Health Justice in India: Citizenship, Power and Health Care Jurisprudence [1st ed.] 9789811581427, 9789811581434

Table of contents :
Front Matter ....Pages i-xxv
Introduction (Edward Premdas Pinto)....Pages 1-38
Citizenship, Health Care Jurisprudence and Pursuit of Health Justice (Edward Premdas Pinto)....Pages 39-82
An Overview of Health Care Jurisprudence in India (Edward Premdas Pinto)....Pages 83-176
Health Care Jurisprudence and Health Justice: Procedural and Substantive Justice Dimensions (Edward Premdas Pinto)....Pages 177-218
Health Justice and the Dialectics of Power: State, Medical Profession and Civil Society (Edward Premdas Pinto)....Pages 219-286
Back Matter ....Pages 287-295

Citation preview

Edward Premdas Pinto

Health Justice in India Citizenship, Power and Health Care Jurisprudence

Health Justice in India

Edward Premdas Pinto

Health Justice in India Citizenship, Power and Health Care Jurisprudence

123

Edward Premdas Pinto School of Development Azim Premji University Bengaluru, India

ISBN 978-981-15-8142-7 ISBN 978-981-15-8143-4 https://doi.org/10.1007/978-981-15-8143-4

(eBook)

© Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Dedicated to those who taught me the meanings of Dignity and social justice Late Mrs. Mary Magdalene Pinto, my mother, a healer, practitioner of folk and herbal medicines and a traditional birth attendant for several disadvantaged women in my village Late Mr. Joseph Pinto, my father, a silent companion in life Madiga Dalit Women of JAGRUTHA MAHILA SANGHANTANE, Pothnal (Raichur—Karnataka, India), where I realised the depth and breadth of social injustices and systemic oppression of the poor, and the resilience of the community to combat injustice.

Foreword

With the adoption of the sustainable development goals, the idea of social and health justice has figured prominently globally. These ideas have found resonance in the context of rising socio-economic inequalities within and across countries. Employing the framework of health as a right, there has been an effort to employ legal instruments to address questions of inequalities in access to health and health care. In addition, it has also been used, with limited success, to regulate medical care institutions and the practice of medicine. The realisation of health as a right is an outcome of a broad alliance of progressive forces consisting of a plurality of civil society actors. The book, Health Justice in India—Citizenship, Power and Health Care Jurisprudence, authored by Edward Premdas Pinto is an important contribution to an understanding of the historical and socio-political processes that have shaped health justice in India. He carefully documents the legislations related to public health with a special focus on the health service system. He argues that judicial interventions have been a significant part of the public health landscape, which he conceptualises as healthcare jurisprudence that includes judicial and quasi-judicial institutions. During the last three decades, several individuals and civil society organisations have challenged the policy gaps and governance-related issues through the legal system. Through a meticulous collation of cases relating to the healthcare system, he analyses the range of issues that have been heard across levels of the judicial system. This book offers an interdisciplinary approach to understanding the complexities of the interaction between the health service system, legal institutions and civil society in India. The audience for this book will attract scholars and activists to engage with the socio-political determinants of public health jurisprudence, its strength and limitations in shaping health policy and the health service system. Rama V. Baru Professor Centre of Social Medicine and Community Health Jawaharlal Nehru University New Delhi, India

