DENIAL OF JUSTICE AND TRUST: THE UNSEEN BATTLES OF MILITARY HEALTHCARE BY - ANSHIKA BHANDARI
“DENIAL OF
JUSTICE AND TRUST: THE UNSEEN BATTLES OF MILITARY HEALTHCARE”
AUTHORED BY - ANSHIKA BHANDARI
Introduction:
The critical interplay and
transfusing boundaries of duty of care and its accountability are explored
through CPL Ashish Kumar Chauhan v. Commanding Officer and Others. The issue
regarding the standard of medical care provided to armed forces officials under
the course of their employment, along with how society views AIDS and attaches
stigma leading to mental agony, trauma and suffering of the individual. By
analysing the case and the organizations involved, the case seeks to explore
accountability and the gaps in the functioning of medical bodies in the
military healthcare system.
It shows the lack of sensitivity
towards AIDS as a disability, denial of redress and constant denial of the
individual's right to access his medical records; the appellant suffered from
callousness and insensitivity of the respondents. The commentary seeks to work
on issues like contamination of medical records and evidence by healthcare
professionals; it shows how the definition of consumer under CPA fails to
address armed officials. The commentary explores the medical rights of armed
officials and the potential ramifications that can be considered.
Medical negligence and the determination of liability:
Negligence, as defined under Jacob
Matthews V. Union of India, is the breach of a duty (of care) caused by the
omission to do something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do or doing
something which a prudent and reasonable man would not do.
This definition involves three
essentials of negligence:
·
A
legal duty of care on the part of the defendant
·
Breach
of the said duty
·
Consequential
damage
Medical Negligence occurs when a
healthcare professional's actions or inactions fall below the accepted standard
of care, resulting in harm to a patient. This can include errors in diagnosis,
treatment, surgery, or medication and a failure to provide adequate care.
Medical negligence due to failure of
duty of care is present in this case. It is determined using the Bolam doctrine
in case of enquiry by NDCRC and IOC, but the court uses the Bolitho doctrine
while accounting for liability.
Under the Bolam Doctrine established
under Bolam v. Friern Hospital Management Committee [1957], it is stated
that a professional man should command the corpus of knowledge that he or she
professes, such that a professional should keep him or herself abreast with
knowledge of updates in their field. What they must possess must not be an
extraordinary competing professional skill but only an ordinary one. The
professional must be alert to the hazards involved and bring expertise, skill,
and care equivalent to an ordinary competent member. The requirement to do
medical negligence under Bolam is that the person did not possess the skill
that he or she professed, and even if they did, they did not exercise it with reasonable
competence. The Bolam Doctrine, as it could be easily seen in this case, leads
to a situation where a group of professionals within a larger body of such
individuals come to the rescue of the defendant professional. Sometimes, it can
be used to shift the liabilities, as seen in this case for the respondents; it
is a very stable argument that they would have done the same in a similar
situation. Deciding under the Bolam Doctrine, a judge is stripped away of his
discretion to determine a matter with their reasonability. Thus, the judgment
of NCDRC and IOC, in this case, is heavily influenced by the medical
professionals appointed by the respondents themselves, leading to an unfair
judgment on behalf of the appellant.
On the other hand, the Bolitho Doctrine
established under Bolitho v. City and Hackney Health Authority [1998],
which was used in the Supreme Court Judgment, returns the agency of the judge
to decide the matter as per his reasonability after listening to the
testification by the body of individuals. In most cases, the judge would rely
on the testimony of these professionals, thereby not wholly disregarding the
submissions by the medical boards. He may have, at times, completely
disregarded their submissions and taken a position at variance, even if the
majority of the body of professionals agreed to do the same. It is essentially
an element that brings back the primacy of justice to the rights of the
plaintiffs, and rather than arguing solely about the professional liability of
the defendant, it takes into account the situation of the plaintiffs in a more
profound way, as seen in this case, where the appeal is the social situation
and mental health was also taken into account while calculating the damages
suffered by him, due to the negligence of the respondents.
