When the recent doctors’ strike in Delhi hit the headlines, many readers must have asked themselves “how can doctors go on strike?” The question has two parts; i) Can doctors go on strike and ii) Should doctors go on strike. One deals with the legal provisions and the other the moral and ethical issues; hence the need for “Audi Alteram Partem” or “hear the other side”.
There are numerous precedents for doctors going on strike. Internationally, Canada (Saskatchewan) 1962, for 25 days; Los Angeles USA 1976; Nigeria 2014, for 55 days; France 2014; University of S. California 2015; are just a few examples. In India, the IMA had a nationwide strike in 2012 against the CEA. There were strikes in Kanpur 2014; Hyderabad 2007 and 2014, both of which were in protest against assaults on doctors; Maharashtra and Karnataka separately in 2014; to name a few.
Article 19 of the Constitution confers the fundamental right to protest. This would include marches, demonstrations, speeches and wearing of black arm bands. On the other hand the right to strike is a legal right with statutory restrictions attached in the Industrial Dispute Act, 1947. This includes the cessation or modification of conditions of work to coerce the employer into accepting the demands. The restrictions revolve largely around giving adequate notice and withholding strike action whilst negotiations are in progress.
In 2012, an NGO “People for Better Treatment” filed a petition in the Supreme Court “pursuant to a series of strikes called by doctors on numerous occasions, which brought enormous pain and suffering to certain patients, and even death of a few unfortunate patients nationwide”. The petition was related to the strike by doctors at AIIMS. The petitioner had earlier filed a similar petition (W.P. (Civil) No. 316/2006), seeking a total ban on strikes by doctors. On that occasion the SC whilst recognizing the issue as one of “great public importance” directed the petitioner to approach the Ministry of Health. In other words, the SC was not prepared to pass a judgment banning strikes by doctors.
On this occasion too, the SC stated in its judgment of November 2014 “The relief sought in this writ petition is commendable but difficult to either grant or if it is granted to enforce.” In other words the SC was once again not prepared to encroach on what is considered a fundamental right. It went further to place reliance on a previous judgment in “Constitution Bench decision in Common Cause, A Registered Society v. Union of India & Others (2006) 9SCC 295”, wherein this Court suggested that the proper authority to adjudicate on the lawyers strike was the Bar Council of India. In this case too, the SC said, the matter should be referred to the Medical Council of India and the State Medical Councils. In other words it passed the buck onto the medical councils.
The MCI, at its executive committee meeting of 16 March 2015 tossed the ball to the State Medical Councils, by a circular dated 22 April 2015. The SMCs were directed to “take cognizance of the directives of the Hon’ble SC in case of any incident of strike by doctors brought to your notice and take necessary action accordingly” This has left the State Councils in a dilemma, because neither the MCI Act nor (in our case) the Goa Medical Council Act gives any direction on action against doctors going on strike. This explains why, when the Delhi Medical Council declared strikes illegal in 2012.
An extremely illuminating article in the Indian Journal of Medical Ethics by Mpho Selemogo, (Vol.11, No1, 2014) on the subject of doctors on strike has helped clear the air considerably. The article states “The usual reasons why doctors go on strike relate to issues concerning pay, contractual relationships, and work conditions. It would appear that as long as doctors maintain their employee status, they will, just like other occupational groups, engage in industrial disputes with their respective employers”. Six criteria are laid down in the article, for a strike by doctors to be considered justifiable.
1. Just cause and right intention: Doctors may go on strike only for a just cause, backed by right intentions. 2. Proportionality: In trying to achieve the just objective of the strike, the doctors should not inflict disproportionate harm on patients.
3. Reasonable hope of success: This criterion, which is admittedly difficult to apply, ensures that the public’s health is not disrupted for a futile cause.
4. Last resort: For a strike to be justified, all less disruptive alternatives to a strike action must have been tried and failed.
5. Legitimate authority
6. Formal declaration
In the light of the above, it is worth noting the reasons for the doctors in Delhi going on strike. They were demanding:-
1. More security at the work place
2. Regular hours of duty
3. Availability of the appropriate “tools of trade”
4. Non-payment or delayed payment of salary; and inadequate salary.
5. Provision of safe drinking water; both for patients and doctors.
Let us now revert to the original questions: i) Can doctors go on strike? Answer: Yes. Even the SC is hesitant to ban strikes. ii) Should doctors go on strike? I wonder how many readers would be prepared to work under conditions wherein the working hours were not defined, there was no security against assault even rape, there was a lack of safe drinking water; and salary was not only inadequate, but not paid for months on end.
After all the nobility of the profession can only take you so far. It can never compensate for being blackmailed by society into accepting situations that no other profession would in the name of nobility.
(Dr Gladstone D’Costa is the Chairman, Accreditation Committee and member,
Executive Committee, Goa Medical Council)
