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Friday, April 1, 2016

to protect the Good Samaritans from harassment on the actions being taken by them to save the life of the road accident victims and, therefore, the Central Government hereby issues the following guidelines to be followed by hospitals, police and all other authorities for the protection of Good Samaritans, namely:- 1. (1) A bystander or good Samaritan including an eyewitness of a road accident may take an injured person to the nearest hospital, and the bystander or good Samaritan should be allowed to leave immediately except after furnishing address by the eyewitness only and no question shall be asked to such bystander or good Samaritan. (2) The bystander or good Samaritan shall be suitably rewarded or compensated to encourage other citizens to come forward to help the road accident victims by the authorities in the manner as may be specified by the State Governments. (3) The bystander or good Samaritan shall not be liable for any civil and criminal liability. (4) A bystander or good Samaritan, who makes a phone call to inform the police or emergency services for the person lying injured on the road, shall not be compelled to reveal his name and personal details on the phone or in person. (5) The disclosure of personal information, such as name and contact details of the good Samaritan shall be made voluntary and optional including in the Medico Legal Case (MLC) Form provided by hospitals. (6) The disciplinary or departmental action shall be initiated by the Government concerned against public officials who coerce or intimidate a bystander or good Samaritan for revealing his name or personal details. (7) In case a bystander or good Samaritan, who has voluntarily stated that he is also an eye-witness to the accident and is required to be examined for the purposes of investigation by the police or during the trial, such bystander or good Samaritan shall be examined on a single occasion and the State Government shall develop standard operating procedures to ensure that bystander or good Samaritan is not harassed or intimidated. (8) The methods of examination may either be by way of a commission under section 284, of the Code of Criminal Procedure 1973 or formally on affidavit as per section 296, of the said Code and Standard Operating Procedures shall be developed within a period of thirty days from the date when this notification is issued. (9) Video conferencing may be used extensively during examination of bystander or good Samaritan including the persons referred to in guideline (1) above,who are eye witnesses in order to prevent harassment and inconvenience to good Samaritans. (10) The Ministry of Health and Family Welfare shall issue guidelines stating that all registered public and private hospitals are not to detain bystander or good Samaritan or demand payment for registration and admission costs, unless the good Samaritan is a family member or relative of the injured and the injured is to be treated immediately in pursuance of the order of the Hon’ble Supreme Court in Pt. Parmanand Katara vs Union of India & Ors [1989] 4 SCC 286. (11) Lack of response by a doctor in an emergency situation pertaining to road accidents, where he is expected to provide care, shall constitute “Professional Misconduct”, under Chapter 7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002 and disciplinary action shall be taken against such doctor under Chapter 8 of the said Regulations. (12) All hospitals shall publish a charter in Hindi, English and the vernacular language of the State or Union territory at their entrance to the effect that they shall not detain bystander or good Samaritan or ask depositing money from them for the treatment of a victim. (13) In case a bystander or good Samaritan so desires, the hospital shall provide an acknowledgement to such good Samaritan, confirming that an injured person was brought to the hospital and the time and place of such occurrence and the acknowledgement may be prepared in a standard format by the State Government and disseminated to all hospitals in the State for incentivising the bystander or good Samaritan as deemed fit by the State Government. (14) All public and private hospitals shall implement these guidelines immediately and in case of noncompliance or violation of these guidelines appropriate action shall be taken by the concerned authorities. (15) A letter containing these guidelines shall be issued by the Central Government and the State Government to all Hospitals and Institutes under their respective jurisdiction, enclosing a Gazette copy of this notification and ensure compliance and the Ministry of Health and Family Welfare and Ministry of Road Transport and Highways shall publish advertisements in all national and one regional newspaper including electronic media informing the general public of these guidelines. 2. The above guidelines in relation to protection of bystander or good Samaritan are without prejudice to the liability of the driver of a motor vehicle in the road accident, as specified under section 134 of the Motor Vehicles Act, 1988 (59 of 1988). Sd/- Jt. Secy.” 12. [pic]Para 1(7) and 1(8) of the guidelines dated 12.5.2015 required standard operating procedure to be framed for the examination of the good Samaritans. The Central Government, Ministry of Road Transport and Highways has issued notification on 21.1.2016 which is as under: “No. RT-25035/101/2014-RS.—Whereas, the Hon'ble Supreme Court in the case of Save Life Foundation and another Vs Union of India and another in Writ Petition (Civil) No. 235/2012 vide its order dated 29th October 2014, inter- alia, directed to issue necessary directions with regard to the protection of Good Samaritans until appropriate legislation is made by the Union Legislature; And whereas, the Central Government published the guidelines in the Gazette of India, Extraordinary, Part I, Section I dated 12th May 2015 for protection of the Good Samaritans, i.e. a person who is a bystander or a passer-by, who chooses to assist an injured person or a person in distress on the road; And whereas, as per para 1 (7) and (8) of the said guidelines dated 12th May, 2015, Standard Operating Procedures are to be framed for the examination of Good Samaritans by the Police or during trial; And whereas, the Central Government considers it necessary to issue Standard Operating Procedure for the examination of Good Samaritans by the Police or during trial and here by issue the following standard operating procedure, namely:— 1. 1. The Good Samaritan shall be treated respectfully and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds. 2. Any person who makes a phone call to the Police control room or Police station to give information about any accidental injury or death, except an eyewitness may not reveal personal details such as full name, address, phone number etc. 3. Any Police official, on arrival at the scene, shall not compel the Good Samaritan to disclose his / her name, identity, address and other such details in the Record Form or Log Register. 4. Any Police official or any other person shall not force any Good Samaritan who helps an injured person to become a witness in the matter. The option of becoming a witness in the matter shall solely rest with the Good Samaritan. 5. The concerned Police official(s) shall allow the Good Samaritan to leave after having informed the Police about an injured person on the road, and no further questions shall be asked if the Good Samaritan does not desire to be a witness in the matter. 2. Examination of Good Samaritan by the Police i. In case a Good Samaritan so chooses to be a witness, he shall be examined with utmost care and respect and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds. ii. In case a Good Samaritan chooses to be a witness, his examination by the investigating officer shall, as far as possible, be conducted at a time and place of his convenience such as his place of residence or business, and the investigation officer shall be dressed in plain clothes, unless the Good Samaritan chooses to visit the police station. iii. Where the examination of the Good Samaritan is not possible to be conducted at a time and place of his convenience and the Good Samaritan is required by the Investigation Officer to visit the police station, the reasons for the same shall be recorded by such officer in writing. iv. In case a Good Samaritan so chooses to visit the Police Station, he shall be examined in a single examination in a reasonable and time-bound manner, without causing any undue delay. v. In case the Good Samaritan speaks a language other than the language of the Investigating Officer or the local language of the respective jurisdiction, the Investigating Officer shall arrange for an interpreter. vi. Where a Good Samaritan declares himself to be an eye-witness, he shall be allowed to give his evidence on affidavit, in accordance with section 296 of the Code of Criminal Procedure, 1973 (2 of 1974) which refers to Evidence in Formal Character on Affidavit. vii. The complete statement or affidavit of such Good Samaritan shall be recorded by the Police official while conducting the investigation in a single examination. viii. In case the attendance of the Good Samaritan cannot be procured without delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, or his examination is unable to take place at a time and place of his convenience, the Court of Magistrate may appoint a commission for the examination of the Good Samaritan in accordance with section 284 of the Code of Criminal Procedure, 1973 (2 of 1974) on an application by the concerned. 3. The Superintendent of Police or Deputy Commissioner of Police or any other Police official of corresponding seniority heading the Police force of a District, as the case may be, shall be responsible to ensure that all the above mentioned procedures are implemented throughout their respective jurisdictions with immediate effect. Sd/- Jt. Secretary.” Prayer has been made on the part of the Ministry of Road Transport and Highways of Government of India that the guidelines notified on 12.5.2015 and the standard operating procedure notified on 21.1.2016 may be declared to be enforceable by this Court so that it is binding on all the States and Union Territories until the Union Government enacts a law to this effect.=in public interest for the development of supportive legal framework to protect Samaritans i.e. bystanders and passers-by who render the help to the victims of road accidents. These individuals can play a significant role in order to save lives of the victims by either immediately rushing them to the hospital or providing immediate life saving first aid. 2. The petitioner is ‘SaveLife Foundation’, a non-profit, non- governmental organization registered as a Public Charitable Trust and had been established in 2008. The petitioner aims to create a unique network of medical responders to come to the victim’s aid. The petitioner has also drafted recommendations to address the critical deficiencies in the Motor Vehicles Act, and other laws governing road safety.-We also direct that the scheme framed by the Central Government and this order be widely published through electronic media and print media for the benefit of public so that public is made aware and that serves as impetus to good Samaritans to extend timely help and protection conferred upon them without incurring the risk of harassment.

