To understand and assess the constitutional validity of BNS 106(1) that renders all acts of registered medical practitioner criminal if the procedure of treatment ends in death of the patient, I asked AI to list fundamentals under various legal systems that provide a law its validity.

My first question to AI was:
Q. What are the fundamentals of a law under a democratic set up?
In response the AI identified and elaborated the following fundamentals of law under democratic set up:

• Democratic Legitimacy and Participation
• Rule of Law
• Constitutional Framework
• Transparency and Accountability
• Equality and Protection of Rights
• Fair Process and Due Process

But since medical negligence is adjudicated mostly under Common Law of Natural Justice, I asked AI to elucidate the fundamentals under the Common Law.Q. What are the fundamentals of law under common law and natural justice?The AI identified, enumerated and elaborated the following fundamentals that provide validity to law or decision of the court.

Common Law Fundamentals
The common law tradition is built upon the following fundamentals:

• Precedent (Stare Decisis): Decisions made by courts in previous, similar cases guide future rulings.
• Judicial Reasoning and Flexibility: Although bound by precedent, judges in common law systems have the latitude to interpret laws, ensuring that legal principles evolve in line with societal changes.
• Adversarial Process: Common law methods typically involve parties presenting their cases before an impartial judge (and often a jury), who then adjudicates based on the evidence and arguments submitted.

Natural Justice Principles
Audi Alteram Partem (Right to be Heard): Before any adverse decision is made, all parties must be given an opportunity to present their case, evidence, and arguments.
Nemo Judex in Causa Sua (Rule Against Bias): Decision-makers must be impartial, ensuring that no one decides a case in which they have a personal interest.
Reasoned Decisions (Speaking Orders): It is essential for decisions to be accompanied by clear reasons.
Since there are statutory laws that govern adjudication of medical negligence I asked:
 
Q. What are the fundamentals under the Constitution of India that determine the constitutional validity of a law enacted by the Parliament?
AI. > The constitutional validity of a law enacted by Parliament is determined by a constellation of principles enshrined in the Constitution of India that ensure every statute upholds the supreme law of the land. Here are the core fundamentals:
Supremacy of the Constitution: The Constitution of India is the ultimate legal authority. Under Article 13, any law that is inconsistent with or violates constitutional provisions—especially the fundamental rights enumerated in Part III—is deemed void to the extent of the inconsistency. Thus, Parliament's legislative power is exercised within the bounds set by the Constitution.

Legislative Competence and Constitutional Limits: The power of Parliament to make laws is derived from and limited by the Constitution. This means Parliament can only legislate on subjects within its competence—primarily those enumerated under the Union List in the Seventh Schedule—and must observe the federal balance laid out in the Constitution. Laws that infringe on areas reserved for the States or exceed the legislative competence may be declared unconstitutional.

Judicial Review: One of the cornerstones of the Indian constitutional framework is the power of judicial review. The judiciary, particularly the Supreme Court, holds authority to examine whether a law conforms to the Constitution. If a law is found to violate constitutional mandates—be it due to infringement of fundamental rights or alteration of the basic structure—it may be struck down. This review mechanism serves as a check on the exercise of parliamentary power.

Doctrine of Presumption of Constitutionality: Once a law is enacted following the proper constitutional procedure, it is presumed to be constitutional. This presumption guides courts in their interpretation of statutory provisions; they strive to construe laws in a way that aligns with constitutional values and protections. However, this is not an inviolable axiom—when a law clearly conflicts with constitutional imperatives, that presumption is displaced, leading the law to be invalidated.

The Basic Structure Doctrine: Introduced by landmark judgments such as Kesavananda Bharati, the basic structure doctrine asserts that there are essential features of the Constitution—such as the rule of law, separation of powers, and judicial independence—that cannot be altered or destroyed even by a constitutional amendment or an ordinary law. Any law that seeks to erode this "basic structure" is liable to be struck down as unconstitutional.

Protection of Fundamental Rights: The Constitution specifically safeguards individual rights through its Part III provisions. A central test for the constitutional validity of any law is whether it unduly encroaches upon these rights. Restrictions on fundamental rights, if imposed, must be reasonable, prescribed by law, and defendable within the constitutional framework. If a statute infringes these basic rights without a compelling justification, it risks being declared unconstitutional.

