DISTRICT: KOLKATA IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION PUBLIC INTEREST LITIGATION Appellate Side W.P. No. 16879 (W) of 2012 IN THE MATTER OF: An application under Article 226 of the Constitution of India; AND IN THE MATTER OF: Dr. Kunal Saha ……Petitioner Versus Ms. Mamta Banerjee & Anr. …Respondents INDEX Sl. No. Particulars Annexure Page 1. Writ Petition 2. MCI Order dated 23 rd May, 2011 “P-1” 3. Paper report dated 21 st April, 2011 “P-2” 4. Govt. circular dated 12 th July, 2012 “P-3”
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DISTRICT: KOLKATA
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION
Appellate Side
W.P. No. 16879 (W) of 2012
IN THE MATTER OF:
An application under Article 226 of
the Constitution of India;
AND
IN THE MATTER OF:
Dr. Kunal Saha
……Petitioner
Versus
Ms. Mamta Banerjee & Anr.
…Respondents
INDEX
Sl. No. Particulars Annexure Page
1. Writ Petition
2. MCI Order dated 23rd
May, 2011 “P-1”
3. Paper report dated 21st April, 2011 “P-2”
4. Govt. circular dated 12th
July, 2012 “P-3”
2
DISTRICT: KOLKATA
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION
Appellate Side
W.P. No. 16879 (W) of 2012
IN THE MATTER OF:
An application under Article 226 of
the Constitution of India;
AND
IN THE MATTER OF:
Dr. Kunal Saha
……Petitioner
Versus
Ms. Mamta Banerjee & Ors.
…Respondents
LISTS OF DATES
1) May 28, 1998: Petitioner’s wife, Anuradha Saha, died due to medical
negligence by one Dr. Sukumar Mukherjee (Res. no. 3)
and some other doctors/AMRI Hospital.
3
2) August 7, 2009: Hon’ble Supreme Court of India held Dr. Mukherjee
(and some others) guilty for causing death of
petitioner’s wife.
3) May 23, 2011: Medical Council of India (MCI) held Dr. Mukherjee
guilty for “professional misconduct” and decided to
remove his name from the list of registered doctors.
4) Oct. 21, 2011: National Consumer Forum (NCDRC) awards a
compensation of Rs. 40.40 lakh against Dr. Mukherjee
for “medical negligence”, highest in Indian medico-
legal history against an individual physician.
5) April 20, 2012: Respondent no. 1 glorifies Dr. Mukherjee in an open
public function by declaring him to be the “chief
advisor” for the state government to fix the healthcare
woes for the people of West Bengal.
6) July 12, 2012: State Health Department issues an Order appointing Dr.
Mukherjee as the “chief advisor” for the health
department with sweeping power to make changes in
the “Standard Treatment Guidelines” and control
medical education. Hence this public interest litigation
(PIL).
4
DISTRICT: KOLKATA
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION
Appellate Side
W.P. No. of 2012
IN THE MATTER OF:
An application under Article 226 of
the Constitution of India;
AND
IN THE MATTER OF:
Dr. Kunal Saha
……Petitioner
Versus
Ms. Mamta Banerjee & Ors.
…Respondents
5
Points of Law
1. Whether any person or authority including the chief minister of a
state, can undermine the dignity of the Hon’ble Supreme Court by
glorifying an individual as an “eminent” physician who has been
convicted for medical negligence with scathing criticism by the Apex
Court in total disregard to the mandatory provision as enumerated in
Article 144 of the Indian Constitution?
2. Whether Article 144 of Indian Constitution is violated when the
authority including the chief minister of a state deliberately appoints a
physician who has been convicted for “medical negligence” by the
Hon’ble Apex Court?
3. Whether any person, even the chief minister of a state, can trample
over the fundamental rights for equality, life and liberty of a private
citizen (guaranteed under Article 14 and 21 of Indian Constitution)
by deliberately promoting a convicted physician who caused his
wife’s death by using the state’s machinery in the most arbitrary and
capricious manner?
