CIC: Ministry to exercise due diligence in enforcing the (Medical) Code of Professional Conduct, Etiquette and Ethics in such a manner that it should not endanger the life and physical safety of any person owing to violation of any of the clauses

FACTS:

The Appellant vide her RTI application sought clarification regarding Para 1.4.1 of Medical Council of India, Code of Ethics dated 11th March, 2002 wherein it was stated that "every physician shall display the registration number accorded to him by the State Medical Council/ Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts given to his patients, whether the medical prescriptions were issued by doctors without registration numbers; if so, will it be considered as a legal documents in Court of Law, etc. The CPIO, vide its letter dated 08.12.2017 stated that the queries raised by the Appellant were eliciting opinion and therefore it did not constitute as "information" defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;  of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its letter dated 25.01.2018, upheld the CPIO's response.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Ms. Rita Hore along with Mr. Sandipan Hore, through VC;

Respondent: Mr. Bonny Harison, SO, Mr. Dinesh Sharma, Asstt. and Mr. Shikhar Ranjan, Law Officer;

The Appellant reiterated the contents of the RTI application and stated that the clarifications sought by her relating to the Medical Council of India Code of Ethics vide MCI- 211(2)/2001/Registration, New Delhi dated 11th March, 2002 at Para 1.4.1., had not been received by her, till date. She further reiterated her written submission. The Commission was in receipt of an e-mail from the Appellant dated 05.06.2019, wherein it was submitted that the information sought for was in the nature of "the procedure followed in the decision making process, including channels of supervision and accountability" and "the norms set by it for the discharge of its functions" as defined in Section 4(1) (b) (iii) and (iv) of the Medical Council of India. Moreover, the Council was expected to maintain written instructions in this regard. Furthermore, it was submitted that the RTI Preamble envisages for "democracy requires an informed citizenry and transparency of information which were vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed". Furthermore, Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;  of the Act was referred to wherein it was defined that "information" means any material in any form". She further submitted that the reply made was categorically manipulative, failed to disclose how CPIO arrived at a conclusion that why the CPIO considered the queries as of eliciting opinion and hence held not qualifying to be information as per Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;  of the RTI Act and also whether the replies to the queries existed or not, and if existed then if not qualifying under exemption clause of Section 8, should have disclosed it, else if there was no information existing then reasons for the same should have been clearly indicated. It was thus a fit case of directing the public authority to make clear replies in this regard and a ground of complaint that why the authority did not make full disclosure in the first instance and she further requested for award for an appropriate compensation in the case. It was further submitted that she would try to be personally present on the date of hearing and would like to authorize her Son Shri Sandipan Hore (AADHAAR No. 837579747785) having permanent residence at 2 Chit Nayabad, P O and P S Panchasayar, Kolkata 700094 to speak for her during the hearing on her behalf.

In its reply, the Respondent submitted that clarifications/opinion/interpretation was beyond the purview of the RTI Act, 2005. Therefore, a suitable reply was sent to the Appellant by the CPIO/FAA. The Commission was also in receipt of an e-mail dated 25th June, 2019, wherein it was submitted that in exercise of powers conferred by section 20A [Professional Conduct] and Section 33 (m) of the Indian Medical Council Act, 1956 the Council has with the prior approval of the Central Government (Ministry of Health and Family Welfare) laid down the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Clause 1.4 deals with "Display of Registration numbers" and inter alia provides that "Every physician shall display the registration number accorded to him by the State Medical Council/Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts given to his patients." Furthermore, it is open to a person to make a complaint to the concerned State Medical Council for any violation of these Regulations and the Appeal against the decision of State Medical Council can be made by either of the parties to the Medical Council of India. Furthermore, the query of the Appellant relates to the production of prescription in a Court of law and establishing it as evidence. The Respondent could not advise or give his opinion in this regard. Moreover, it was submitted that in terms of section 15 (3) of the Indian Medical Council Act, 1956 any person practicing medicine without registration with the concerned State Medical Council is liable for prosecution by the State Government. Analogous provisions are also found in the Indian Medicine Central Council Act, 1970 and Central Council of Homeopathy Act, 1973.

The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:

"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"

In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:

35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."

Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. "....Under the RTI Act "information" is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;  which provides: "information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."

7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."

With regard to larger public interest involved in the matter, the Commission referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:

"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh ([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."

The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:

"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:

"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."

In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :

Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."

In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :

".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."

Every action of a Public Authority is expected to be carried out in Public Interest. The Hon'ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:

"Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest."

Similarly, the Hon'ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under:

"Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge."

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties as also the sensitivity and criticality of the subject matter raised by the Appellant in the larger public interest, the Commission observed that while wanton aggression of the aggressive behavior of the patients for the neglect of services by the Doctors is understandable, it is also necessary to protect the rights of the patients aggrieved by wrongful treatment and faulty prescriptions given by the Doctors. Therefore, it is extremely essential and pertinent for the Ministry of Health & Family Welfare as also Ministry of AYUSH to exercise due diligence in enforcing the Code of Professional Conduct, Etiquette and Ethics laid down by the Indian Medical Council / State Medical Council / Medical Council of India in such a manner that it should not endanger the life and physical safety of any person owing to violation of any of the clauses laid down in the aforesaid Regulations. If necessary, the Government may re-visit extant guidelines and re-formulate certain Rules / Regulations for its enforcement and for initiating penal action. This information should be disseminated amongst all the stakeholders expeditiously.

The Appeal stands disposed accordingly.

 (Bimal Julka)

(Information Commissioner)

Citation: Ms. Rita Hore v. Medical Council of India in Second Appeal No.:- CIC/MEDCI/A/2018/611068-BJ; Date of Decision: 26.06.2019.