SVKMS

NMIMS SCHOOL OF LAW

SYNOPSIS SUBMITTED ON;

LIABILITY OF STATE FOR FAILED STERILIZATION OPERATIONS
IN COMPLIANCE TO THE PARTIAL FULFILLMENT OF THE MARKING
SCHEME, FOR TRIMESTER VII OF 2016-2017, IN THE SUBJECT OF:
INTERPRETATION OF STATUTE AND PRINCIPLES OF LEGISLATIONS
SUBMITTED TO FACULTY:
ISHNOOR ARORA

SUBMITTED BY:
NIKET JAIN
B.B.A. LL.B. (HONS.)
YEAR III
ROLL NO. A035

RECEIVED BY: _____________________

ON DATE: __________ TIME: _________

SYNOPSIS
LIABILITY OF STATE FOR FAILED STERILIZATION
OPERATIONS

RESEARCH PROBLEM
As seen in the Shiv Ram case1, one of the respondents underwent a tubectomy
operation through the publicity campaign of the Family Welfare Department.
The Apex Court held that the respondents were not entitled to any sort of
compensation from the State Government on account of unwanted pregnancy.
Therefore, even after being assured that the respondent would not get pregnant,
no sort of compensation was awarded for the contrary.

RESEARCH QUESTIONS
Whether all failed sterilization operations amount to medical negligence
under Section 304A of the Indian Penal Code.
What are the main principles and reasonings to be considered before
determining if a State is liable for a failed sterilization operation?
How has the Court interpreted the relevant statutes while determining the
above cases?
Whether every victim of a failed sterilization operation is entitled to a
compensation.
Whether the decisions taken by the judiciary on the above matter are
good judgments.

1 2005 (7) SCC 1; AIR 2005 SC 3280.

 Whether there is a need for amendment of the existing law in the light of
its interpretation.

REVIEW OF LITERATURE
Public policy requires us to hold that the birth of a child is always a blessing
to its parents and that this benefit must, as a matter of law, totally offset
concomitant financial burdensWe may take judicial notice of the fact that
raising a child from birth to maturity is a costly enterprise, and hence
injurious2
-Justice Peters, Connecticut Supreme Court
The above statement suggests that pregnancy should always be treated as a
bliss. But this same bliss also comes with several financial constraints. It is
never easy to upbring a child without severe monetary burden. If the parents
have taken necessary steps to sterilize themselves then why shouldnt they be
compensated for the failure of such an operation? What wrong have they done?

since the petitioner No.1 never wanted another child who was born due to
the negligence and callous attitude of the surgeon, who is an officer of the State,
it is the duty of the State to maintain the child.3
-Justice Raza, Allahabad High Court
The above statement makes it clear that the State is vicariously liable for the
acts of the surgeon. If the negligent attitude of the surgeon leads to a failure in

2 DOCTOR HELD LIABLE AFTER FAILED STERILIZATION, Robert E. Tomasson, The

New York Times, June 6, 1982.
3 AIR 2000 AII 219 (223)

the sterilization operation, then it is clear that the couple should be compensated
for a mistake which they never committed.

METHODOLOGY
The scope of this project is limited to subjective analysis of the decisions of the
judiciary on the liability of the State, for failed sterilization operations. This
paper deals in-depth with the stance of Section 304A of the Indian Penal Code
and the interpretation of the courts on this subject. Since the paper is based on
opinions formed after in-depth analysis of the judgments dealt with, it conveys
subjectivity and may vary from the general notion of perception.
The method of research adopted in this research paper is the Doctrinal method
of research. Primary and secondary sources of data have been used to formulate
opinions. Books and internet content constitute major part of the research and,
surveys and examinations have not been conducted for the same.

HYPOTHESIS
There is a strong need to protect the interests of the victims of failed sterilized
operations, who are seldom compensated for the same.

CASES ANALYZED
Achutrao Haribhau Khodwa v. State of Maharashtra4
State of Haryana & Ors. v. Smt. Santra5
State of Punjab v. Shiv Ram and Ors.6
41996 SCC (2) 634, JT 1996 (2) 624
5 (2000) 5 SCC 182, JT 2000 (5) SC 34

6 2005 (6) Supreme 58

CASE I: THE MOP

(TOWEL) CASE
Achutrao Haribhau Khodwa v. State of Maharashtra
In a significant judgment delivered on February 1996, the Supreme Court has
enlarged the ambit of vicarious liability and extended the reach of the
Consumers Protection Act, 1986. Chandrikabai, a teacher, died on July 24, 1963
as the doctors had let a mop (towel) in her abdomen during a sterilization
operation in Aurangabads Government hospital. The Supreme Court held that
running a hospital could be a welfare activity by the Government but not a
sovereign function. The judgment came in the wake of an appeal filed 17 years
ago by the deceaseds husband and her four children.

