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Termination of an Employee during Covid-19
  • By: Adv. Kishan Dutt Kalaskar
  • Date: 25 May 2020
  • Covid-19
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Employment in India is divided into two sections, the labour sector and the employment sector. This divide comes from the definition of ‘Workman’ in the Industrial Disputes Act. The result of making such a definition and its connection to the definition of ‘factory’ lead to the specific conundrum, where a majority of the labour law statutes in India don’t apply to a large section of employees in India. This paper focusses on that part of the Indian workforce in the organized sector that is dependent on employment contracts for their continued relationship with their employee. Specifically, this paper wants to discuss this relationship between employer and employee in the specific context of the current pandemic and the lockdown. It is well known that employers have been cutting down on their workforce in light of dwindling finances and prospects for recovery for the economy. The government has swooped in and has attempted to remedy the situation by instituting nodal offices to the labour departments that will receive complaints about unfair and unethical termination of employees.

In light of the pandemic, the government has further sent out advisories by both the MHA and Labour departments. These advisories target this specific group of unprotected employees. At the same time, the government itself cannot do much in terms of interim protection, it has exhorted companies to refrain from sacking employees en-masse, and further to not exacerbate the situations that might cause employees to resign. The respective states have passed their own notifications mandating that employees shall be paid their wages as usual, and employers shall be proceeded against under the Disaster Management Act, if they indulge in large scale retrenchment. This comes from the fact that the notifications of the government after the lockdown had been instituted have all been issued in the strength of the Disaster Management Act. For that reason, this paper will consider conventional cases of termination of employment of contract-based employees, and answer the thesis from that perspective.

It is important to note that even though the primary reason why employees are being removed is the Coronavirus and ensuing lockdown, companies are not utilizing any new means and justifications to lay off the employees, it is still being done through the contractual limitations and provisions already made available and notified to both parties to the employment contract.

The government has made further provisions of the payment of wages to workmen and their termination among other things: These measures are welcome, and necessary respite in light of the possibility and potential of misuse of the contractual relationship that employers share with their employees. The reason why these measures have been taken is that employers have a far greater say and power in the negotiations for deciding the terms and conditions of the contract that is agreed upon between the parties at the time. This paper wants to explore the options the employer has in terms of his termination, and if at all, there are remedies that can be pursued.

The At-Will Theory of Employment

The fundamental principle of contract-based employment is the understanding that it is not contractual employment as defined in the Contract Workers Act. This paper only deals with the peculiar situation of employer/employee relationships that are pre-determined through a contractual agreement. In general, these contracts already contain the conditions of employment, and there is little left for speculation, this includes even the conditions for termination of employment. Most contracts, and interpretations of these contracts are constructed around the ‘at will’ theory of employment. This theory propagates that the employer is free to determine the role of the employee at will, and this has been used as a justification in situations where employees have been fired despite the lack of any apparent misgivings.

This ‘at will’ theory of interpretation of employment contracts is popular in India, albeit with some modifications to suit the overall policy of employment laws. In order to understand this ‘at will’ principle, let us look at the case ofDeMasse v ITT Corp.194 Ariz. 500in this case the company had additional rules of conduct guidelines in the employee handbook and when one of the employees sued the company for wrongful termination, the company referred to the employee handbook and argued that since some conditions of employer/ employee relationship cannot be pre-determined, it is necessary that the ‘at will’ principle should be extended to provisions that are determined after the conclusion of the original contract. This means that the employer has the absolute power to amend and modify the terms of employment (and therefore the termination) at any time during the pendency of the employment, provided that due notice has been given (this distinction was made in Gower v North Sound Bank957 P.2d 811 Wash. Ct. App.1998). In India, the treatment of employment is somewhat similar. Before moving on to understand the precedent of the contractual relationship between parties, one needs to bear in mind that during the current pandemic, the government has put out particular guidelines which mandate that wrongful and excessive firing is not permissible, and in the same notification, companies were instructed on the accruing penalties in the event of either terminating employment or making detrimental changes to the designation of the employee during the incidence of the pandemic. It is important to note that there is still no protection or standardized dispute resolution for employee disputes, neither is there a standard statute that employees can make claims under. The Shops and Commercial Establishments Act is the best point of reference to protecting the rights of private employees, most states have their personal Shops, and Commercial Establishments Act, the general understanding from perusing the different state-specific acts is that there is no limitation on the grounds for termination of employment, rather merely a limitation on the procedure. In most states, more likely than not, employees cannot be terminated without a 30-day notice if they have served more than 3 months, and if they served less, they are entitled merely to a 14-day notice. These acts make reference to wrongful termination in the context that the procedures such as payment of severance bond, due notice period (in Tamil Nadu and Karnataka there is no time specified for notice of termination, what is mentioned is just a reasonable notice period). These acts leave the grounds of termination up to the specific employer and in the event that such termination is based on a fundamental breach of contract, even that notice period is subject to waiver.

Precedent and Treatment of Employment Contracts by SC and High Courts

In this light, this paper wants to take a look at a few cases that demonstrate the relationship between a contract-based employee and his employer. The best example is the Neha Dhar v National Airways Company(2011) 1 Cal, Lt. 284 case, this was a blatant case of arbitrary termination. The petitioner, in this case, was fired from her position as air hostess because she was ‘overweight’ this was a matter of contention as the petitioner argues on the basis of Article 14 against discrimination on the basis for her physical condition. Upon examination, the court held that the employment contract that she signed at the time of joining required a minimum and maximum weight restriction. In that case, it was decided that despite the nature of the terms of employment, due to the mutual nature of an employment contract, these conditions once accepted by showing of assent by the employee couldn’t be reneged unilaterally by the employee.

A similar example can be seen in Ramneet Singh Chahal v Oracle Ltd.where the essential claim of the terminated employee was a request to reinstatement to its previous position upon establishing that his termination was motivated by illegal motes. The court on the strength of previous Supreme Court decision in S.K. Shetty v Bharat Nidhi Ltd. AIR 1958 SC 12stated that a claim of reinstatement was not statutorily provided for. The best remedy a private employee can hope for inaction against his employer is one for payment of back-dated-wages and a declaration that the termination is illegal in nature. To put in simpler terms, as held in Binny Ltd. And Ors v. Sadashivnan and Ors.(2005) 6 SCC 257The general principles of administrative laws do not apply to private employment, in that case, the determinate fact in issue was whether the employees would be workmen and in the event, they weren’t due to a recent change in designation, whether the same principles of industrial and administrative law applied to them. The main takeaway from this case is that the determinate factor inapplicability of the ‘at will’ principle depends more on the tasks fulfilled by the employee rather than the official designation.

Further, in the case of Shri Satya Narayan Garg v DCM Ltd. (2012) 127 Drj 216 It was held on the strength of mitigation of damages, and the manner in which the Supreme Court interpreted the case, employees cannot claim compensation for an indefinite period after their termination, and in situations where compensation for wrongful termination is claimed, the expectation is that an employee will seek out alternative employment in the meantime. This case is a reference for the quantum of compensation for a servant upon the termination of his services. The court held that the compensation should extend only to such limited period as the illegal termination has affected the employee.

A similar decision was rendered in the case of GE Transportation v Shri Tarun Bhargava(2012) 190 DLT 195, here the court held that since the employee wasn’t governed by the Industrial dispute act, and that the specific relief act didn’t provide for specific performance of a determinable contract, the agreed-upon period of one month’s notice shall validly terminate the employment and no compensation for the period that the petitioner was disabled from the performance.

Further in the discussion on grounds for termination, reference is made to Air India Corporation v VA Rebellow1972 AIR 1343where it was held that in order for an employment contract to be terminated, a lack of confidence in an employee is sufficient grounds. In this specific case, the company stated that since the petitioners’ job was to deal with the air hostesses and act in confidence, the aspect of confidence of the management in his capacity is important. Despite the arbitrary nature of this termination, it shall hold.

Employers and Covid-19 No

The Coronavirus outbreak has led to numerous problems in the country. The chain of demand and supply is disturbed not only in the country but across the world. Though work from is one of the thing, being suggested by most of the companies, there are sectors where work from is not feasible as it includes fieldwork, manufacturing units etc. Certain sectors are having a hard time opting for work from home culture. This includes the banking sector or any sector where data to be shared is highly confidential and needs to be protected.

All this is obvious to create a huge impact on the business and the job of the employees. Therefore, there arises a need to safeguard the interest of such employees so that they can feed themselves and their families, in these hard times.

Below are a few reasons that employers are listing while terminating an employee during the pandemic:

  • Lack of projects and work available to the employer himself.
  • No access to financial supports due to lack of work and lack of investors.
  • Work from home of remote work is not possible.
  • If an employer and employee have not been able to agree to alternative working arrangements.
  • Consistency of work has been lowered relatively.
  • “Frustration of contract’ grounds wherein the employer would be unable to determine with any certainty how they may be able to resume operations.
  • Inefficiency.
  • Violation of confidential provisions.
  • Breach of the employment contract.

Employees and Covid-19

The country has shifted to digitalization due to the sudden outbreak of Coronavirus in the country. It is hard to believe, but its been two months, that people are locked inside their houses and non-essential offices are shut. Most of the companies, employees have been asked to work from home so that that their work is not stopped, and income can be generated. The question which arises during this situation is that what are the rights of the employees under such circumstances?

Remedies available to the employees

For an employee who falls under the category of a ‘workman’, their conditions of service are governed by the Industrial Dispute Act, 1947 (‘Act’). Section 2A of the Act provides that dismissal of an individual workman will be deemed to be an industrial dispute.