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Preface

An elusive health care coupled with mistrust and suspicion in the public healthcare system, deaths or adverse health impacts, inevitable admission in private hospitals and an exorbitant health expenditure are the narratives that echo in every other household in almost every village of India where there has been a pregnancy or a childbirth. The current image of medical professionals as ‘doctor–businessmen’ and predators who trade on people’s diseases or inevitable health needs is all pervasive. As the public health systems function suboptimally, even the smallest privatecommercial hospitals and clinics, even in rural areas, are overcrowded and buzz with patients round the clock. Thanks to the neo-liberal policies and successive governments who have handed over the precious social right to health care to the unregulated profiteering healthcare industry. It is a new business that never fails! The COVID 19 pandemic was a reality check for the political class in India exhibiting how fragile and underprepared we as a nation are to face health crisis. Despite having the largest network of private hospitals, the governments had to resort to railway coaches and community halls to accommodate corona-infected patients with serious health issues, as already over-crowded public hospitals were under-prepared to deal with the pandemic, and the private-corporate hospitals were not affordable and inaccessible to a large population. This illustrates that regardless of the COVID19 pandemic, health crisis in India is volatile and is only waiting to explode. The poor and the marginalised of this country are perpetually facing the crisis of accessing health care. Such instances only surface when it affects the middle and upper classes in the society. The simmering anger at the state of affairs in health care is often seen in sporadic outbursts and ugly confrontations between citizens and profiteering hospitals, with the medical professionals usually caught in the crossfire. It has unfortunately built a narrative of hostility and antagonism between patients and doctors. The resolution, however, cannot be in promulgated laws enacted to protect doctors, bouncers placed as gate keepers in hospitals or a charter of patient rights announced as an advisory. It needs a diagnosis based on the social pathology that gives rise to violations of citizens’ dignity and a prognosis taking

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into serious account the pathologies of the healthcare system, the medical profession and the justice system. Indignity, labour room violence, abuse and corruption are not new to the poor; both health care with dignity and justice have always evaded them. Only when a significant number of deaths occurred and the media took notice, it pricked the conscience of civil society. This occasionally would lead to knocking on the doors of higher judiciary using the available constitutional provisions. Meanwhile, the business of health care has awakened the middle and upper classes to a new reality. These classes that did not access public health care so far are made to taste the bitter pill of medical malpractice, unethical and irrational care at skyrocketing prices with a sharp sting of medical negligence in private hospitals. Having no redressal in sight, deaths, medical negligence and morbidity have driven them to courts as well. While several litigants gave up very early, some continued to relentlessly pursue legal redressal. Moving horizontally, across and between consumer courts, civil courts, criminal courts, medical councils and moving vertically, up and down the ladder of legal justice system, over several years, some patients reached either High Courts or Supreme Court of India. They reach the portals of justice not only as litigants but also as sufferers and victims. Most of them rarely got a sympathetic ear from the learned judges who are otherwise supposed to listen to people ‘impartially without fear or favour’. The health justice seekers quite often faced challenges of navigating through the complexities of the justice system making it a very frustrating experience all along, making it equally frustrating in its outcomes at the end of the arduous journey. Miscarriage of health justice happens when people who suffer violations in health care again find themselves at the dead-ends in courts. This calls for foregrounding justice in health or health justice much beyond the end-product of an arduous journey for an aggrieved citizen. The question that bothers everyone therefore is—Whither health justice? Is it only an end-product of a painstakingly long-drawn battle or is it a tangible and existential ongoing experience for citizens? This book is the result of an ongoing search to demystify the conundrum in seeking justice in health care. This research has seen an emergent need for research scholars, policy advocates and policymakers to understand the dynamics that goes into making health care a social right. Lawyers who plead health cases and health activists who take to courts need to understand the triadic puzzle of power that plays out in health justice processes between the State, the judiciary and healthcare system. The answers are contingent in their mutual interface and the politics that determine their transactions (health justice triad and unequal exchange of power, as we refer to in this book). In this book, I propose that we move beyond a naive understanding of justice, as an order of the court, which when waived will bring about magical remedies. In this book, we look at health justice from the systems perspective, as rewriting the systemic rules enabling a citizen’s right to a comprehensive and affordable healthcare system, provided with utmost sense of dignity and care. It inevitably needs to be complemented by a redressal system that adequately and efficiently responds to fix systemic errors. Moving beyond the narrow understanding of retribution, health

Preface

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justice is proposed as a preventive medicine that fixes the systemic gaps for aberrations in health care in order to prevent further violations. Most importantly, this book proposes it as part of social citizenship and social justice, both integrally linked to India’s Constitutional Vision. I do hope the insights from this book will contribute to strengthening health rights and civil society efforts in establishing social right to health care as a fundamental right for all in India. Dr. Edward Premdas Pinto Associate Professor School of Development Azim Premji University Bengaluru, India

