No Action Against Protesting Doctors, but They Must Go Back to Work: Supreme Court orders Centre, States to Ensure Safety
New Delhi: The Supreme Court today held that no adverse action would be taken against the doctors who are protesting against the recent rape and murder of a PG resident doctor at Kolkata-based RG Kar Medical College and Hospital.
However, while considering the case, the Apex Court bench comprising CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra clarified that the doctors must go back to work, especially now that the Supreme Court has taken steps for institutionalization of safety of medical professionals.
"...in view of the fact that this court has taken steps for institutionalization of safety of medical professionals, it is expected that doctors return to duties, pending the report of the NTF, all states shall ensure that state shall be alert of any apprehensions of violation of breach of safety," noted the CJI.
Further, the CJI observed, "...an apprehension is expressed on behalf of doctors stating that they are likely to be caught, some are already proceeded against for the protest. We are expecting compliance given to the Court that doctors will join the duties, if any actions are taken against doctors protesting, we direct that no coercive steps be taken against them....get back to work now, if any action is taken against in the past for the protest, we have said no coercive steps."
Noting that the doctors are willing to go back to work but want some protection against instances of violence, the Apex Court bench directed the Union Health Secretary to discuss with the Chief Secretaries of the States and the Director General of Police to ensure the safety within 1 week. Thereafter, the states will have to take appropriate actions within 2 weeks, as clarified by the CJI.
Case Hearing on 22 August, 2024:
During the hearing of the case today, the counsel pointed out that AIIMS doctors in Nagpur, who are agitating, are being marked absent and not being allowed in exams. Therefore, the counsel prayed to the court to take some lenient view.
Responding to this, the CJI questioned, "...how can we tell the administration to mark something which is not correct, ask them to first return to work, nobody will then take an action."
In this regard, the counsel submitted that they have already reported back. Meanwhile, another counsel submitted that PGI Chandigarh doctors went on rally but they also returned to work.
"...let them all return to work...we will pass some general order, pls rest assured that once doctors resume duties we will prevail upon authorities to not take adverse actions, how will public administrative structure run if they don't resume work," observed the CJI.
Resident Doctors in NTF:
The CJI assured the resident doctors that they would be heard by the National Task Force. When the counsel urged to include the resident doctors in NTF, the CJI observed that "...if we ask representatives to be part of the NTF, it becomes impossible to work. There are very senior women doctor in the NTF, they have worked for a very long time in the health care."
Further, the CJI assured that the Committee will ensure that it hears all representatives and the same would be reiterated in the order as well. "...our hearts go out to all those going to Public Hospitals, we will make a statement that resident doctors will be heard, your stakes and inputs are very high," the CJI told the counsel. In this regard, the CJI asked all the intervenors to give on a slip the name of the body so that the NTF can consult them.
Senior Advocate Hansaria urged the Court to consider two more aspects- (1) distress call system available on watch that can be part of it; (2) Institutional FIR, and (3) Fast-tracking of the cases.
The Supreme Court bench also took cognisance of the long working hours for the doctors. Meanwhile, Karuna Nandy raised the issue of continuity of treatment and the CJI took cognisance of the same.
Doctors Feeling Terrorized:
During the hearing, a counsel appearing for the doctors submitted that the doctors in the Hospital are still feeling terrorized. Responding to this, the Solicitor General asked for the names and assured that he would ensure that CISF will look into it.
However, the CJI questioned that the doctors were being targeted by whom. In response, the counsel submitted that they are being targeted by the members of the administration, people in the Hospital, goons etc. Further, the counsel urged the court regarding the possibility of having a compensation fund for the incident.
Taking note of these submissions, the CJI observed that there should be a portal for the NTF where anonymous suggestions can be given.
CCTV not Installed:
Advocate Nandy submitted that the former principal of the college did not install the CCTVs worth Rs 14 lakhs and argued that had there been CCTV the incidents could have been tracked. Further, the counsel pointed out that the SIT constituted has only officials under the control of the WB Government.
Everything was altered before CBI took charge, alleged Solicitor General:
When the CJI asked for the medical report of the of the injury of the accused, the Solicitor General submitted that they did not know that there was such report. He submitted that CBI started the investigation on the 5th Day and by then everything was altered.
