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Clinical Establishments (Registration and Regulation) Act, 2010
Legislations

CEA, 2010 – A Step Towards Controlling Unregulated Clinics

The health care industry is a critical industry across all the sectors. The testing laboratories, multi-specialty hospitals, consulting doctors, super specialty surgeries- all forms of medical services are expanding expeditiously in our country. But a blistering pace of expansion of unqualified clinics has been a cause of concern for the government.

The Clinical Establishments (Registration and Regulation) Act, 2010 has been enacted by the Central Government for compulsory and authentic registration so that all clinical establishments can be regulated. This aims to achieve the minimum necessary standards for all medical facilities and services. 

The act covers all forms of clinical establishments including both therapeutic and diagnostic ones being run in public or private sectors. Only the clinical establishments run by the armed forces are excluded. The act has specified guidelines for a standardized treatment – both specialty and super specialty. It recognizes both allopathic and AYUSH form of treatment.

This act would help in maintaining a digital registry of all clinical establishments at all the three levels- National, State and District level. It aims at putting a stop on all unqualified practitioners by the implementation of mandatory registration. The quality of health care would be improved by prescribing minimum standards for facilities ensuring all the conditions of registration are complied with, like compliance to standard treatment guidelines, maintenance of records etc. The compulsory registration will also help in better management of emergency medical conditions. The act says that details of rates charged have to be prominently displayed at a conspicuous place in local and in English language. These rates shall be determined by the central government from time to time in consultation with the state governments.

Heavy penalties ranging from Rs. 10,000 to 5 Lakhs will be levied if any provision is violated. 

All the test reports prepared by the prescribed qualified persons in registered testing laboratories need to write a disclaimer saying that these results are only for the use of medical practitioners. They are not allowed to give medical diagnosis. They are not allowed to state any medical opinion or interpretation of the test results. In case it is necessary to state the interpretation of the results, the report must bear signatures of a qualified medical doctor who shall only be responsible for that interpretation in the report. 

The Ministry of Health and Family Welfare released a notification on 14th February, 2020 specifying further regulations for the lab technicians which are: –

1. The laboratory technicians are not allowed to sign the test results. After obtaining the prescribed qualifications and training experience, he/she can conduct some specific tests but these shall be signed by qualified signatory authority of the laboratory.

2. The minimum qualification for lab technician is – Diploma in Medical Laboratory Technology (DMLT) or Bachelor of Science (B.Sc.) Medical Laboratory Technology (MLT) or Master of Science (M.Sc) Bio-chemistry or Micro-biology from a recognized university or institution.

3. It is mandatory to conduct periodic health checkups and vaccination of the staff.

4. In case a special test is conducted, it is mandatory to have a specialist of that subject in the lab (full time or part time or outsourced basis). Special test includes all test excluding the routine basic tests of biochemistry, hematology, or medical microbiology (example- fasting sugar, blood group, blood pressure etc.), some examples of special tests are biopsies or cytology.

Numerous efforts are being taken to curb the rapid growth of those clinical establishments which are not run by suitable qualified medical professionals. These efforts would result in a systematic collection of information creating a database for good quality health care sector. It would also help in appropriate policy formulation in the future. The effort would cut down extremely costly treatments and sub-standard healthcare.

Mukesh Kumar and Ors. Vs. The State of Uttarakhand and Ors. 2020 (1) SLJ350(SC)
Case Reviews, The Law

Mukesh Kumar and Ors. Vs. The State of Uttarakhand and Ors. 2020 (1) SLJ350(SC)

The case dealt with a number of appeals pertaining to reservation in promotion of Scheduled Castes and Scheduled Tribes to the post of Assistant Engineer (Civil) in Public Works Department of the Government of Uttarakhand.