  • The above dispute can be settled by way of adjudication or by conciliation, and in case the matter is settled by conciliation, the dispute comes to an end. In case the dispute is not settled, the dispute is referred to adjudication.
  • When an employee is terminated who is a non-workman, his terms and conditions of service are governed by the letter of appointment or employment contract, provided at the joining date, issued by the employer and the Indian Contract Act, 1872 and the State-Specific Shops and Establishment Legislations as well as the various orders that have been issued by various departments of central and state governments during the lockdown. A non-workman has the right to approach the civil court and/or the court designated under the Shops and Establishments legislation seeking payment of any unpaid dues and/or damages for wrongful termination if the termination was against the terms agreed by the employer.
  • During the nationwide lockdown, the companies can ask the employees to work from home, and for this, the employee would be entitled to full salaries.
  • Talking about the payments to employees, the government on March 21, 2020, issued a circular which provides that even if a work unit is non-functional due to the virus, the employers are entitled to consider the employees as working. The various state government has also issued notices that such employees should be paid.
  • The Maharashtra government also mentioned that no employer can deduct salaries or terminate the employee on the basis of this pandemic. It especially implies on the contract or casual workers.
  • The Ministry of home affairs issued a circular on March 29, 2020, which informed the state governments and ministries to ensure that the employers of all the industries, shops, companies, etc. pay full wages to the employees without any deductions, during the lockdown.
  • Employers cannot reduce the working hours, to get a reason to reduce the salaries of the employees to control the loss of the business. Moreover, the employers are not entitled to reduce the workforce to safeguard the business from the impact of Covid-19. Both such acts are prohibited by the notification issued by the Ministry of Home Affairs on 29th March 2020.
  • Employers should make sure that the working hours of the employees are not exceeded, then their actual working hours. Since there is no statute to govern the concept of work from home therefore general employment laws will be applicable.
  • However, these are mere guidelines and not enforceable in the court of law. The employee can send a formal notice to the company explaining the unfair dismissal, if the issue is not settled, then it can be taken to court.
  • The employee has the right to file a case against the employer for unfair dismissal in the Labour Court.
  • Furthermore, the principles of natural justice are still applicable to an employee (Delhi Transport Corpn. V DTC Mazdoor Sabha1991 AIE 101), which shall allow him to be heard and be given due representation during the termination process. Though even in this regard, most companies prohibit the presence of lawyers during the internal termination hearings. Terminated employees are also permitted to raise a claim in the absolute if due notice or time has not been provided to him to formulate a response and justification for the alleged wrongful conduct.

Conclusion

These cases are a sample of the many instances where private employees governing through a contract are able to exert absolute control over the termination of work of a private employee. The states had the option to legislate on the status of such employees when making their respective amendments to the state Shops and Commercial Establishment Acts. However, such changes were only made in the limited scope of procedure of termination rather than any governing principles for the substantial element thereof. One thing needs to be kept in mind, is that an employee has the absolute right to pursue a legal remedy in the instance of wrongful termination; and the employer is mandated through contract law to provide for a dispute resolution mechanism.

Despite all this, the pursuits of an employee wrongfully terminated fall short of reinstatement. As we have seen in precedent above discussed, employment contracts can determine the outcome of a claim made for wrongful employment, and since they are determinate contracts, an employee thus terminated has the capacity to initiate a proceeding in a forum of the mutual choosing, but will never be able to enjoy the full gamut of protection and remedy a workman is privy to.

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Drafting of a Will

By: Adv. Aniket Nerurkar Wills 21 May 2020

A Will or a testament is a legal document by which a person, who is known as the testator, expresses his wishes as to how his property is required to be distributed after his death. The testator also appoints one or more person, who is known as the executor, to manage the estate until its final distribution. A Will acts as a legal document which is used for transferring the property and other possessions of the testator after his death. The definition of the Will is mentioned under section 2 (h) of the Indian Succession Act 1925 which reads as follows: Will as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator should be at least 18 years of age and above. He must be of sound mind and must have testamentary capacity. In case if the Will is not written/typed in the testator’s handwriting, then he must sign the Will. Also, the Will is required to be attested by two witnesses who are not beneficiaries in such Will and who were present at the time when the testator has signed his Will. One of the vital things to be kept in mind for a valid will is the intention of the testator. Hence, all the wills that are executed are required to meet specific standards in order to be considered valid in the Court.

Essential elements of a Will

  1. Executor

    An executor is a person appointed by the testator but is not same as the administrator who is appointed by the Court. Where the Will talks about the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

  1. Probate

    Probate acts as the evidence of the appointment of the executor and unless and until revoked, is conclusive as to the power of the executor. However, the grant of the probate to the executor does not confer upon him any title to the property.

  1. Letter of Administration

    Letter of Administration is a certificate granted by the competent Court to an administrator. This letter is only given where there exists a will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not mention the name of the executor, then an application can be filed in the Court, for grant of letter of administration for the property.

  1. Attestation of Will

    The word ‘attesting’ means, signing a document to testify the signature of the executants. Therefore, an attesting witness signing before the executant who has put his mark on the Will, cannot be said to be a valid attestation. It necessary, that both the witnesses, must sign in the presence of the testator, but it is not essential, that even the testator needs to sign the Will in the presence of the witnesses. Further, it is not required that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the complete content of the Will.

Inclusions of the Will

To draft a Will, there are certain pre-requisite which needs to be adhered by the testator and the executor. For the drafting of a Will, the following points should be included:

  1. Details of the testator: All the details of the person who is making the Will should be included in the declaration. The name, age, address and all the other details which shall help in identifying who is making the Will and when it is being drawn.
  2. Declaration: It is mandatory for the testator to declare, that he/she is of sound mind and is under no coercion or influence while making of the Will.
  3. Details of the beneficiary: The details of the beneficiaries should be mentioned in the Will. Name, age, address of the one who will be benefiting out of the Will is essential while drafting a will.
  4. The executor of the Will: It is advisable to appoint an executor as he can ensure that the Will is carrying out in the way the testator wants or demands. The name, age, and address of the testator is mentioned as well.
  5. Details of property and assets: It is required that the testator lists out all the details of the asset and properties that a testator has, and also the ones that shall be included in the Will. He/she can also list out any specific assets that are there.
  6. Division of share: The share that each beneficiary will be allotted should be mentioned in the Will. It the asset is allotted to the minor, then the custodian for a minor should also be listed in the Will.
  7. Specific Directions: The testator is required to give directions in terms of executing the Will, and should specify if there are any other instructions.
  8. Witness: There should be a signature by the testator in the presence of at least two witnesses. The witnesses do not need to know the details of the will they just have to verify that the signature by the testator was done before them.
  9. Signature: After the last statement is mentioned on the Will, the testator should sign with the date.
  10. Doctors Certificate: A Doctors Certificate (MBBS or MD) stating the person executing the WILL i.e, the testator is in a sound mind and health to execute his WILL.

Drafting of a Will

When a will is being drafted, it can go through various alterations, which are:

Revocability of a Will

According to Section 62 of the Indian Succession Act, a will is revocable or altered anytime, during the lifetime of the testator. Section 70 of the Indian Succession Act, further lays down how it can be revoked.

A mere and simple intention to revoke a will is not sufficient for a valid revocation. When a will has to be revoked, it should be given in writing and an expressed form. The revocation clause mentioned in the Will would revoke all the prior wills and codicils. When there is no express clause to the effect, then the former will becomes invalid to the extent of its inconsistency with the latest Will, known as an implied revocation. If there is no inconsistency between the two wills, then they cannot be considered as two separate wills. However, it is important that these, two wills are read together to indicate the testamentary intention of the testator.

The other way by which revocation can take place is when the revocation is made in writing, through declaring an intention to revoke and the writing must be signed by the testator with the two witnesses. The deed of the revocation is executed in the same way, how a will is executed.

To revoke a will, the testator may burn the Will, or by some other person in his presence and by his direction to revoke the same. The burning of the Will should be actual and not symbolic.

Therefore, a will may be revoked expressly by another will or codicil, by implied revocation, by some writing or by burning or tearing otherwise. It is important to know that cancellation of a will by drawing across lines is not a mode of revocation of a will. Under the Hindu Law, the Will is not revoked by marriage or by subsequent birth.

Alterations in Will

Section 71 of the Indian Succession Act applies to alterations only if they are made after the execution of the Will and not before it. Section 71 of the act provides that any interlineations or any obliteration or any other alteration made in the Will after its execution is null unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. When these alterations are executed, then they are read as the Will itself. However, if these requirements are not completed, then the alterations would be invalid and the probate will be issued not considering the alterations. The alteration has to be made in the Will itself and not in a separate paper. However, if the changes are such that which cannot be decoded or deciphered, then the Will would be considered destroyed to that extent.

Wordings of the Will

Section 74 of the Indian Succession Act allows the making of the Will in any form and in any language. There is no requirement for adding technical words in making of a will, but if technical words are used in the Will, they are assumed that they are used in their legal sense unless the context states otherwise. As long as the aim of the Will is clear, the technical words or accuracy in grammar is immaterial.

The construction that postpones the vesting of the legacy, in the property disposed of should be avoided. The intention of the Will should be decided after constructing the whole Will and not according to the individual clauses.

Execution of the Will

On the death of the testator, the executor of the Will or a legal heir of the testator can apply for probate in the Court. The Court will then ask other heirs if they any objections to the Will. If there are no objections in the Will, the Court then grants probate. A probate is a copy of Will, which is certified by the Court. It should be treated as conclusive evidence of the genuineness of the Will. It is only after this that a will comes into effect.

Signature of the Testator

As per the instructions of section 63(a) of the Indian Succession Act, the testator is required to sign or affix his mark. If the testator is not able to produce a sign, in that case, a thumb impression has been held legally valid.

Legal Pronouncements

In the case Gnanambal Ammal v. T. Raju Aiyar, the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole. The other principal applies is that, when two types of constructions are possible for the making of the Will, then the one who avoids intestacy and follows testacy should be followed.

The Court is required to follow the principle of clear intention. The primary duty of the Court is to determine the intention of the testator from the will itself by reading of the Will. The Supreme Court in Bhura Vs. Kashi Ram held that a construction which would advance the intention of the testator has been favoured and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The Court should put itself in the shoes of the testator.

In another case of Navneet Lal v. Gokul & Ors, the Supreme Court stated that the Court should consider the testator’s relationships, the position of the testator’s families, the surrounding circumstances, and the probability, he would use words in a particular sense. However, it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interpret in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.

Conclusion

Drafting of a will is important as well as necessary in today’s time. It is no longer considered a taboo in India, and people are coming forward and drafting their wills so that in future, their assets and property can be easily divided into the beneficiaries. As these documents carry immense significance and importance, one should make sure, and these are drafted according to the laws enacted and with the help of a legal person so that no errors or mistakes are committed.