However, advocate Sibal for the West Bengal Government argued that nothing was altered and everything was videographer. The Solicitor General argued that the most shocking fact was that the FIR was registered at 11:45 PM i.e. after the cremation.
The SG pointed out that the senior doctors, and colleagues of the victim asked for videography because even they felt that there was a cover-up.
Also Read: What will the National Task Force do? Here are Health Ministry's terms of reference
Why Was the Crime Scene Seized at 11:30 PM when GD was filed at 10:10 AM?
Taking note of the records, the CJI addressed Advocate Sibal and called it "extremely disturbing" that even though the GD entry of death was recorded at 10:10 AM, the crime scene was secured at 11:30 at night. He asked, "what was happening all by then?"
Post -Mortem before Registration of Case of Unnatural Death:
Justice Misra pointed out that the autopsy was conducted in the evening hours of the 9th, while the GD entry of unnatural death was recorded at 11:30 at night.
When Justice Pardiwala questioned when the post-mortem was done, Advocate Sibal submitted that it was done between 6:10-7:10 PM.
"...when you start performing the Post Mortem, it means that its case of unnatural death, UD 861/24 was registered at 23:20 hours, 9th August the GD entry and FIR recorded at 11:45 PM Hours, is this true?" observed Justice Pardiwala.
"this is very surprising, post mortem precedes registration of the UD!" he further noted.
Responding to the query by Justice Pardiwala, Advocate Sibal submitted that the Unnatural Death 861/24 was registered at 1:46 Hours. When the Judge asked about the source of this data, Advocate Sibal took some time to consult.
Criticizing the counsel, Justice Pardiwala asked him to keep a responsible police officer next time during hearings. He also questioned about the time of the inquest panchanama. Advocate Sibal submitted that it was done at 3:45 PM.
Questioning the entire procedure of investigation by the State, Justice Pardiwala observed, "...the entire procedure followed by your State is something which I have not come across in the 30 years of my....the first thing, is it true that the UD was recorded at 10:30 hours? second, who is this asst. Supreintendent Non-Medical, her conduct is also very doubtful, why did she act in this manner?"
While perusing the records, the bench questioned some of the entries made in there. However, Advocate Sibal submitted that the judicial magistrate signed the report and therefore cannot be inserted.
"the seizure list also has UD case (Unnatural Death), inquest has it too, PMR (Post Mortem Report), all these documents have it ....all is before 11 Pm, how can anyone then contend, the inquest is at 4:40 PM," Sibal submitted. He further submitted that the original CD (Case Diary) was handed over to the CBI at the HC, as soon as the transfer order.
Taking note of this, the CJI observed, "we have seen the CD, we can form the view of the moments of the police officers, what time was PMR etc and finally the UD registered at 11:30 PM."
When the CJI noted that it matches with the FIR, the Solicitor General questioned if 10:10 was mentioned, adding that it was General Diary Entry. He pointed out that a UD case was registered, earlier was GDE and this UD was done at 23:30 and FIR at 23:45 PM.
"GDE is kept at station, CD carried to the spot, the inquest report states that the UD was registered at 9.8.24 at 10:30 hours," observed Justice Manoj.
Reading from the records, the CJI noted that after PMR, an inquest, the body was handed over to the mother, after returning to the police station a UD case was registered, and all police superiors were informed.
"....it appears that initial report of UD was received and registered at 10:10 AM, after they recieved they return to police station at night FIR recorded at 11:30 night," observed the CJI.
"if the report indicates that after the return to police station was recorded , after the dead body given to mother .........if police say GD 861 was recorded at night, how does the inquest report refer to the UD earlier than that?" questioned the CJI.
CJI Chandrachud further noted, "it appears then, that at the time of PMR conducted, UD 861 was already done ....why did the IO then say after I reached the police station at night and recorded?" In response, Advocate Sibal submitted that he reached the station after the investigation.
Don't Use Social Media to Make Arguments: CJI
A counsel claimed that the post-mortem report referred to 150 gms of semen. In this regard, the CJI observed, "don't use social media to make argument, we have the PMR before us, don't read what is there on the social media."
"we have the actual autopsy report before us and we know what the 150 gm refers to," noted the CJI.
When the counsel submitted that the CISF has yet not been deployed, the Solicitor General submitted that the police says that the CISF should be in the hospital, however, the Centre feels it should be at the hostel.