Relevant Facts 

  • On 06.07.2011, in Vinod Prakash Nautiyal and Ors. v. State of Uttarakhand and Ors (1) the court directed the Government of Uttarakhand to constitute a committee for collection of quantifiable data regarding the backwardness of the reserved communities in the State of Uttarakhand and the inadequacy of their representation in public posts.
  • On 05.09.2012, the State Government decided that all posts in public services in the State shall be filled up without providing any reservations to Scheduled Castes and Scheduled Tribes.
  • On 01.04.2019, the High Court disposed the writ petition and struck down the proceeding dated 05.09.2012 relying on Indra Sawhney v. Union of India and Ors. (2) and Jarnail Singh and Ors. v. Lachhmi Narain Gupta and Ors. (3) This judgment of the High Court was challenged in an appeal. 
  • On 15.07.2019, the High court disposed a writ petition filed by Vinod Kumar and three others of Scheduled Castes working in the Public Works Department, Government of Uttarakhand directing the State Government to implement reservations in promotion by promoting only members of Scheduled Castes and Scheduled Tribes in future vacancies to maintain the quota earmarks. This order was also challenged in an appeal.
  • On 15.11.2019 the High court disposed application for review of the judgment dated 01.04.2019 filed by the State of Uttarakhand and held that even though the state is not obliged to provide reservation in promotions but could be provided by collecting data regarding lack of representation of reserved communities. 
  • A number of appeals were filed aggrieved by the order dated 15.11.2019.

Key Issues

  1. Whether the State Government is bound to make reservations in public posts?
  2. Whether the decision by the State Government to not provide reservations can be only on the basis of quantifiable data relating to adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes?

Rules Applicable

  1. Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short “the 1994 Act”)
  2. Rule 8-A of the Uttar Pradesh Servants Government Seniority Rules, 1991 (for short “the Seniority Rules”)
  3. Article 16(4) and 16(4-A) of the Indian Constitution 

Arguments of the Appellants 

  1. Mandated by Article 16(4) and 16(4-A) of the Constitution of India to the State to provide reservations in promotions.
  2. The state might defeat the right to equality it fails in discharging constitutional obligation. 
  3. Since the report of the committee approved by the State Cabinet reflects the inadequate representation hence, the State Government was duty bound to provide reservations.
  4. The judgment of this Court in Suresh Chand Gautam v. State of U.P. (4) needs reconsideration.

Arguments of the Respondent

  1. It’s not a fundamental right to claim reservation in appointments or promotions to public posts.
  2. There is no constitutional duty on the part of the State Government to provide reservations as Article 16(4) and 16(4-A) are merely enabling provisions.
  3. The collection of data is required only to justify a decision to provide reservation and therefore isn’t a necessity.

Judgement 

  1. The decision given by the High court on 01.04.2019, quoting the decision of the state to given on 05.09.2012 as illegal was set aside. 
  2. The direction given by the High Court in its judgment dated 15.07.2019, directing all future vacancies to be filled up by promotion in the posts of Assistant Engineer, should only be from the members of Scheduled Castes and Scheduled Tribes was set aside. 
  3. The Supreme Court upheld the decision in Suresh Chand Gautam v. State of U.P.

Precedents Cited

A. Ajit Singh (II) v. State of Punjab (5)

Article 16(4) and 16(4-A) do not confer fundamental right to claim reservations in promotion.

B. C.A. Rajendran v. Union of India (6)

It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts.

C. M. Nagaraj and Ors. v. Union of India and Ors. (7)

Without affecting general efficiency of administration as mandated by Article 335 of the Constitution

D. Indra Sawhney v. Union of India and Ors. (8)

Article 16(4) and 16(4-A) are enabling provisions.

Analysis

Since the inadequacy of representation is a matter within the subjective satisfaction of the State, it is solely the discretion of the state to provide reservation. Also, because Article 16(4) and 16(4-A) are in the nature of enabling provisions. If the State wishes to exercise its discretion and make provisions for reservation, the collection of quantifiable data showing inadequacy of representation of that class in public services is a sine qua non, to back up or justify its decision to uplift the particular class. Therefore, there should be some sort material forming the basis of decision of the state. The Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether.

Conclusion

To provide reservation is the discretion of the State and to furnish it the collection of a quantifiable data to acknowledge the adequacy of representation of reserved communities is pre-requisite. Not even the court can issue mandamus to the State directing collection of data or urge the state to provide reservation. But the procedure is not entirely beyond judicial scrutiny.

(1) 2013 SCC OnLine Utt 4093
(2) (1992) Supp. 3 SCC 217
(3) (2018) 10 SCC 396
(4) (2016) 11 SCC 113
(5) (1999) 7 SCC 209
(6) (1968) 1 SCR 721
(7) (2006) 8 SCC 212
(8) AIR 1993 SC 477

Singhania & Partners LLP, New Delhi
Internship Experiences

Internship Experience at Singhania & Partners LLP, New Delhi

Name, College & Year: Ayushi Mishra; Symbiosis Law School, Noida; 4th Year Student (5-year course of B.B.A. LL.B.) 