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Criminal Medical Negligence in times of Covid-19

By: admin Medical Negligence 19 May 2020

In India, the medical profession is considered one of the noblest and respectable in comparison to other such professions. Even in times of Covid-19, when everyone is locked inside their houses, it is the doctors who have taken charge and are providing the people with the right treatment and medicines. The people are sympathetic towards the doctors, as they are effortlessly and tirelessly working for the country at these trying times. To encourage the doctors, the government, as well as the general public, is arranging activities and gestures that help to motivate the doctors so that they can perform at their best.

The Prevailing situation

People equate doctors with the image of God. However, as every coin has two sides, these positive aspects have a profound negative impact as well. Similarly, due to the rising cases of Covid-19 in the country, the cases of Medical Negligence have also increased simultaneously, and this, in turn, is increasing the liabilities of the doctor in such difficult situations. Due to the outbreak of the virus, medical interaction has increased in the country, which is the root cause of the rise of medical negligence cases. The jurisprudence around criminal medical negligence is credited to the Supreme Court through three primary cases- Suresh Gupta, Jacob Mathew, and Dr. Praful Desai.

There are different types of negligent activities under IPC which a doctor may conduct. Under tortious negligence, a doctor may be asked to pay compensation and damages according to the loss of the patient, while under criminal negligence which is mentioned under section 304 of Indian Penal Code he may be awarded imprisonment or fine. There are three primary ingredients constituting negligence which are: (i) duty of care, (ii) breach of duty, (iii) subsequent injury. For a case to qualify as criminal negligence, there has to be either gross negligence or rashness endangering life. Culpable rashness is acting with the consciousness that mischievous and illegal consequences will follow, but with hope against it and the trust that the one doing the act has taken sufficient and enough precautions to prevent it. On the other hand, culpable negligence is acting without any consciousness that illegal and mischievous consequences may follow.

What is Criminal Negligence?

Every act done by a doctor cannot constitute to criminal liability. When a death occurs due to a simple misplaced judgment or because of an accident, then there is no criminal liability attached to it. Inadvertence to a degree of caution and care, which is not gross, only attracts civil liability. When the law talks about the standard care of a doctor, it means, the standard and expected care by the competent doctor according to his/her qualifications. A doctor cannot be held responsible for any negligence, until and unless he has followed the practise acceptable to the medical profession of that day. The doctor cannot be held liable if he had a better alternative or if a more skilled doctor would have chosen another part. The standard care refers to the sense of an ordinary man. This standard of care is as per the knowledge at the time of the incident and not when the trial is initiated. If a doctor has some special skill or competence, negligence is not measured as per the man, but as per the standard of an ordinarily skilled professional. Honest differences in opinions do not infer negligence. It is essential to differentiate between medical accidents, diffusion of responsibility and culpable conducts.

In times of Covid-19

Due to the increasing cases of Covid-19 in the country every day, the cases of criminal medical negligence cases are also on the rise. This is highly due to the lack of sufficient medical equipment, doctors per patient ratio, insufficient medical beds and also lack of availability of hospital staff due to the spread of Covid-19.

Another major reason for the rise in medical negligence cases is the treatment of Covide-19. As there is not a proper treatment protocol issued in treating covid-19 patients and bodies, there is an ambiguity in the treatment procedure. At times, while treating the patient to the best of his ability, the doctor may commit a mistake, this may be blamed as an instance of alleged medical negligence.

When a doctor, refuses a patient of a ventilator, or any other medical equipment which is necessary for the survival of the patient, he/she directly contributes to “Criminal Medical Negligence”. Apart from this, after the virus has taken a toll on the whole country, many doctors have stopped reporting to duty, in fear of the spread of the infection. There have also been cases reported, where the doctors or the hospital staff have deliberately refused to admit the patients even in critical situations which has to lead to many medical negligent cases and FIRs against such doctors for the same. Due to these negligent cases, many doctors have been suspended, and many doctors have also received notices from the Indian Medical Association. All these things, amidst the coronavirus and the lockdown, has contributed to more petitions by the patients in the supreme court against the doctors. The Supreme Court of India is only hearing urgent cases through video conferencing and other online modes, no judgments have been announced for such matters.

However, a negligent act is not just about being negligent to the patients; there have been various reported cases wherein the hospitals have issued notices to doctors for not showing up for treating patients. Hence, the doctors, amid this pandemic, need tobe careful in safeguarding their career.

Conclusion

It is important to note that, section 304 of the Indian Penal Code, does not talk about the word “gross”. The judiciary, with the development of jurisprudence on medical negligence, has attempted to balance wrong done to the patient against the autonomy of doctors. From the cases that have been heard by the courts, it has been established that, if doctors are held criminally for everything they do, then situations may arise where the doctor would be concerned about himself more than the patient. To avoid such circumstances, the courts believe in the evidence produced by the plaintiff. Covid-19 being a novel disease to the country at large, can be only controlled by the doctors, through their intellect, judgment and experience. Therefore, the way, these negligent cases would be handled at the courts would be different as this whole situation revolves around this pandemic. Cases which involve negligence by the hospital staff in providing with the ventilators, oxygen machines, may be easily solved. However, cases, involving not direct medical negligence would be a task for the Indian courts.

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How does Covid-19 affect employers and employees?

By: admin Covid-19 16 May 2020

In light of the recent relaxations of labour laws, in response to the coronavirus pandemic, the general impression might be created, and it is valid to have such an impression, that the government is cutting its losses, by relaxing labour laws and most governments are admitting that a lot of labourers already knew this to be the gospel truth: That the enforcement of labour laws has been next to impossible, and the recent automation based changes in inspection and evaluation procedure have made it harder for the respective state-level labour departments to keep a watchful eye.

Someone reading this needs to be well aware that there is a dichotomy between how these notifications seem to treat the labour force, and how the more immediate response to the pandemic has been to strengthen protection for the labour force. This is a trend one can see globally. In all sectors, in most countries, while the immediate response to the pandemic has been to protect and safeguard the workforce against any knee-jerk reactions, once the immediate panic and furore had died down, most jurisdictions have done the same, where the U.K had issued a new round of funding for the NHS in the beginning weeks of the pandemic.

Similarly, most companies that had voluntarily increased the pay of their essential workers in light of the heightened risk they face, have gone on to reduce the same, and even lay off a considerable chunk of these workers not even a month into the pandemic. This is the same pattern we see with India. It should come as no surprise that these new relaxations in labour laws follow a slew of notifications by the respective state and central governments requiring ever-stricter compliance with labour laws, and in general exhorting, employers to retain workers, and continue to pay them even during the pandemic.

Central Government

The central government has done its part in putting out advisory notifications in the last month. While it is noted that they are not enforceable, they are the foundation on which many states have based their own labour law gazette notifications. The first among them was issued on 20th March, and this was issued to all industries, Shops and Establishments. The notification provided that in the light of the pandemic, employers should be judicious with their terminations, and payment schemes. The notification simply says that since the labour force is already under a lot of stress, the additional burden of unemployment is something that can and should be avoided, especially during the pandemic.

This further extends to payment of wages, and  the government has instructed all departments, including government undertakings and affiliates, to pay all employees including those on sick leave, as if they were in active duty, the same has been extended to contracted, casual and outsourced employees. These measures are more focused on governmental protection and seem to have no application to the private sector. The advisory notifications have no applicability and are purely voluntary measures. It then falls on the states to ensure that the labour force is protected during and after the pandemic. During the pendency of these notifications, employers are not allowed to force employees into arrangements that might in some way allow them to avoid payment: such as forcing to take a furlough, forcing them to take their annual leave during the lockdown, cut salaries, place moratoriums on payment of benefits and bonuses. Again all of these are subject to enforceability and the readiness of companies to agree to them.

A more important notification is the one put out by the Ministry of Home Affairs. This in passing notes that all labourers need to be paid without interruption and, be paid to the full. This notification is more significant in terms of applicability since the same is backed by the sanction of the Disaster Management Act. The labour ministry has, in the meantime, established nodal offices and agencies that have been designated specifically to look into complaints and employment issues during the lockdown.

Loss of Jobs

In light of these notifications and the state’s half-hearted attempts at ensuring worker and employee safety and stability during this pandemic, circumvention has been smooth. Since the new notifications are being pushed by states to relax labour laws, companies have ramped up their efforts to cut down on losses, by either reducing salary, or by terminating employment contracts. This hasn’t been helped by the fact that the central government has put out a notification on the 29th March clarifying that a pandemic is a ForceMajeure event. This reduces the redressal options available to employees since any obligations broken due to act of god and consequences thereof are not answerable under contract law. Many major companies like Oyo, Goibibo etc that is on the smaller side of tech companies, have sacked employees in the thousands, even after these advisories have been put out, Bangalore has been the first city to feel the repercussions of the pandemic, the nation’s IT hub was the first city that saw layoffs during the lockdown, and after that, nearly all companies in major cities have issue d pink slips during the lockdown, in Pune, the labour ministry had to step in after a complaint was brought in against a company that fired about a hundred employees in the preceding month, even tech giants like Tech Mahindra was forced to cut salaries of lower level employees by 30% and lay of about 20% of their workforce in light of the financial crunch all companies are feeling, the insidious nature of this situation is that, since termination might be in direct violation and since termination needs the consent of the employee as well, companies have taken to creative measures such as locking pay, making employees take furloughs during the lockdown, altering their job titles to force resignation, among others to get rid of employees without falling afoul of the governmental advisory.

States, apart from the few, like U.P, that relaxed labour laws recently have taken much better stock of the situation. This paper will now look at some states, and the measures they have taken in light of the lockdown and financial crunch that came with it.

Maharashtra has out a notification dated March 31, mandating that no wage cuts shall be administered for homeless, migrant and foreign workers that have been stranded during the lockdown. Same has been done by the Telangana government, and in the notification dated March 24, the safety net has been extended to contract and casual labourers for the duration of the lockdown. In a similar vein, most states have drafted worker and labourer friendly notifications solidifying the intent in the advisories put out by the central government.

