Medical profession, health care, in Consumer Protection Act 2019

Definitions:
In this Act, unless the context otherwise requires

Sec 2(7) "consumer" means any person who:

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
    
2. Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for 6 consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Note: Hence the exclusion part of Sec 2(42) defining SERVICEs in the Act. Since the service has to be provided to a 'consumer' as defined in Sec 2(7), who by definition 'hires or avails of any service for a consideration', one who does not pay stands excluded. The exclusion part to the Sec 2(42) and in Sec2(1)(o) of earlier Act was not to exclude any service sector by name.

Sec 2(22) "harm", in relation to a product liability, includes:

1. Damage to any property, other than the product itself;
2. Personal injury, illness, or death;
3. Mental agony or emotional distress attendant to personal injury or illness or damage to property; or
4. Any loss of consortium or services or other loss resulting from a harm referred to in sub clause (i) or sub-clause (ii) or sub-clause (iii), but shall not include any harm caused to a product itself or any damage to the property on account of breach of warranty conditions or any commercial or economic loss, including any direct, incidental or consequential loss relating thereto.

Sec 2 (23) "injury" means any harm whatever illegally caused to any person, in body, mind or property;

Treatment of patient in a hospital, by licensed medical practitioners, nurses and technical staff, is not illegal and any harm that may result from the treatment cannot be 'illegally caused'.

Sec 2(33) "product" means any article or goods or substance or raw material or any extended cycle of such product, which may be in gaseous, liquid, or solid state possessing intrinsic value which is capable of delivery either as wholly assembled or as a component part and is produced for introduction to trade or commerce, but does not include human tissues, blood, blood products and organs;

Priced i.e. available against payment, medical services used for treating a medical condition, deals with ' human tissues, blood, blood products and organs;' Medical services are, therefore, Not a 'product'.

Sec 2(37) "product seller", in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes:

1. A manufacturer who is also a product seller; or
2. A service provider, but does not include—
   1. A seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats;
   2. A provider of professional services in any transaction in which the sale or use of a product is only incidental thereto, but furnishing of opinion, skill, or services being the essence of such transaction;

A service provider 2(37)(ii) does not include a provider of professional services2(37)(ii)(b)

A SERVICE PROVIDER IS DEFINED UNDER Sec 2(37) "product seller". Are medical services 'products'? Does a professional providing treatment to a patient sells a product?

Providers of professional services i.e. those 'furnishing of opinion, skill' are excluded. Licensed medical practitioner provides professional services.

Product is defined under Sec 2 (33): "product" means any article or goods or substance or raw material or any extended cycle of such product, which may be in gaseous, liquid, or solid state possessing intrinsic value which is capable of delivery either as wholly assembled or as a component part and is produced for introduction to trade or commerce, but does not include human tissues, blood, blood products and organs;

Can medical service be a product as defined in Sec 2(33) ?
Sec 82. Application of Chapter.—This Chapter shall apply to every claim for compensation under a product liability action by a complainant for any harm caused by a defective product manufactured by a product manufacturer or serviced by a product service provider or sold by a product seller.

A medical professional providing treatment to a sick patient is Not a 'product service provider'. Medical service i.e the treatment provided to a patient is not a 'product' as defined in Sec 2(33) of the Act.

Medical negligence claims are not 'compensation under a product liability action'.

Sec 2(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Note: the exclusionary part of Sec 2(42) does not exclude any service sector (service) by name, but, only excludes unpaid services that may be provided by the 11 service sectors that are named in the inclusionary part of the Sec 2(42). This is in conformity with the definitions of consumer in Sec 2(7)(ii) of the Act, as one " hires or avails of any service for a consideration". One who does not pay, directly or indirectly, for any service hired or availed, is a consumer under the CP Act.

The contention that if the parliament wanted to exclude 'health care' from the CP Act, they would have put it in the exclusionary part of Sec 2(42) of the Act is fallacious. The exclusionary part of the Section does not exclude any 'service' per se by name but only qualifies that 'services not paid for' or of 'personal contract nature' by any of the 11 service sectors named or added later, in the inclusionary part of the Sec 2(42), are excluded from the purview of the Act. Telecom and Housing Constructions are later additions.