6
4. Whether any person, even the chief minister of a state, can select a
physician to the top of healthcare as “chief advisor” without following
any procedures that are in place for fair treatment?
5. Whether any person, even the chief minister of a state, can
deliberately appoint a physician as the “chief advisor” for the health
department who has been found guilty for “professional misconduct”
by the MCI, highest medical regulatory authority in India?
6. Whether any person, even the chief minister of a state, can appoint a
physician as the “chief advisor” for the health department with
sweeping power to control medical practice in the state whose own
medical registration has been directed to be cancelled/suspended by
the MCI?
7. Whether the statutory and legislative power enjoyed by the leaders of
the state government can trump over the fundamental rights of a
citizen as guaranteed under Articles 14, 19 and 21 of the Constitution
of India?
8. Whether any person, even the chief minister of a state, can lower the
solemnity of the judiciary in the eyes of the public by deliberately
7
acting to promote an individual in clear contradiction to the
observations made by the Hon’ble Supreme Court of India?
DISTRICT: KOLKATA
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION
Appellate Side
W.P. No. 16879 (W) of 2012
IN THE MATTER OF:
An application under Article 226 of
the Constitution of India;
AND
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IN THE MATTER OF:
Writ of and/or in the nature of
Mandamus and/or Certiorari and/or
Prohibition and/or any other
appropriate Order or Directions in the
matter thereof;
AND
IN THE MATTER OF:
Deliberate attempt by the head of a
state government to undermine public
trust and credibility for judiciary and
the Hon’ble Supreme Court of India;
AND
IN THE MATTER OF:
Public Interest Litigation (PIL) for
restoration of public trust in the
Hon’ble Supreme Court of India by
preventing the arbitrary, capricious
and malicious use of the state
government’s machinery to promote a
9
negligent doctors as the “chief
advisor” for the health department;
AND
IN THE MATTER OF:
Violation of the Articles 14 and 21 of
Indian Constitution that guarantees
equality and right for life and liberty
for every citizen in West Bengal and
across India;
AND
IN THE MATTER OF:
Undermining public trust in the
performance of MCI, highest medical
regulatory authority in India, by
appointing a physician as the “chief
advisor” for the health department
with sweeping power to regulate
practice of medicine, whose medical
registration has been suspended by the
MCI because of “professional
misconduct”;
10
AND
IN THE MATTER OF:
Deliberate attempt to bestow supreme
power to change “Standard Treatment
Guidelines” to a doctor who has been
found guilty by the Hon’ble Apex
Court for using excessive dose of
steroids and whose treatment
philosophy “does not flow from any
considered affinity to a particular
school of thought but out of sheer
ignorance of basic hazards relating to
the use of steroids as also lack of
judgment” (AIR 2010 SC 1162);
AND
IN THE MATTER OF:
Dr. Kunal Saha, permanently residing
at 2704 Bridge Watch Lane, Hilliard,
OH 43026, USA with a local
residence at c/o Mr. M.K. Ganguly,
11
Subol Apartment (Flat-E1), 7
Nilgunge Road, P.O. Belghoria,
Kolkata 700056.
…………….Petitioner
Versus
1. Ms. Mamta Banerjee, Chief
Minister/Health Minister, Govt. of
West Bengal, Writers’ Building,
Kolkata 700001;
2. Mr. Sanjay Mitra, Principal
Secretary, Dept. of Health & Family
Welfare, Govt. of West Bengal,
Swastha Bhavan, GN 29, Sector V,
Salt Lake, Kolkata 700091.
3. Dr. Sukumar Mukherjee,
“Aishani”, DA-05, Sector- I, Salt
Lake, Kolkata 700064.
12
4. Secretary, Medical Council of
India (MCI), Pocket-14, Sector-8,
Dwarka Phase-I, New Delhi 110077.
