Scum of the earth off the hook

In the midst of the latest breakout of Ebola virus in Africa  the  apex court  forewarned  that a scaremongering campaign is being made to sully the judiciary. Justice Katju ups the heat on corruption .corruption is like a chameleon with Ebola virus,  it adjusts to poor and stagnant Africa and  blooms under democracy in India. Do we have an antidote and vaccine on the way!”

Recently  the Madras high court  let off the hook ,the medical colleges  which  collected capitation fees and made false declaration and acquired recognition by misrepresenting facts relating to faculty and infrastructure.

Academic fraud is regarded as a serious threat to the integrity and reliability of certification in medical education, leading to skepticism as to the validity of results and suspicion about real  performance. Medical malpractice crisis affects different people and entities in many ways. There are  substandard treatment , counterfeit drugs, bed shortages, poor quality care (patients  made to sleep on the floor, and given inferior foods )whereas our shameless power hungry law makers fight for room in parliament.

There is a  collective failure" of regulatory  mechanism. Without clear lines of authority regulatory  bodies are  unaccountable and therefore vulnerable to regulatory  inefficiency and external manipulation. Do not  Violation of laws  raise the category of the offense of malversation.It is elementary that it is the allegations of the complaint and not the designation of the offense that determine the crime committed and charged

The case was thrown out  on the ground that a dean of a private medical university  is not a public servant  discharging a public duty.A private medical  college  has public funds which is received from public as capitation fees ,should  be penalized with the same penalty meted to erring public officers. The equal protection clause  is infringed which applies only to those persons  who are public servants.

The court further held that there is no room for any external agency to investigate a case of corruption or illegality in medical colleges since the subject falls entirely under the purview of  the MCI. Is there any discretion to define the limits of the investigation by the CBI?

Under  the rule of law, the criminal law has both a fair-warning function for the public and a power-restricting function  for investigators.No  sanctions  are inflicted  on the CBI to investigate an offence  .  Centers power to prescribe regulations to promote the health, morals, education, good order or safety, and the general welfare of the people flows from the recognition that salus populi est suprema lex – the welfare of the people is the supreme law. A judicial reluctance to enforce the CBI operative provisions has been the impetus underlying   and reducing the CBI to a paper tiger wanting of judicial consideration and enforcement. The moral force of the criminal law is diluted  and instills  doubts concerning the system's fairness. Laws may be written foolishly so might they be not interpreted  unwisely .

The function  of CBI is to – seek and find the truth on, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officials and employees, their co-principals, accomplices and accessories from the private sector, if any, and thereafter  to initiate appropriate action and to ensure that the full measure of justice is served without fear or favor. Just as we don’t tolerate a reasonable doubt about whether a particular person is guilty of the crime charged, so it should  be sure that the conduct a person has  been charged with should be treated as criminal. The discretion of who to prosecute depends on the C.B.I. sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is that the C.B.I.  has  performed their duties, and this presumption can be overcome only by proof to the contrary, not by mere speculation.

The persons criminally liable for the offence  in question are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management  of the college  are responsible for the commission of the offense and the responsible employees/agents thereof shall  also be liable. The manner in which the prosecution of the case is handled is within the sound discretion of the  C.B.I. prosecutor, and the non-inclusion of other guilty persons is irrelevant to the case.

There is no doubt that concealing information  and cheating  the Medical Council of India  are clear violations of duties with serious economic consequences on the public fiscal. By  means of a conspiracy committed through falsification of documents it  causes undue injury to the health sector where beneficiaries are public  and giving a private party unwarranted benefits through manifest partiality, evident bad faith, or inexcusable negligence and there by willfully, unlawfully and feloniously cause undue injury, damage and prejudice to the public by grant of illegal  licenses or permits or other concessions

The Indian health care system is besieged.  Access is limited for millions of citizens and that costs are higher on a per patient basis It has become clear that patients suffer unnecessary trauma and death at the hands of healthcare providers, because they receive substandard care,and they fail to get necessary and effective treatments.

To draw parallels  with  other regulatory bodies viz Bar council - A lawyer who is appointed as a law officer  of center or state may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official.  However, if that misconduct as a government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such ground. Criminal prosecution of a member  is based on circumstances and initiated by law enforcement agencies . Bar councils or other regulatory bodies  do  not have an agency with the powers and authority to investigate arrest and prosecute for grave misconduct and dishonesty or  for falsifying  documents and there is no stumbling block for the police to pry into every hole and corner.

The Court  dismissed  the  indictment  and quashed  the proceedings  by interpreting  the statute beyond the legislative language. Presence or absence of the elements of the crime are evidentiary in nature and are matters of defense, the truth of which can best be passed upon  only after a full-dress  trial on the merits. If the interpretation is enforced selectively  we will continue to see public trials and secret trials like  the film “Ramanna “ where the protagonist pursues his own path, that is not entirely lawful, in order to rid society of corruption. Allowing  corrupt officials to violate the  laws with impunity is to condemn this country to perpetual kleptocracy- Free speech will be suppressed on inexplicable whims; police target the weak and kill  the sinless; rulers will throw dust in the eyes of its citizens, steal their property, tricking them into criminal acts, bribing witnesses against them, making a mockery of legal reasoning, and ultimately break  the laws in order to enforce them.  Economic offence  , financial crimes, corrupt practices, forgery ,perjury (especially one committed in order to attain the office), false declaration are serious offences from the point of view of our penal legislations. If society is to diminish the risk of contracting infectious diseases  like ebola; laws must protect the public by ensuring proper standards in the practice of medicine  by setting and regulating professional standards and accountability on the part of these  regulators ,institutions and officials .If raiders of private health institutions  are let off the hook  our laws will be meaningless, and our attempts to understand it, enforce it, and rely on it will be chaotic.

K.SURESH BABU 

ADVOCATE 9,RAJA COLONY,

SECOND MAIN ROAD,COLLECTORS 

OFFICE ROAD,TRICHY