                                                                  REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.235 OF 2012
Savelife Foundation & Anr.                        … Petitioners
Vs.
Union of India & Anr.                             … Respondents
                                  JUDGM ENT

ARUN MISHRA,  J.

1.    The petition has been filed under Article 32 of  the  Constitution  of
India in  public interest for the development of supportive legal  framework
to protect Samaritans i.e. bystanders and passers-by who render the help  to
the victims of road accidents.  These individuals  can  play  a  significant
role in order to save lives of the victims  by  either  immediately  rushing
them to the hospital or providing immediate life saving first aid.
2.     The  petitioner  is  ‘SaveLife  Foundation’,   a   non-profit,   non-
governmental organization registered as a Public Charitable  Trust  and  had
been established in 2008.  The petitioner aims to create  a  unique  network
of medical responders to come to the victim’s aid.  The petitioner has  also
drafted recommendations to address the critical deficiencies  in  the  Motor
Vehicles Act, and other laws governing road safety.
3.    The Department of Road Transport  is  responsible  for  framing  motor
vehicle legislation and evolving road safety standards in  India.   The  WHO
in its ‘World Report on Road Traffic Injury Prevention, 2004’ has  projected
that by 2020, road accidents will be one of the biggest  killers  in  India.
It also emphasized that in low income countries, the most  common  desisting
factor restraining the public from coming forward to help  victims,  is  the
apparent fear of being involved in police cases.  There  is  need  to  build
confidence amongst the public to help  road  accident  victims.   Bystanders
should not be insisted to divulge their personal particulars or detained  in
the hospital for interrogation.  People are  hesitant  to  render  immediate
help to the road accident victims.  The victims lay wounded on the road  for
some time till the arrival of police.  Delay rendering medical help in  such
cases  sometimes  is  fatal.    Good  Samaritans  have  the  fear  of  legal
consequences, involvement  in  litigation  and  repeated  visits  to  police
station.  There is urgent need to tackle these issues.   There  is  need  to
establish legal framework  so  that  Good  Samaritan  is  empowered  to  act
without any fear of adverse consequences or harassment.  Save life  must  be
the top priority.
4.    Several countries have enacted such laws.  In England and  Wales,  the
Parliament has enacted the Social Action,  Responsibility  and  Heroism  Act
2015 which provides for certain factors to be considered by the Court  while
hearing an action for negligence or breach of duty. Section  2  of  the  Act
provides that the Court must consider whether the respondent was acting  for
the benefit of society or any of its members. Section 5 of the  Act  further
provides that the Court must consider  whether  the  respondent  was  acting
heroically by intervening  in  an  emergency  to  assist  an  individual  in
danger.   In  Ireland,  section  51D  of  the   Civil   Law   (Miscellaneous
Provisions) Act 2011 provides that a good Samaritan will not  be  liable  in
negligence for any act done in emergency  to  help  person  in  serious  and
imminent danger. In Australia, protection to good Samaritan is  provided  in
several states.  In New South Wales  and  Victoria,  for  instance,  a  good
Samaritan is  protected  from  personal  civil  liability  with  respect  to
anything done  in  state  of  emergency  or  accident  by  virtue  of  Civil
Liability Act 2002 and Wrongs Act  1958  respectively.  In  Canada,  various
states like Ontario, Alberta and British Columbia offer protection  to  good
Samaritans. In Ontario, the Good Samaritan  Act  2001,  by  Section  2  (1),
provides that except for gross  negligence,  a  person  is  not  liable  for
damages resulting from his acts during aid in emergency. Similar  protection
is provided in states of  Alberta,  British  Columbia  and  Nova  Scotia  by
Emergency Medical Aid Act, Good Samaritan Act  and  Volunteer  Services  Act
respectively. Similar protection to  good  Samaritans  is  to  be  found  in
different states’ laws in the USA.   States  of  Alabama,  Alaska,  Arizona,
Arkansas, California and New York, to name a few, provide that if  a  person
lends emergency assistance or service to another person  in good  faith,  he
is not liable in civil damages with respect to his act or omission.
5.    Accident  cases  require  fastest  care  and  rescue  which  could  be
provided by those closest to the scene of the  accident.   Bystanders  clear
support is essential to enhance the chances of survival  of  victim  in  the
‘Golden Hour’ i.e. the first hour of the  injury.   As  per  the  WHO  India
Recommendations, 50% of the victims die in  the  first  15  minutes  due  to
serious cardiovascular or nervous system injuries and the rest can be  saved
through by providing basic life support during  the  ‘Golden  Hour’.   Right
to life is enshrined under Article 21 which  includes  right  to  safety  of
persons while travelling on the road and the  immediate  medical  assistance
as a necessary corollary is required to be provided and also adequate  legal
protection and prevention from harassment to good Samaritans.
6.     In  letter  dated  9.9.2004,  Joint  Secretary,  Department  of  Road
Transport and Highways addressed to all  the  State  Governments  and  Union
Territories, it has been highlighted that the WHO in  its  World  Report  on
Road Traffic Injury Prevention, 2004 has pointed out that  “while  in  high-
income countries, there  is  a  reasonably  well-organised  ambulance  based
rescue system, in middle and low-income countries, assistance by  bystanders
is most common.  In our country, while organizing of trauma  care  apart  of
intervention is also required, there is  another  factor,  namely,  relative
ignorance on part of public to come forward to help the road crash  victims,
for apparent fear that they  might  be  involved  in  “police  cases.”   The
letter further states that Research shows that  a  number  of  the  accident
victims can be saved if they  receive  immediate  medical  attention.”   The
letter also admits that due to fear of harassment people do not always  come
forward to attend them.”
The Department of Road Transport and Highways had  also  sent  letter  dated
19.2.2004 to the States and Union Territories enclosing  a  Circular  issued
by the police authorities in Delhi in  order  to  build  confidence  in  the
public for helping road accident victims.  The Circular stated  that  it  is
likely that the  person  who  brings  the  injured  to  the  hospital  would
hesitate to provide his particulars, and in such a case, it  should  not  be
insisted upon.  Furthermore, it was also stated therein that  the  escorters
or the person who bring  the  victims  to  the  hospital  should,  under  no
circumstances, be detained  in  the  hospital  for  interrogation.   It  was
suggested in the said letter that action on similar lines may be  considered
by the States and UTs.
7.    The people have the notion that touching  the  body  could  lend  them
liable for police interrogation.  Passerby plays safe and chose to wait  for
the police to arrive whereas injured gradually bleeds to death.  People  are
reluctant to come forward for help despite, desperate attempts to  get  help
from passerby, by and large they turn blind eyes to the person in  distress.
 Sometimes those who help are rebuked due to  ignorance  by  the  others  on
touching the scene.  In the case of a convoy even  when  there  are  several
vehicles in the convoy, people wait for the ambulance  to  arrive  and  also
for the concerned police help.  There are several  desisting  factors  which
are required to be taken care of such as fear of legal consequences if  once
action  is  ineffective  or  harmful  to  victim,  fear  of  involvement  in
subsequent  prolonged investigation and visit to the police station.   There
is need to evolve the system by promptly  providing  effective  care  system
with certain ethical and legal principles.  It is absolutely necessary  that
Good Samaritans feel empowered to act without fear of  adverse  consequence.
There is need to provide certain incentives to Good  Samaritans.   There  is
also dire need to enact a Good Samaritan Law in the country since  there  is
a felt need of legislation for affording protection to Good Samaritans.
8.    While issuing notice on 17.8.2012, this Court has observed:
“It remains undisputed before us that it is not insufficiency of law but  it
is  implementation  of  law  which  is  a  matter  of  concern.    Different
guidelines including guidelines  for  ambulance  Code,  emergency  care  and
appropriate directions to the hospitals on the  highways  for  handling  the
accident trauma patients, as a top priority are stated to have been  issued.