…….Respondents
To,
The Hon’ble Mr. Jainarayan Patel, The Chief Justice and His Companion
Justices of this Hon’ble High Court.
The humble application of the
Petitioner above named:
Most Respectfully Showeth:-
1. The petitioner is originally a physician from Kolkata, India but has
been permanently settled in the USA for the past more than two decades
working as a professor and specialist in the field of HIV/AIDS. The
petitioner is a naturalized citizen of USA and also an “overseas citizen of
India” (OCI). The petitioner is also the founding-president of “People for
Better Treatment” (PBT), a registered humanitarian society based in Kolkata
which is primarily dedicated to work for promotion of better healthcare
system and to help the victims of “medical negligence” in West Bengal and
across India.
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2. It is most respectfully submitted that your petitioner suffered the most
horrific personal tragedy in life in 1998 as while visiting India with his wife,
Anuradha Saha, she died at an age of only 36 falling victim to gross medical
negligence primarily due to the negligent therapy by one Dr. Sukumar
Mukherjee (Respondent no. 3). After more than a decade of legal battle
from USA, Hon’ble Supreme Court of India held Dr. Mukherjee primarily
responsible for the death of petitioner’s wife (AIR 2010 SC 1162; Malay
Ganguly vs. Sukumar Mukherjee & Ors.). Dr. Mukherjee used a steroid
(“Depomedrol”) at an astronomical dose (80 mg twice daily in contrast to its
maximum recommended dose of only 40-120 mg once at 1-2 weeks interval)
which is unheard of in the annals of medical science. While holding Dr.
Mukherjee guilty for medical negligence, Hon’ble Apex Court also made
scathing criticism about the irresponsible and reckless nature of the
treatment guideline provided by Dr. Mukherjee as the court observed:
“It is also to be noted at this juncture, that there may
well be a difference of opinion on the course of action to
be adopted while treating a patient of TEN, but the
treatment line followed by Dr. Mukherjee which entailed
administration of 80 mg of Depomedrol injection twice is
not supported by any school of thought. The treatment
14
line, in this case, does not flow from any considered
affinity to a particular school of thought, but out of sheer
ignorance of basic hazards relating to use of steroids as
also lack of judgment” (para 119) (emphasis added)
In fact, while remitting the matter back to the National Consumer Forum
(NCDRC) only for determination of the quantum of compensation to be paid
by Dr. Mukherjee (and two other doctors and AMRI Hospital), Hon’ble
Apex Court also imposed a cost of Rs. 1 lakh only against Dr. Mukherjee for
the “stand taken and conduct” (para 203) clearly indicating that Dr.
Mukherjee played the most heinous role in causing the death of petitioner’s
wife. In fact, Dr. Mukherjee also filed a review petition against the Apex
Court’s decision which was also promptly dismissed by the Supreme Court.
Thus, Dr. Mukherjee’s conviction for causing death of petitioner’s wife as a
result of “medical negligence” has reached finality in the eyes of law. As
enshrined under Article 144 of Indian Constitution, every authority, civil and
judicial, within the territory of Union of India is duty-bound to obey the
Supreme Court’s decision and they shall act in aid of the Apex Court’s
ruling both in letters and spirit.
3. That NCDRC also fined Dr. Mukherjee for Rs. 40.40 lakh, highest
compensation ever paid by any doctor for “medical negligence” in Indian
15
medico-legal history, on October 21, 2011. Although Dr. Mukherjee has
already paid this compensation to your petitioner, Hon’ble Apex Court has
already admitted appeal by your petitioner for enhancement of the
compensation against Dr. Mukherjee (Civil Appeal No. 2866/2012).
4. That Medical Council of India (MCI), highest regulatory authority for
practice of medicine in India, also investigated the treatment of Dr.