Name & Address of the organisation: Singhania & Partners LLP

P-24 Green Park Extension, New Delhi 110016, India

Duration: 2nd January 2020 – 30th January 2020

Application of procedure: 

I applied for the internship by sending an application to hr@singhania.in . I applied well before 1.5 months. Their office is generally filled with interns and there is hardly any vacancy. They usually have internships lined up for 2 months. 

A properly drafted application and CV with brief facts about your personal details, past experiences, accomplishments, duration required and describing your suitability need to be sent to the HR.  Regular follow-ups need to be conducted to ensure that the HR has taken your application into consideration. 

First Day Formalities:    

On my first day, around 20 interns joined the office. We were asked to sit in the conference room at the top floor. After a few minutes, the HR came and briefed us about the office timings, reporting time and the legal teams in the firm. You are free to choose the team you wish to work with. I worked with the Litigation and Arbitration team. Other departments like Mergers and Acquisitions, IPR, General Corporate, Tax, etc can also be found.

After the briefings, we were given a diary and pen from the office. Our laptops were connected to the office internet system and we were given our outlook accounts which were to be used for official works. We were then introduced to the associates and partners. 

Major Roles and Responsibilities:

My work majorly comprised of legal research, briefing the associates about the case files, making documents, and visiting courts. The legal research included various acts like CPC, IPC, Consumer Protection, Arbitration and Conciliation, Contract Act, Transfer of Property Act, etc. This helped me in studying about different provisions of the Acts in the span of one month and in gaining a lot of practical knowledge.

On our court visits we observed court proceedings and then go back to chamber of Singhania and Partners LLP in the court premises where we used to have discussions and interactions on our cases, recent news, etc. Later, we would go to canteen where the associates would treat us. 

The timings of the office were from 9:30 AM to 6:30 PM. Except the first Saturday of the month, rest all Saturdays were off.

Work Environment:

The firm maintains a balance by having warm and helpful seniors. The partners and associates were very patient with the interns and immensely supportive. They were genuinely interested in interacting with the interns and always made sure that the interns are given adequate work. 

The office is fairly organised and well kept. We would get coffee/tea and cookies in the morning and evening. The helping staff was too sweet and fun to interact with. 

Highlights of the Internship:

The friendly and amicable attitude of the associates was definitely a highlight for me. The associates would treat us at times and always ensured that the interns felt comfortable. They were also extremely communicative in terms of the work they gave us.

Any Drawbacks:

There were no drawbacks in the entire experience per say. However, my personal travel time was a lot because I would have to travel from Noida to Green park.

Stipend: 

There is no stipend for a one-month internship in this firm. But they do give ₹10,000 in long-term and assessment internships

Overall Experience

I learned a lot in this internship and got the opportunity to work in diverse laws. I was always busy with some work in the office which kept me productive throughout the internship.

GC Garg & Associates, Jaipur
Internship Experiences

Internship experience at G. C. Garg & Associates, Jaipur

Name, College, Year of study of the student intern: Riya Saxena, Ramaiah Institute of Legal Studies, Bengaluru, 3rd year (5-year integrated law)

Name of the Organization: G.C. Garg & Associates, 
D-105, Lal Kothi Marg, Bapu Nagar,
Jaipur, Rajasthan

Duration of internship: 16th January 2020- 8th February 2020

Office hours: 9:00 A.M. to 8:00 P.M. with only Sundays off.

Application procedure:

You can apply by sending a cover letter and resume on the Email ID: gcgargadvocate1962@hotmail.com

Phone number: +91-1412707367

First day formalities, infrastructure, first impression:

On the first day of my internship, I reached before time and waited for Sir to come. I was welcomed and addressed by Advocate Alok Garg, Managing Partner at G.C Garg & Associates. He is known practicing lawyer at the High Court, Rajasthan as well as in Debt Recovery Tribunal, Jaipur. Thereafter, he asked me about my areas of interest and my previous internships. He then asked me to go through the Commercial Courts Act and make a report on it. He also gave a brief about the same. 

The formal introduction with all the associates and clerks takes place during lunch where everyone in the chamber eats together. My first experience was positive.

Major roles and responsibilities:

I was required to assist on the on-going cases. I was expected to do research from various sources. I was also asked to make case notes, attend proceedings in High Court, Jaipur as well as in Debt Recovery Tribunal, Jaipur according to their listing of matters. The research topics ranged from Corporate and Constitutional Laws, Insolvency and Bankruptcy Laws to even Family laws. Research, attending Court Proceedings and Drafting Work was the major work allotted.