      Learned counsel appearing  for  the  parties  submit  that  an  expert
committee would need to be constituted to  monitor  the  various  directions
issued for their due compliance.
       Learned  counsel  for  the  parties  even  propose  to   make   joint
suggestions in this regard after  consulting  the  relevant  Ministries  and
NHA.  The counsel appearing for the petitioner has  vehemently  argued  that
the joint suggestions now to be filed should also  consider  the  directions
and safeguards that could be provided to the passers-by or informers of  the
accident.  This will even help the expeditious disposal of  criminal  cases.
Let this aspect be also examined by the learned counsel  appearing  for  the
parties who are to submit the joint suggestions.”

9.    This Court vide order dated 11.12.2012  has  constituted  a  Committee
consisting of 8 members and to submit the  suggestions  before  this  Court.
The members of the said Committee are as follows:
Additional Secretary of Ministry of Home Affairs;

Secretary and or his nominee, Ministry of Health and Family  Welfare  to  be
nominated in consultation with Directorate General Health Services;

Secretary and or his nominee from Ministry of Law and Justice;

Jt. Commissioner (Traffic) – Delhi Police;

Chief of the AIIMS Trauma Centre;

The Director General or his nominee not below the  rank  of  the  Additional
Director General of the Protection Road Organizations;

Save Life foundation representative;

Mr. M.P. Tiwari  or  his  nominee  from  any  of  the  NAOS  John  Ambulance
representative.


      The scope of reference of the Committee inter alia included  following
aspects with which we are concerned in the instant matter;
“(ix) Identify the root causes for fear  of  harassment  and  legal  hassles
in  general public regarding helping injured victims.
Deliberate and develop a set of guidelines for  protecting  Good  Samaritans
from police harassment and  legal  hassles.   The  guidelines  will  aim  to
address the root causes for fear of harassment and legal hassles in  general
public regarding helping injured victims.  These guidelines will also  serve
as a foundation for further legislative work in the area of protecting  Good
Samaritans.”

