New Delhi, 5 Nov
The promulgation of the Bharatiya Nyaya Sanhita, 2023 (BNS) marks a decisive turning point in India’s criminal jurisprudence, replacing the Indian Penal Code, 1860—a statute that for over a century reflected colonial legal philosophy. Among its most debated provisions is Section 106, which redefines the contours of criminal liability for medical negligence. Its implications extend far beyond statutory reform, influencing the delicate balance between patient protection and the professional autonomy of India’s medical practitioners. For the first time in independent India’s penal law, the BNS introduces a mandatory imprisonment clause for cases of death caused by a registered medical practitioner’s negligent act. Under the previous Section 304A IPC, courts had discretion to impose either imprisonment or a fine, or both. This f lexibility allowed judges to distinguish between ordinary negligence and truly gross misconduct. In contrast, Section 106(1) BNS provides that such practitioners “shall be punished with imprisonment for a term which may extend to two years and shall also be liable to fine,” thus eliminating judicial discretion to impose only a fine. This shift has triggered deep concern within both the medical and legal communities. The Indian Medical Association (IMA) has warned that the removal of judicial discretion, coupled with the absence of an explicit “gross negligence” threshold, risks lowering the prosecutorial bar. The result, many fear, could be a climate of over-criminalisation, where even an honest error of judgment may invite criminal liability. From “Gross Negligence” to Strict Liability? Historically, India’s apex court maintained a clear distinction between civil and criminal negligence. In Dr. Suresh Gupta v. Government of NCT of Delhi (2004) 6 SCC 422, the Supreme Court held that criminal liability arises only when negligence is so gross as to reflect “such disregard for life and safety of the patient as to amount to a crime against the State.” This principle was reaffirmed in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, where the Court applied the Bolam Test, underscoring that a doctor cannot be held criminally liable if his conduct aligns with that of a reasonably competent practitioner. Under the BNS, the absence of explicit reference to “gross negligence” creates interpretative ambiguity. If read literally, the provision could allow prosecution even in cases of ordinary negligence—something the Jacob Mathew doctrine explicitly forbids. Unless courts reaffirm the higher threshold through interpretative continuity, the legislative reform risks collapsing the long-standing separation between civil fault and criminal guilt. Dilution of Judicial Safeguards Procedurally, the BNS also marks a retreat from court-evolved protections. Under the Jacob Mathew guidelines, no criminal prosecution against a doctor could proceed without a preliminary inquiry or an expert medical opinion confirming gross negligence. Similarly, in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1, the Supreme Court acknowledged the need for preliminary scrutiny before the registration of an FIR in sensitive cases. However, Section 173(3) of the BNS now mandates preliminary inquiries only for offences punishable with imprisonment of three to seven years. Since Section 106(1) prescribes a maximum of two years, medical negligence cases fall outside this category. Effectively, FIRs may now be registered against doctors without the protective filter of expert evaluation—an erosion of one of the most vital safeguards established by precedent. As the Court observed in Shamrao V. Parulekar v. District Magistrate, Thana AIR 1952 SC 324, legislative enactment supersedes prior judicial interpretation when inconsistent with it. Further, the introduction of a pre-cognizance hearing for the accused appears superficially protective but could prove counterproductive. By compelling a doctor to respond before the prosecution’s case is formed, the provision risks undermining the constitutional right against self-incrimination under Article 20(3). It also distorts the established procedural order where the magistrate first determines the sufficiency of material before summoning an accused (Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749). The “Deemed Sanction” Dilemma Another area of concern arises from the companion legislation—the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 218(3) introduces a “deemed sanction” clause: if the competent government fails to decide on a sanction request within 120 days, sanction is automatically presumed granted. For public hospital doctors, this means administrative inaction could directly expose them to prosecution, reversing the protection envisaged in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 and Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705, where the Court held that sanction was a jurisdictional prerequisite. The principle of “silence equals consent” here fundamentally alters the balance between accountability and protection. Practical Consequences: Doctors and Patients The implications of these reforms are profound. For practitioners, the risk calculus shifts dramatically. The mandatory imprisonment clause transforms professional misjudgment into a potential criminal offence. Fear of prosecution may drive defensive medicine—overtesting, overtreatment, and reluctance to take on high-risk cases. The Dr. Suresh Gupta judgment had warned precisely against such an outcome, noting that indiscriminate criminalisation would “do a great disservice to the community at large” as doctors would prioritise self-protection over patient welfare. Public-sector doctors face an even more precarious situation under the deemed sanction clause. Bureaucratic delay, a routine feature of administrative governance, may now directly translate into criminal exposure. The cumulative effect could be demoralisation within public healthcare, already burdened by resource scarcity and patient overload. From the patient’s perspective, greater accountability is desirable, but the unintended outcome may be reduced access to care. Over-criminalisation could deter young practitioners from entering high-risk specialties, leading to scarcity of critical expertise. Moreover, medical negligence cases remain evidentially complex: causation, standard of care, and professional judgment cannot always be neatly captured within the binary of guilt and innocence. Restoring Balance Through Interpretation The challenge now lies in judicial interpretation. Courts must clarify whether the Jacob Mathew threshold of “gross negligence” continues to apply. Through the interpretative principle of consistent usage, they can read this requirement into Section 106(1) to maintain continuity with precedent. Likewise, even though the BNS omits mandatory preliminary inquiry, judicial insistence on expert medical opinion as a matter of fairness could preserve procedural balance. Constitutionally, these reforms must also be tested against the guarantees of Articles 14, 19(1)(g), and 21. As Maneka Gandhi v. Union of India (1978) 1 SCC 248 affirmed, any law must be “right, just, and fair.” If the enforcement of Section 106 results in arbitrary or disproportionate outcomes, judicial review will be essential to align legislative intent with constitutional values. Conclusion The Bharatiya Nyaya Sanhita, 2023 embodies a bold legislative overhaul, but its impact on medical negligence jurisprudence demands careful scrutiny. Accountability must not mutate into fear; reform must not erode professional judgment. Without interpretative restraint, the new regime could blur the vital line between professional error and criminal offence, undermining both patient welfare and medical integrity. The jurisprudential wisdom of Dr. Suresh Gupta and Jacob Mathew must therefore continue to guide judicial application, ensuring that India’s march toward legal modernisation does not come at the cost of justice, proportionality, and trust in the doctor-patient relationship.