The paper believes that these measures taken by the state will not be enough since, on the other hand, states are relaxing regulations for employers while encouraging them to retain employees. The Andhra Pradesh government has relaxed inspection structures for the foreseeable future, and the Madhya Pradesh government has passed amendments to make hire and fire easy in the wake of the pandemic. The U.P government suspended all labour laws, except for the basic payment of wages, industrial disputes and ESI Act for the next three years. Gujarat, Himachal Pradesh, and as mentioned Madhya Pradesh have followed suit. This is indicative of a larger trend of other states following suit in taking similar decisions, either by passing ordinances like U.P or through an amendment like Madhya Pradesh.

Liability

The central government has set up nodal offices under notification to deal with labour issues: if an employee files a complaint, this will be a separate prosecution from labour court. Depending on what state the employer is from there might not be ant penalties: The central government notification from the department of labour is an advisory, not an order, hence unless respective states under the Disaster Management Act specify that employment retention needs to happen, no actual governmental penalty.

Despite all this, unless the employer is in UP, Gujarat, Himachal Pradesh, or Madhya Pradesh, where labour laws have been repealed, liability for wrongful termination of employees, legitimacy and viability of claim is debatable.

What one needs to keep in mind is that liability is state-specific, so one needs to be very mindful about the state labour ministry notification before terminating employees during the pandemic. After this is all over, since states are repealing labour laws, it might not be much of an issue.

Supreme Court Stand

The Supreme Court on Friday, 15th May 2020, stayed the operation of a Government circular directing all private enterprises to continue payment of full salaries for the duration of the lockdown.

The court also asked the Centre and states not to prosecute private firms, factories and others over the issue of non-payment till the next week. The Centre had sought a week to file its reply in the matter.

The petitioners warned that making such payments will lead to the closure of many of the units and which in turn will cause permanent unemployment and will adversely affect the employees and the economy.

The Petition further stated that an employer-employee have reciprocal promises whereby the right of an employee to demand salary is reciprocal and equivalent to the performance of work by such employee. Besides, the Petition stated that an employer has a right not to pay if no work is done.

The Petition even stated that crores of unclaimed provident fund and Employees State Insurance Corporation contribution lies in banks, and that could be used by the government rather than putting the burden entirely on the private sector.

Conclusion

Initially, most states had passed notifications protecting labourers, but due to the inherent limitations of the Labour law statutes, employees in the private sector do not come under these protections. These people only have the advisory notification of the central government to fall back on and no enforceable right except for a suit for arbitrary termination, which is no guarantee of protection of their livelihoods.

No protection has been given for those employees who are being forced to resign from their positions or are being forced to work for massively reduced salaries. The government has to keep up with the companies and employers and ensure that no lasting damage is caused to the labour market in the country solely because there was no statutory response to sections of the population that need protection. If this was not enough, the government might be looking to relaxing the labour laws applicable to protected groups in the aftermath of the pandemic, to cushion against the coming economic recession, thus removing any safety net that was provided to them during the lockdown.

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Rent deference during the Pandemic

By: Adv. Kishan Dutt Kalaskar Landlord/ Tenant 09 May 2020

The Coronavirus pandemic has prompted the nation to its most jarring standstill in a long time, and most governments and companies are still figuring out different ways to deal with the sudden halt of global supply chains. The lockdown has slowed down markets, factory operations and several businesses, affecting employment and source of income of many.

Rental Agreements

Rental agreements in India are the most common types of agreements as India being one of the most populated countries, does not have enough resources and utilities per capita. People here work by renting places, and most of the outstation employees, workers and students who come to work and study also prefer to stay in a rented flat. It is important and always advisable that property-related deals shall be secured through legally binding agreements on the parties involved. It does not matter that whether you are an owner who is looking out to rent his property or a tenant who is looking for a property on rent, the important thing is that both the parties involved shall make use of a valid rent agreement format inclusive of all the clauses that shall be beneficial to both the parties and at its best shall protect the interest of both the parties. The agreement should work as a reference document for the parties involved. The rent agreement should be made keeping in mind all the legalities and legislation so that it is an error-free agreement and can be presented as collaborative evidence in the scenario when a dispute arises among the parties.

These agreements are simple contracts which are legally enforceable in the court of law and is therefore made under the Indian Contracts Act, 1872. Any rental agreement which is made in keeping the mind, the essentials of a valid contract, is considered as a valid rental agreement.

Rental agreements are right now the centre of attraction, as its position in the time of Covid-19 is highly unstable. There are circumstances, under which, an individual is not using a place, but is still liable to pay the rent as per the agreements. Though there have been schemes and offers by the Indian government, still the relaxation policy for such agreements is unclear.

Government Policies on Economic Relief to Affected Parties

A majority of the Indian middle class lives in rented accommodation, and so do many migrants, students, out of station employees etc. and for all of them, not having enough savings left to meet their utilities and needs is a stark and immediate reality. In that light, the central government, along with a few state governments, that have cities with sizeable migrant, and floating populations have put in place regulations to help the middle class in need of financial respite.

This paper talks about one specific aspect of the measures governments have taken to aid people financially; rent control. Since rent is a purely a contractual obligation between parties to the agreement, it is rarely infringed upon.

In understanding the provisions of rent deference, it is essential first to understand the importance of the Force Majeure Clause. A Force Majeure Event can be understood as an extraordinary event or a circumstance beyond human control, which frees both the parties from contractual obligations, when prevented by such an event, from fulfilling their obligations under the contract. Force Majeure Clause is a standard clause which is invariably incorporated in every agreement. It also entitles legally to suspend and or not to perform an undertaking by a party. Unfortunately, most of the Force Majeure clauses in already concluded agreements do not have a pandemic like an event incorporated in it. An event in order to be stated to be a Force Majeure event must contain, among other things, the following:

  • directly or by implication be an event which is beyond the reasonable control of any of the parties; and
  • must affect the ability to perform by any of the parties.

The central government and the respective state governments have drafted these orders and notifications, relaxing the rent payment requirements under their jurisdiction. It needs to be kept in mind that not all states have taken measures in this vein since no other form of financial relief except loan payment has been mandated in the act.

Rent Deference

The central government in consonance with their policies for migrant labourers and workers stranded has mandated that no landlord shall collect rent for the next few months due to the pandemic. Other measures, including arranging special trains for transit have been arranged but for the sake of this paper, the notification dated 29th March is the sole focus since it relaxes rent collection obligations and places the same under the purview of Sec, 57 of the Disaster Management Act, mandating a year of imprisonment or fine.

Around the same time, the state governments of Karnataka and NCT Delhi have announced a similar measure, with the notable difference being the scope of application of the notification. In both these states, the notification extends protection to all tenants and halts payment of rent for at least one month in Delhi and a similar length of time in Karnataka. These notifications do not signify whether they will be deferring the payments, or requiring landlords to forgo the rent for the one-month period commencing on the day of the issuance of the notification. This lack of clarity be as it may, the NCT Delhi government has, through an advisory announced that they would be providing assistance to those residents that are unable to meet their rent obligations. While there is no official notification signifying the same, it can be assumed that the same will be carried out as a local level scheme.

While the Delhi and central government notifications have made provisions for action in the event of a violation of the same, the Maharashtra government notification, which wasn’t properly available on the website, and whose only public domain copy was a twitter post, where a Marathi language copy of the order was found, makes no such mention. This notification is more explicit about the aim, where the time period of non-recovery is three months, the notification clearly states that the scheme merely provides for deferment of rent payment, rather than forgiveness; allowing landlords to recover three months of rent at the end of the notification period.

These measures have no bearing on the rental contracts and do not derail the status of sub-letters, most of that is to be extrapolated from the barebones construction of the notification. In sum, these notifications apply to all landlords that, at the time of publication are letting out a property in rent and to the best of my knowledge (except for Maharashtra where it is specified) defer the payment of rent.

There are other ways through which the rent is reduced or waived off in these hard times. One of the ways is by directly convincing the owner of the property for some concession in the monthly payments of the rent till the nationwide lockdown is over. This is an unofficial method, and it entirely depends upon the decision of the owner whether he wants to give the concession to the tenant or not. There yet no official notice from the government which allows concession to such agreements. It is vital to note that such arrangements are being used by the students, outstation employees, etc. Also, such policies only apply to those agreements that have been executed before the nationwide lockdown, that is, before 25th March.

The parties may execute an Addendum with the help of a legal entity or try to negotiate and put in writing and execute the Addendum. The strict requirement of compulsory registration of such pandemic time Addendums or novation of contracts, during these hard times, must be dispensed with by the governments so that there is no unnecessary hassle.

Changes in legal System post Covid-19

Once the lockdown is over, and things become normal, one of the most prominent change, that the legal system will witness shall be the making of the legal enforceable agreements. People will not consider the importance of making a contract and will execute such contracts with utmost diligence. The clauses like “force majeure” and “doctrine of frustration” will be considered essential, and would be taken into consideration in future contracts.

A “force majeure” clause when present in a contract, gives the opportunity to not perform legal obligations under some circumstances. Such scenarios could be when an activity becomes impossible to perform. If a rental agreement, contains this clause, there are high possibilities that the rent is waived or reduced of the tenant, as due to the lockdown staying in the rented flats have become an impossible activity. However, such clauses are not added in the rental agreements. Therefore, the layman will make sure that such a clause is given a place in the agreement.

The covid-19 lockdown has also made people aware of the clause of “doctrine of frustration”. This clause frustrates the tenancy even when either party involved in the agreement is not at fault, and the legal obligations, become impossible to fulfil due to the unforeseeable circumstances. Tenancy, as the main element of the contract, will terminate automatically, when a frustrating event occurs that is one which is unforeseeable and unexpected or beyond the control of the parties. Section 56 of the Indian Contract Act, 1872 deals with “doctrine of frustration”. Here again, the important point is the presence of such a clause in the valid rental agreement.

Services of trained mediators and conciliators and organizations that provide additional dispute resolution may be used by the parties, in order to conclude issue rising due to these rental agreements in the time of the lockdown.

Therefore, if we talk about the changes in the legal system, drafting of the rental contracts would see a new world with much more important clauses.