    The Committee was required to submit report to this Court  within  three
months.  On 14.8.2014, this Court passed an  order  to  have  the  views  of
concerned ministries of Union of India.  This Court observed in order  dated
24.9.2014 that in this petition the only  issue  which  is  required  to  be
addressed is with regard to ‘Good Samaritans’.  All other issues that  arise
in the writ petition have already been referred to the Committee  headed  by
Mr. Justice K.S. Radhakrishnan, former Judge of this Court.
10.   This Court on 29.10.2014 has passed an  order  in  view  of  affidavit
filed on behalf of Ministry of Road Transport and Highways  wherein  it  has
been stated that the recommendation made in the Skandan  Committee’s  report
regarding protection of good  Samaritans  has  been  accepted  by  the  said
ministry and also by Ministry of Law & Justice.  This  Court  directed  both
the  ministries  in  consultation  with  each  other  to   issue   necessary
directions with regard to protection of good  Samaritans  until  appropriate
legislation is made by the Union Legislature.
    On 7.8.2015, this Court has  noted  that  notification  dated  12.5.2015
laying down ‘Good Samaritan Guidelines’ has been issued by the  Ministry  of
Road Transport and Highways, Government of India.  Suggestions were  invited
so as to give more teeth to the guidelines.
    On 27.11.2015,  this  Court  was  informed  by  the  learned  Additional
Solicitor General that the suggestions given have been incorporated  in  the
form of Standard Operating Procedure which has  been  issued  as  an  Office
Memorandum.  The views of Ministry of Health and  Family  Welfare,  Ministry
of Home Affairs and Ministry of Law and Justice  are  awaited.   This  Court
issued a direction to look into the possibility of giving  statutory  status
to the Standard Operating Procedure either in the form of a notification  or
regulations or guidelines.
11.   The Ministry of Road Transport and Highways has issued a  notification
containing guidelines on 12.5.2015 published in the Gazette of India para  1
of Section 1 of the Notification dated  12.5.2015  for  protection  of  good
Samaritans and a further  Notification  has  been  issued  on  21.1.2016  in
accordance with para 1(7) and 1(8) of the guidelines dated  12.5.2015  which
required  standard  operating  procedures  to  be  framed  and  issued   for
examination of good Samaritans by the police or during trial.  It  has  been
mentioned  in  the  affidavit  filed  by  Ministry  of  Road  Transport  and
Highways, Government of India that in the absence of any statutory  backing,
it is felt that it will be difficult to enforce these guidelines  issued  on
12.5.2015 and standard operating procedures as notified  on  21.1.2016.   It
has also  been  mentioned  that  the  notified  guidelines  in  relation  to
protection of a bystander or good Samaritan are  without  prejudice  to  the
liability of the driver of a motor vehicle involved in  the  road  accident,
as specified under section 134 of the Motor Vehicles Act, 1988.
    Notification dated 12.5.2015 issued by the Ministry  of  Road  Transport
and Highways containing guidelines for protection of good Samaritans  to  be
in force till appropriate legislation is framed  by  Union  Legislature,  is
extracted hereunder:
“No.25035/101/2014-RS.—Whereas the Hon'ble Supreme  Court  in  the  case  of
Savelife Foundation and another V/s. Union Of  India  and  another  in  Writ
Petition (Civil) No. 235 of 2012 vide its order dated  29th  October,  2014,
interalia, directed the Central Government  to  issue  necessary  directions
with  regard  to  the  protection  of  Good  Samaritans  until   appropriate
legislation is made by the Union Legislature;
And whereas, the Central Government considers it necessary  to  protect  the
Good Samaritans from harassment on the actions being taken by them  to  save
the  life  of  the  road  accident  victims  and,  therefore,  the   Central
Government  hereby  issues  the  following  guidelines  to  be  followed  by
hospitals, police and all other  authorities  for  the  protection  of  Good
Samaritans, namely:-
1. (1) A bystander or good Samaritan  including  an  eyewitness  of  a  road
accident may take an  injured  person  to  the  nearest  hospital,  and  the
bystander or good Samaritan should be allowed to  leave  immediately  except
after furnishing address by the eyewitness only and  no  question  shall  be
asked to such bystander or good Samaritan.
(2)  The  bystander  or  good  Samaritan  shall  be  suitably  rewarded   or
compensated to encourage other citizens to come forward  to  help  the  road
accident victims by the authorities in the manner as  may  be  specified  by
the State Governments.
(3) The bystander or good Samaritan shall not be liable for  any  civil  and
criminal liability.
(4) A bystander or good Samaritan, who makes a  phone  call  to  inform  the
police or emergency services for the  person  lying  injured  on  the  road,
shall not be compelled to reveal his name and personal details on the  phone
or in person.
(5) The disclosure  of  personal  information,  such  as  name  and  contact
details  of  the  good  Samaritan  shall  be  made  voluntary  and  optional
including in the Medico Legal Case (MLC) Form provided by hospitals.
(6) The disciplinary or  departmental  action  shall  be  initiated  by  the
Government concerned against public officials who  coerce  or  intimidate  a
bystander or good Samaritan for revealing his name or personal details.
(7) In case a bystander or good Samaritan, who has voluntarily  stated  that
he is also an eye-witness to the accident and is  required  to  be  examined
for the purposes of investigation by the police or during  the  trial,  such
bystander or good Samaritan shall be examined on a single occasion  and  the
State Government shall develop standard operating procedures to ensure  that
bystander or good Samaritan is not harassed or intimidated.
(8) The methods of examination may either be by way of  a  commission  under
section 284,  of  the  Code  of  Criminal  Procedure  1973  or  formally  on
affidavit as per section 296,  of  the  said  Code  and  Standard  Operating
Procedures shall be developed within a period of thirty days from  the  date
when this notification is issued.
(9) Video  conferencing  may  be  used  extensively  during  examination  of
bystander or good Samaritan including the persons referred to  in  guideline
(1)  above,who  are  eye  witnesses  in  order  to  prevent  harassment  and
inconvenience to good Samaritans.
(10) The Ministry of  Health  and  Family  Welfare  shall  issue  guidelines
stating that all registered public and private hospitals are not  to  detain