Mukherjee and found him guilty for medical negligence and “professional
misconduct”. The MCI directed the West Bengal Medical Council to
suspend the medical registration of Dr. Mukherjee in an order passed dated
23rd
May, 2011. However, Dr. Muherjee’s medical registration has not been
cancelled/suspended yet as a writ petition in this regard is still pending
before this Hon’ble Court (W.P. No. 9758 of 2011). A copy of the said
order passed by MCI is annexed herewith and marked as Annexure-P1.
5. That although Dr. Mukherjee was found guilty for gross medical
negligence both by the Hon’ble Apex Court and MCI, the WBMC
exonerated Dr. Mukherjee from all charges of negligent therapy through a
botched up investigation in collusion with the devious members of the state
medical council. It is pertinent to mention that 17 doctor-members of
WBMC who voted to acquit Dr. Mukherjee were recently indicted for
“criminal conspiracy” and processes have been issued against them under
16
Section 201 (read with Section 120B IPC) on 19th August, 2011 by the
Learned Metropolitan Magistrate, 8th Court, Calcutta (Complaint Case no.
C/20678 of 2011; Dr. Kunal Saha vs. Dr. Ashok Chowdhury & Ors.). This
underscores the strong level of personal influence that Dr. Mukherjee enjoys
over the state medical council and health department in West Bengal.
6. That despite being found guilty for gross medical negligence by the
Apex Court and even after losing medical registration by the MCI, Dr.
Mukherjee was lauded and glorified at an open public function on April 20,
2012 by the Respondent no. 1, who is also the chief minister as well as
health minister of West Bengal. The Respondent no. 1 did not even care to
follow the categorical instructed enshrined under Article 144 of Indian
Constitution that all authorities must act to aid the Supreme Court that had
already held Dr. Mukherjee guilty for medical negligence and chastised him
severely for his deplorable “stand taken and conduct” (AIR 2010 SC 1162).
To great distress of your petitioner, Respondent no. 1 also declared publicly
that Dr. Mukherjee was the most “eminent” physician in West Bengal who
should be appointed as the “chief advisor” for the health department in order
to improve the ailing healthcare system in the state. The said program
hosted by Respondent no. 1 and the medical wing of the state government to
promote Dr. Mukherjee to the post of “chief advisor” for the health
17
department was highly publicized by the electronic as well as print media
(Annexure-P2).
7. That the state health department (Respondent no. 2) issued a
circular/order dated July 12, 2012 with formal announcement that Dr.
Mukherjee has been appointed as the “chief advisor” with sweeping and
wide-spread power not only to control medical education and training but
also to bring changes in the “Standard Treatment Guidelines” for healthcare
providers in West Bengal. A copy of the said circular/order dated July 12,
2012 passed by the West Bengal health department is annexed and marked
as Annexure-P3.
8. It is most respectfully submitted that the deliberate action by
Respondent no. 1 of promoting Dr. Mukherjee to the highest post (“chief
advisor”) for regulating practice of medicine in West Bengal with virtually
unfettered power of framing of treatment guidelines for the healthcare
providers is extremely alarming because it poses a great danger for the
innocent patients of West Bengal. As Hon’ble Supreme Court has
categorically held in Malay Ganguly (Supra.), Dr. Mukherjee’s treatment
guideline for using “Depomedrol” at an excessive dose was “not supported
by any school of thought, but out of sheer ignorance of basic hazards
relating to the use of steroids as also lack of judgment”. It must be pointed
18
out that despite such unequivocal findings of guilt for excessive use of
steroids (“Depomedrol”) both by the Hon’ble Apex Court and MCI, Dr.
Mukherjee has always maintained that there is absolutely nothing wrong to
use “Depomedrol” at the same excessive dose (80 mg twice daily).
Appointing Dr. Mukherjee in charge of framing the “Standard Treatment
Guidelines” for all doctors in West Bengal is likely to promote wide-spread
use of erroneous drug therapy including excessive use of steroids e.g.
Depomedrol which would undoubtedly bring great threats to all patients in
the state.