Addressing the definitional and systematic Gaps in
Consumer
Protection Act, 1986:
The definition of consumer under the
Consumer Protection Act Section 2(1)(d) inherently excludes the individuals who
avail free services unless these services are part of a larger-scale agreement.
Section 2(1)(o) includes healthcare services under the term service. It ties
the definition of the transactional element to the healthcare providers. This
narrow interpretation fails to capture the unique circumstances of the armed
forces personnel, who rely exclusively on the state-provided healthcare system
by the virtue of their service. This exclusionary nature of the military
personnel from the CPA protections creates a void in accountability. The
individuals tried under this are bound by the professional obligation to have
no alternative but to depend on military healthcare, unlike civilians who can
opt for private medical services. There is a systematic monopoly in these cases
that prominently results in negligence. The absence of independent grievances
and mechanism redressals compounds the plight and exposes the people to
systematic failures without any avenue for justice. The judiciary's reluctance
to extend the Consumer Protection Act to military personnel reflects a missed
opportunity to evolve jurisprudence. In the Regional Provident Fund
Commissioner v. Shiv Kumar Joshi [(1999) 1 SCC 98, the Supreme Court recognized
that a beneficiary of a statutory scheme could qualify as a consumer. However,
this has not been extended to military personnel, especially since their pay
for the services indirectly proves a service to the nation. The systematic
inconsistency in judicial interpretation further erodes the trust in legal
redressals. While the Consumer Protection Act has been expansively applied in
all other contexts, its restriction in the application shows a lack of empathy
for the unique vulnerabilities of military personnel. The exclusion denies the
individuals the ability to claim compensation, and it forces a culture of
impunity in the military healthcare systems, providing no external
accountability to incentivise the medical professionals' higher standards of
care and proper record-keeping. As seen in this case, the throwing away of
medical documents and the forging of evidence by the military hospitals in the
NCRB report to address these gaps, legislative intervention is imperative.
Broadening the CPC definition to include armed forces will help receive medical
services with unique dependency.
Additionally, establishing
specialized tribunals for military healthcare grievances can help in faster and
fairer adjudication. This can help in the auditing and the independent reviews
of military healthcare systems, enhancing transparency and accountability in
the currently opaque and rigid system.
Judicial activism can play a crucial
role in expanding consumer defamation and including armed officials inside it
by using the interpretation in Article 142 to deliver complete justice and help
the legislator void that exists or the protection of vulnerable groups. The
restrictive interpretation in the case serves as a stark reminder for
systematic reforms that envision the gaps and restoring confidence in the legal
protections for those who dedicate their lives to serving the nation.
Failure of Military Healthcare Organizations:
This case is a somber reminder of how
institutional neglect can amplify the suffering of those who dictate their
lives to serve the nation. As a member of the armed forces, the respondent's
trust was not only violated but compounded by the indifference and systematic
gaps that followed his HIV diagnosis. Instead of receiving the care and support
owed to him as a soldier, he was met with dismissal due to cardiac resistance
and lack of empathy. The military medical bodies failed him in critical ways.
Firstly, negligence in the screening of blood transfusion led to his HIV. The
military hospitals did not adhere to the standard level of care that could have
been avoided with basic rule procedures and not have resulted in him having
this life-altering diagnosis. Adding insult to injury was the failure of the
institutions to maintain essential medical records. According to the Indian
Medical Council Regulation 1002, it is necessary to maintain medical records
for at least two years.
This safeguard was disregarded
completely, as the plaintiff could not get his records. The requests for
transparency, accountability and justice were met with bureaucratic invasions.
That left the plaintiff with little to no evidence to substantiate his claims
while getting the disability certificate that he wanted.
The aftermath of his diagnosis
underscores the systematic indifference. Rather than offering rehabilitation or
psychological support, the military medical bodies treated him as an outlier.
This obstructed him in very subtle and overt ways. The stigma that surrounds
his condition is compounded by misinformation and HIV transmission. This has
led to the exclusion of him from a lot of professional opportunities, as we can
see. He was denied his job. He was let go of his job and could not get the job
in the Food Corporation of India. The institutions should have shielded him
from these societal prejudices. Instead, it allowed these prejudices to dictate
the treatment of his life. His struggle reflects the absence and the robust
grievance mechanism within the military healthcare systems. This system's lack
of independence and transparency led to institutional monopoly, leaving little
room for justice and accountability.