In essence, these principles-the supremacy of the Constitution, the limitation of legislative power, strict adherence to procedural requirements, the presumption (yet conditional acceptance) of constitutionality, adherence to the basic structure, and the protection of fundamental rights—work together to ensure that laws enacted by Parliament respect the constitutional framework. They provide a robust system of checks and balances, ensuring that any legislation not only reflects the democratic will but also remains faithful to the constitutional order.

The purpose of this exercise being to assess the validity of Sec 106(1) BNS, I asked AI:Q. Please identify the possible grounds on which the constitutional validity of that part of Sec 106 BNS that pertains to Registered Medical Practitioner can be challenged:Bhartiya Nyaya Sanhita Sec 106(1)

• 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.
  
  Explanation: 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.
   
• Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.

AI Response: Below is an analysis of several potential grounds on which the constitutional validity of the part of Section 106 BNS that provides a distinct, reduced punishment for registered medical practitioners could be challenged. Each ground rests on the interplay between differential statutory treatment and certain constitutional principles:

1. Violation of Equality (Article 14)
   Argument: The Constitution guarantees equality before the law. By imposing a lower sentence (up to two years) on registered medical practitioners for the same negligent act that attracts up to five years for others, the law creates a classification.
   • Rational Classification: The court will examine whether there is a reasonable and objective justification for treating registered medical practitioners differently.
   • Impact on Victims: A lesser punishment may fail to deter negligence in medical practice, harming patients' rights and interests.
      
2. Interference with the Right to Practice Profession (Article 19(1)(g))
   Argument: It could be argued that imposing a criminal liability regime with differential punishment interferes with the professional autonomy of doctors and creates a chilling effect.
   • Chilling Effect: Fear of criminal liability might impede doctors from performing necessary procedures.
   • Balance of Interests: The differential treatment may aim to balance accountability with recognition of inherent medical risks.
      
3. Principle of Proportionality
   Argument: Punishment must be proportionate to the crime. A fixed lower punishment for doctors might not reflect the gravity of causing death due to negligence.
   • Assessment of Culpability: If negligence is morally comparable, a lighter punishment may seem arbitrary.
   • Deterrence and Justice: The differential punishment may undermine public confidence and fairness.
      
4. Vagueness and Lack of Clarity
   Argument: Terms like "rash or negligent act" may be vague. Unclear standards could lead to arbitrary application of the law.
   • Notice and Predictability: Clear guidance is necessary to ensure that conduct can be adjusted accordingly.
   • Judicial Overreach: Vague laws may invite courts to interpret and fill gaps, risking inconsistency.
      
5. Inadequate Protection of Victims' Rights
   Argument: A lesser punishment for medical negligence may deny substantive justice to victims or their families under Article 21.
   • Deterrence vs. Remediation: The scheme must balance protecting doctors and ensuring accountability for loss of life.
   • Legislative Intent vs. Practical Outcomes: Even if justified in policy, if outcomes weaken victims' protections, the law could be reconsidered.

Conclusion
A successful constitutional challenge to the part of Section 106 BNS pertaining to registered medical practitioners would require demonstrating that one or more of these grounds—whether it be an arbitrary classification under Article 14, an undue interference with the right to practice under Article 19, a breach of proportionality, a lack of clarity, or inadequate victim protection—fundamentally undermines the constitutional framework of equality and fairness.

This analysis touches both on the potential arguments available and the balancing act that courts often must perform when confronted with differential treatment based on professional qualifications.

The elaboration and analysis of AI, to my mind, was overtly patient centric, as the patient is a victim who deserves all concern (they don't call it bias) of the law makers and the judiciary. The treating physician in question must be held accountable and liable. I, therefore,  asked AI  to analyze the validity of Sec 106 BNS from the physician's and medical profession's perspective.

