Forcing Doctors to Return to India after Higher Studies: Violation of Fundamental Rights

May 17th, 201211:14 am @    


On 23rd April 2012, the Union ministers Gulam Nabi Azad (Union Health minister) and V.Narayanaswamy (Minister of state) in a press meet at Delhi declared that any doctor traveling to the United States for higher medical studies from this year onwards would have to sign a bond to the government, promising to return to India after completing his / her studies.

He also stated that this had been done to prevent doctors from leaving the country on the pretext of higher studies and eventually settling down there.

“Any students/doctors traveling for further medical education to the US will have to give us a bond that he will return after completing the studies. In the last three years, 3,000 doctors went abroad for studies and didn’t return. If a student doesn’t return from the US, he won’t be allowed to practice there,” Union Health and Family Welfare Minister Ghulam Nabi Azad said in a press conference at New Delhi on Monday.[Link to the news article in ‘The Hindu’]

This Government move to impose bond to doctors, who are pursuing higher studies from US is clear violation of Right to Equality (Article 14), Right to travel outside the country and Right to work in out of the country under Article 21 of the Indian Constitution.

Violation of Article 14

Article 14 declares that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. Equality before the law is an expression of English Common Law while “equal protection of laws” owes its origin to the American Constitution.

Both the phrases aim to establish what is called the “equality to status and of opportunity” as embodied in the Preamble of the Constitution.

Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration.

Interpreting the scope of the Article 14, the Supreme Court of India held in the case Charanjit Lai Choudhury v. Union of India (1951 AIR 41);

(a) Equal protection means equal protection under equal circumstances;

(b) The state can make reasonable classification for purposes of legislation;

(c) Presumption of reasonableness is in favour of legislation;

(d) The burden of proof is on those who challenge the legislation.

Here the imposing bond to doctors results the violation of equal to status and of opportunity. There no reasonable classification to medical profession and other profession for imposing bond system to doctors only.

The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing by-laws, rules and regulations as well as in the performance of a number of other functions.

Violation of Article 21 of the Indian Constitution

It also violates Right to travel abroad and Right to livelihood of doctors under Article 21 of the Indian constitution.

In Satwant Singh v. Assistant Passport officer, New Delhi(AIR 1967 SC 1836), the Supreme court extended the scope of this Article and held that the “right to travel abroad” was part of a person’s ‘personal liberty’ within the meaning of Article 21 of the Indian Constitution. The Government ordered petitioner to surrender his passport. He challenged the action of the Government on the ground that it was violative of its fundamental rights under Article 21. His contention was that right to leave India or travel abroad and return to India was part of his personal liberty which could be restricted only authority of law. The govenrment cannot deny his right to travel abroad of any action of Government.

In this case Supreme Court accepted the contention of the petitioner and held that the right to travel abroad was part of a person’s ‘personal liberty’ within the meaning of Article 21 and, therefore, no person could be deprived of his right to travel abroad except according to procedure established by law. In fact there was no such law on which the government could justify its action. The court observed that the expression ‘liberty’ in Article 21 is a comprehensive term. ‘Personal liberty’ in Article 21 takes in the right of locomotion – to go where and when one pleases, and the right to travel abroad is included in it.

In D.K.Yadav v. J.M.A. Industries (AIR 1986 SC 180), the Supreme court held that, the right to life enshrined under Article 21 includes the right to livelihood and therefore termination of the services of a worker without giving him reasonable opportunity of hearing in unjust, arbitrary and illegal. The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and so it must be right, just and fair and not arbitrary, fanciful or oppressive.

Conclusion

Our country may be facing problem of lack of efficient doctors in public health sectors but the reasons for the migration of doctors must be studied in depth and appropriate measures must be taken to encourage doctors to stay in India.  Very less number of Post Graduation seats, exorbitant fees charged by medical colleges, lack of specialization courses, underpayment and overburdening of  doctors in government hospitals etc are some of the reasons why doctors leave India in large numbers to settle in countries with better opportunities of growth and professional development.  Government is unjustified in overriding the fundamental rights of the citizen.

Article by-

Abdullah Karuthedakam

Student, Government Law College, Kozhikode

 

Picture Courtesy- Visualphotos.com 

Article by

Abdullah is a 3rd year student at Government Law College, Kozhikode. He is also the Editor at "The GLC Reporter", an Online Legal Magazine.

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