This is evidenced in the dismissal of his case
by the Consumer Protection Act. Through this failure, the military medical
bodies violated his personal, professional and ethical obligations, along with
the betrayal of honor, duty and care that was underpinned by the armed forces.
This case is a stark reminder to those serving the nation that symbolic
gratitude should be upheld and supported with the right to safeguard their
dignity and deliver justice when wronged.
Failure of medical boards and NCDRC:
The failures by the medical boards
and the NCDRC in these cases are marked by inconsistencies, procedural lack,
and a lack of accountability exaggerated by the appellants suffering and undermining
the credibility of institutional mechanisms. The failure of medical boards
talks with evaluating whether the applicant's HIV infection was
service-related. Firstly, inconsistent findings were present.
The initial medical boards linked the
appellant’s HIV to the blood transfusion in 2002 blood at 171 Military Hospital.
However, the subsequent boards reversed this conclusion without clear
justification. The reverse appeal coincides with the appellant’s effort to seek
figures and suggest the potential bias in findings. Such inconsistencies
reflect the lack of rigorous and impartial assessment. Documentation was absent,
as medical boards failed to preserve the key documents, including the blood
screening records, consent forms, and detailed procedural reports on the
transfusion.
This violated the appellant’s right
to access the medical records under Section 7.1 of the Right to Information Act
and the Indian Medical Council's Professional Conduct Etiquette and Ethics
Regulation 2002, which mandates record-keeping for at least three years—the
bias and institutional influence. The boards operated within the military
hierarchy. This raised the question about the independence of the boards. Their
findings appear to have been influenced by the institutional priorities to minimise
liability in their case, as this can be seen with medical professionals, who
defended themselves using the Bolam Doctrine—the violation of natural justice. In
this case, the appellant was not allowed to present his case or respond to the
board's findings. This exclusion breached the principle of natural justice, delegitimising
the conclusions present.
The NCDRC, which dismissed the
appellant's claims of compensation, failed to thoroughly examine the evidence
and uphold justice. The NCRDC's over-reliance on procedural technicalities
rejected the appellant's complaint on the grounds that he had not provided
expert testimony to substantiate the claims of medical negligence. However, as
noted in the case of V. Kishan Rao v. Nikhil Super Specialty Hospital (2010),
expert testimony is not always mandatory, especially when negligence is evident
from the circumstances, i.e. observed from the principle of
res ispa locquitor.
Dismissal of Evidence Favoring the
Appellant The Commission disregarded the findings of the earlier medical boards
that linked HIV to the blood transfusion caused in 2002. Instead, it relied on
the contradictory conclusions of the later Court of Inquiry, COI, which was
conducted without the appellant's participation and appeared to be designed to
absolve the respondents of any liability. In the Failure to Address Potential
Procedural Lapses, the NCDRC failed to adequately consider the respondents'
destruction of critical medical records. In this case, the omission is due to
the obligation to assess whether the appellant's inability to address and
present direct evidence was due to systematic lapses.
The Narrow Interpretation of Consumer Rights
NCDRC ruled that the appellant did not classify as a consumer under Section
2(1)(d) of the Consumer Protection Act, 1986 (CPA), as the medical services
were provided without any charges and were part of his employment. This
interpretation ignored precedents like Savita Garg v. National Heart
Institute (2004) and Laxman Thamappa Kotgiri v. GM, Central Railway
(2007), which held that services provided under unemployment terms can
still fall under C.P.A.'s ambit.
The impact of these failures was the denial of
a timely and fair resolution to the appellant for his grievances. This
prolonged and led to mental and physical suffering, as the systematic gaps
prevented him from obtaining adequate compensation for institutional
accountability. This also highlighted the institutional bias and transparency
in handling the cases involving forces and personnel. The Supreme Court, in
this case, criticised the failure of NCDRC. The inability of NCDRC is very
prevalent in this case, as they failed to uphold fairness and procedural
integrity. They had the task of safeguarding the rights and should have
operated with impartiality and diligence, especially when an individual is
vulnerable like the appellant. The addressing of these issues was met with
failure. The judgment calls for systematic reforms in the medical boards and
consumer forums and a broader interpretation of consumer protection laws in
need of the hour, particularly for the individuals serving in the armed forces.