bystander  or  good  Samaritan  or  demand  payment  for  registration   and
admission costs, unless the good Samaritan is a family  member  or  relative
of the injured and the injured is to be treated immediately in pursuance  of
the order of the Hon’ble Supreme Court in Pt. Parmanand Katara vs  Union  of
India & Ors [1989] 4 SCC 286.
(11) Lack of response by a doctor in an emergency  situation  pertaining  to
road accidents, where he is  expected  to  provide  care,  shall  constitute
“Professional Misconduct”, under Chapter 7 of  the  Indian  Medical  Council
(Professional  Conduct,  Etiquette  and   Ethics)   Regulation,   2002   and
disciplinary action shall be taken against such doctor under  Chapter  8  of
the said Regulations.
(12) All hospitals shall  publish  a  charter  in  Hindi,  English  and  the
vernacular language of the State or Union territory  at  their  entrance  to
the effect that they shall not detain bystander or  good  Samaritan  or  ask
depositing money from them for the treatment of a victim.
(13) In case a bystander or good Samaritan so desires,  the  hospital  shall
provide an acknowledgement  to  such  good  Samaritan,  confirming  that  an
injured person was brought to the hospital and the time and  place  of  such
occurrence and the acknowledgement may be prepared in a standard  format  by
the State Government and disseminated to all  hospitals  in  the  State  for
incentivising the bystander or good Samaritan as deemed  fit  by  the  State
Government.
 (14) All public and private  hospitals  shall  implement  these  guidelines
immediately and in case of noncompliance or violation  of  these  guidelines
appropriate action shall be taken by the concerned authorities.
(15) A letter containing these guidelines shall be  issued  by  the  Central
Government and the State Government to all Hospitals  and  Institutes  under
their  respective  jurisdiction,  enclosing   a   Gazette   copy   of   this
notification and ensure compliance and the Ministry  of  Health  and  Family
Welfare  and  Ministry  of  Road  Transport  and  Highways   shall   publish
advertisements  in  all  national  and  one  regional  newspaper   including
electronic media informing the general public of these guidelines.
2. The above guidelines in relation  to  protection  of  bystander  or  good
Samaritan are without prejudice to the liability of the driver  of  a  motor
vehicle in the road accident, as specified under section 134  of  the  Motor
Vehicles Act, 1988 (59 of 1988).  
                                                Sd/- Jt. Secy.”
12.    [pic]Para 1(7) and 1(8) of the guidelines  dated  12.5.2015  required
standard operating procedure to be framed for the examination  of  the  good
Samaritans. The Central Government, Ministry of Road Transport and  Highways
has issued notification on 21.1.2016 which is as under:
“No. RT-25035/101/2014-RS.—Whereas, the Hon'ble Supreme Court  in  the  case
of Save Life Foundation and another Vs Union of India and  another  in  Writ
Petition (Civil) No. 235/2012 vide its order dated 29th October 2014, inter-
alia, directed to issue necessary directions with regard to  the  protection
of Good Samaritans until  appropriate  legislation  is  made  by  the  Union
Legislature;
And whereas, the Central Government published the guidelines in the  Gazette
of India,  Extraordinary,  Part  I,  Section  I  dated  12th  May  2015  for
protection of the Good Samaritans, i.e. a person who is  a  bystander  or  a
passer-by, who chooses to assist an injured person or a person  in  distress
on the road;
And whereas, as per para 1 (7) and (8) of the  said  guidelines  dated  12th
May,  2015,  Standard  Operating  Procedures  are  to  be  framed  for   the
examination of Good Samaritans by the Police or during trial;
And  whereas,  the  Central  Government  considers  it  necessary  to  issue
Standard Operating Procedure for the examination of Good Samaritans  by  the
Police or during trial and here by issue the  following  standard  operating
procedure, namely:—
1. 1. The Good Samaritan shall  be  treated  respectfully  and  without  any
discrimination on the grounds of gender,  religion,  nationality,  caste  or
any other grounds.
2. Any person who makes a phone call to the Police control  room  or  Police
station to give information about any accidental injury or death, except  an
eyewitness may not reveal personal  details  such  as  full  name,  address,
phone number etc.
3. Any Police official, on arrival at the scene, shall not compel  the  Good
Samaritan to disclose his / her  name,  identity,  address  and  other  such
details in the Record Form or Log Register.
4. Any Police official  or  any  other  person  shall  not  force  any  Good
Samaritan who helps an injured person to become a  witness  in  the  matter.
The option of becoming a witness in the matter shall solely  rest  with  the
Good Samaritan.
5. The concerned Police official(s) shall allow the Good Samaritan to  leave
after having informed the Police about an injured person on  the  road,  and
no further questions shall be asked if the Good Samaritan  does  not  desire
to be a witness in the matter.
2. Examination of Good Samaritan by the Police
i. In case a Good Samaritan  so  chooses  to  be  a  witness,  he  shall  be
examined with utmost care and respect and without any discrimination on  the
grounds of gender, religion, nationality, caste or any other grounds.
ii. In case a Good Samaritan chooses to be a  witness,  his  examination  by
the investigating officer shall, as far as possible, be conducted at a  time
and place of his convenience such as his place  of  residence  or  business,
and the investigation officer shall be dressed in plain clothes, unless  the
Good Samaritan chooses to visit the police station.
iii. Where the examination of the Good  Samaritan  is  not  possible  to  be
conducted at a time and place of his convenience and the Good  Samaritan  is
required by the Investigation Officer  to  visit  the  police  station,  the
reasons for the same shall be recorded by such officer in writing.
iv. In case a Good Samaritan so chooses to  visit  the  Police  Station,  he
shall be examined in a single examination in  a  reasonable  and  time-bound
manner, without causing any undue delay.
v. In case the Good Samaritan speaks a language other than the  language  of
the  Investigating  Officer  or  the  local  language  of   the   respective
jurisdiction, the Investigating Officer shall arrange for an interpreter.
vi. Where a Good Samaritan declares himself to be an eye-witness,  he  shall
be allowed to give his evidence on affidavit,  in  accordance  with  section
