Under new law, doctors face two years of imprisonment for death due to negligence

Contrary to what Union Home Minister Amit Shah told the Lok Sabha on Wednesday, the amended Bharatiya Nyaya (Second) Sanhita Bill, 2023 (BNSS) does not provide a blanket exemption to doctors in cases of death due to negligence; instead, it prescribes a maximum two-year imprisonment in such cases, slightly lower than the punishment for other cases.

The amended Section 106 (1) of the Sanhita says: “Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.”

An overhaul, the criminal law Bills, and the big picture

It further explains that for the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.

The section was amended to include the clause on medical practitioners.

No exemption for doctors

Replying to the debate on the three criminal laws in the Lok Sabha on Wednesday, Mr. Shah said: “If someone died due to medical negligence by doctors it was treated as culpable homicide not amounting to murder. I am bringing an amendment today. Doctors have been exempted from punishment [under this section]. The Indian Medical Association had requested us [for the exemption].” On Thursday, when the three criminal law bills were discussed in the Rajya Sabha, Mr. Shah did not mention the exemption for doctors. 

Guidelines on medical negligence under consideration, says Union Health Ministry

Currently, under Section 304A of the Indian Penal Code, 1860, the punishment for causing death by negligence is two years imprisonment and fine or both. The BNSS, which will replace the IPC, increases the punishment for such acts to five years, but specifies that doctors will still get the lower punishment of two years jail time if convicted. 

Passed without Opposition

Senior Congress leader P. Chidambaram posted on X (formerly Twitter) that though the Home Minister had said that three instances of the colonial imprint have been repealed, the facts are otherwise. 

Also read |Doctors cannot be held negligent if treatment or surgery goes wrong: Kerala High Court

“Sedition was read down severely and registration of FIRs for sedition was prohibited by the Supreme Court. Sec. 377 of the IPC relating to homosexuality was decriminalised by the Supreme Court,” he wrote. “The section on Adultery was struck down by the Supreme Court. We can thank the Hon’ble Home Minister for rejecting the recommendations of the Standing Committee (dominated by BJP MPs) for including these ‘offences’ in the new Bill,” he said.

The former Home Minister added that “the passing of the three Bills with the Opposition benches practically empty (thanks to the 143 suspensions) is like winning a cricket match where the opposite team is not allowed to bat.”