The use of the transformative potential of Article 142:
The Supreme Court invoked Article 142
of the Union Constitution to ensure that complete justice is fair in this case,
as this article empowers the Court to pass any decree or order necessary to
ensure justice and transcend the procedural and statutory limitations that
arise when traditional legal remedies are insufficient. The Court exercises extraordinary
jurisdiction to address procedural lapses, institutional failures, and the
absence of statutory remedies that the appellant has faced. The original observations
from the judgment emphasise the necessity of invoking Article 142 to provide
compensatory relief to the appellant, stating:
“Even if, arguendo for some reason,
appellate jurisdiction is contested, this Court deems that it would be unfair
to drive the appellant to a fresh civil proceeding, particularly having regard
to his vulnerability, and would instead, combine its power, drawing the source
of its jurisdiction under Articles 32 and 142 of the Constitution, especially
since the respondents are the armed forces and its authorities.”
The court further observed that:
“By using Article 142, the Court can
craft remedies to address gaps in justice delivery, particularly when
procedural or statutory remedies prove inadequate. The destruction of records,
the denial of access to information, and the procedural dismissal by consumer
forums necessitated a holistic approach under Article 142.”
Significance
of Article 142:
The appellant’s claim was dismissed
by NCDRC on technical grounds. Due to the lack of technical testimony and
disputed status of the consumer under the CPA 1986, the Supreme Court also
noted that the invoking of Article 142 would help the procedural barriers
established in this case by the rigid interpretation to adjust the merits of
the appearance case. The case also involved complex and disputed factual
questions. The including of a causal link between the 2002 blood transfusion
and the appellant's HIV diagnosis in 2014, ordinarily, such disputes might
preclude the intervention by Writ or Appellate Forums. The court, in this case,
stated that the court must address the injustice, especially when procedural or
evidentiary gaps arise due to institutional lapses. This exercise of Article
142 ensures that the gaps do not become insurmountable obstacles to justice.
The comprehensive relief provided under Article 142 to address the economic
losses, suicidal stigma, and mental trauma endured by the appellant includes
the pecuniary and non-pecuniary damages within the void that was left by the
failure of the medical boards and the consumer forums.
The precedents cited in this case
are:
·
Nilabati Behera v. State of Orissa (1993):
The compensation was awarded under
Article 142 for a custodial debt emphasising monetary relief could be a remedy
under Fundamental Rights Violation. Similarly, in this judgment, the
compensation was made due to systematic failures impacting the right to health
established under Article 21.
·
Delhi Development Authority v. Skipper Construction Co. (1996):
The court stated that Article 142 allows
crafting remedies to tackle situations that are not necessarily addressed by
the existing law. This principle was applied to fill the legislative gap while
addressing the military personnel receiving free medical aid.
·
MC Mehta v. Kamal Nath (2000):
The court emphasised that Article 142
serves as a means of providing public interest and justice, transcending
statutory limitations. In this case, the appearance of vulnerability and
systematic lapses were justified by invoking Article 142 to achieve justice.
Thus, when the SC invoked Article 142
in this case, it recognised the appellant's plight as a victim of systematic
failures in procedural hurdles. By ensuring that justice was not derailed by
the rigid statutory frameworks or evidentiary gaps, the SC upheld the
Constitution's mandate to deliver fairness and equity. This judgment also
demonstrated the transformative potential present in Article 142, addressing
the institutional frameworks and their failures while protecting the rights of
vulnerable people, particularly those serving in the armed forces.
Lack of consent as a denial of medical right:
The judgment of this case discusses
the principle of implied consent in cases of emergency. Emphasizing that even
when exigent situations are present, safeguarding and informed decision-making
are paramount. The fact that the consent of the appellant was not taken while
administering the blood transfusion on him, and also the fact that he was not
made aware of the alternatives that he could have used instead of blood
transfusion while carrying it out, is a clear violation of the IMC 2002
regulation, which mandates the informed consent for invasive procedures.