Why 14 Hours of Delay in Lodging FIR?
Advocate Sibal argued that the State followed the guidelines. However, the CJI noted that it does not justify the registration of the FIR at 11:30 PM when the body was recovered at 9:30 AM.
The CJI questioned - what was the reason that the FIR was lodged with 14 hours of delay. Further, the CJI noted that the principal should have come straight to the college and filed the FIR.
"...whom is he protecting?" questioned the CJI.
Further, CJI Chandrachud sought to know the reason for which the principal was assigned to another college even after he had resigned.
Court Order:
The CJI noted that the CBI has submitted a status report and likewise a report has been filed by the Kolkata Police. "As already noted earlier.....investigation is being conducted by the CBI. Kolkata police is looking at the incident of vandalism after the protest at the site. It appears that the request for conducting a polygraph test is submitted," observed the CJI.
Dictating the order, the CJI directed the ACJM Sealdah to submit the report by 5PM tomorrow. Further, the CJI took cognisance of the counsels' suggestions on- distress call systems, institutional FIRs, Compensation distress funds and noted that these suggestions may be considered by the National Task Force, constituted by the Supreme Court on Tuesday.
"...undoubtedly, the suggestions of the representatives be taken by the NTF; we direct a portal to be open at the website of the Ministry for the suggestions to be taken by the NTF," noted the CJI.
No Action against Peaceful Protestors:
During the hearing, Advocate Sibal urged the Court to clarify regarding a standard operative procedure to maintain the law and order in the State. Taking note of the concerns expressed by Advocate Sibal and clarified,
"this court has not injuncted the state from exercising such lawful powers as entrusted in law, however, we categorically affirm that peaceful protests shall not be disturbed and state shall not take action against those peacefully protesting against the incident at RG Kar College," the Supreme Court observed.
Doctors should return to Work:
However, referring to the fact that the Court has already taken steps for institutionalization of safety of medical professionals, the Apex Court bench urged the doctors to return to work.
"...in view of the fact that this court has taken steps for institutionalization of safety of medical professionals, it is expected that doctors return to duties, pending the report of the NTF, all states shall ensure that state shall be alert of any apprehensions of violation of breach of safety," the Court observed.
No Action against Protesting Doctors:
When Advocate Nandy pointed out that action is being taken against protesting doctors, the CJI assured that no action would be taken against them once they go back to work.
"...once doctors go back to work, pls come back to us and tell us next week," the CJI noted.
Further, the CJI noted, "...an apprehension is expressed on behalf of doctors stating that they are likely to be caught, some are already proceeded against for the protest. We are expecting compliance given to the Court that doctors will join the duties, if any actions are taken against doctors protesting, we direct that no coercive steps be taken against them....get back to work now, if any action is taken against in the past for the protest, we have said no coercive steps."
However, the CJI clarified that the doctors have to return back to work. "...so far as the community of the doctors is concerned, they have to return back to work," noted the CJI.
After taking note of the political statements highlighted by Advocate Sibal and Solicitor General, the CJI noted, "don't politicize this, the law is taking its course....we are also concerned about the welfare and safety of doctors, we will not such lay down guidelines we will enforce the protocols."
During the hearing of the case, Dr. Rajiv Joshi for MLSI highlighted the need for the protection of the doctors through law and not just physical protection as ordered by the Top Court bench previously.
Taking note of his submissions, the Apex Court bench observed that once the report is submitted by the National Task Force (NTF), the next step would be the implementation of the same and he could assist the court then.
AIIMS Doctors Seek Interim Protection:
The counsel for the National Federation of Doctors of AIIMS submitted that in a letter, the resident doctors have submitted that they are ready to join but they are requesting interim protection as hey are petrified and they want security and CCTVs at the entrances.
In response to this, Advocate Sibal submitted that the State of West Bengal has already implemented this. "SG can there be meeting with the State Secretaries of the health ministries, as to what steps can be taken," the CJI asked the SG, Live Law has reported.
"...doctors are willing to go back to work, however, it is submitted that state govts may take some safety measures for the doctors...we direct that the secretary of the Union Ministry of Health engage with the Chief Secretaries of the State and Director General of Police to ensure the safety....the exercise be completed in 1 weeks, the states shall take appropriate actions within period of 2 weeks," observed the CJI.
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