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In a Public Interest Litigation No. 58 of 2021 [Medicos Legal Action Group v. Union of India], a Trust approached the High Court of Judicature at Bombay, to declare that services performed by healthcare service providers (“HSPs”) are not included within the purview of the Consumer Protection Act, 2019 (“2019 Act”) and to direct all consumer fora within the territorial jurisdiction of this Court not to accept complaints filed under the 2019 Act against HSPs. The Trust heavily relied on the parliamentary debates and statement of Minister for Consumer Affairs, Food and Public Distribution on the Consumer Protection Bill, 2018 that ‘healthcare’ had been deliberately kept out of the 2019 Act. Therefore, according to the Trust, since the 2019 Act having been brought into force upon repeal of the Consumer Protection Act, 1986 (“1986 Act”), registration of complaints, which are filed against doctors by the consumer fora in the State of Maharashtra are illegal.

The Court compared the definition of ‘service’ as given in Section 2(1)(o) of the 1986 Act and section 2(42) of the 2019 Act and observed that there is no material difference between the two and the only term added subsequently under 2019 Act is ‘telecom’.

The Court went on to observe that even in the 1986 legislation, the definition of ‘service’ did not include the services rendered by the doctors. However, the Hon’ble Supreme Court has held that the Consumer Act is applicable in case of services by a medical practitioner. The Court heavily relied on the landmark case of Indian Medical Association Vs. V. P. Shantha & Ors ((1995) 6 SCC 651) as a binding precedent where it was held that “Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.”

In the matter of Indian Medical Association, the Supreme Court hadclarified that there is a difference between ‘contract of personal service’ and ‘contract for personal services’. According to the Court, “[I]n the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a `contract for personal services’ and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2(1)(o) of the Act.”. To further bring clarity, it was held that the expression ‘contract of personal service’ in case of a medical practitioner will apply in case of employment of a medical officer for the purpose of rendering medical service to the employer. In such arrangement, “the service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1)(o) of the Act”.

The Court in Indian Medical Association also discussed various scenarios where the medical services may be given free of cost. Broadly, services` rendered – (i) free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody and (ii) at a Government hospital/health centre/dispensary or non-Government hospital/Nursing home, where no charge whatsoever is taken from any person availing the services, would not be “service” as defined in Section 2(1)(o) of the Act. This position shall remain as it is even if a token registration fee has been charged from the patients.

The Court further listed the scenarios where a medical service will fall within the purview of the expression ‘service’ under the 1986 Act. As a general rule, service rendered by hospitals/nursing homes where charges are required to be paid by the persons availing such services, will constitute a ‘service’ under the Act. However, the following services shall additionally fall within the definition – they are – (i) Service rendered at a Government and non-Government hospital/health centres/nursing homes where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge;  (ii) when services are availed by a person who is covered by an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company; and (iii) when the employer bears the expenses of medical treatment of an employee and his family members dependent on him.

While addressing the precise premise taken by the Trust, the Court referred to State of Travancore-Cochin vs. Bombay Co. Ltd. AIR 1952 SC 366  where in Justice Patanjali Shastri had made an acute observation regarding the relevance of speeches in course of debate in a Parliament. It was observed that opinion in such speeches at best can be indicative of the subjective opinion of the speaker. The Court also referred to other cases decided by the Hon’ble Supreme Court where in it was held that ‘speeches made on the floor of the Parliament are not admissible as extrinsic aids to the interpretation of statutory provisions’ because a statute is the expression of the collective intention of the Legislature as a whole and any statement made by an individual, albeit a Minister, of the intention and object of the Act, cannot be used to cut down the generality of the words used in the statute. On this basis, the Court found that the submissions made by the Trust as least relevant.

The Court also considered the submission made in the PIL that ‘health care’ was initially included in the definition of the term “service” in the Bill but the same was deleted after extensive debates. The Court in this regard opined that the parliamentarians might have thought of not including `health care’ as the same has already been understood and interpreted by the Supreme Court in Indian Medical Association and such express inclusion would have amounted to a ‘mere surplusage’. The Court further observed that “If at all the Parliament while repealing and replacing the 1986 Act with the 2019 Act had intended to give a meaning to the term “service” different from the one given by the Supreme Court, such intention ought to have been reflected in clear words by a specific exclusion of ‘health care’ from the purview of the 2019 Act.”

With this background and reasoning, the Court dismissed the PIL as being ‘thoroughly misconceived’ and imposed a cost of Rs.50,000/- to be paid to the Maharashtra State Legal Services Authority.