Conclusion

Post Covid-19 there are significant changes that the country would witness. Similarly, the rental agreements will have to go through their own changes. The agreements would amend not only with the addition of newer clauses but also the way through which the rents are paid. The rent in the future might be paid through instalments etc. However, it is important to understand that the basic structure of a rental agreement would not change. It might go under some amendments, but its validity and the way they are made shall remain the same. It is advisable that once the things become normal, execution of such agreements shall be only made with the help of an experienced legal person to reduce such ambiguity in the future outcomes of the agreement.

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Legal issues in the practice of Telemedicine

By: admin Medical Negligence 09 May 2020

Telemedicine means the remote diagnosis and treatment of the patients by the means of telecommunications technology. Multiple technologies can be used for delivering telemedicine consultation. There are three primary modes. They are Audio, Video and Text (chat, messaging, email, fax etc.). Telemedicine is also referred as e-health or telehealth. It is a perfect combination of modern-day information technology and medicine. Telemedicine reduces the costs on time, expenditure and cuts travel of long distances for consultation and treatment in cases where there is no necessity for physical access, follow-up consultations, etc.Only the registered medical practitioners are entitled to practice telemedicine. A Registered Medical Practitioner is a person who is enrolled in the State Medical Register or the Indian Medical Register under the Indian Medical Council Act 1956. Earlier, there was no statutory framework on the practice of telemedicine, through video, phone or any other Internet-based platforms.

Digital technologies also referred as the telemedicine in Indian healthcare are certainly witnessing huge adoption due to the lockdown imposed to reduce the spread of the coronavirus disease Covid-19. Therefore, it has become need of the hour to know the legal rights and obligations of the doctor, when they provide their services through online means.

Legal Issues

There are legal risks which are associated with the new developments of Telemedicine. Following are some of the legal issues which might arise in Telemedicine practice:

  • Litigation for medical negligence

There is a high risk of litigation for medical negligence which could take place in future due to the Telemedicine practice. In the cases of medical negligence, there are two basic requirements which must be fulfilled. The doctor-patient relationship must exist, and the doctor must have breached his professional duty of care towards his patient.

  • Doctor-patient relationship

There must be a contract either express or implied between the doctor and the patient in order to establish that there was adoctor-patient relationship between them. However, in telemedicine, it is not clear for determining whether the doctor-patient relationship exists online or through an email.In case if the interaction takes place between the doctor and patient at the time of emergency situation where the doctor was forced to treat the patient, then it will be considered that there was no doctor-patient relationship existed.

Hence, there are certain provisions mentioned under the Information Technology (IT) Act 2000 which will apply to the Telemedicine practice. For Instance, Section 4 & 5 of the said IT Act has given legal recognition to the electronic record and digital signatures. The IT Act has also amended the Indian Evidence Act 1872 in order to make the electronic record admissible in the Court as evidence.

  • No standard degree of care

In the traditional medical profession method, the standards required for a reasonable degree of care and skill by the doctors was laid down by the Supreme Court under the case of Poonam Verma V/s Ashwin Patel. However, telemedicine being a new concept, does not have the same standards of care as laid down.The standards of a reasonable degree of care and skill are not mentioned/determined for the doctors practicingtelemedicine as there has been no case of medical negligence brought against such a doctor.

  • Liability of Doctors

In case if a doctor practicingtelemedicine fails to respond to the patient’s request for medical attention and the patient suffers injury then it is possible that a doctor-patient relationship would be deemed to exist and the doctor would be held liable. Yet in another scenario, if a doctor is on vacation and the patient believes that he will receive a timely response and suffers an injury because the doctor fails to respond. In the above circumstances, it is not clear that whether the doctor has any responsibility to respond in regard to the patient’s treatment or to notify the patient that he cannot assist them for any reason.  In case of errors which takes place due to a breakdown in communication or organization during the telemedicine application, then the primary principles of organizational responsibility will possibly apply.

  • An issue relating to Security

There is another legal issue relating to the security of the patient’s information in telemedicine practice. The legislation for telemedicine practice must protect the privacy of the patient, authenticate the information, authorize, and maintain integrity. Hence, the security policy would help in making the telemedicine practice more efficient, risk-free and reliable.

Case law

Deepa Sanjeev Pawaskar and Another V/s State of Maharashtra

Bombay High Court - 2018 judgment on Telemedicine Practice Guidelines

Criminal Anticipatory Bail Application No - 513/2018

In this case, the patient was suffering from fever and severe vomiting. She was admitted to the nursing home of the doctors (who were accused) by the hospital staff without examination as the doctors were out of town. One of the doctors started treatment of the patient telephonically, by instructing on-duty nurse. The Bombay High Court held that the patient died because she was prescribed treatment over the telephone without an appropriate diagnosis. The Court also found that such an act amounts to criminal negligence.The Court rejected the bail application of the doctors. The doctors were not arrested as they were successful in receiving the bail-in appeal. Hence, many doctors interpreting the judgment deeming telemedicine illegal. However, the High Court was only concerned with the fact that there was a failure on the part of the doctor to diagnose the patient, and it does not interfere with the Telemedicine guidelines. The fact that the treatment of the patient was done through the telephone is only incidental to the conclusion of the judgement.

Conclusion

Earlier, as there was no appropriate framework that existed for the telemedicine practice, the Bombay High Court had created uncertainty about the place and legitimacy of telemedicine in its 2018 judgment.Hence, there has been a legal concern on the practice of telemedicine as there is a lack of clear guidelines which has created significant ambiguity for registered medical professionals in India.The existing Indian Law does not adequately address concerns relating to Health Information. It isessential to first understand the specific problems of the Indian patients and Healthcare provider with regards to the telemedicine practice before framing legislation that addresses their legal issues relating to it.Telemedicine practice will change the medical industry in India. However, a lot depends on how telemedicine practice is regulated in India and how a doctorpracticingtelemedicine incurs liability in the cases of medical negligence.

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Dos and Donts for doctors for practicing Telemedicine

By: admin Medical Negligence 09 May 2020

A virtual consultation is a process in which the person can seek a medical opinion without visiting the specialist in person.It is the only difference which makes virtual consultation different from a traditional medical consultation. The virtual consultations also allow a physician to start a chat session with the patient. The primary purpose of the virtual consultation is to provide quality healthcare services all over India. It includes facilitating access to healthcare to all the people in India. It will provide faster, cheaper and better communication for treatment, follow-up by experts, and to store medical records. There are some cons of virtual consultation as well. For instance, the virtual consultation will reduce direct interaction of patients with doctors because online interactions are impersonal, and also there is a need for a physical examination to be doneto make a complete diagnosis. Also, there is a lack of a standardized format to the interaction.A consent form is absent for either opting for or refusing the service of virtual consultation.

The doctors should begin the virtual consultation by informing the patient about his name and qualifications.Following are the Do’s and Dont’s for the doctors for video consulting:

No.

Do's

Dont's

1

The doctors can exercise his professional judgment to decide whether a virtual consultation is appropriate in a given situation, or there is a requirement of an in-person consultation. The doctor must gather sufficient medical information about the patient’s condition beforemaking any professional judgment.

The doctors cannot insist on the patient for virtual consultations if patientis willing to travel to a hospital or clinic orrequests an in-person consultation.

2

The doctorsshould verify and confirm the patient’s identity at the time of 1st consultation by name, age, address, email ID, phone number, registered ID or any other identification.

The doctors cannot misuse the patient images and data which are obtained at the time of virtual consultation.

3

Every doctor should display the registration number on prescriptions, website, electronic communication (i.e. through WhatsApp/ emailand receipts, etc.)that are given to his patients at the time of virtual consultation.

The doctors cannot use virtual consultations to prescribe medicines that are mentioned in a restricted list of Telemedicine guideline 2020.

4

The doctors must ascertain the identity of an adult, in the case where the minor is involved in a virtual consultation along with an adult.

The caregiver’s identity and authorization should be checked by the doctor before starting with the virtual consultation.

The doctors should not solicit patients for virtual consultationsthrough any advertisements.

5

The doctors must get the patient’s consent for any virtual consultation.

The doctor must record the explicit consentof the patient’s in his patient records.

The doctors should not do any acts which contravene the provisions that are mentioned under the telemedicine guidelines 2020.

6

The doctorsshould maintain all patient records, including case history, investigation reports, images, etc.

The doctors should not contravene the provisions that are mentioned under the Drugs and Cosmetics Act and Rules.

7

The doctors mustprescribe medicines via virtual consultation at his professional discretion only when he is satisfied that he has gathered all adequate and relevant information relating to the patient’s medical condition and prescribed medicines that are inthe best interest of the patient.

The doctors cannot prescribe the drugs mentioned under the prohibited list of telemedicine guidelines 2020 to a patient via virtual consultations.

8

The doctors must issue a prescription as per the Indian Medical Council Regulations.

The doctors should not continue with virtual consultations if he is not satisfied with the information given by the patient to provide specific treatment.

9

The doctors must retain the Patient records, reports, documents, images, diagnostics, data, etc. (Digital or non-Digital) that are utilized in the virtual consultation.

The doctors should not deny virtual emergencyconsultation. However, it should be limitedto first aid, life-saving measures, counselling and advice on referral.

Note - In case of every virtual emergency consultation, the doctors must advise the patient for in-person interaction with a doctor at the earliest.

10

The doctors are required to maintain the prescription records in the same way as it was required for the in-person consultations.

11

The doctors can charge an appropriate fee for providing the virtual consultation. From a fee perspective, the virtual consultations are treated in thesame way as in-person consultations.

12

The doctors must give a receipt or invoice for the fee that has been charged by him while providing virtual consultation.

13

The doctors must ensure that there is no breach of the patient’s privacy and confidentiality. The personal data of the patients should not be disclosed or transferred without the written consent of the patient.

14

The doctors must uphold and practice all the principles of medical ethics, including the professional norms such as protecting patient privacy and confidentiality as per the Indian Medical Council Regulations 2002 Act.

15

The doctors are required to fully abide by the IT Act, Data protection and privacy laws or any applicable rules that are notified from time to time to protect patient privacy and confidentiality and regarding the handling and transfer of such personal information of the patient.