296 of the Code of Criminal Procedure, 1973 (2  of  1974)  which  refers  to
Evidence in Formal Character on Affidavit.
vii. The complete statement or affidavit of such  Good  Samaritan  shall  be
recorded by the Police official while  conducting  the  investigation  in  a
single examination.
viii. In case the attendance  of  the  Good  Samaritan  cannot  be  procured
without delay, expense or inconvenience which, under  the  circumstances  of
the case, would be unreasonable, or his examination is unable to take  place
at a time and place of his convenience, the Court of Magistrate may  appoint
a commission for the examination of the Good Samaritan  in  accordance  with
section 284 of the Code of Criminal  Procedure,  1973  (2  of  1974)  on  an
application by the concerned.
3. The Superintendent of Police or Deputy  Commissioner  of  Police  or  any
other Police official of corresponding seniority heading  the  Police  force
of a District, as the case may be, shall be responsible to ensure  that  all
the above mentioned procedures are implemented throughout  their  respective
jurisdictions with immediate effect.  
                 Sd/- Jt. Secretary.”
      Prayer has been made on the part of the  Ministry  of  Road  Transport
and Highways  of  Government  of  India  that  the  guidelines  notified  on
12.5.2015 and the standard operating procedure notified on 21.1.2016 may  be
declared to be enforceable by this Court so that it is binding  on  all  the
States and Union Territories until the Union  Government  enacts  a  law  to
this effect.
13.   In Lakshmi Kant Pandey v. Union of India  (1984)  2  SCC  244  in  the
matter of inter-country adoption and  so  as  to  prevent  malpractices  and
trafficking of children under the guise of adoption,  this  Court  has  laid
down certain principles and norms to  be  followed  in  the  cases  of  such
adoption in detail, as  there  was  absence  of  statutory  provisions  with
respect to inter-country adoptions.
14.   In  D.K.  Basu  v.  State  of  W.B.  (1997)  1  SCC  416,  this  Court
considering the fact that the custodial violence, torture,  rape,  death  in
police custody/lock-up infringes Article 21 as well as  basic  human  rights
and strikes a blow at the rule of  law,  directions  have  been  issued  for
compliance by Police personnel while arresting or detaining  any  person  as
preventive measures in addition to constitutional and  statutory  safeguards
and previous directions of this Court.
15.   In Vishaka and Ors. v. State of Rajasthan &  Ors.  (1997)  6  SCC  241
considering the absence of enacted law to provide for effective  enforcement
of the  basic  rights  to  gender  equality  and  guarantee  against  sexual
harassment  and  abuse,  more  particularly  against  sexual  harassment  at
workplaces,  this  Court  has  laid  down  guidelines  and  norms  for   due
observance at all work places  or  institutions  until  the  legislation  is
enacted for the purpose.
16.   In Vineet Narain & Ors. v. Union of India &  Anr.  (1998)  1  SCC  226
this Court has  referred  to  various  decisions  in  which  guidelines  and
directions have been issued in  exercise  of  powers  of  this  Court  under
Article 32  read  with  Article  142.  The  relevant  portion  is  extracted
hereunder :
“51. In exercise of the powers of this Court  under  Article  32  read  with
Article 142, guidelines and directions have been issued in  a  large  number
of cases and a brief reference to a few of them is sufficient. In Erach  Sam
Kanga v. Union of India [WP  No.2632  of  1978  decided  on  20.3.1979)  the
Constitution Bench laid down certain guidelines relating to  the  Emigration
Act. In Lakshmi Kant Pandey v. Union of India  (1984)  2  SCC  244  (In  re,
Foreign Adoption), guidelines for adoption of minor children  by  foreigners
were laid down. Similarly in State of W.B. v. Sampat Lal  (1985) 1 SCC  317,
K. Veeraswami v. Union of India (1991) 3 SCC 655, Union  Carbide  Corpn.  v.
Union of India (1991) 4 SCC 584, Delhi Judicial Service Assn.  v.  State  of
Gujarat (1991) 4 SCC 406  (Nadiad  case),  Delhi  Development  Authority  v.
Skipper Construction Co. (P) Ltd. (1996) 4 SCC 622 and Dinesh Trivedi,  M.P.
v. Union of India (1997) 4 SCC 306 guidelines  were  laid  down  having  the
effect of law, requiring rigid compliance. In  Supreme  Court  Advocates-on-
Record Assn. v. Union of India (1993) 4 SCC 441 (IInd Judges case)  a  nine-
Judge Bench laid down guidelines and norms for the appointment and  transfer
of Judges which are being rigidly followed in the matter of appointments  of
High Court and Supreme Court Judges and transfer of High Court Judges.  More
recently in Vishaka v.  State  of  Rajasthan  (1997)  6  SCC  241  elaborate
guidelines have been laid down for  observance  in  workplaces  relating  to
sexual harassment of working women. In Vishaka (supra)  it  was  said:  (SCC
pp. 249-50, para 11)
“11. The obligation of this Court under Article 32 of the  Constitution  for
the enforcement of these fundamental rights in the  absence  of  legislation
must be viewed along with the role of judiciary  envisaged  in  the  Beijing
Statement of Principles of the Independence of the Judiciary in the  LAWASIA
region. These principles were accepted by the Chief  Justices  of  Asia  and
the Pacific at Beijing in 1995 (*)  (As  amended  at  Manila,  28th  August,
1997) as those representing the minimum standards necessary to  be  observed
in order to maintain the  independence  and  effective  functioning  of  the
judiciary.  The  objectives  of  the  judiciary  mentioned  in  the  Beijing
Statement are:
              “Objectives of the Judiciary:
        10. The objectives and  functions  of  the   Judiciary  include  the
following:
(a) to ensure that all persons are able to live securely under the  rule  of
law;
(b) to promote, within the proper  limits  of  the  judicial  function,  the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons  and
the State.”
Thus, an exercise of this kind by the court is now a  well-settled  practice
which has  taken  firm  roots  in  our  constitutional  jurisprudence.  This
exercise  is  essential  to  fill  the  void  in  the  absence  of  suitable
legislation to cover the field.
52. As pointed out in Vishaka (supra) it is the duty  of  the  executive  to
fill the vacuum by executive orders because its field  is  coterminous  with
that of the legislature, and where there is inaction even by the  executive,
for whatever reason,  the  judiciary  must  step  in,  in  exercise  of  its
constitutional obligations under  the  aforesaid  provisions  to  provide  a
solution till such time as the legislature  acts  to  perform  its  role  by
enacting proper legislation to cover the field.”