Also, as prescribed under the
National AIDS Control Organization guidelines and the HIV and AIDS Prevention
and Control Act of 2018, informed consent is mandated for HIV testing. The case
demonstrates a failure to meet this requirement, too, as the appellant was not
informed about the risks of transfusion or the protocols followed to ensure its
safety. While in emergencies, for invasive treatment, it may be presumed that
safeguards like pre-transfusion testing cannot be overlooked. In this case, the
Supreme Court evaluated that the transfusion failed to meet the threshold for a
medical emergency. The court also criticised the absence of proper protocols,
while emergency doctors still do not absorb the healthcare providers from their
responsibility to ensure minimum safety standards are being followed, even in
extinguished circumstances. The court highlighted that the patient's right to
safety and dignity under Article 21 has been violated. It also states that
consent, whether it is implied or explicit, must be taken under reasonable
measures to ensure that the patient is safe. The failure to screen the blood
adequately, along with the subsequent lack of transparency amounting to the
violation of the appellant’s rights, is and cannot be justified. This shows the
systematic lapses in the maintenance of balance, emphasising the need for
stricter compliance with emergency care protocols, ensuring transparency and
patient safety measures.
Rehabilitation and Institutional Accountability:
Rehabilitation is not just a medical
process. It is a holistic endeavour that restores the physical, mental, and social
well-being of an individual. In this case, the long-term consequences have been
faced due to the alleged negligent blood transfusions. These include the HIV
diagnosis in 2014 that led to severe stigma, social isolation, and health
complications of the appellant. Job rejection due to his HIV status resulted in
his rejection from employment at the Food Corporation of India, further
exaggerating his financial and emotional distress. The stigma attached to HIV
led to the breakdown of his personal relationships, including divorce and loss
of family support. The appellant's ordeal, compounded by the institution's soon-falling,
caused a lot of mental agony and eroded his confidence. The armed forces, as
employers, have a heightened obligation to rehabilitate the persons injured, but
they also fail to provide him with the necessary documents for him to get the
pension under his disability certificate. Medical support and continuous
treatment as ex-servicemen's contributory health scheme, ECHS, should have been
ensured. But in this case, even a temporary ECHS card was issued late, leaving
the appellant without timely access to care. Psychological support for the
mental trauma caused by the diagnosis and the repercussions should have been
facilitated by the Indian Air Force. Access to counselling and psychiatric care
is essential in cases like this. The appellant's inability to secure alternate
employment reflects the employers' absence of effective rehabilitation measures.
As an HIV-positive individual, the appellant became a victim of social taboos.
The Indian Air Force could have played a significant role in dispelling the
myths and fostering acceptance through awareness campaigns and sensitisation
processes. Accountability, in this case, encompasses both immediate and
military hospitals and the broader systematic failure of the armed forces in
general. The medical negligence and the duty of care of the 171 military
hospital that acted as an ad-hoc facility lacks the licensed blood banks and
necessary expertise to ensure safe transfusions, yet they carried out the blood
transfusion. This failure led to HIV screening of the patient in 2014. The
organization did not ensure the record-keeping and transparency as they failed
to take accountability of losing the records. The appellant also faced the
delayed compensation due to his failure to receive his pension and other compensatory
benefits. The respondent also failed to address his post-charge-discharge
needs, which the medical board attributed to his disability certificate. In
this case, the stonewalling and procedural unfairness were marked by denial and
invasion. The appellant's repeated requests for medical documents, disability
certificates and redress were met with resistance, reflecting an intent to minimise
the liability on the part of the respondent. The inquiry into the accident and
the incident, the court of investigation lacked transparency, and the appellant
was neither summoned nor allowed to participate in this situation.
This case underscores the urgent need
for reforms in rehabilitation mechanisms for armed forces personnel. Some
changes that can be brought about are the strengthening and rehabilitation
frameworks. These can be more comprehensive in nature to implement programs
that address medical, psychological, social, and economic rehabilitation needs.