It may be noted that legal services and educational services are also not excluded by name in the Sec 2(42). Further a private member's " The Consumer Protection (Amendment) Bill, 2019 By Dr. Sanjay Jaiswal, M.P. A Bill to amend the Consumer Protection Act, 2019." to include "BE it enacted by Parliament in the Seventieth Year of the Republic of India In section 2 of the Consumer Protection Act, 2019, in sub-section (42), after the word ''insurance,'', the words ''legal services provided by or availed of from advocates, shall be inserted" was moved in the Parliament on July 12, 2019.

As regards the interpretation of 'contract of service' and 'Contract for service' by Hon'ble Supreme Court in IMA v VP Shantha, apropos the Consumer Protection Act 1986, the conditions under which the medical services were provided in 1986, has undergone a sea change.

Under the doctrine of 'One who pays the piper, calls the tune' the paying patient today virtually dictates what treatment is to be given to him. A medical practitioner has to take 'informed consent', for every act of service offered. For instance if he proposes to remove the gall bladder he has to take informed consent for it. He also has to take informed consent whether the patient wants it done by laparoscopic or open method; also informed consent about anaesthesia that is to be given to the patient - spinal or general.

As a matter of fact he has to even take a general consent for examining the patient and specific consent for all major investigations, and invasive procedures. This is true for all treatment modalities and medical interventions. The patient doctor relationship has changed to be that of Master and Servant.

Judicial interpretation of Sec 2(1)(o) of the original CP Act of 1986 and of Sec 2(42) of the modified and amended 2019 Act, is the issue that has to be decided by the Judiciary. Long legislative history preceding the final approval of the modified CP Bill of 2019, specifically the section stipulating service sectors that are included,and exclusion of 'health care' has to be taken into consideration.

The 1986 Act and the 2019 Act are totally different in terms of purpose, scope, structure and application. Simply because the basic language of the section in question in the two Acts remains to be same, the judicial interpretation of 1986 Act cannot be automatically extrapolated to the 2019 Act disregarding the 'intent of the parliament aproposthe2019 Act .

Unfortunately, the Hon'ble Bombay High Court, approached for interpretation of the 2019 Act, on the ground of changed legislative intent, summarily dismissed the petition as a thoroughly misconceived PIL. Medicolegal Action Group v Union of India, 11-PIL-58- 2021.

SLP No. 19374/2021 filed before the Hon'ble Supreme Court was rejected as ' We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution'.

The judgment of Hon'ble Bombay High Court, it is respectfully submitted, is not based on cogent findings or grounds.

Proceedings of both the Houses of Parliament are available on line on Digital Libraries of the two Houses. May be provided as Annexure.

The judgement of the Bombay High Court

Medicos Legal Action Group vs Union Of India (Through ... on 25 October, 2021

Bench: G. S. Kulkarni

In The High Court Of Judicature At Bombay
Civil Appellate Jurisdiction
Public Interest Litigation No. 58 Of 2021

Medicos Legal Action Group .. Petitioner
Versus
Union of India (Through Secretary,
Department of Consumer Affairs,
Ministry of Consumer Affairs,
Food and Public Distribution) .. Respondent

Mr. Ashish S. Chavan a/w Mr. Adithya Iye a/w Mr. Kunal Shinde for petitioner.
Mr. Anil C. Singh, Addl. Solicitor General a/w Mr. Aditya
Thakkar a/w Mr. D. P. Singh for respondent-UOI.



Coram: Dipankar Datta, Cj. &
G. S. Kulkarni, J.
Date: October 25, 2021 Pc

1. This is a thoroughly misconceived Public Interest Litigation and we have no doubt that it deserves outright dismissal.
   Unwarranted damning statement.
   
   The writ filed may be improperly drafted and defective but was certainly not misconceived. The presented writ was conceived to cure the inadvertent mischief caused by inclusion of medical services in the 1986 CPA for summary trial. It resulted into compromising professionals' freedom and autonomy, and detrimental treatment of the patients in general. Interpretation of 1986 CPA by several high courts, variably interpreting it, as included or excluded, finally reached the SC. Following the principles of interpretation of statutes, and analyzing the legislative intent of the 1986 Act, inferred that the intent of the legislature was in favour of inclusion of medical services in the Act. The legislative history of CPA 2019 is totally different. Here 'health care' was excluded from Sec 2(42) of the 2019 Bill by amendment of the 2018 Bill that had been passed by the Loksabha but could not be passed by the Rajyasabha. The exclusion was in deference to the express will of the Rajyasabha.
   