Acknowledgements

The idea of health justice in this book owes it to the efforts of various civil society collectives in India, who continue to struggle against the caste, class, patriarchy and religion-based hegemonic powers in order to genuinely live the spirit of Indian Constitution that vouches for human dignity along with economic, political and social justice. This book draws substantially from the solidarity struggles, strategic ideas and contemporary debates of civil society collectives and inputs from their individual members. Jagrutha Mahila Sanghatane (JMS), People’s Health Movement (Jan Swasthya Abhiyan), Medico Friend Circle (MFC), Karnataka Janaarogya Chaluvali (KJC), All India Drug Action Network (AIDAN), National Alliance of People’s Movements (NAPM), various Dalit movements, various social movements and other civil society alliances are the force behind the praxis of health justice in India. The insights of respondents of this research that include petitioners, patients who suffered violations of their dignity, lawyers, judges and civil society leaders have shaped the idea of health justice immensely. This book would not have been possible without the support of my wife Sathyasree and my daughter Shrey, who have been companions in this research, critiques of ideas and reviewers of manuscripts. I am immensely indebted to Prof. Rama V. Baru, my Ph.D. supervisor, for mentoring me, for moulding and shaping the evolution of theoretical frameworks of this challenging interdisciplinary research. I have deepened my appreciation for social sciences and interdisciplinarity through my interactions with her during these years of discipleship. Four key organisations have made unique contributions to this research: the Centre of Social Medicine and Community Health (Jawaharlal Nehru University), an academic institute foregrounding politics at the heart of public health; Centre for Health and Social Justice (CHSJ), a civil society organisation that has experimented with various collective strategies for accountability and people’s health rights; and Society for Community Health Awareness, Research and Action (SOCHARA), a civil society organisation which functions as a catalyst and incubator for community health. Jagrutha Mahila Sanghatane (JMS), a Dalit Women’s Collective (Raichur, Karnataka) that I am associated with for the last 21 years, has xiii

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Acknowledgements

been a diagnostic lab to understand the intersections of systemic oppressions and social injustices in relation to gender, caste and wellbeing, and an incubator to experiment with strategic solutions as well. Being part of these institutions facilitated the harmonious blending of several streams of perspectives drawn from the disciplines of public health, human rights, law and political science into the idea of health justice. I am ever grateful to my brothers and sisters-in-law, Prof. Gerald Pinto and Mrs. Marcelline Shera, and Rotarian (Mr.) Walter Cyril Pinto and Mrs. Joyce D’Sa and their families. Without them, my social justice and academic journey would not have been possible. For any unintentional and unavoidable errors in this book, mea culpa.

Contents

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1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Setting the Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Framing Health Justice . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Health as Public Social Good . . . . . . . . . . . . . . . . 1.2.3 The Democratic, Liberal, Welfare-State and Social Citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.4 The Justice System . . . . . . . . . . . . . . . . . . . . . . . 1.2.5 The Health Care System . . . . . . . . . . . . . . . . . . . 1.2.6 Civil Society and Jurisprudence . . . . . . . . . . . . . . 1.3 Research Strategy and Approach . . . . . . . . . . . . . . . . . . . 1.4 Outline of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Final Thoughts and Caveats . . . . . . . . . . . . . . . . . . . . . . Appendix 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Citizenship, Health Care Jurisprudence and Pursuit of Health Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 State, Social Citizenship and Rights . . . . . . . . . . . . . 2.2 Medical Profession, Legal Profession and Power . . . 2.2.1 Doctor-Magistrate and Protection of Medical Hegemony . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Legal Profession and Courts . . . . . . . . . . . . . 2.3 Social Rights and Health Care Jurisprudence . . . . . . 2.3.1 Population Health . . . . . . . . . . . . . . . . . . . . 2.3.2 The Social Right to Health Care . . . . . . . . . . 2.3.3 Ethical Arguments for Social Rights . . . . . . . 2.3.4 Assumptions Underlying SRHC . . . . . . . . . . 2.3.5 Typology of Health Care Jurisprudence . . . .

