• The clinician is ethically and legally obligated to keep the patient's medical information (including information disclosed by the patient to the clinician) confidential.
• Confidentiality upholds patient autonomy and privacy.
• Exceptions to confidentiality
  • Notifiable diseases: mandatory reporting to health authorities about communicable diseases (e.g., tuberculosis, cholera)
  • Legal requirements: reporting suspected crimes or complying with a court order (e.g., 33 BNSS for mandatory police intimation of certain crimes)

Medical declarations

Professional misconduct

Professional misconduct is any clinician behavior that goes against the ethical principles of medical practice. A warning notice is issued to all doctors highlighting professional misconduct behaviors, which include:

• Issuing false certificates
• Active euthanasia
• Fee splitting (dichotomy)
• Bribery: accepting improper gifts or kickbacks from pharmaceutical companies
• Covering: working with unqualified personnel
• Criminal abortion
• Practicing under the influence of alcohol and drugs
• Engaging in an improper relationship with a patient or their family member
• Advertising: Inappropriate solicitation of patients or self-promotion

Disciplinary actions and appeals

Disciplinary control over medical practitioners is maintained through a tiered system:

1. National Medical Commission (NMC): The highest regulatory body for medical education and practice in India.
2. Ethics and Medical Registration Board (EMRB): oversees ethical standards at the national level
3. State Medical Council (SMC)
   • The primary body for registration and disciplinary action.
   • Can issue a warning or perform Penal Erasure (removing a doctor's name from the register).
     • Temporary erasure: suspension for a specified period
     • Permanent erasure

Medical negligence

• See "Medical malpractice" in "Medical professionalism and codes of conduct" for more details.

Types of negligence

• Civil negligence
  • Tried in civil courts or consumer forums
  • Remedy is monetary compensation (damages)
  • Burden of proof lies on the patient (plaintiff)
  • Standard: preponderance of probabilities
• Criminal negligence
  • Tried in criminal courts
  • Punishment may include a fine and/or imprisonment
  • Burden of proof lies on the prosecution
  • Standard: beyond a reasonable doubt
  • Applies to gross negligence or recklessness (e.g., operating on the wrong limb), not mere error

Civil negligence leads to compensation, while criminal negligence involves gross negligence punishable by fine or imprisonment.

Legal doctrines

• Res ipsa loquitur ("The fact speaks for itself")
  • Applies when the nature of the accident itself indicates negligence
  • Creates a presumption of negligence, which requires the doctor to provide an explanation
  • Mainly in civil negligence cases, but can, in rare cases, also apply to criminal negligence
  • Examples: operating on the wrong limb, leaving instruments in the body
• Respondeat superior ("Captain of the ship")
  • An employer or superior is vicariously liable for the negligent acts of their employees or subordinates.
  • Applies to e.g., hospitals that are liable for acts of the doctors
  • Applicable only in civil cases

Legal defences

• Therapeutic misadventure: an unavoidable accident that occurs despite following standard protocols and is not considered negligence, but an unavoidable risk of treatment
• Novus actus interveniens: an independent, intervening event breaks the chain of causation between the doctor's act and harm, so the doctor is not liable for the outcome
• Res judicata: A matter that has already been decided by a competent court cannot be filed again.