   The petitioner had approached the Hon'ble High Court to interpret the provision of 2019 Act as was done for the 1986 Act by the High Courts, in the light of changed legislative will.
    
2. The petitioning Trust, registered in Chandigarh, seeks declaration from this Court that services performed by healthcare service providers are not included within the purview of the Consumer Protection Act, 2019 (hereafter "the 11-PIL-58-2021 Act of 2019" for short) as well as for mandamus directing all consumer fora within the territorial jurisdiction of this Court not to accept complaints filed under the 2019 Act against healthcare service providers.
   
   The declaration was sought on the basis of requested judicial interpretation of the 2019 Act.
    
3. The ground on which such reliefs, as noted above, have been claimed is that parliamentary debates on the Consumer Protection Bill, 2018 (hereafter "the Bill" for short) preceding the 2019 Act led to exclusion of 'healthcare' from the definition of the term "service" as defined in the Bill. It has been stated in paragraph 5.11 of the writ petition that the Hon'ble Minister for Consumer Affairs, Food and Public Distribution, had stated on the floor of the Parliament that 'healthcare' had been deliberately kept out of the 2019 Act for the reasons cited therefor.
   
   This clearly indicates the parliamentary intent of not including 'health care' within the definition of "service" in the 2019 Act. Paragraph 5.13 of the writ petition reveals that the petitioning Trust and its members were relieved to note upon introduction of the 2019 Act that the term 'health care' was not included in the definition of "service", as defined by section 2(42) thereof, leading to a sense of relief that the issue had finally been laid 11-PIL-58-2021 to rest.
   
   The cause of action for moving the writ petition appears to have been pleaded in paragraph 5.14. The petitioning Trust is of the view that the 2019 Act having been brought into force upon repeal of the Consumer Protection Act, 1986 (hereafter "the Act of 1986" for short), registration of complaints, which are filed against doctors, by the consumer fora in the State of Maharashtra is illegal and be declared as such.
   
   The statement of the Minister was to underscore the reason - the mischief caused - to remove which the Sec. 2(42) was amended. While piloting the Bill, the Minister had made four statements In the two Houses. One for moving the Bill for consideration and other in reply to the debate answering the specific objections of the members.
    
   1. The statements pertaining to exclusion of 'health care' from the bill were:
       
      1. That 'health care' was included in the Consumer Protection Bill of 2018.
          
      2. When the 2018 Bill was moved in the Rajyasabha the Hon'ble members objected to inclusion of 'health care' in the bill.
          
      3. It was pointed out by the Minister that it was included in 2018 Bill on the basis of Supreme Court Judgment in IMA vs V P Shantha 1995 which, interpreting the 1986 Act had read in 'services provided by medical practitioners' to be 'service' in Sec 2(1)(o) of the Act.
          
      4. It was not acceptable to the members on the ground that the experience of such inclusion in 1995 to 2019 was very deleterious.
         
         (i) it failed in its main purpose to provide quick relief to the patients; it takes years for a case, (ii) large number of pending cases have piled up in the Consumer Forums, (iii) frivolous cases are filed to harass a doctors, (iv) it has led to large number of unnecessary investigations, referrals and great hike in the cost of treatment, (v) cases are refused fearing litigation. The 2018 Bill could not be passed in Rajyasabha.
          
      5. The minister stated that therefore when the 2019 Bill was redrafted and submitted for Cabinet approval, amendments had been made into it on the basis of Standing Committee's 33 out of 36 recommendations, and exclusion of 'health care' from the 2019 Bill to enable its smooth passage.
          
      6. The minister's statement was in reply to the pointed objections by some members of both the houses objecting to the exclusion of 'health care' from Sec 2(42) of 2019 Bill. The Minister replying to the pointed question, why health care has been removed?, by members in both the Houses, stated that:
         
         1. its inclusion in 1986 Act had not resulted into quick relief to the patients,
         2. huge list of pending cases in the Consumer Forums,
         3. frivolous cases leading to compromising of professional freedom,
         4. defensive practice and unnecessary investigations, and even
         5. denial of treatment.
          
      7. When clause by clause was put for vote, none of the objecting members, in both the houses, chose to move an amendment to include 'health Care' in the Clause.
          