17.   In Union of India v. Association for Democratic Reforms & Anr.  (2002)
5 SCC 294, the decisions in  Vineet  Narain  (supra),  Vishaka  (supra)  and
other decisions have been followed and this Court  has  laid  down  the  law
that an exercise to fill the void in the absence of suitable legislation  is
now  a  well-settled  practice  which  has   taken   firm   roots   in   our
constitutional jurisprudence. Similar is  the  decision  in  Kalyan  Chandra
Sarkar v. Rajesh Ranjan alias Pappu Yadav  &  Anr.  (2005)  3  SCC  284.  In
Common Cause v. Union of India (2015) 7 SCC 1, law to the  same  effect  has
been reiterated thus :
“7.  In the earlier order dated 23-4-2014 (2014)  6  SCC  552,  this  Court,
after holding that reasonableness and fairness consistent  with  Article  14
of the Constitution would be the  ultimate  test  of  all  State  activities
proceeded to hold that the deployment of  public  funds  in  any  government
activity which  is  not  connected  with  a  public  purpose  would  justify
judicial intervention. We would like to say something more.
8.  Part IV of the Constitution is as much a guiding light for the  Judicial
organ of the State as the Executive and  the  Legislative  arms,  all  three
being integral parts of the “State” within the meaning of Article 12 of  the
Constitution. AIR 1967 SC 1, (1973) 4 SCC 225. A policy certainly cannot  be
axed for its alleged failure to comply with any of the  provisions  of  Part
IV. Neither can the courts charter a course, merely on the strength  of  the
provisions of the said Part of  the  Constitution,  if  the  effect  thereof
would be to lay down a policy. However, in a situation where  the  field  is
open and uncovered by any government policy, to guide and  control  everyday
governmental action, surely, in the exercise of jurisdiction  under  Article
142 of  the  Constitution,  parameters  can  be  laid  down  by  this  Court
consistent with the objects enumerated by any of the provisions of Part  IV.
Such an exercise would be naturally time-bound i.e. till the legislature  or
the executive, as the case may be, steps in  to  fulfil  its  constitutional
role and authority by framing an appropriate policy.”

