IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION NO.19057/2018 (GM-RES) PIL BETWEEN:
RUPA HASSAN W/O H.V. NAGACHANDRA AGEE 50 YEARS RESIDING AT “PRERANA” PRERANA VIKASA VEDIKE ST. JOSEPH’S COLLEGE ROAD NORTHERN EXTENSION HASSAN-573 201 ... PETITIONER (BY SHRI. S. VIVEK, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT M.S.BUILDING, DR.AMBEDKAR VEEDHI ROAD BANGALORE-560 001 2. KARNATAKA MEDICAL COUNCIL REPRESENTED BY THE REGISTRAR # 70, 2ND FLOOR, VAIDYAKIYA BHAVANA K.R.ROAD, BASAVANAGUDI BANGALORE-560 004 ... RESPONDENTS (BY SHRI. D. NAGARAJA, AGA FOR R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO FORMULATE A LEGISLATION OR STRICT GUIDELINES IN RESPECT OF PERFORMING HYSTERECTOMY BY MEDICAL PRACTITIONERS ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE CHIEF JUSTICE MADE THE FOLLOWING:
ORDER In this writ petition which is in the nature of PIL, following are the prayers made:
(a) Issue a writ of mandamus directing the respondent No.1 to formulate legislation or strict guidelines in respect of performing Hysterectomy by Medical Practitioners.
(b) Issue a writ of mandamus directing Respondent No.1 to implement a regulatory mechanism so that there is proper monitoring, inspection and accountability of Medical practitioners in respect of performing Hysterectomy.
(c) Issue a writ of mandamus directing Respondent No.1 to take all necessary steps to prevent the medical practitioners from performing needless Hysterectomy.
(d) Issue a writ of mandamus directing Respondent No.2 to take stringent action against the Medical Practitioners who have resorted to conduct needless Hysterectomy.
2. The main grievance in the petition appears to be that medical practitioners resort to unwarranted hysterectomy and are indulging in professional misconduct and that is why the aforesaid prayers have been made.
3. So far as the prayer (a) is concerned, the law is well settled which is reiterated by the Apex Court in the case of Union of India Vs. Prakash P. Hinduja & Another1 wherein the Apex Court held that no Court can direct a legislature to enact a particular law. Similarly, when an Executive Authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of the legislature, such executive authority cannot be asked to enact a law. Therefore, we are unable to grant the said prayer.
1 (2003)6 SCC 195 4. So far as the prayer (b) is concerned, the petitioner has not disclosed any statutory power vested in the first respondent which empowers the first respondent – State of Karnataka to formulate a regulatory mechanism for monitoring the performance of hysterectomy by the Medical Practitioners.
5. Prayer (c) is very vide and cannot be considered at all. Whether in a given case, a woman can be advised to undergo hysterectomy is an issue which is to be decided by the concerned Gynecologist or Medical Practitioner who has to arrive at a proper conclusion after examining patient and conducting various tests. It is impossible for any one to lay down any criteria for conducting the procedure.
6. So far as the last prayer is concerned, the prayer cannot be considered. The second respondent which is the Karnataka Medical Council can take action whenever any professional misconduct on the part of a Medical Practitioner is brought to its notice. However, such a sweeping direction as prayed for in prayer (d) cannot be granted.
Hence, we are unable to grant any relief in the nature of PIL. Accordingly, petition is rejected.
Sd/- CHIEF JUSTICE Sd/- JUDGE SPS