      8. Exclusion of health care in 2019 Bill was not by omission, as had been interpreted by the Hon'ble Supreme Court in case of 1986 Act, but by well debated and considered express decision of both the Houses of the Parliament.
   
   [Proceeding S Of Parliament: Loksabha Digital Library And Rajyasbha Digital Library May Be Provided As Annexures]
    
4. For facility of appreciation, "service" defined in section 2(1)(o) of the 1986 Act and in section 2(42) of the 2019 Act are reproduced herein below in a tabular form:

   As per the 1986 Act

   As per the 2019 Act

   "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

   "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

   
   The sequential changes in Sec 2(1)(o) of the parent 1986 CP Act are as under:
   
   Consumer Protection Act 1986 (amended)
   Sec 2(1)(o) "service" means service of any description which is made available to potential 15[users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 16[housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
   
   16. Ins. by Act 50 of 1993, s. 2 (w.e.f. 18-6-1993).
   
   Telecom not included. Was included later by the Judgment of the Supreme Court in Bsnl vs Smti Betty Sebastian on 25 February, 2014
   
   Consumer Protection Bill 2018
   Sec 2(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, healthcare, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service
   
   Health care was specifically included in Sec2(42) of 2018 Bill debated in both the Houses of the Parliament.
   
   Consumer Protection Act 2019
   Sec 2(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, (Health care excluded) boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
   
   Note the omission of Health Care from Sec 2(1)(o) of the 1986 CP Act even after its amendment by an Act of Parliament to include Housing Construction in the section, inclusion of 'telecom' and 'health care' in Sec 2(42) of the 2018 Bill and exclusion of 'health care' from Sec 2(42) of the CP Bill of 2019 that became the Act. 'Health care' was not included in Sec 2(42) even though several members in both the Houses of Parliament pointedly objected to its exclusion and pleaded it to be included.
   
   The Supreme Court in IMA vs V P Shantha 1995 had analysed Sec 2(1)(o) of CPA 1986 in its three parts: Main part (any service…..), inclusionary part that named 11 sectors and exclusionary part that did not name any service sector but excluded from all named sectors 'free-of-charge or under a constraint of personal service' nature.
   
   When the Supreme Court was dealing with the question whether housing construction could be regarded as service under Sec 2(1)(o) of the Act , the Government deemed it necessary to bring out an Ordinance (No. 24 of 1993) and later the Act 50, to insert 'housing construction' in inclusionary part of Sec 2(1)(o) of the 1986 Act. If 'any service'expression' in the main part was sufficient, there was no need for the government to pre-empt it by an Ordinance and an Act.
   
   The words "or avails of" after the word "hires" in Section 2(1)(d)(ii) and the words "housing construction" in Section 2(1)(o) were inserted by the Act 50 of 1993.
    
5. Reading the two definitions, we do not see any material difference between the two. Except inclusion of 'telecom' in section 2(42) of the 2019 Act, the terms of the definition are identical.
   
   It is not inclusion of 'telecom' in section 2(42) that was the issue but the express exclusion of 'heath care' by the Parliament from 2019 CP Act.
    
6. Section 2(1)(o) of the 1986 Act did not in terms include services rendered by doctors within the term "service", but such definition was considered by the Supreme Court in its decision in Indian Medical Association Vs. V. P. Shantha & Ors., reported in (1995) 6 SCC 651, and it was held as follows:
   
   55. On the basis of the above discussion, we arrive at the following conclusions:
   
   1. 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.
      
      The grounds of judicial interpretation of 1986 Act are totally changed and calls of Judicial Interpretation of the same section in 2019 Act.
      
      11-PIL-58-2021 (2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
       
7. (1) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In 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. (4) The expression 'contract of personal service' in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer.
   
   The fiduciary relationship between a patient and his physician has progressively changed since a paying patient was accorded special privilege under CPA 1985 to demand and exact level and quality medical services. Under the doctrine of 'one who pays the piper, calls the tune' a paying patient commands what he wants.
   
   A doctor has to obtain a written informed consent for every intervention, diagnostic and therapeutic, that he offers to do and has to be paid for. A doctor cannot do anything without a prior permission/consent of the patient. Higher the payment, greater is the demand. A paying patient decides, demands and commands. In real-life situation, therefore, relationship between a paying patient and a doctor is that of a master and swervant.
   