FACTS
The deceased, Chandrikabai was admitted in the Civil Hospital, Aurangabad, on
10th July, 1963, for delivering her child. This maternity hospital is attached to
the Medical College at Aurangabad, and respondent No. 2 was working in the
department of Obstetrics and Gynaecology as a doctor. It is she who attended
Chandrikabai. Respondent No. 3 was the Medical Officer of the said hospital,
while respondent No. 4 was the Dean of Medical College, Aurangabad.
Chandrikabai delivered a male child on 10th July, 1963. As she had got herself
admitted to this hospital with a view to undergo a sterilisation operation after
the delivery, the said operation was performed by respondent No. 2 on 13th
July, 1963. Soon thereafter Chandrikabai developed high fever and experienced
acute pain, which was abnormal after such a simple operation. Her condition

deteriorated further and on 15th July, 1963 appellant No. 1 approached

respondent No. 3 and one Dr. Divan (PW-2), who was a well-known surgeon
and was attached to the hospital, but was not directly connected with the
Gynaecological department. At the insistence of appellant No. 1, Dr. Divan
examined Chandrikabai on 15th July 1963, and seeing her condition, he is
alleged to have suggested that the sterilisation operation which had been
performed should be looked into. This suggestion was not acted upon by
respondent Nos. 2 and 3, and the condition of Chandrikabai worsened. On 19th
July, 1963, Dr. Divan, on being called once again, re-opened the wound of the
earlier operation in order to ascertain the true cause of the seriousness of the
ailment. According to the appellants, respondent Nos. 2 and 3 assisted Dr. Divan
in this operation. Dr. Divan, as a result of the second operation, found that a
mop (towel) had been left inside the body of Chandrikabai when the sterilisation
operation was performed on her. It was found that there was collection of pus
and the same was drained out by Dr. Divan. Thereafter, the abdomen was closed
and the second operation completed. Yet the condition of Chandrikabai did not
improve and she ultimately expired on 24th July 1963.

ISSUES
Whether the State of Maharashtra can be held liable for any negligence on
behalf of its employees.
Whether running a Government hospital falls within the Sovereign functions
of the State.
Whether the respondents, or any one of them acted negligently in the
discharge of their duties.

CASE OF THE APPELLANTS

Alleging that Chandrikabai was working as a teacher in a government school
and her salary augmented the total income of the family, it was pleaded that
the death of Chandrikabai was caused due to the negligence of respondent
No. 2 who had performed the sterilisation operation on 13th July 1963, as
well as the irresponsible behaviour of respondent No. 3.
The appellants also alleged that the hospital lacked adequate medical aid and
proper care. There was gross dereliction of duty on the part of the officers of
the Government Civil Hospital which directly resulted in the death of
Chandrikabai and, therefore, the appellants were entitled to recover damages
from the Government of Maharashtra (respondent No. 1) as well as
respondent Nos. 2 to 4.
The appellants also relied upon the evidence of Dr. Divan (PW-2). In
addition thereto the appellants also examined, on commission, Dr. Ajinkya
who was a Gynaecologist and Obstetrician of Bombay. According to Dr.
Divan, after the sterilisation operation, Chandrikabai had suffered from postoperative peritonitis. This was due to a mop which had remained inside the
peritoneal cavity for a number of days. This resulted in an inflammatory
condition from which recovery was very difficult. After the removal of the
mop Dr. Divan said that he saw the condition of the intestine which
continued to remain paralysed. The treatment of peritonitis was started from
15th July, 1963 and in his opinion the death of the patient was due to the
complications following the leaving of the mop inside the abdomen. The
other expert witness Dr. Ajmkya also came to the same conclusion, though
his statement was recorded without his having the benefit of seeing the case
papers.
The appellants referred toN. Nagendra Rao & Co. v. State of Andhra
Pradesh.7It was stated that, as a Welfare State, the functions of the State are
71994 AIR 2663, 1994 SCC (6) 205.

not only defence, or administration of justice, or maintaining law and order,

but also extends to regulating and controlling the activities of people in
almost every sphere. Such spheres include educational, commercial, social,
economic, political and even marital subjects. The Court stated that the
demarcating line between sovereign and non-sovereign powers has largely
disappeared. Therefore, barring functions such as administration of justice,
maintenance of law and order and repression of crime etc., which are among
the primary and inalienable functions of a constitutional government, the
State cannot claim any immunity. If such a suit is maintainable against the
officer personally, than there is no reason for it to not be maintainable
against the State.
Also, in State of Maharashtra and Ors. v. Kanchanmala Vijaysingh
Shrikeand Ors.,8 the Court held the State to be vicariously liable for the acts
of its employees. It stated that though the employer is not guilty of any fault
himself, he is liable for the damage done by the fault or negligence of his
servant acting in the course of employment. The Court also said that in some
cases it can be found that an employee was doing an authorised act in an
unauthorised, but not in a prohibited way. The employer shall be liable for
such acts, because such an employee was acting within the scope of his
employment. A master is liable even for the acts which he has not authorised,
provided that they are so connected with acts which he has authorised.
Describing medical negligence in the case ofDr. Laxman Balkrishan Joshi
v. Dr. Trimbak Bapu Godbole and Anr.,9 the Supreme Court had observed the
following: The duties which a doctor owes to his patient are clear. As per
person who holds himself out ready to give medical advice and treatment
impliedly undertakes that he is possessed of skill and knowledge for the
purpose. Such a person when consulted by a patient owes him certain duties,
8AIR 1995 SC 2499
91969 AIR 128, 1969 SCR (1) 206