Q. This newly added part to the Sec 106 declares all deaths caused by the treating Registered Medical Practitioner (under NMC only) to be actionable and criminally liable. Deaths are inevitable consequence of treatment in number of cases. Is it constitutionally valid provision that renders all deaths caused by a Registered Medical Practitioner of modern medicine as an actionable crime? Is it not in contravention of the exception clauses? Grounds from the medical practitioners' view on which the provision can be challenged?
 AI. Below is an analysis of the potential constitutional grounds—especially from the medical practitioner's perspective—on which this provision may be challenged:

1. Lack of a Safe Harbor for Inherent Risks in Medical Practice
   Issue: Modern medicine inherently involves risks, including the possibility of adverse outcomes despite adherence to standard care. The provision in Section 106, by making every death caused in the course of a medical procedure automatically actionable, fails to distinguish between a death due to gross negligence versus an unavoidable complication.
   Challenge: A physician can argue that the law neglects the well‑established legal principle that, in complex and high‑risk fields like medicine, not every death—even when unfortunate—is the result of legally actionable negligence. Many jurisdictions provide a "safe harbor" for inherent risks if the professional has acted in good faith, with due diligence, and in accordance with accepted medical standards. The absence of such an exception clause renders the law overbroad and arbitrary, imperiling the practice of medicine by criminalizing outcomes that are sometimes an inevitable part of treatment.
    
2. Violation of the Right to Practice and Professional Autonomy
   Issue: Article 19(1)(g) of the Constitution guarantees every citizen the right to practice any profession. For medical practitioners, this includes the exercise of clinical judgment in contexts that can be unpredictable.
   Challenge: If every adverse outcome automatically gives rise to criminal liability, it may force doctors into a defensive mode of practice—avoiding high‑risk but potentially life‑saving procedures or over‑testing in an attempt to shield themselves from criminal prosecution. This chilling effect on medical practice not only undermines professional autonomy but also jeopardizes access to necessary medical care for patients. Such a regime could, therefore, be seen as a disproportionate interference with the fundamental right to practice one's profession.
    
3. Vagueness and Lack of Clear Standards
   Issue: The concept of a "rash or negligent act" must be clearly defined, especially in the context of medical treatment, where outcomes can be unpredictable even when care standards are met.
   Challenge: Medical practitioners may contend that the statutory language does not account for the nuances of clinical decisions. For instance, the law does not set forth a clear standard delineating acceptable risk from punishable negligence. Without established guidelines that take into account the inherent complexities and complications of medical procedures, the provision is vague. Vagueness not only undermines the principle of legal certainty but also jeopardizes due process—making it difficult for professionals to know what behavior will trigger criminal liability, and thereby subjecting them to inconsistent or arbitrary punitive measures.
    
4. Disproportionality of Punishment
   Issue: Criminal liability should be both commensurate with the degree of fault and mindful of the context in which the act occurred.
   Challenge: Setting a fixed upper limit for imprisonment (two years) for any death resulting from a registered medical practitioner's act—irrespective of the circumstances—could be challenged as disproportionate. If a death results from an unavoidable complication despite adherence to the standard of care, invoking criminal liability under a blanket provision runs counter to the principle of proportionality. The punishment might be viewed as unduly severe relative to the actual degree of negligence or culpability, especially when similar adverse outcomes in non‑medical contexts are not treated similarly.
    
5. Conflict with Established Exception Clauses and Legal Doctrines
   Issue: Many legal systems (and indeed, various provisions within Indian law) are designed to shield professionals from liability when adverse outcomes occur despite adherence to proper standards of care.
   Challenge: A key argument is that by rendering all deaths actionable regardless of the underlying medical context, the law contravenes the very exception clauses that have long been used to protect professionals from criminal prosecution for undesirable outcomes that are inherent to high‑risk activities. For instance, where informed consent is given and a doctor follows standard protocols, the resulting death—even if tragic—should not be automatically subject to criminal sanctions. The omission of any exception or a grace clause effectively erases the differentiating factor between unavoidable complications and genuine criminal negligence, thus undermining the spirit of fairness in criminal liability.
    
6. Impact on Public Health and the Practice of Modern Medicine
   Issue: The broader societal consequences of such a provision are also at stake.
   
   Challenge: If physicians are exposed to criminal liability for every death linked—even tangentially—to a medical procedure, they may opt to avoid or delay difficult cases and innovative treatments. This outcome could curtail medical innovation and the willingness of practitioners to take on cases that, while risky, may ultimately result in lifesaving outcomes. The law, therefore, might not only infringe upon individual rights but also run counter to the public interest in promoting effective and progressive healthcare systems.