   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. (5) Service rendered 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, would not be "service" as defined in Section 2(1)(o) of the Act.
   
   The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. (6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act.
   
   The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position. (7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1)(o) of the Act.
   
   11-PIL-58-2021 (8) Service rendered at a non-Government hospital/Nursing home 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 would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.
   
   (9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
   
   (10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.
   
   (11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
   
   (12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1)(o) of the Act."
   
   11-PIL-58-2021 After recording such conclusions, the Court proceeded to uphold the decisions of the National Consumer Disputes Redressal Commission under appeal and proceeded to dispose of the appeals in the manner as directed.
    
8. We see no reason to hold that merely because of enactment of the 2019 Act upon repeal of the 1986 Act as well as the parliamentary debates referred to by the petitioning Trust, the efficacy of the law laid down in the decision in Indian Medical Association (supra) as a binding precedent would stand eroded. The definition of "service" in both the enactments (repealed and new) are more or less similar and what has been said of "service" as defined in section 2(1)(o) of the 1986 Act would apply ex proprio vigore to the definition of the terms "service" in section 2(42) of the 2019 Act. Therefore, we have little reason to hold that services rendered by doctors in lieu of fees/charges therefor are beyond the purview of the 2019 Act.
   
   The scheme, scope and purpose of the CPA 1986 was considered by the Hon'ble Supreme Court in IMA vs V P Shantha for judicial interpretation of the 1986 Act to infer the intent of the Parliament for omission of health care. The scheme, scope and purpose of the 2019 Act are totally changed. And, so are the debates of the 2019 Act in the two houses of the parliament. Interpretation of 1986 Act based on the scheme of the project and the inferred intent of the parliament is unjust to be automatically extrapolated to 2019 Act.
    
9. We may, at this stage, travel down memory lane to ascertain what was the view of the Supreme Court on references to speeches in course of debates on the floor of a house. In State of Travancore-Cochin vs. Bombay Co.
   
   11-PIL-58-2021 Ltd., reported in AIR 1952 SC 366, Hon'ble Patanjali Shastri, CJI (as His Lordship then was) had the occasion to observe that a speech made in the course of debate on a bill could at best be indicative of the subjective intent of the speaker, but it would not reflect the inarticulate mental process lying behind the majority vote which carried the bill, nor is it reasonable to assume that the minds of all those legislators were in accord. His Lordship, in Aswini Kumar Ghose vs. Arabinda Bose, reported in AIR 1952 SC 369, ruled that speeches made on the floor of the Parliament are not admissible as extrinsic aids to the interpretation of statutory provisions. Hon'ble B.P. Sinha, CJI (as His Lordship then was), in State of West Bengal vs. Union of India, reported in AIR 1963 SC 1241, held that 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.
    
10. No doubt, the above rigid view has been on the decline in recent years and there are judgments aplenty where Judges are found to have referred to Constituent Assembly 11-PIL-58-2021 debates or debates on the floor of the house for a particular construction of a statute. Reference in this regard may be made to the decision of the Supreme Court in K. P. Varghese vs. Income Tax Officer, Ernakulam & Anr., reported in (1981) 4 SCC 173. However, we have referred to the aforesaid decisions with the sole intent of gathering guidance on the value to be attached to the speeches when a repealed statute, as earlier read and interpreted by the Supreme Court, bears no ambiguity with the repealing statute and the definition of a particular term in such repealing statute arises for interpretation once again, this time by a High Court.
    
    The Judgment sited by the Hon'ble High Court as precedence is as follows:
    K.P. Varghese vs The Income Tax ... on 4 September, 1981
    Equivalent citations: 1981 AIR 1922, 1982 SCR (1) 629
    
    2:3. The speeches made by the Members of the Legislature on the floor of the House when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision but the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for The purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted.[654 E-G]
    
    The four speeches made by the Hon'ble Minister to move the 2019 Consumer Protection Bill in the two Houses of the Parliament have to be taken into consideration for 'The purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted' per K.P. Varghese vs The Income Tax ... on 4 September, 1981 judgement.
    
    The Hon'ble Bombay High Court, for reasons difficult to fathom, chose not to consider the parliamentary proceedings to pass the Consumer Protection Bill 2019.
     