9. That the deliberate and patently arbitrary action by Respondent no. 1
to appoint Dr. Mukherjee as the “chief advisor” for the health department on
the face of his conviction by the Hon’ble Apex Court and suspended medical
registration by the MCI (Annexure-P1) is nothing but a glaring example of
gross abuse of power by the state government which would undoubtedly
undermine public trust in the control of the healthcare system by regulatory
authorities like the MCI.
10. That the arbitrary, capricious and mala fide action by Respondent no.
1 to glorify Dr. Mukherjee as an “eminent” physician and to appoint him as
the “chief advisor” for the health department is in total contrast to
categorical observations made by the Hon’ble Apex Court in Malay Ganguly
19
(Supra.). The blatant move by the Respondent no. 1 is undoubtedly a
colossal abomination which clearly violates Article 144 of Indian
Constitution and would certainly lower public trust in the entire judicial
system including the Hon’ble Supreme Court. The deliberate move by
Respondent no. 1 to appoint Dr. Mukherjee as the “chief advisor” for the
health department in total disregard to the Apex Court’s unequivocal
observations cannot be viewed anything other than a contemptuous act
against the Hon’ble Supreme Court.
11. That Article 14 of the Constitution of India provides fundamental
rights for equality while Article 21 provides rights to life and liberty for all
citizens in India. The arbitrary and mala fide action by Respondent no. 1 to
elevate Dr. Mukherjee to the post of “chief advisor” for the health
department despite his conviction for “medical negligence” by the Apex
Court for causing death of petitioner’s wife has candidly trampled over the
fundamental rights for life, liberty and equal treatment. It may be noted that
starting from E.P. Royappa vs. State of Tamil Nadu (AIR 1974 SC 555), the
Hon’ble Supreme Court in a catena of decisions has established that any
arbitrary, discriminatory or mala fide act against a citizen would amount to
violation of the fundamental rights protected under Articles 14, 19 and 21 of
the Constitution of India (AIR 1978 SC 597; AIR 1980 SC 1992). In the
historic judgment in Sub-committee on Judicial Accountability vs. Union of
20
India & Ors. (1991 SCC 4, 1991), the Hon’ble Apex Court has categorically
held that courts should declare an legislative act invalid if it infringes any of
the fundamental rights for the citizens that are protected under the
Constitution as the court observed, “In a democratic country governed by a
written Constitution, it is the Constitution which is supreme and sovereign”
(para 62). The blatantly arbitrary and mindless action by Respondent no. 1
using her position in the government to appoint Dr. Mukherjee as the “chief
advisor” for the health department has not only violated the fundamental
rights of the petitioner that are protected under Articles 14, 19 and 21 of the
Indian Constitution but it has also violated Article 144 of the Constitution
and undermined the dignity of the Hon’ble Supreme Court .
12. That being deeply aggrieved, hurt and dissatisfied with the arbitrary,
capricious and mala fide action by Respondent no. 1 to appoint Dr.
Mukherjee as the “chief advisor” for the health department, your petitioner
begs to move your Lordships on the following amongst other:
GROUNDS:
I. For that the appointment of Dr. Mukherjee as the “chief advisor” for
the health department is nothing but a gross abuse of power by the
21
Respondent nos. 1 and 2 which lowers public trust in the judiciary and
undermines credibility of the Hon’ble Supreme Court.
II. For that the appointment of Dr. Mukherjee as the “chief advisor” for
the health department is nothing but a patently capricious and
arbitrary act on part of Respondent no. 1 that blatantly violates Article
144 of Indian Constitution and demeans the categorical observations
made against Dr. Mukherjee by the Hon’ble Apex Court in Malay
Ganguly (Supra.).
III. For that the appointment of Dr. Mukherjee as the “chief advisor” for
the health department in the most arbitrary fashion violates the
fundamental rights for equal treatment and rights to life and liberty of
the Petitioner as guaranteed under Article 14 and 21 of the
Constitution of India as held in numerous decisions by the Hon’ble