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2.4 Drivers of Health Care Litigations in India . . . . . . . . . . . . . . . 2.4.1 Economic and Development Policies Affecting Health Care System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Political Organisation and Federal Governance . . . . . . 2.4.3 Constitutional and Decentralised Governance and Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Diffused and Fragmented Health Care System Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.5 Absence of a Credible and Accessible Grievance Redressal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Accessing Judicial Power and Health Care Jurisprudence . . . . 2.5.1 Power of Judicial Review . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Power of Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3 Court Reforms and Access to Justice . . . . . . . . . . . . . 2.5.4 Personhood Jurisprudence (Expansive Definition of Right to Life) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.5 Quasi-Judicial Spaces and Ombudsman Institutions . . . 2.6 Social Citizenship at Crossroads . . . . . . . . . . . . . . . . . . . . . . 2.7 A Brief Synthesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3 An Overview of Health Care Jurisprudence in India . . . . . . . . . . 3.1 Health Care System Insights Through Litigations . . . . . . . . . . . 3.2 Constitutional Rights and the Foundations of Health Care Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Environmental Rights Litigations and Health Care Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Workers’ Right to Health and Medical Care . . . . . . . . . 3.2.3 Civil Liberties, Prisoners’ Rights and Medical Care . . . . 3.2.4 Tort Jurisprudence in Negligence of Medical Care . . . . . 3.2.5 Brief Summary of the Health Care Doctrine Laid Down in Constitutional Rights Themes . . . . . . . . . . . . . . . . . . 3.3 Domains of Health Care Services and Litigations . . . . . . . . . . . 3.3.1 Thematic Cluster 1: Basic Health Care Services . . . . . . 3.3.2 Thematic Cluster 2: Health Care and Vulnerable Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Thematic Cluster 3: Health Care of Social Elites and Patient Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 Thematic Cluster 4: Public Health Measures . . . . . . . . . 3.4 A Brief Synthesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4 Health Care Jurisprudence and Health Justice: Procedural and Substantive Justice Dimensions . . . . . . . . . . . . . . . . . . . . . 4.1 Procedural Justice and Healthcare . . . . . . . . . . . . . . . . . . . . 4.1.1 Consumer Protection and Civil Remedy . . . . . . . . . . 4.1.2 Criminal Law Remedy . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 Health System Based Institutional Mechanisms . . . . . 4.1.4 Statute Based Mechanisms . . . . . . . . . . . . . . . . . . . . 4.1.5 Oversight–Quasi-Judicial (Ombudsman) Institutions . . 4.1.6 Constitution Based Remedies (Writ Petitions) . . . . . . 4.2 Health Justice: Substantive Justice . . . . . . . . . . . . . . . . . . . . 4.2.1 Assessing Systemic Impacts and Limitations . . . . . . . 4.3 Structural Constraints in Health Justice . . . . . . . . . . . . . . . . 4.3.1 Actors and Institutional Relationships in Social Right to Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Multi-stage Complex Process of Litigations . . . . . . . . 4.4 Health Rights and Epidemics/Pandemics . . . . . . . . . . . . . . . 4.5 A Brief Synthesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5 Health Justice and the Dialectics of Power: State, Medical Profession and Civil Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Character of Health Care Jurisprudence . . . . . . . . . . . . . . . . . 5.2 Health Justice Triad and Power . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 The Actors in the Health Justice Triad . . . . . . . . . . . . 5.2.2 State, Judiciary and Class . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Judiciary—A Reflection of the State . . . . . . . . . . . . . . 5.2.4 Professional Organisations, Power and Health Care . . . 5.2.5 Civil Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Limits to Health Care Jurisprudence . . . . . . . . . . . . . . . . . . . 5.3.1 Theoretical and Institutional Considerations . . . . . . . . . 5.3.2 Failure of Judicial Institutions in SRHC . . . . . . . . . . . 5.3.3 Gaps in Addressing State Accountability for SRHC . . . 5.3.4 Deficits in Medical Professional Accountability . . . . . . 5.4 National Medical Commission Act 2019 and the Hope of Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 A Brief Synthesis—the Social Pathology, Crisis of Citizenship and Health Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295