16

The doctors can prescribe the drugs mentioned under the list O, A and B of telemedicine guidelines 2020 to a patient via virtual consultations.

Note - The List A contains those medications which can be prescribed during the first consult through video consultation and are being re-prescribed for re-fill, in case of follow-up consult.

The List B contains a list of medication which the doctors can prescribe to a patient who is undergoing follow-up consultation in addition to those which have been prescribed during an in-person consult for the same medical condition.

The List O contains those medicines which are safe to be prescribed through any mode of virtual consultation.


Conclusion

The video consultations will reduce the exposure of doctors, patients and medical staff to potential infections through remote screening and consultation. It also reduces the costs on time, expenditure and cuts travel of long distances for consultation and treatment in cases where there is no necessity for physical access, follow-up consultations, etc. With the beginning of the COVID-19 outbreak in India, there is a massive rise in virtual consultations. Hence, one can notice that the virtual consultation has started to grow in India.

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Post Covid-19 digital shift of legal practise

By: Adv. Kishan Dutt Kalaskar Others 28 Apr 2020

After the breakdown of Covid-19 in the country, it has almost been two months, that people are locked in their houses and are either working from home or working through using digital modes like video conferencing, zoom calls and WhatsApp calls to connect with their bosses, employers and other co-workers. In such a scenario, when people can’t go out to work, digitalization is playing a major and effective role. It is the requirement and as well as the only way through which India’s economy can grow in this stagnant situation.

Legal fraternity

Every profession is doing its best to control the crisis, but only a few of them are able to control it. Once this pandemic is over, everything from our lifestyle to eating habits will change. Life, as we know it, will change. Under such circumstances, one can only use this pandemic to challenge themselves and use this opportunity to bring a positive change in society. Since laws are what governs this society, this pandemic has given a chance to the legal fraternity to bring change in the way of litigation and in practising. By making use of technology, things can be innovated in a way to enhance the legal decisions as well as the legal knowledge around the country. Right now, the way the situation is prevailing and the way the lockdowns have been extending, the only method left with the courts, lawyers, and the legal profession is to shift digitally to maintain and govern law and order in our states.

Use of AI in Courts pre Covid

In the recent celebration of Constitution Day, the Chief Justice of India, SA Bobde, has proposed to introduce the system of Artificial intelligence (AI) to improve the judicial system of the country. Such a system will help in better administration and delivery of judgements. However, the CJI also mentioned that people should not form an opinion that digitalization will ever replace the judges of the country. The event was organized by Supreme Court bar association (SCBA) in which the CJI said “We propose to introduce, if possible, a system of artificial intelligence. There are many things which we need to look at before we introduce ourselves. We do not want to give the impression that this is ever going to substitute the judges.” 

The president of India, Ram Nath Kovind, was also present in the event where the Supreme Court App was introduced. Justice Bodbe, while talking about the application, asserted that artificial intelligence fueled law translation system will facilitate the quality translation and will further help in improving the efficiency of the Indian Judicial System. The app that was released will translate the judgements into nine religion languages.

A meeting was conducted of e-committee of the High court in which the head of e-committee Justice DY Chandrachud head of the Supreme Court e-committee, had stressed on the need to start virtual courts in all states not only to deal with traffic challans but also in all other summary violations.

Shift to Digitalization

The Supreme Court of India is leaving no stone unturned in hearing and adjourning of the cases through the courts are shut and there is a nationwide lockdown in the country till 3rd of May. On 23rd march to practise social distancing and to prevent the spread of the virus, the court decided to ban the entry of lawyers and litigants in the court, and it was also decided to hear only those cases which were of utmost importance and urgency. According to the recent reports, the Supreme Court has heard 593 cases in the last 34 days through video conferencing and other digital facilities. 203 out of the 593 cases were connected cases, that is, cases involving the same issue which were heard along with the main case. Furthermore, the top court also delivered judgments in 41 cases during this period. Through these 41 judgments, the court disposed of an additional 174 cases which were connected matters. The apex court decided to start the method of video conferencing on 23rd march, a day before prime minister announced the nationwide lockdown in the view of Covid-19 pandemic. Since then, the court sat for hearing on 17 working days with a total of 34 benches hearing cases through video conferencing. Not only this, but 53 benches also sat to decide review petitions. However, those were decided in chambers without an oral hearing and with these 84 review petitions were disposed of by the court during this period.

The hearings in the Supreme Court are conducted through the Vidyo app, which can be downloaded on mobile phones and desktop. The platform is hosted on the servers of the National Data Centre of National Informatics Centre.

While the judges on the bench join the video conference from the residence of one of the judges, the lawyers join from their respective houses.

The court also came out with standard operating procedure (SOP) for filing, mentioning and hearing of cases through video conferencing on three occasions - March 23, March 26 and April 15.

Apart from the court cases, online consultations have been started by the lawyers for their clients. Lawyers are now giving online advice through video calls or telephonic calls to make their clients know about what is legally right and legally wrong. The lawyers are able to take up cases and study them so that no time in the future to fight such cases is lost. It is the correct time for the litigants to make a place for them and earn the trust of their clients. Such situations will later lead potential clients to the litigants.

Big law firms are able to connect to their clients through social media and work from home techniques for the employees is working well for such firms. As most of the work these firms tackle is about research and writings, the work from home structures is proving to be supportive of them.

Therefore, the legal fraternity has witnessed a significant shift in the way they are working and practising post-covid-19 which is productive as well as beneficial to them.

What future holds for Legal Fraternity?

Imagine a scenario, where there is no lockdown and the people can finally go on dinners and meet their friends. Such three friends’ meet for dinner from whom one is a lawyer, the other is a designer and the third one is an entrepreneur. These three friends meet and they start discussing the effects of covid-19. The conclusion of the discussion comes out that, the lawyer has been hired by the entrepreneur to fire one of his employees who didn’t work from home and is now asking for a full paycheque. With this, the lawyer is also hired by the designer to sue his boss for not giving him the paycheque for the lockdown period. These are what the future of lawyers is once the lockdown is over. Coming out of the imagination, as the nation is going through a lockdown because of the outbreak of covid-19, the businesses are in a dilemma as they have no idea how will they continue their operations and pay their employees. In a pandemic where the government is asking the businesses to provide full salaries to their employees and not to fire them due to the lockdown, consider the number of legalities and issues this company had to go through to fire its 200-300 employees across the country. The company must have consulted legal firms and considered the advice of the lawyers. Besides all this, a lot of paperwork and documentation must have been required by the company to fire its employees without involving any mistakes and errors legally.

On the other hand, the fired and frustrated employees during this time must be eagerly waiting for the lockdown to end and consult their legal friends to sue the company for such an ignorant act. Consulting their lawyers and filing cases against them again means, work for the legal fraternity. Hence, the future is full of opportunities for lawyers and legal firms. The only thing they have to do is to target the right group of people and build trust among the clients. For lawyers, COVID-19 crisis is a boon in the guise of a bane. When clients have lots of problems, lawyers thrive. The crisis has created lots of problems for clients. And therefore a lot of work - now, and for months to come, for lawyers.

As for the courts, the overnight shift in the paradigm is proof that courts can are efficiently equipped with the expertise to act without limitation at any hour of need. As stated by a senior advocate CS Vaidyanatha “This is an inflexion point for the legal profession in India. Till now, the mindset was one of resistance to change, or at best, incremental change. The disruption occasioned by Covid-19 has put forward challenges that can be best countered with wholesome and wholesale changes – by the adoption of online courts with limited or no oral hearing but based on brief written submissions.”

On the plus side, the pandemic has paved its way in forcing our age-old legal practice to go digital quicker, which shall hopefully continue even post the lockdown and the pandemic. There may be some guidelines pursued on this matter later on, once the lockdown relaxes.

Introduction to E-Contracts

Post Covid-19, digitalization is taking over and therefore e-contracts are also increasing and making their place in the economy. Electronic contracts or e-contracts are agreements entered through an electronic form mostly through a software system as opposed to the traditional contracts documented on paper and signed using the wet ink. The Indian laws are recognizing various types of e-contracts such as contracts which are entered through emails, clickwrap and shrink wrap contracts and other similar platforms. However, to recognize it as a valid and legally enforceable contract, the pre-requisite of the Indian Contract Act,1872 needs to be followed. E-contracts execution is done by various modes among which one of the easiest and safest way is through digital signatures. The Information Technology Act enables obtaining of digital signatures in a scenario where social distancing is must, and people are not allowed to meet each other. Digital signatures are introduced so that contracts can be signed digitally and norms of social distancing are not hampered. It is important to note that there are certain contracts which are not eligible for execution through online modes. Furthermore, the contracts which are executed should be only made, after taking the help of legal people. The government is also taking initiatives to open online portals for the payment of stamp duties for such contracts. 

Conclusion

On the brighter side, the biggest winner in this technological shift may be the solving of the pendency problem in the Indian courts. As per the McKinsey Reports, 22% of a lawyer’s job can be automated.

Covid-19 is a troublesome situation for everyone, but these are the testing times. The legal mind has to now be creative and find opportunities and solutions in this chaos. As soon as the lockdown is uplifted, things will change and the adoption of such changes will be the only option left. The big law firms, as well as the individual lawyers and small law firms, are doing stellar work concerning the COVID crisis, innovating new services, helping clients with their current legal  problems, and some have even set up dedicated desks for Covid related work. Therefore, the one who will be well prepared will be able to find the right opportunities amid Covid-19.

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Police Interrogation

By: Adv. Kishan Dutt Kalaskar Criminal 26 Apr 2020

Police interrogation is a part of the police investigation. When an accused is brought under the police custody either in cognizable offence or non-cognizable offence, the Police has the right to question the accused. It helps the Police to know about the essential facts and truths of the incident so that a case can be solved easily.