11. Despite not taking a rigid view, we are of the clear opinion that the contention raised by the learned counsel for the petitioning Trust, of the Hon'ble Minister having made certain statements in course of parliamentary debates on the Bill that preceded the 2019 Act, is of little relevance.
    
    It is not 'minister having made certain statements in course of parliamentary debate' that is of little relevance, but 'but the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for 'The purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted' has to be taken into consideration and given due credence per K.P. Varghese vs The Income Tax ... on 4 September, 1981 judgement.
    
    From the pleadings it is found that 'health care' was initially included in the definition of the term "service" appearing in the Bill but after extensive debates, the same was deleted. This is the sheet-anchor of the claim raised in the writ petition that 'health care' not being part of the definition of "service" in 11-PIL-58-2021 section 2(42) of the 2019 Act, as distinguished from the definition in the Bill, deficiency in services relating to 'health care' cannot be the subject matter of complaints before the consumer fora.
    
    We wonder, what turns on such deletion. In the context of the 1986 Act and the 2019 Act, there could be no two opinions that the definition of "service" having been read, understood and interpreted by the Supreme Court in Indian Medical Association (supra) to include services rendered by a medical practitioner to his patient upon acceptance of fees/charges, the parliamentarians might have thought of not including `health care' as that would have amounted to a mere surplusage.
    
    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. While construing a statute, what has not been said is equally important as what has been said.
    
    The above is not a true narration of prolonged proceedings of the two Houses of Parliament spanning 2018 and 2019 apropos CP Bill 2018 and modified and amended CP Bill 2019 vide supra para 3. Exclusion of health care in 2019 Bill was not by omission, as had been interpreted by the Hon'ble Supreme Court in case of 1986 Act, but by well debated and considered express decision of both the Houses of the Parliament.
    
    As regards the observation of the Hon'ble Court that 'surplasage' being the possible reason for the draftmen not naming 'health caree' in Sec 2(42) of the Bill :The 2019 Bill tabled before the two houses, in Sec 2(42) of the Act, 11 sectors, have been named . Adding to it one more i.e 'heath care' would not have been a 'surplasage'. As matter of fact 'health care' was named in the inclusary part of the of this Sec in the 2018 Bill that had been debated in both the houses. In the light of the discussion on the 2018 Bill, health care was excluded from the section while redrafting the 2019 Bill.(vide supra).
    
    Besides, the argument that if the intention of the parliament was to exclude 'health care', it would have named it in the exclusionary part of Sec 2(42) of the 2019 Bill, is untenable, as, in the exclusionary part no 'service sector' (service) has been named. It excludes 'unpaid services, and services of 'personal nature' rendered by the service sectors named in the inclusary part of the Section. Legal and education services are also not named. On this ground alone legal services and educational services are not inferred to be included in the provision. Housing Construction was added by an Ordinance and Act preempting decision of the Hon'ble Supreme Court on the issue. Vide supra.
     
12. We, therefore, hold that mere repeal of the 1986 Act by the 2019 Act, without anything more, would not result in 11-PIL-58-2021 exclusion of 'health care' services rendered by doctors to patients from the definition of the term "service".
    
    It is not 'mere repeal of the 1986 Act by the 2019 Act, without anything more', but the totally different legislative back ground of CP Act 2019 that calls for judicial interpretation of the 2019 Act as per the judicial norms.
     
13. The writ petition, thus, stands dismissed.
    
    The Hon'ble Supreme Court had included medical services in the 1986 Act on the basis of scheme, scope and legislative background of the Act. The scheme, scope and legislative back ground of the 2019 are totally changed. What was construed and read into to 1986 Act, therefore, could not be automatically extrapolated to the 2019 Act. The Judiciary has to construe Sec. 2(42) of the 2019 Act.
    
    This is what the petitioner in the present Writ had approached the Hon'ble Bombay High Court for.
    
    The petitioner could not, and did not, approach the Hon'ble Bombay High Court challenging the Hon'ble Supreme Court's 1995 Judgment in IMA vs V P Shantha.
     
14. The petitioning Trust shall pay, as costs, Rs.50,000/- to the Maharashtra State Legal Services Authority within a month from date failing which such sum shall be recovered as arrears of land revenue.

Written By: Dr.Shri Gopal Kabra - MBBS, LLB, MSc, MS(Anatomy), MS(Gen. Surgery
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