About the Author

Edward Premdas Pinto, is an associate professor of public health and human rights law in the Azim Premji University, Bangalore (India). As a human rights lawyer and a public health scholar-activist, he has been engaged with the processes of social justice issues with the marginalized communities in India over the last three decades. His academic journey includes scholarship from eminent institutions – postgraduation in social sciences (Tata Institute of Social Sciences, Mumbai), Bachelors and Masters in Law (Karnataka State Law University), Post-graduate human rights diploma (National Law School of India University, Bangalore) and doctor of philosophy (Jawaharlal Nehru University, Delhi). His praxis of social justice includes engaging with tribal and rural communities, Dalit women in Karnataka and several social movements that directly and indirectly engage with the issue of wellbeing, dignity, and justice. The domains of his scholarly contributions and teaching include healthcare jurisprudence, politics of evidence in health, jurisprudence of emergency care, health and human rights, and public health ethics and rights. His engagement with practice continues through People’s Forum for Justice and Health which he convenes and other civil society alliances advocating for social and political rights.

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Abbreviations

CAT CDSCO CGHS CPA CPC CrPC CSO DPCO DPSP HC ICCPR ICESCR IMA MCI MoHFW NHRC NMC NPPA NRHM OHCHR PHC PIL PPSD SCI SLP SRHC WP

Central Administrative Tribunal The Central Drugs Standard Control Organisation Central Government Health Scheme Consumer Protection Act Civil Procedure Code Criminal Procedure Code Civil Society Organisation Drug Pricing Control Order Directive Principles of State Policy High Court International Covenant on Civil and Political Rights International Covenant on Economic Social and Cultural Rights Indian Medical Association Medical Council of India Ministry of Health and Family Welfare National Human Rights Commission National Medical Commission The National Pharmaceutical Pricing Authority National Rural Health Mission The Office of the United Nations High Commissioner for Human Rights Primary Health Centre Public Interest Litigation People with Psychosocial Disabilities Supreme Court of India Special Leave Petition Social Right to Health Care Writ Petition

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List of Figures

Fig. 1.1 Fig. 3.1 Fig. 3.2 Fig. 3.3 Fig. 3.4 Fig. 3.5 Fig. 4.1 Fig. 5.1

Concept of health justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution of litigations by judicial domains (n = 401) . . . . . Distribution of litigations by non-supreme court judicial domains (n = 194) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution of litigations by thematic domains (n = 439) . . . . Distribution of health care litigations by time-periods (n = 401) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional rights constituencies and distribution of litigations by judicial domains (n = 78) . . . . . . . . . . . . . . . . Conceptual depiction of structural inequalities and violations of health rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Health Justice Triad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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List of Tables

Table 1.1 Table 2.1 Table 3.1 Table 3.2 Table 4.1 Table 4.2 Table 4.3

Prominent legislations relating to SRHC (proposed/passed) since 2010 (Union Government) . . . . . . . . . . . . . . . . . . . . . . Prominent content of health related social rights from 18th to 21st centuries . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution of litigations by high court location . . . . . . . . . . Distribution of litigations by thematic and judicial domains (n = 361) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . An analysis of the prevailing legal frameworks for redressal of patient grievances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Health related complaints filed with various national commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stages and actors in health care litigation process . . . . . . . . .

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Chapter 1

Introduction

Abstract Despite the goals of medicine laid down in the Hippocratic Oath and the framework of social justice in the Constitution of India, violations of citizens’ right to health care have escalated into a phenomenon of epidemic proportions in contemporary India. A lack of health system measures to ensure citizens’ access to affordable health care, and a vacuum of adequate redressal processes raise the issue of ‘double jeopardy’ meted out to citizens and a continued miscarriage of justice in health. Given the lack of any noteworthy systemic or administrative redressal mechanism, citizens have engaged courts using constitutional provisions or quasi-judicial procedures for the last four decades to seek justice for human rights violations experienced in health. The introductory chapter lays out the processes that have gone into framing the interdisciplinary idea of health justice. This includes circumstances that have driven citizens to judicial domains seeking systemic improvements and redressal for grievances, and the author’s journey both as a human rights lawyer and public health activist as well as of engaging with academic discipline to reflect and theorise on the human right to health in the context of India. This chapter briefly narrates the methodology of doctoral research on health care jurisprudence that shaped the argument for health justice propounded in this book. It included an analysis of 401 cases on health care and rich insights from interviews with victims of health rights violations, petitioners, public health experts, lawyers, and judges. This book posits health justice as part of social citizenship and as a claim to a system of comprehensive health care and grievance redressal, locating it in the triangular relationship of the State, justice, and health care systems.