Working Environment:

The work environment is quite strict. The associates as well as the interns were not allowed to use their phones during the working hours. You can take only one break for lunch of 30-35 minutes. 

The office is located very near to the High Court, Jaipur. The chamber has a good infrastructure with an impressive library. Access to SCC and Manupatra and other assistance to make your research effective and efficient is also provided.

The associates, clerks and everyone present was very co-operative. Everyone was very professional, and disciplined.

Highlight of the internship:

From witnessing Sir arguing in the Court to working with him on cases, the whole experience was very enlightening. Alok sir also makes sure that appreciation is given when earned. Appreciation from someone of his stature means a lot. The dedication and discipline Sir worked with had inspired me from day one.

Bad things:

The internship is not an easy one especially for someone who likes to work in a relaxed atmosphere. The strictness with respect to time had to be always kept in mind.

Overall experience:

My overall experience was very good. Apart from the many things useful for my legal profession, I have learnt the importance of time management and a disciplined way of life. I definitely recommend this internship to all the future lawyers who are willing to challenge themselves to learn new things and follow a strict routine throughout the week. The assistance and experience given by Sir himself was commendable. He was always willing to solve all my doubts and helped me to create a different perspective to look at things from. 

Stipend:

No stipend.

Suggestions for accommodation and places to chill nearby:

The chamber is situated in Lal Kothi, where one can easily find PGs and rooms on rent. There are number of coaching centers present in the area due to which the availability of accommodation is not a problem. There are various food joints at about 700 meters from the office. One can also find quite a number of cafes, restaurants, dining places nearby.

Any prospect for Pre-Placement offers or P.P.O.:

Though this internship is worth an experience, one should not have high expectation with respect to pre-placement offer. 

Case Reviews

Naveen Jindal vs. Zee Media Corporation Ltd. And Ors. 219 (2015) DLT 605

The case relates to the powers of the Court to order pre-publication and pre- broadcasting Injunctions in case Defamation charges have made against the Media House. 

Relevant Facts 

The Appellant in the matter is an industrialist and Chairman of M/s. Jindal Steel & Power Limited and the Defendant is a media house company.  

  • The present application is filed seeking an interim injunction to restrain the defendants, etc. from writing, telecasting or airing any material, article, news etc. directly or indirectly pertaining to the purported allegations made against the appellants. The allegation pertains to an alleged incident of the year 2001 and 2010 by a lady who has been described in the plaint as Mrs. ABC. Other connected reliefs were also sought.
  • It is alleged that in September of 2012, an enormous demand by way of extortion was made by the Editors and Chairman of Defendant No. 1. This extortion call, it is said, was made pursuant to a vilification campaign against the plaintiff and his company in relation to a purported coverage of coal-gate scam in which the plaintiffs company was sought to be falsely implicated. Various Litigations were initiated by both the parties.
  • The present scenario has fallen out of the WP No. 235/2014 at the Chhattisgarh High Court which was filed by Mrs. ABC on the acts of Mr. D.K. Bhargava by coming to her home and removing her clothes and robbing her chasity. D.K. Bhargava with others also took thumb expression on the documents forcibly.
  • An order was made on 06.01.2015 by the HC and on this order the defendants in the present case made publications/news programs in respect of the Appellants that was alleged to be misleading and fake and was called out as a violation of Article 19 and Article 21 of Constitution.
  • Argument and reliance on different cases was made by both Appellants and defendants on the issues framed by the court.

Key Issues

  1. Whether the Court has the powers to grant a pre-publication or pre-broadcasting injunction against the defendants.
  2. Under what facts and circumstances, should the court exercise its jurisdiction to grant an injunction regarding publication of news item or broadcasting of programmes?

Arguments made by the Plaintiff

Since the defendants have aired more than 20 news programmes, it is not just causing defamation to the Plaintiff but also interfering with the administration of justice. It is also urged that the actions of defendants are motivated by malafides and an order of temporary injunction should be passed against the defendants. Reliance was also placed on Article 21 and the rights of plaintiff were also trampled upon and also urged that irresponsible reporting was done by the defendants. 

The plaintiff’s plea of temporary injunction was also supported by a variety of case laws in the issue of pre-publication and pre- broadcasting injunction. 

