The criminal liability of doctors under new code

On December 25, the Bharatiya Nyaya Sanhita Act, 2023 (BNS) received approval from the President, awaiting the last formality of being notified by the Central Government. It is only one step away from becoming a fully implemented law that will replace the existing Indian Penal Code (IPC), 1860. This new law has a special provision addressing the criminal liability of doctors in India.

There has been much speculation regarding the criminal liability of doctors under the new law ever since it was introduced as a bill in the Lok Sabha on December 12, 2023. Are doctors completely immune to criminal liability under the new law? Or has their punishment been enhanced under it? When the latest Consumer Protection Act was passed in 2019, similar confusion arose about its application to doctors. 

The evaluation of doctors’ criminal liability began in 2004 with the Supreme Court case Suresh Gupta v. Govt. of NCT, Delhi. A patient had died during cosmetic surgery, and both surgeon and anaesthetist were sued under Section 304A of the IPC, which is the provision dealing with rash or negligent acts causing death. After due verification, the apex court ruled that, unless there is a gross negligence, doctors cannot be held liable under Section 304A. Since the Indian Penal Code does not establish differentiated levels of liability for doctors, some felt that the Supreme Court had made an error by setting the higher standard of gross negligence for them. Hence, this interpretation faced criticism. 

Fortunately, the Supreme Court had another chance to address its critics in the case of Jacob Mathew v. State of Punjab in 2005. It not only reaffirmed its position established in 2004, but went a step further by explaining the need for a differentiated standard for doctors under Section 304A. This can be seen as the first ring of protection, where the law is interpreted to safeguard the profession of medicine from unwarranted harassment and prosecution. 

The Apex Court also laid down guidelines for additional protections for doctors. Among these guidelines, it specified that any private complaint against a doctor for criminal liability should not be entertained unless there is prima facie evidence gathered against the doctor. To gather such evidence, a second opinion is required from another competent doctor. This represents the second ring of protection, a procedural layer where both an investigating officer and magistrate must obtain a second opinion before initiating legal proceedings against a doctor. These steps are not mandatory for the application of Section 304A to others. In summary, it can be stated that doctors are sufficiently protected under the law. 

Section 106 of BNS corresponding to Section 304A of IPC which deals with ‘causing death by negligence’ imposes a punishment up to five years of either description (simple or rigorous) along with a fine. This is an increase from the two-year punishment specified in the IPC. However, a special provision in the BNS applies to cases involving Registered Medical Practitioners. In such cases, a reduced punishment of up to two years of either description, along with a mandatory fine, is imposed.  Therefore, when compared to Section 304A of the Indian Penal Code, the imprisonment term for doctors remains unchanged, but the imposition of a fine is mandatory. The Explanation attached to Section 106 clarifies that RMP refers to those with a medical qualification recognized under the National Medical Commission Act, 2019. This means that the reduced punishment applies only to allopathic doctors and not to other medical professionals such as those in the Indian System of Medicine, Homoeopathy, or dentistry.

Some sources suggested that the new law reduces the punishment for doctors, as recommended by the Select Parliamentary Committee. However, we found no such recommendation in the committee’s report. According to these reports, the reduced punishment would be two years of imprisonment for proven criminal negligence, which is already equivalent to the existing law under IPC Section 304A. Consequently, it does not provide significant relief to the medical fraternity. 

There is a new idea circulating that the Home Ministry is going to introduce an amendment proposing the complete immunity of doctors from criminal liability.  However, the notion of doctors receiving absolute immunity is highly unlikely. Logically, it is challenging for any new law to provide exclusive immunity to doctors as a specific group. Blanket immunity for doctors from criminal liability is not currently present in the law, nor is it likely to be introduced in the future.

Thus, doctors are not granted immunity from criminal liability under the new law. The punishment for their negligence remains equivalent to the existing law, with no significant reduction, along with the imposition of a fine. 

(Nandimath is Professor, NLSIU ; Justice S R Bannurmath is former Chief Justice, Kerala HC and Chairman, Law Commission of Karnataka; Dr Thomas is Founder and Patron, Association of Healthcare Providers – India)