Conclusion
From the perspective of a registered medical practitioner, the newly added part of Section 106 that penalizes any death occurring during a medical procedure can be challenged on several constitutional grounds:

• Lack of Safe Harbor: The absence of a clear exception for inherent risks in medical practice.
• Violation of Professional Rights: Interference with the right to practice and the chilling effect on medical care.
• Vagueness: Ambiguity in what constitutes a "rash or negligent" act imposes an uncertain standard.
• Disproportionality: A failure to match the punishment with the actual degree of negligence or culpability.
• Conflict with Exception Clauses: Overlooking well‑established legal doctrines that allow room for unavoidable complications.
• Public Health Concerns: Potential negative impact on medical innovation and patient care.

Medical professionals can argue that these combined issues render the provision constitutionally invalid, as it fails to harmonize the need for accountability with the practical realities and inherent risks of modern medical treatment.
 My question to AI was:-Q. Is the act of duly qualified, registered and licensed medical specialist to provide treatment, as his bounden duty to care, in an open hospital situation, a crime against the state simply because it ends in death of patient?AI. > No, the act of providing treatment—even if the outcome is a patient's death—does not in itself constitute a crime against the state when performed by a duly qualified, registered, and licensed medical specialist in the normal course of their duty. Criminal liability in the medical context is not attached merely because the outcome was fatal; rather, it depends on whether the death resulted from a "rash or negligent" act that falls below the accepted standards of medical care.
 Key Points:

• Duty of Care vs. Unfortunate Outcome: Medical professionals are expected to take calculated risks when treating patients. The practice of modern medicine inherently involves uncertainty, and not every death is attributable to negligence. A death that occurs despite adherence to professional standards and due care does not automatically imply criminal wrongdoing. Instead, criminal liability typically requires evidence of gross negligence or recklessness beyond the inherent risks of treatment. In several judicial pronouncements, courts have emphasized that a death following treatment does not, by itself, amount to a crime unless it can be shown that the doctor's conduct demonstrated a blatant disregard for the patient's safety.
   
• Intent and Standard of Care: The legal framework distinguishes between a mere adverse outcome and a breach of duty that rises to the level of criminal negligence. The law is designed to penalize conduct that is not only careless but also falls so far below the expected norms that it can be considered "criminal." When a medical specialist acts within the boundaries of professional competence and adheres to established clinical protocols, the resulting death—if not attributable to any flagrant deviation—cannot logically be equated with a crime against the state.
   
• Protection Under Exception Clauses: Many legal doctrines and even certain statutory exception provisions recognize that adverse outcomes in high‐risk professions like medicine might occur in the normal course of treatment. These "safe harbor" provisions are meant to prevent the chilling of legitimate medical practices. The objective is to protect physicians from criminalization for outcomes that, although tragic, do not result from an undue or manifest breach of duty. A blanket imputation of criminal liability would be contrary to the reasonable balance struck by the legal system between ensuring accountability and recognizing the inherent risks of medical interventions.
   
• Judicial and Doctrinal Precedents: Courts have traditionally been cautious about extending criminal liability to medical professionals who are providing care in good faith. Judicial decisions in cases involving medical negligence have stated that without demonstrable evidence of gross negligence—i.e., conduct that shows a substantial departure from accepted medical standards—a doctor should not be held criminally liable merely because a patient dies as a consequence of a treatment, no matter how unfortunate that outcome might be.

Conclusion
In summary, the act of a duly qualified, registered, and licensed medical specialist providing treatment does not automatically amount to a crime simply because it results in a patient's death. Criminal liability would only attach if the death were directly linked to an act of rashness or negligence that substantially fell below the standards of care expected in the profession. This understanding aligns with both the judicial interpretations and the principles underlying exception clauses meant to shield medical practitioners from undue criminal exposure when adverse outcomes are an unavoidable risk of treatment.

My final question to AI was:
Q. The act of causing death by gross and negligent act, by any citizen of the country, including all medical practitioners, was already there in the original IPC section. Why this blanket additional provision against the RMPs of modern medicine? As far as the argument that it was to provide lesser punishment to doctors, it is fallacious as it was the same in IPC.

AI. > The primary justification for introducing a separate and explicit provision under Section 106 of the Bharatiya Nyaya Sanhita (BNS) for deaths caused during a medical procedure is to address the special context in which medical interventions take place—where the inherent risks are high and the standards of care demanded are exceptionally stringent. However, from the viewpoint of a practicing medical specialist, several constitutional and practical arguments can be raised against this additional provision, especially when comparing it to the now-familiar provisions of the Indian Penal Code (IPC).