Initiatives like vocational training, skill development, and employment
placement services should be prioritized for personnel discharge on medical
grounds. Conducting awareness on HIV AIDS to combat social stigma and support
affected personnel is also a necessary step in the making.
Mandatory adherence to medical
protocols with compliance with NACO guidelines, INC regulations, and SOPs
should be enforced in all military hospitals. The transparency and
investigation should be carried out to ensure that the participation of the
affected persons is shared without perception of bias. The exceptions to
routine destruction of records should be introduced, ensuring that the
preservation of critical documents is fair in the cases of alleged negligence.
Rehabilitation can be carried out
under HIV and AIDS Prevention and Control Act 2018, which prohibits the
discrimination against HIV-positive individuals and mandates equal treatment in
the cases of healthcare, employment, and public services. In this case, the
violation of the rights of the plaintiff is apparent through his rejection by
the Food Corporation of India in lack of institutional support, contravening
the Act provision. The Indian Air Force's obligation to ensure that
non-discriminatory treatment and proactive measures for reintegration into the civil
life of the plaintiff should have taken place. Rehabilitation and
accountability are not merely compensatory measures, but they act as moral
imperatives for institutions entrusted with national security.
In these cases, we need structural
frameworks to support and ensure that accountability is present so that the
armed forces can uphold the dignity of their personnel even when challenges are
present.
Social issue and stigma:
The appellant's experience in this
case sheds light on the pervasive prejudice and isolation faced by individuals
who are living with HIV that are deeply rooted in societal taboos and
misconceptions when it comes to the Indian context. These factors amplified the
harm that he endured both personally and professionally. The ignorance and
fear, along with myths associated with HIV, lead to irrational fear and
alienation. HIV is also associated with behaviours that are considered immoral.
Cultural taboos in India about sexual health and HIV-AIDS remain, intensifying
the issue and the stigma. It led to the isolation of the individual's personal
life with his family, culminating in his divorce. The diagnosis not only
strained his relationship but also subjected him to rejection and judgment,
stripping him of emotional support. The breakdown of his marriage reflects the
societal reluctance to accept HIV-positive individuals.
The employment discrimination faced through
the rejection by the Food Corporation of India highlights the persistent bias
that is present in the workforce against HIV-positive individuals. Employers
view these individuals as liabilities or risks for the company. His inability
to secure employment further marginalised him, depriving him of financial
independence and dignity. The armed forces, who were bound by their duty of care
for personnel injured during service, failed to provide adequate rehabilitation
and support to the plaintiffs. Delays in issuing his ECSS card and lack of
proactive care reflect the institution's systematic disregard for this
condition. By doing this, the institution stonewalled him and included the
denial of his medical records. Resisting transparency, we suggested that the
attempt to minimize association with an HIV-positive veteran led to reinforcing
of stigmatisation. The appellant endured psychological harm due to societal
rejection and the perception of being a burden. The stigma that was attached to
his HIV-bound status reflected that he was emotionally in a state of
dependency. The appellant's experience is embellished with broader societal issues
that are associated with HIV, like misperceptions of transmission, moral
policing and lack of awareness. The influence of institutional behaviours
reflects the impact of stigma on justice. The reluctance of the armed forces to
acknowledge the lapses and provide rehabilitation suggests the fear of
reputational damages that are associated with HIV cases. In this case, the
judiciary recognized the appellant’s vulnerability and the stigma he faced.
They emphasised that the need of the institution is to act with empathy and
accountability. Amicus Curie played a major role in shedding light on the
societal challenges faced by the appellant, framing his experience with the
broader context of HIV stigma. We need to have more public awareness,
institutional sensitisation, legal protections, and rehabilitation and support
to deal with the social stigma that is associated with HIV and AIDS. As these
are highlighted in the hardship faced by the appellant in this case, this is a
reminder to address these biases with institutional apathy, ensuring that the
individuals who live with HIV are treated with respect, empathy and equity.