Rights during Police Interrogation

  • According to Section 161 (1) of the Code of Criminal Procedure, the accused is advised to not make any statement or answer any question which may prove that the accused is guilty of the offence.
  • The Police are not entitled to force the accused to make any sentence which later can be used as a piece of evidence against the accused.
  • Section 24 of the Indian Evidence Act and section 316 of the Code of Criminal Procedure states that Police cannot threaten or compel the accused to accept any crime which he/she has been accused of.
  • Under section 330 and section 331 of Indian Penal Code, if the Police injure the accused during police interrogation then the police officer is liable for punishment under the law.
  • A police officer has no right to torture, ill-treat or abuse the accused during interrogation or questioning round.
  • If an accused has any complaints regarding the interrogation, then he/she can register a complaint with Superintendent of Police (S.P.) or other higher officers like the Deputy Inspector General of Police (D.I.G.) or the Inspector General of Police (IG).
  • The accused also has the right to file a complaint with the magistrate in a court having jurisdiction.
  • A complaint can be sent to the Superintendent of Police (S.P.) by a registered post. If the S.P. is satisfied with the matter of the complaint, he/she shall investigate the case himself/herself or is likely to order an investigation to be made.
  • Complaints regarding Police interrogation are also registered by the State Human Right Commission or the National Human Rights Commission when law enforcement is not conducted by the Police or is done by the Police in a corrupt manner.

Duties during Police Interrogation

  • It is the duty of the accused to provide correct and accurate information or provide the information which is best known to him/her.
  • As per section 162(1) of Code of Criminal Procedure, It is not necessary to sign any statement given by the accused during the process of interrogation.
  • Section 26 of the Indian Evidence Act states that any statement to the Police by the accused cannot be held against him/her until the statement is made before the magistrate.
  • If the accused wants to confess about the offence he/she has committed, then the confession should be made in the presence of a magistrate. It becomes the duty of the magistrate to tell the accused that he/she should not confess to an offence under any pressure. If the accused makes a confession on his own, then the confession may be used against the accused as evidence. If the magistrate is not convinced that the accused is confessing on his own without any pressure, then the magistrate will not write the confessional statement.
  • It is advisable that no vague and unclear statements should be made by the accused.
  • The facts should not be exaggerated and only the incidents which occurred should be disclosed by the accused.

Is confession/statement valid when made to the Police?

The word “confession” was first used in Section 24 of the Indian Evidence Act. The whole section comes under the main heading of admission and therefore, it is referred that, confessions are just a part of admission. However, confession is not defined under the Act. According to the law of Evidence, the digest of Mr Justice Stephen, confession is defined as an admission made at anytime by a person who is charged with a crime stating or suggesting the interference that he/she has committed that crime. To constitute a confession as evidence it is important to understand the forms of confession. There are two types of confession:

  1. Judicial Confession
  2. Extra-Judicial Confession

Differentiate between Judicial Confession and Extra-Judicial Confession

Judicial Confession

Extra-Judicial Confession

  • Judicial confessions come under section 164 of Cr.P.C which are made in the presence of a magistrate or before the court during a trial or committal proceeding.
  • Extra-Judicial confessions are those confessions which are made before any person other than those authorised by the law to take confession. It may be made to any ordinary person or the investigator police.
  • To prove a judicial confession, the person to whom such confession is made need not be called as a witness.
  • To prove an extra-judicial confession, the person to whom the confession is made is called as a witness.
  • A judicial confession can be used as proof against the person to prove his/her guilt if such a confession is made voluntary and under no influence.
  • Extra-judicial confession alone cannot be treated as evidence. Such confessions are important to be supported by some other evidence.
  • A conviction can be based on Judicial confession.
  • It is unsafe and not legally correct to base conviction on such confesses.

According to Section 25 of the Indian Evidence Act, 1872, a confession made in front of the Police is not valid and cannot be used as evidence in the court of law. No confession made to the Police can prove the guilt of the accused in the court.

Reasons for such Exclusion

One of the primary reasons to not include the confessions made by the accused in the evidence is that there are instances where the Police torture the accused and thus force him/her to confess the crime he/she may have not committed. A confession obtained with the use of such means is unreliable, unethical and legally incorrect. It would further not be voluntary in nature. Such a confession would be invalid in the court whatever may be its form, direct, implied, or inferred from conduct. The reasons for which this policy was adopted when the act was passed in 1872 are probably still valid.

Dagdu Vs. State of Maharashtra

A.I.R. A.I.R. 1977 S.C. 1579

The judgement was given by the Supreme Court of India. In this case, the Supreme Court noted that the attempt of the Police to reach confessions by hook or by crook seems to be the end of all the police investigation. The Police should keep in mind that confession may not always be a short-cut to the solution. It is better that instead of trying to “start” from a confession they should investigate and strive to “arrive” at it. Otherwise, when they are busy with these short-cut solutions, good evidence may disappear due to no attention to the real clues. Once a confession is obtained, there is often flagging of zeal for a thorough and full investigation with a view to establish the case for the confession, later, being inadmissible for one reason or other, the case fondles in the court.

R V. Murugan Ramasay

(1964) 64 C.N.L.R. 265 (P.C.) at 268

In this case, the court noted that police authority itself, however, carefully controlled, carries a danger to those brought suddenly under its shadow and the law recognises and provides against the danger of such persons making incriminating confessions with the intention of placating authority and without regard to the truth of what they are saying.

Presence of Police

In circumstances, where a person is the secret agent of the Police deputed for the very purpose of receiving the confession, then such confession is subjected to fall under the category of confession made to the Police and thus is not valid in the court of law. However, the mere presence of Police does not make a confession invalid. If the confession is being given to someone else, and the policeman is casually present there who overhears the confession then it will not destroy the voluntary nature of the confession and can be considered as evidence in the court.

Under circumstances, where the accused has left a recording of his/her confession near the dead body of the victim and the recording is discovered by the Police, the Supreme Court held the recording to be relevant as there was not even the shadow of a policeman when the letter was being written and planted.

Conclusion

According to the cases and laws described above, a confession made to Police is invalid to be considered as a proof to prove the guilt of the accused under the Indian Evidence Act, 1872. A situation may arise, where a policeman knowingly, to take revenge, or to defame someone, records the wrong confession by using unfair and wrongs modes. Therefore, it is made clear by the law and as well as the court, that a confession can only be used as evidence if made before the presence of a magistrate or other evidence to support such a confession.

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Prenuptial Agreements

By: Adv. Kishan Dutt Kalaskar Family 24 Apr 2020

A prenuptial agreement is an official document which is signed by two individuals before getting married. The primary purpose of a prenuptial agreement is to settle financial matters in advance. The agreements are used to separate the personal debts and assets of one individual from his/her future spouse. This type of agreement includes the provisions relating to the division of properties, investments, alimony and any other monetary and possession-based negotiations. The introduction of the prenuptial agreement is a foreign concept. In India, marriage is considered as a sacrament, and hence the concept of the prenuptial agreement is not welcomed in the Indian society. The prenuptial agreement does not have any specified format. The content of the prenuptial agreement differs from agreement to agreement, as it depends upon the spouses. The entire concept of a prenuptial agreement is complicated in India. The main purpose of the prenuptial agreement is to decide the outcome of finances and personal liabilities in the event of a failed marriage.

Are prenuptial agreements valid and enforceable in India?

  • The validity of prenuptial agreements under the Marriage Laws:

The prenuptial agreement provides full disclosure of the financial status of both the individuals who are about to get married in future. It pre-determines the quantum of alimony to the wife and children in case if the marriage fails in the future. The prenuptial agreement also provides a provision that is related to pre-negotiated custodial rights of the children in case if there is dissolution/separation of marriage. Under the Indian Marriage laws, a prenuptial agreement is neither legal nor valid as the Indian society does not consider marriage as a contract. In India, the prenuptial agreements do not find its social acceptance as the society treats the marriage as a spiritual bond between two individuals (spouses).

In India, the matrimonial laws are governed by the Personal Laws of the individual in a marriage. As there is no Uniform Civil Code which governs marriages in India, each religion has its own set of rules relating to marriages. There is diversity in the way marriages are dissolved, custodial rights of children, and other issues. At present, there is no law which deals with legality or enforceability of pre-nuptial agreements in India. However, as there is a Uniform Civil Code in Goa, it recognizes pre-nuptial agreements. The general view relating to the prenuptial agreement is that it merely indicates the intention of two individuals who are about to get married, and such an agreement cannot be legally enforced in India. One of the primary reason of non-validity of prenup agreements is that, in India, a marriage is not considered as a Contract or agreement between two parties rather it’s a spiritual concept. Therefore, prenup agreements are not socially accepted, and under the various marriage laws, they are not legally enforceable or legally valid.

  • The validity of prenuptial agreements under the Contract Act,1872:

To make a prenuptial agreement enforceable in the court of law, it must be a valid contract under the Indian Contract Act 1872. In case if both the spouse mutually agrees to the provisions mentioned under their prenuptial agreement and is signed with the free consent, then the Court can take cognizance of such an agreement. If the consent is caused by any coercion, undue influence, fraud, misrepresentation and mistake, then it is not considered as free consent. To legally enforce the prenuptial agreement, the agreement must be free from ambiguity, and the clauses should be fair to both the spouses.

It is also essential to understand that for a prenup agreement to be legally valid under the Contract Act 1872 should be free from clauses which oppose to public policy. Despite fulfilling the requirements of a legal contract under Section 10 of the Indian Contract Act(ICA),1872, the Indian Courts have not been providing legal enforcement to the prenuptial agreements on the basis that they are unlawful as they oppose the public policy. According to Section 23 of the Indian Contract Act, any contract which violates the public policy is deemed to be unlawful and invalid. The clauses in the prenuptial agreement which relates to “separation clauses”, and “no child clauses” violates Section 23 of ICA making the contract void. On the other hand, both these clauses previously mentioned are essential and must for a prenuptial agreement. However, the Indian Courts have not defined what exactly is “public policy”, and therefore the stability of such agreements is yet not balanced.

The Ministry of Women and Child Development had convened a meeting in March 2019 with an intention to raise a question on whether the prenuptial agreement should have a legal stand in India. However, there was no precise determination in that meeting.