viz., a duty of care in deciding whether to undertake the case, a duty of care
in deciding whether treatment to give or a duty of care in the administration
of that treatment. A breach of any of those duties gives a right of action for
negligence to the patient. The practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence
judged in the light of the particular circumstances of each case is what the
law requires.
CONTENTIONS OF THE RESPONDENTS
According to respondent Nos. 2 and 3, they had prohibited Dr. Divan from
performing the second operation. The said respondents even denied that a
mop was recovered from the abdomen of Chandrikabai.
On behalf of the respondents, apart from themselves, two experts, namely
Dr. Marwa, Professor of Surgery, Medical College, Aurangabad and Dr. B.V.
Purandare, a leading Obstetrician and Gynaecologist of Bombay were
examined. According to Dr. Purandare, Chandrikabai was only suffering
from acute gastric disorder till 19th July, and it was necessary for the doctors
to have waited after removal of the pus on that day, and the second operation
was not necessary. Dr. Purandare deposed that in the absence of a post
mortem examination the exact and correct cause of death could not be
determined definitively. The opinion of Dr. Marwa was also to the same
effect.
The Respondents relied on the case of Kasturi Lal Ralia Ram Jain
v. The State of Uttar Pradesh.10Here, gold had been seized and the same had
been kept in a malkhana. The appellant demanded the return of his gold but
the same was not returned. It appeared that the gold had been
misappropriated by the person in-charge of the malkhana. While holding that
101965 AIR 1039, 1965 SCR (1) 375

there was negligence on the part of the police officers, the Court denied
relief by observing that the powers which were exercised by the police
officers could be properly characterised as sovereign powers and, therefore,
the claim could not be sustained.

JUDGMENT
Running a hospital is a welfare activity undertaken by the government. But it is
not an exclusive function or activity of the government so as to be classified as
one which could be regarded as being in exercise of its sovereign power. This
being so, the State would be vicariously liable for the damages which may
become payable on account of negligence of its doctors or other employees.
In cases where the doctors act carelessly and in a manner which is not expected
of a medical practitioner, then in such a case an action in torts would be
maintainable. As held in Laxman's case 11 by the Court,a medical practitioner
has various duties towards his patient and he must act with a reasonable degree
of skill and knowledge and must exercise a reasonable degree of care. This is
the least which a patient expects from a doctor.
Even if it be assumed that it is the second operation performed by Dr. Divan
which led to the peritonitis, as has been deposed to by Dr. Purandare, the fact
still remains that but for the leaving of the mop inside the peritoneal cavity, it
would not have been necessary to have the second operation. Assuming even
that the second operation was done negligently or that there was lack of
adequate care after the operation which led to peritonitis, the fact remains that
Dr. Divan was an employee of respondent No. 1 and the State must be held to
be vicariously liable for the negligent acts of its employees working in the said
hospital. The claim of the appellants cannot be defeated merely because it may
11 supra

not have been conclusively proved as to which of the doctors employed by

the State in the hospital acted negligently, causing the death of Chandrikabai.
Once death by negligence in the hospital is established, as in the case here,
the State would be liable to pay the damages. Therefore, the High Court clearly
fell in error in reversing the judgment of the trial court and in dismissing the
appellants' suit.
Hence, the appeal is allowed. The judgment of the High Court of Bombay
under appeal is set aside and, the judgment and decree of the trial court is
restored. The appellants will also be entitled to costs throughout.

BIBLIOGRAPHY
INTERNET
http://www.issuesinmedicalethics.org/index.php/ijme/article/view/440/802
http://www.thompsons.law.co.uk/clinical-negligence/failed-sterilisationcompensation-claims.htm
http://www.legalservicesindia.com/article/article/vicarious-liability-of-statein-sovereign-functions-580-1.html
https://www.researchgate.net/publication/267214194_Issue_of_Failed_Steril
ization_Medical_Negligence_and_Compensation_A_global_Review

STATUTES
Indian Penal Code, 1860
Consumers Protection Act, 1986

BOOKS
Textbook on The Indian Penal Code by K.D.Gaur., Fourth Edition