Mental Trauma and Harm:
This case shows how individuals face
immense mental trauma and harm when they are faced with systematic negligence,
societal stigma, and institutional apathy. Beyond the physical consequences of
his condition, the appellant faced profound psychological distress that added to
and compounded his suffering and damages. HIV diagnosis and the stigma that was
associated with him after he was diagnosed in 2014 with HIV due to a blood
transfusion was a deeply traumatic revelation. The stigma that was attached to
HIV was with feelings of guilt, shame, and fear. He lost his family's support,
and societal judgment was there as HIV is still considered a moral disease in
India, after delayed rehabilitation like the receival of his ECHS card and
disability pension that deprived him of timely and technical medical care and
financial stability that he deserved. The stonewalling and lack of transparency
by the institutions who failed to provide him with his medical records, this
perception is being ignored or invalidated by the armed forces, thus
intensifying his feelings of abandonment. His rejection from the Food
Corporation of India was solely based on his HIV status. He lost his identity
as armed forces personnel as he was pessimistic about his duty. He was facing
unemployment and was psychologically devastated. Living with HIV is associated
with complications that lead to frequent hospitalizations, fatigue, and
physical dependency. These contribute to the feelings of helplessness. The
cumulative effect of societal rejection, professional discrimination, and
institutional neglect results in deprivation and anxiety along with
post-traumatic stress. To address these issues, we need to have proper
recognition of the psychological harm that can be caused. These can be
addressed in legal proceedings as courts must explicitly state that mental
trauma is a compensable harm, treating it on par with physical injuries.
Supreme Court also emphasized in this case that mental agony is a critical area
to consider. Compensation should account for pecuniary damages as well as
emotional distress. The loss of dignity and psychological suffering should be
taken into account. Institutions like the armed forces should have mandatory
psychological support for the people who face trauma and ensure that therapists
and counselors, along with community support groups, are present. Training
programs and transparent communication should be sensitised in these
institutions. Legislative and policy reforms should be present, such as the
more vigorous enforcement of the HIV Act 2018 that prohibits discrimination in
healthcare employment and public services. Its provision should be rigorously
implemented to protect individuals from the harm and trauma that is associated
with the stigma of HIV. Armed forces should establish dedicated units to
address grievances of medical negligence, stigma and rehabilitation, along with
a focus on psychological support. There should be a sensitive approach to such
cases as trauma-informed judicial responses, apathy in the adjudication,
comprehensive compensation that goes beyond financial damages, and remedies and
should include direction for psychological rehabilitation in a long-term
period. Proactive institutional measures like rehabilitation programs and
public awareness campaigns should be prevalent along with community engagement
that help in de-stigmatization efforts through collaborative efforts between
government, NGOs and communities along with supporting networks that help to
advocate for care and advocacy for trauma and ensure that the individuals with
HIV do not feel isolated.
Damages Associated with the case:
Damages are claimed and awarded by
the court for the violation of the rights of the plaintiff, which are further
compounded by the harm suffered by the plaintiff and awarded in civil cases.
These are considered the most common type of remedy, but they are mostly
unliquidated in nature. The essentials for claiming damages are the following:
·
There
should be a violation of the rights of the plaintiff
·
Suffering
of consequential harm which compounds the level of damages awarded
·
It
should be a matter of civil nature
In this judgement/case, the court
awarded prospective damages, which are defined as the damages that are awarded
in cases of continuing harm, and it is the compensation that covers the harm,
i.e. the result of the defendant’s wrongful act/omission but which has not
actually arisen at the time of awarding damages. But it is, in all likelihood,
expected to arise in the future.
While awarding damages, the court may
include or factor present harm suffered as well as any prospective harm that
the plaintiff may suffer in all likelihood as a consequence of the defendant's
act or omission. However, this determination has to be made in the present, and
the court cannot delegate it to the future to provide damages at regular future
intervals or on an as-and-when basis.
How do we arrive at a just measure of
damages for harm suffered?
1.
Violation
of the legal right of the plaintiff
2.
Personal
pain and suffering undergone by the plaintiff.
3.
Medical
and ancillary expenditures incurred.
4.
Legal
fees
5.