Of all the forms of inequality, injustice in health is the most shocking and the most inhuman because it often results in physical death (Martin Luther King, Jr.).1

1 At

a press conference after his address at the second convention of the Medical Committee for Human Rights, Chicago on March 25, 1966. © Springer Nature Singapore Pte Ltd. 2021 E. P. Pinto, Health Justice in India, https://doi.org/10.1007/978-981-15-8143-4_1

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1 Introduction

1.1 Setting the Context Five years after the launch of the largest health systems strengthening programmes, National Rural Health Mission (NRHM) by the Government of India, the media was flooded with reports of 27 maternal deaths of young adivasi (tribal/indigenous) women from the District Hospital in Barwani between the months of April and November 2010. Barwani is a predominantly tribal district in southwestern Madhya Pradesh (MP) in central India. Nine of these deaths were reported in a single month. In a distant tribal location with meagre public road transport connectivity to the district hospital, expert inquiries reveal that, among others, availability of basic care such as ante-natal care, and community-level health care workers such as Accredited Social Health Activists (ASHA), Auxiliary Nurse Midwives (ANMs) or skilled birth attendants, could have prevented these deaths (SubhaSri et al. 2012). Among other things, the Government, through NRHM had promised to provide good quality maternity services within the Indian Public Health Standards (MoHFW 2005). While no tangible justice was meted out for the loss of lives, a public interest litigation (PIL) was filed in 2011 at the Indore High Court (HC) bench. Even as this litigation continued without any concrete outcomes of justice towards the aggrieved, in another PIL on the issue of maternal deaths in MP, the very same court declared right to maternity as a fundamental right. Ten years after the launch of NRHM, in 2014–15, civil society organisations discovered unindicated hysterectomies conducted on 471 illiterate lambani tribal women in a village of Yadgir district of Karnataka, by a doctor couple in their private hospital. Three women subsequently died, and several others suffered severe morbidity. The hospital did so by showing them pictures of the cancerous uterus and inducing fear of cancer and subsequently getting their thumb impressions as consent on forms printed in English. He also charged huge sums in fees for the surgeries. Three women died, and many more suffered morbidities without any aftercare for the surgeries that they had paid for. It took over a year to document the cases and move various state accountability and ombudsman bodies, including the health department and state women’s commission, to take cognizance of medical malpractice and to acknowledge these deaths. In the face of stiff resistance from the government of Karnataka in holding the private hospital accountable, civil society groups moved the Karnataka Medical Council (KMC) against the doctor for medical misconduct and negligence. Civil society also impleaded in the Supreme Court of India (SCI) with this matter in an ongoing petition on hysterectomies. While no action was taken by KMC or the government of Karnataka in this matter, the petition in SCI is pending for over five years. Almost 15 years after the launch of NRHM, in December 2019, the media reported deaths of over 100 children in the Kota district hospital in Rajasthan due to gross medical negligence. Instead of sparking a reflective discussion on the system failure leading to children’s’ deaths, it became just another occasion for the polarised media to sensationalise the issue and for a political one-upmanship between the governments of opposing parties that were in power in the state and the centre. In the intervening