Case Laws

1. Tekait Mon Mohini Jemadai Vs Basanta Kumar Singh

Calcutta High Court - 20 March 1901

(1901) ILR 28 Cal 751

In this case, there was a prenuptial agreement between Sri Rai Basanta Kumar Singh and Tekait Mon Mohini Jemadai. The provisions of the pre-nuptial agreement state that the husband will never be at liberty to remove his wife from the parental house. The Hindu law imposes a duty upon the wife to reside with her husband wherever he may choose to reside. If there is any agreement which states that the husband will not be at liberty to remove his wife from her parent's house to his own house and if such an agreement is permitted then it will defeat the Hindu Law. The Court held that the object of the agreement is unlawful and therefore, such an agreement is void in the eyes of the law. Hence, the Court refused to uphold the validity of the pre-nuptial agreement.

2. Krishna Aiyar Vs Balammal

Madras High Court - 6 May 1910

(1911) ILR 34 Mad 398

The agreement was between Krishna Aiyar and Balammal. The agreement was entered by the husband and wife after marriage. The agreement states the provision relating to the separation of the husband and wife. The Courts applied the Hindu law as the parties were Hindus and Brahmans to determine their marital obligations. The main question which arises was whether, under Hindu law, any agreement between husband and wife to live apart from each other is valid. The Court held that the agreement is deemed to have been forbidden by the Hindu Law. Also, it is against public policy, and therefore such an agreement is not enforceable. Hence, the agreement was declared invalid.

3. Commissioner of Income-Tax V/s Smt. Shanti Meattle

Allahabad High Court - 27 December 1971

1973 90 ITR 385 All

The husband and wife agreed to live apart after their marriage, and an agreement for separation was executed between them on the 16th September 1954. Under the agreement, the wife was given an option to live separately from her husband free from marital control and authority. It also states that the wife and husband shall not molest or interfere with each other or bring a suit for the restitution of conjugal rights against each other. The agreement has the provision for the maintenance of Rs. 2,000 per month to his wife and her two children.While deciding the validity of an agreement between the parties to live apart, the High Court held that such an agreement is unenforceable because it has brought to an end all the marital rights which a husband can exercise over his wife.

4. Sunita Devendra Deshprabhu V/s Sita Devendra Deshprab

High Court of Bombay at Goa - 4th October 2016

2016 SCC Online Bom 9296

On 7th May 1951, Raghunathrao Deshprabhu and Sita Devendra Deshprabhu had entered into a prenuptial agreement. The prenuptial agreement states the provision relating to the separation of assets. On 10th November 1987, Raghunathrao Deshprabhu died. After filing suit, Sita Deshprabhu also died. It was contended that there were no pre-existing rights in view of the prenuptial agreement. It was submitted that the prenuptial agreement between Raghunathrao and Sitadevi shows that they had agreed for the regime of separation of assets. Hence, in this case, the Court considered the Prenuptial agreement for deciding the issue relating to the separation of assets among the parties. However, there was no point relating to the validity of the prenuptial agreement in the judgement.

Conclusion

In India, prenup agreements are still considered a taboo, unlike the other western countries. Its validity and constitutionality are unstabilised, and no accurate decisions have been made yet. From the above-mentioned case laws, it can be concluded that there is no landmark judgment which states that the prenuptial agreement is valid in the Court of law. However, to make the prenuptial agreement enforceable, it must be a valid contract under the Indian Contract Act 1872. Such an agreement will be legally binding only when there is mutual and free consent of both the spouses. Also, the clauses mentioned under the prenuptial agreement must be fair and clear. It is advisable to have a prenuptial agreement as it provides hassle-free litigation in the event of failed marriage like a divorce, judicial separation, etc. In the prenuptial agreement, since the division of assets is done before the marriage, it becomes simpler to implement such an agreement in case if the marriage fails in future. However, it is advised to consult a lawyer before drafting a prenuptial agreement for clarity and to avoid ambiguity.

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Telemedicine guidelines in India

By: admin Covid-19 21 Apr 2020

The Telemedicine Practice Guidelines had been issued on 25th March 2020 by the Ministry of Health and Family Welfare (MoHFW), in collaboration with NITI Aayog and Board of Governors (BoG) Medical Council of India (MCI). In earlier times, there was no statutory framework on the practice of telemedicine. The World Health Organization has defined the telemedicine as " The delivery of health-care services, where distance is a critical factor, by all health-care professionals using information and communications technologies for the exchange of valid information for the diagnosis, treatment and prevention of disease and injuries, research and evaluation, and the continuing education of health-care workers, with the aim of advancing the health of individuals and communities."

These guidelines states that the telemedicine practice can prevent the risk of transmission of infectious diseases like COVID-19 to both healthcare workers and patients. Only the registered medical practitioners (RMP) are entitled to practice telemedicine. A Registered Medical Practitioner is a person who is enrolled in the State Medical Register or the Indian Medical Register under the Indian Medical Council Act 1956. Under telemedicine, there are two types of patient consultations known as the first consult and the follow-up consult. All the RMPs will have to take an online course on the practice of Telemedicine. The Telemedicine Guidelines (https://www.mohfw.gov.in/pdf/Telemedicine.pdf)  states the following provisions:

  • The seven elements that must be taken into consideration before any telemedicine consultations are Context, Identification of RMP and Patient, Mode of Communication, Consent, Types of Consultation, Patient Evaluation and Patient Management.
  • The RMP should exercise their professional judgment to decide whether a telemedicine consultation is appropriate in a given situation, or there is a requirement of an in-person consultation. They should also consider the mode/technologies available and their adequacy for a diagnosis before choosing to proceed with any health education or counselling or medication. There are three modes: Audio-Video or Text (chat, images, messaging, email, fax, etc.).
  • Both the patient and the RMP should know about each other’s identity.An RMP should verify and confirm patient’s identity by name, age, address, email ID, phone number, registered ID, or any other identification. The RMP should also ensure that there is a mechanism for a patient to verify the credentials and contact details of the RMP.
  • In case of a minor patient, the teleconsultation would be allowed only if the minor is consulting along-with an adult. The identity of such an adult must be ascertained.
  • An RMP should begin the consultation by informing the patient about his name and qualifications.
  • It is required that every RMP should display the registration number on prescriptions, website, electronic communication (i.e. through WhatsApp/ email etc.) and receipts etc. that are given to his patients.
  • It is necessary to get the patient’s consent for any telemedicine consultation. The consent can be eitherimplied or explicit,depending on the situation. Explicit consent can be recorded in any form. The RMP must record the explicit consent in the patient records for future reference.
  • The RMP must gather sufficient medical information about the patient’s condition before making any professional judgment.
  • The RMP should maintain all patient records, including case history, investigation reports, images, etc.
  • Based on the type of consultation, the RMP may proceed with a professional judgment relating to Health Educationor Counseling that are related to the specific clinical conditionor Prescribing medicines.
  • The RMP may prescribe medicines via telemedicine at his professional discretion only when he is satisfied that he has gathered all adequate and relevant information relating to the patient’s medical condition and prescribed medicines that are inthe best interest of the patient.However, there are certain limitations on prescribing medicines on consult via telemedicine depending uponthe type of consultation and mode of consultation.
  • There are certain categories of medicines that can be prescribed via telemedicine. They are mentioned under list O, A and B. The List O contains those medicines which are safe to be prescribed through any mode of teleconsultation.The List A contains those medications which can be prescribed during the first consult through video consultation and are being re-prescribed for re-fill, in case of follow-up consult.The List B contains a list of medication which the RMP can prescribe to a patient who is undergoing follow-up consultation in addition to those which have been prescribed during an in-person consult for the same medical condition.
  • There is also a Prohibited List which contains a list of medicine which the RMP cannot prescribe to a patient via telemedicine.
  • The RMP must issue a prescription as per the Indian Medical Council Regulations, and it should not contravene the provisions that are mentioned under the Drugs and Cosmetics Act and Rules.
  • All the Principles of medical ethics, including the professional norms such as protecting patient privacy and confidentiality as per the Indian Medical Council Regulations 2002 Act shall be binding on the RMP and it must be upheld and practisedby an RMP at the time of telemedicine consultations.The RMP is also required to fully abide by the IT Act, Data protection and privacy laws or any applicable rules that are notifiedfrom time to time in order to protect patient privacy and confidentiality and regarding thehandling and transfer of such personal information of the patient.
  • The RMP will not be held responsible for breach of confidentiality in case if there is reasonable evidence to believe that patient’s privacy and confidentiality has beencompromised by a technology breach or by any other person except an RMP. The RMPs mustensure that there is a reasonable degree of care which has been undertaken while hiring such services.
  • The RMP must retain the Patient records, reports, documents, images, diagnostics, data etc. (Digital or non-Digital)that are utilized in the telemedicine consultation.
  • The RMP is required to maintainthe prescription records in the same way as it was required for the in-person consultations.
  • An RMP may charge an appropriate fee for providing the Telemedicine consultation. From a fee perspective, the telemedicine consultations are treated in the same way as in-person consultations.
  • An RMP must give a receipt or invoice for the fee that has been charged by him while providing telemedicine-based consultation.
  • There are certain actions of an RMP which are not permissible under the telemedicine guidelines. Following are some of the examples:-
  • When the patient is willing to travel to a hospital/clinic or requests an in-person consultation, then an RMP cannot insist such patient for telemedicine consultations.
  • The RMP cannot misuse patient images and data.
  • The RMP cannot use telemedicine to prescribe medicines that are mentioned in a restricted list.
  • The RMPshould not solicit patients for telemedicine through any advertisements.
  • Any other act which contravenes the provisions that are mentioned under the telemedicine guidelines 2020.

Conclusion

Hence, these Telemedicine Guidelines recognize the significance and value of the practice of telemedicine in the times of pandemic and infectious diseases. It reduces the exposure of doctors, patients and medical staff to potential infections through remote screening and consultation. It also reduces the costs on time, expenditure and cuts travel of long distances for consultation and treatment in cases where there is no necessity for physical access, follow-up consultations, etc. With the beginning of the Covid-19 outbreak in India, there is amassive rise in e-consultation across companies. Post the lockdown, many governments, hospitals, e-pharmacies and even corporations have adopted to telemedicine in their employee wellness strategies. Hence, one can see that Telemedicine has started to grow in India.

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