The Telegraph
Since 1st March, 1999
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Citing conflict of interests, judge opts out of Saha case

New Delhi, Nov. 15: The medical negligence case will have to go to a new bench in the Supreme Court, with Justice Ruma Pal announcing today that she cannot continue as judge in the case.

As the hearings were to begin, Pal said she was recusing from the case and that it would have to be referred to another bench. The reason cited was that the judge’s husband, Samaraditya Pal, has represented a few Calcutta doctors in the case.

This is not the first time a judge has recused (disqualified oneself) from a case. It is normal practice in any judicial system that a judge, even remotely connected with a case or fearing that the verdict might be seen as biased, opts out.

Over a year ago, Justice U.C. Banerjee had withdrawn from a case that involved a party he had represented as a lawyer.

To the other extreme was Justice M.C. Chawla who refused to withdraw from the Bofors case though he was accused of being biased in favour of the Hindujas.

Leading lawyers Ram Jethmalani, P.N. Lekhi, Shanti Bhushan and many others moved a “recuse petition” in the Supreme Court against him. Chawla, in the interim, struck down the case against the Hindujas. But an appeal was made in the apex court, which overturned his verdict. Chawla later retired.

In Pal’s case, it had not even been pointed out that her husband had appeared for a few doctors in Calcutta courts in the Anuradha Saha case. But once the judge found out, she chose to withdraw.

The Medical Council of India (MCI) has virtually washed its hands of complaints of negligence against doctors, saying it was for the state medical councils to deal with them.

Aveek Datta, the counsel for petitioner Moloy Ganguly, said a new bench would be set up “soon”.

The public interest petition was filed after the wife of Kunal Saha, a US-based doctor, died as a result of negligence during treatment at a Calcutta hospital four years ago. Anuradha, herself a doctor, was on a visit to Calcutta with her husband when she took ill.

Ganguly, who is Saha’s brother-in-law and whose wife had also died as a result of doctors’ negligence, moved the Supreme Court with a public interest litigation (PIL) seeking accountability from the MCI.

The Anuradha Saha case has several “firsts” to its credit. It is the first time that an amount as high as Rs 77 crore has been sought as compensation in the National Consumer Disputes Redressal Commission in a medical negligence case. This is also the first time that cancellation of a doctor’s licence has been sought after his conviction. Two doctors were convicted by the Alipore trial court.

Another petition has been moved contending that the punishment was too little and was disproportionate to the crime.

For the first time in India, the medical jurisprudence of America and Britain is sought to be applied where an erring doctor is first punished with suspension of licence and the licence is restored if, on appeal, the doctor is acquitted.

The MCI has no procedure for punishing errant doctors, with its responsibility ending at referring the case to the state medical council concerned.

The West Bengal Medical Council has not yet explained the action taken against the guilty doctors in the Anuradha Saha case.

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