1. Redundancy and Overreach
   • Argument: Critics contend that Section 304A of the IPC already criminalizes causing death by a rash or negligent act. Singling out Registered Medical Practitioners (RMPs) by introducing a separate clause that renders every death associated with a medical procedure as actionable is seen as redundant—particularly because it does not offer any additional legal protection or clarity.
   • Implication: The concern here is that if the same standard of criminal negligence applies to every citizen, why should the same act be described as a unique offense for RMPs? This may be perceived as an overreach that inappropriately extends criminal liability in an arena that is already regulated under existing law.
      
2. Ignoring the Inherent Risks in Modern Medicine
   • Argument: Modern medical treatment, by its very nature, involves risks—and sometimes, despite optimal care, a patient may succumb due to complications intrinsic to the treatment itself. The new provision does not adequately acknowledge that not every adverse outcome is indicative of gross negligence; many deaths, regrettably, are the known risks inherent to complex procedures rather than crimes committed by the practitioner.
   • Implication: From a medical perspective, this approach risks criminalizing outcomes that should, under normal circumstances, be viewed as unfortunate complications rather than punishable offenses. This could create a presumption of liability simply because a death occurred, regardless of whether the care provided met the acceptable medical standards.
      
3. Chilling Effect on Medical Practice
   • Argument: Even if the stated intent of the additional provision is to "protect" by imposing a specific punishment regime (with a seemingly lower upper limit for doctors than for non-medical persons), it may inadvertently result in a chilling effect on the practice of modern medicine. Doctors may become overly cautious or even hesitate to perform high-risk procedures, fearing that any adverse outcome might expose them to criminal liability.
   • Implication: This defensive mode of practice could adversely affect the availability of critical, often life-saving, medical interventions. The provision may thus be challenged for hampering the right to practice one's profession (a facet of Article 19(1)(g)), as it can deter doctors from exercising their clinical judgment in scenarios where the risk of complications is, unfortunately, high.
      
4. Lack of Clear Distinction Between Negligence and Unavoidable Complications
   • Argument: Whereas the IPC's Section 304A is understood to require actionable negligence, the new provision could be interpreted as casting every adverse medical outcome under its net—even those cases where the death is an inevitable risk of the procedure and not a result of manifest negligence.
   • Implication: From a legal standpoint, this blanket approach lacks the nuance to differentiate between a genuine breach of duty and the unavoidable complications that sometimes occur in medical practice. Such an overbroad definition may be seen as contrary to the principle of legal certainty and fairness, potentially violating the right to due process and the professional autonomy of RMPs.
      
5. Contravention of Established Exception Clauses
   • Argument: In many areas of law dealing with professional liability, there exists an understanding that certain adverse outcomes, despite being tragic, should be treated as exceptions rather than the rule. The failure to incorporate any specific exception or "safe harbor" provision for medical professionals who adhere to standards of care is a cause for concern.
   • Implication: By not explicitly excluding situations where a death is an unavoidable complication rather than a result of gross negligence, the law risks penalizing practitioners unjustly—thus undermining long-standing legal doctrines that protect professionals from being held criminally liable for outcomes that fall within the realm of accepted medical risk.

Conclusion
While the rationale behind the additional provision under Section 106 of BNS may be defended on policy grounds—as a means to enforce accountability and ensure that the high standard of care expected from medical professionals is maintained—it faces strong criticism from the perspective of RMPs.
The contention is that the provision:

• Is redundant in light of existing IPC provisions,
• Ignores the inherent risks associated with medical procedures,
• May lead to a chilling effect on medical practice,
• Lacks clear differentiation between genuine negligence and unavoidable outcomes, and
• Conflicts with established safe harbor principles.

Thus, from a medical practitioner's point of view, the blanket criminalization of deaths occurring during treatment—without sufficient carve-outs for the inherent risks of the profession—can be argued to be overbroad and potentially unconstitutional for its infringement on professional autonomy and the right to practice.

Postscript
There are sufficient valid grounds on the basis of which constitutional validity of BNS 106(1) can be and should be challenged in the interest of medical profession and the patient.

Written By: Dr. Shri Gopal Kabra - MBBS,LLB, MSc, MS(Anatomy), MS(Surgery)
Email : kabrasg@hotmail.com Mobile: 8003516198