18.   In view of the aforesaid discussion, it is  apparent  that  guidelines
and directions  can  be  issued  by  this  Court  including  a  command  for
compliance  of  guidelines  and  standard  operating  procedure  issued   by
Government of India, Ministry of Road  Transport  and  Highways,  till  such
time as the legislature steps in to substitute them by  proper  legislation.
This Court can issue such directions under Article 32 read with Article  142
to implement and enforce the guidelines which are necessary  for  protection
of rights under Article 21 read with  Article  14  of  the  Constitution  of
India so as to provide immediate help to the victims of the accident and  at
the same time to provide protection to Good Samaritans. The guidelines  will
have the force of law under Article 141. By virtue of  Article  144,  it  is
the duty of all authorities – judicial and  civil  –  in  the  territory  of
India to act in aid of this Court by implementing them.
19.   We have carefully  gone  through  the  notification  dated  12.5.2015.
However, as per the guidelines contained in para 13,  the  ‘acknowledgement’
if so desired by Good Samaritans, has to be issued as may be  prescribed  in
a standard format by the State Government. In our opinion,  till  such  time
the format is prescribed, there should be no vacuum  hence  we  direct  that
acknowledgement  be  issued  on  official  letter-pad  etc.   and   in   the
interregnum period, if so desired by Good Samaritan, mentioning the name  of
Samaritan, address, time, date, place of occurrence and confirming that  the
injured person was brought by the said Samaritan.
          We have also gone through the notification  dated  21.1.2016  with
respect to the examination of Good Samaritan by the Police as  contained  in
para 2(vii) which we modify and be read in the following manner :
“The affidavit of Good Samaritan if filed,  shall  be  treated  as  complete
statement by the Police official  while  conducting  the  investigation.  In
case statement is to be recorded, complete statement shall be recorded in  a
single examination.”
       Remaining  guidelines  in  the  notifications  dated  12.5.2015   and
21.1.2016 are approved and it is  ordered  that  guidelines  with  aforesaid
modifications made by us be complied with by the Union Territories  and  all
the functionaries of the State Governments as law laid down  by  this  Court
under Article 32 read with Article 142 of the Constitution of India and  the
same be treated as binding as per the mandate of Article 141.
20.    We  also  direct  that  the  court  should  not  normally  insist  on
appearance  of  Good  Samaritans  as  that  causes   delay,   expenses   and
inconvenience. The concerned court should exercise the power to appoint  the
Commission for  examination  of  Good  Samaritans  in  accordance  with  the
provisions contained in section 284 of the Code of Criminal Procedure,  1973
suo motu or on an  application  moved  for  that  purpose,  unless  for  the
reasons to be recorded personal presence  of  good  Samaritan  in  court  is
considered necessary.
21.   Affidavits have been filed on behalf of State of Tripura and State  of
Orissa. They have issued the notification. However, the treatment shall  not
be less favourable than the one as  provided  in  the  aforesaid  guidelines
which are issued by the Ministry of Road Transport  &  Highways  which  have
been made a part of this Order, and  the  guidelines  issued  by  the  state
Governments in consonance thereof shall also be binding upon  all  concerned
to be complied with scrupulously. However, it is clarified  that  guidelines
in relation to protection of a Good Samaritan are without prejudice  to  the
liability of the driver of a motor vehicle involved in a  road  accident  as
specified under section 134 of the Motor Vehicles Act, 1988.
22.   We record  our  appreciation  for  the  efforts  made  in  formulating
guidelines  by  all  concerned,  the   members   of   Committee,   concerned
Department, learned Solicitor General and positive attitude of  the  counsel
for the other parties who have readily agreed that  guidelines  be  approved
and be enforced as  binding  till  appropriate  legislative  provisions  are
made.
23.   We also direct that the scheme framed by the  Central  Government  and
this order be widely published through electronic media and print media  for
the benefit of public so that public  is  made  aware  and  that  serves  as
impetus to good Samaritans to extend timely help  and  protection  conferred
upon them without incurring the risk of harassment.
24.   In  view  of  the  aforesaid  directions,  the  writ  petition  stands
allowed. No order as to costs.

                                       …………………………….J.
                                       (V. Gopala Gowda)




New Delhi;                             …………………………..J.
March 30, 2016.                        (Arun Mishra)

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