Loss
of enjoyment of life.
6.
Any
other actual monetary loss incurred by the plaintiff
7.
The
probable future loss of income or opportunity by reason of incapacity or
diminished capacity of work.
8.
Mental
agony and anguish suffered and duration and severity of such harm.
All these measures were taken into
account in this case while arriving at the final amount of compensation, i.e.
at ? 1,54,73,000/- (Rupees one crore fifty-four lakhs seventy-three thousand
only). It is also held that since individual liability cannot be assigned, in
this case, as individual liability cannot be determined, respondent
organizations will be held vicariously liable. respondent organizations (IAF
and Indian Army) are held vicariously and jointly liable and the amount of
compensation can be shared between the defendants or individual liability can
be taken too based on their personal discourse.
The allotment of perpetual damages,
along with the fact that the judgement mentions and takes into account the fact
that mental agony and distress caused due to the acts of the respondents,
should be taken into consideration. This case, though, could have allotted
exemplary damages in this case, too, making it a landmark case for cases of
medical negligence when taking military medical institutions into
consideration. Exemplary damages are damages that are awarded with a view to
preventing similar commission of torts and, thereby, similar violations of
rights in the future. The damages may be called punitive or vindictive. The
idea here is not just to restore the violated legal right of the plaintiff, but
also to set a deterring example for preventing similar future violations.
The damages that were sought under
this case reflect the multifaceted harm that was suffered due to the systematic
negligence and the societal stigma. Supreme Court intervened using Article 142
to underscore the importance of just compensation. The case also highlights the
critical gaps that are present in the existing framework, yet it fails to take
into account certain future precedents that this case could have set. To ensure
that justice is there for individuals like the appellant, it is imperative to
adopt a comprehensive approach while discussing damages that encompass both
pecuniary and non-pecuniary harm suffered by the plaintiff. We should also take
into account the institution and its liability and accountability, as these
measures would not only redress individual grievances but deter future
negligence, fostering an environment of greater care and accountability.
Conclusion: As a call for justice and reforms
To conclude, this case can be viewed
as a missed opportunity by the Supreme Court to set a precedent and fill the
existing legal void by means of legal reforms in cases concerning misconduct
and negligence of military medical institutions. This case shows that justice
does not only require one’s adherence to the letter of the law but also the
understanding of its intricacies, taking into account the aspect of restorative
justice and the empathetic understanding of its uplifting spirit.
It addresses a missed opportunity to
address critical areas of medical negligence and sovereign functions of armed
forces and their aligned institutions. It displays the failure to adopt
progressive legal reforms for providing equitable relief, not restricting
itself just to the Monterey domain and extending itself to more social and
moral domains.
This case is a reminder of the
procedural demand of justice along with understanding different human realities
and its complexities. These reforms are essential for ensuring that the people
who serve the nation receive fair and just treatment along with just
compensation i.e. not just ex-gratia in nature but inclusive, incorporative and
adoptive as they ensure that the dignity of the individuals in protected along
with the proper adherence to duty of care and other ascribed rules and
regulations.
References:
1.
advocatekhoj.com. (n.d.). CPL
Ashish Kumar Chauhan (Retd.) vs. Commanding Officer | Latest Supreme Court of
India Judgments | Law Library | AdvocateKhoj. AdvocateKhoj. https://www.advocatekhoj.com/library/judgments/announcement.php?WID=16824
2.
Abhimanyu Hazarika, Satyendra
Wankhade, Abhimanyu Hazarika, & Satyendra Wankhade. (2023b, September 27). Supreme
Court slams IAF, Army; awards ?1.6 crore to veteran who got HIV after blood
transfusion at military hospital. Bar And Bench - Indian Legal News. https://www.barandbench.com/news/supreme-court-iaf-16-crores-veteran-hiv-blood-transfusion-militaryhospital
Law, L. (n.d.). Read all Latest Updates on
and about CPL Ashish Kumar Chauhan (Retd) v. Commanding Officer and others.
Live Law. https://www.livelaw.in/tags/cpl-ashish-kumar-chauhan-retd-v-commanding-officer-and-others