Arguments made by the Defendants

It is been contented by the defendants that the suit is not maintainable as it directly corresponds to the suit of Chhattisgarh HC and it lacks a necessary party that should also be made as a party i.e Mrs. ABC. It is also put at reliance that the suit is barred as a similar suit for injunction was made in the year 2014 before the same court and the directions in the same were followed meticulously by the defendants. It was further urged that at best the reports made by the defendant are a case of fair comment and justification. It is further urged that this is a complete defence to a suit for defamation and no stay can be granted. It is also stated that the plaintiff is a public figure having been a Member of Parliament. Public is interested in the activities of a figure like the plaintiff and there can be no restrictions imposed on a right to comment upon the conduct of the plaintiff.

Analysis

The court in the present case, did not restrict its scope and granted the relief to the Plaintiff of Temporary Injunction. Court placed reliance on various decision supplied by the Plaintiff and the defendants and by which it was made clear that the courts have power to pass pre-publication or pre-broadcasting injunctions if the court is satisfied that interest of justice so requires. The court relied on the case of Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors. (1) in which, “The Supreme Court ordered restraint on publication. Needless to add that after the time for subscription to the debentures had closed and the imminent danger to the subscription subsided, the Supreme Court held that continuance of the injunction is no longer necessary. The Supreme Court applied the test of real and imminent danger in order to infer as to whether the proposed publication would lead to an interference in the course of justice for the purpose of grant or non-grant of interim injunction of prior restraint against publication.”

The court also analysed the issue of the facts and circumstances under which it should issue the grant of an injunction also that the court holds the power to restrain publication in media if it arrives at a finding that the publication may result in interference with the administration of justice or against the principle of fair trial or open justice. Reliance was also placed on the case of Swatanter Kumar vs. The Indian Express Ltd. & Ors. (2) Wherein certain important deductions were made in law that were important in passing of a order in the case. They were as, “It is clear that it is the question of degree of prejudice and its nexus with fetching the fair justice or open justice which is a potent factor which is required to be examined and tested by the Courts at the time of passing of the injunction restraining or postponing the publication. The line between fairness and unfairness is sometimes blurred but if the same is likely to prejudice the accused and project him as culprit which may cause irreversible damage to a person, the Court can step in and assume jurisdiction for future prevention of such damage so that the administration of the justice is not impaired.” 

As the present matter was at the stage of preliminary enquiry by the police. The question was whether it will be appropriate for the Court to grant stay on publication at this preliminary stage. Do the powers of the court encompass within its sweep, the power to pass an injunction or prior restraint before or after a FIR is registered and before the court commences trial. Reliance was placed on the case of Sidhartha Vashisht vs. State (NCT of Delhi) (3), and the court appreciated the ruling i.e. “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution. In the present case, various articles in the print media had appeared even during the pendency of the matter before the High Court which again gave rise to unnecessary controversies and apparently, had an effect of interfering with the administration of criminal justice. We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub-judice.”

The judgements supplied by the defendants before the court were not appreciated by the court and it was held by the court that the allegations made by the reporters of Defendant No. 1 against Plaintiff No. 1 were not per se defamatory. It was further held by the court that a pure blanket pre-telecast restraint order cannot be passed. The balance of convenience has also been a feature that has been focused by this court. The Court accepts the test of imminent and present danger on the basis of balance of convenience but on the other hand states that no formula or test has been laid down to determine how the danger should be judged in case of prevention by injunction of broadcasting in a pending trail. 

Any publication which gives excessive adverse publicity to an accused or which is likely to hamper fair trial and constitutes an interference with the course of justice could be a ground for grant of injunction. The court has ample inherent power to restrain publication in media in the event it arrives at a finding that the said publication may result in interference with the administration of justice or would be against the principle of fair trial or open justice.

Conclusion

In the present case, the court held that the balance of convenience is in favour of the plaintiff and publication or broadcasting of anything would cause Serious prejudice to the plaintiff if injunction is not granted. Accordingly, the Hon’ble court restrained the Defendants 1 and 2, by an order of injunction from publishing any article or right-ups or telecasting programmes on the allegations against the Plaintiff as made by Mrs. ABC either in the complaint or before the police, till the time the police completes its enquiry and, if necessary, investigation and files an appropriate report/document before the court. The order of injunction which is passed is of a temporary nature and is applicable only till the police completes its preliminary enquiry or any other investigation if required that may be done at a later stage. However, the defendants are free to report to the court the final conclusion of the police in the course of preliminary enquiry covered under the ambit of fair reporting on the basis of true, correct and verified information. 

(1) AIR 1989 SC 190
(2) 2014 (207) DLT 221
(3) AIR 2010 SC 2352 India

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