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years between 2014 and 2018, NRHM which was subsequently named as National Health Mission (NHM) had been replaced by the new policy framework of Ayushman Bharat complemented by the National Health Policy 2017. Both, the health policy and the new programme, promised health care for all that was symbolised by the health card carrying the photograph of the prime minister of India, distributed to a sizable section of the population in the informal sector and those deemed to be below the poverty line (BPL), just before the general elections in 2019. To a major portion of the rural poor, access to health care through this arrangement has not been materialised owing to the issues that include empanelment of hospitals, regulation of pricing, delay in reimbursement by the government and a glaring gap in the redressal mechanism for patient grievances. These select examples are specimens from a range of health rights violations that millions of vulnerable2 people in India experience. There have been media and civil society reported deaths due to sterilisation in Chhattisgarh (2014), deaths and morbidity owing to clinical trials (2009–14), malnutrition-related deaths of children and women, alarming levels of hysterectomies and C-section deliveries and stories of gross medical negligence in private-commercial (corporate) hospitals resulting in deaths incurring huge sums of hospital fees.3 Each of these violations narrates a recurring story of glaring gaps in the health care system, of unresponsive and over-defensive health authorities including health care providers, of an unregulated private-commercial health care system that abounds with stories of medical malpractice, of the deep-rooted corruption in the ombudsman-regulatory body, viz. medical council of India (MCI),4 and of despair of citizens seeking justice and redressal (Bhuyan 2018; Parliament of India—Rajya Sabha 2016; KJC—Karnataka Janaarogya Chaluvali 2015). The idea of health justice germinated while closely witnessing people’s suffering during my engagement with the issues of health rights of the marginalised as a human rights lawyer, public health rights activist and development practitioner over 30 years. The saga of the aggravated and unmitigated suffering of people on account of inaccessible health care was similar from a remote village in north Karnataka where the author lived for seven years to the state and national capitals where he spent subsequent seven years each, except that the faces of the suffering people changed. The first-hand experiences of people’s suffering aggravated owing to the malfunctioning primary health centres (PHC) while living in a remote village in 2 The

expression vulnerable, deprived, poor, disadvantaged, marginalised and underprivileged are used synonymously in the book, to represent the poor, referred to also as ‘the masses’. It is loosely applied to mean patients seeking health care who find themselves in a relatively weaker position vis-à-vis hospitals and doctors due to the lack of resources and other social support. From a justice and health care perspective s/he is deprived because of structural inequality. 3 The issues mentioned here are illustrative only. There are several media and civil society reports on these issues some of which were converted into petitions. The petition on clinical trials, unwarranted sterilisations were perused as part of this research. 4 The MCI was under suspended animation supervised by expert monitoring bodies at different intervals of time. After the 92nd parliamentary committee report, in 2019 MCI was officially replaced with National Medical Commission by an Act of Parliament in 2019.

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1 Introduction

Hyderabad-Karnataka region (Pothnal village in Raichur district, Karnataka), gave an insight into the systemic aberrations and unaccountability of the health care providers that deprive of life-saving care at a village level. Later, being located in Bengaluru, the state capital of Karnataka, documented over 500 case-stories of grave denial of health care while travelling across the 20 districts in Karnataka as one of the conveners of a state level coalition for people’s health. During this time, with a group of committed activists, we attempted several pathways for redressal that included Lok Adalats5 by involving State Legal Services Authority, generating systematic documentary and audio-visual evidence, involving the district judiciary in public hearings on health, engaging the media to highlight the suffering of people to draw the attention of health authorities and filing cases with the then proactive lokayukta on the issues of systemic deficiencies and corruption. Subsequently, while being in the national capital Delhi for another seven years and continuing to be part of the health movements in the country, the stories of unavailable and inaccessible health care inundated from across several states, even after a decade of NRHM had already passed. These stories from the village, to the state and national capitals, even as they carried similar stories of unending suffering, were smeared with another layer of suffering which the usual public health narratives— primarily focusing on morbidity and mortality—had lost sight of. The public health ‘numbers’ that were shown for the declining maternal, neonatal and infant mortality, vouching for nation’s commitment to the Millennium Development Goals (MDGs) and later, Sustainable Development Goals (SDGs), had not ‘gauged’ the sense of indignity and despair of ‘being wronged’ that lingered on in each denial of care that one experienced or in the aftermath of every death. Such indignifying stories entailed the experiences of those who faced severe hurdles in getting the dead body of a close relative released from the private-commercial hospital due to the uncleared bills that were exorbitant; patients relayed from one hospital to another denying admission for the treatment of dengue, eventually succumbing to death due to lack of care; pregnant women who had child birth on the footpath or in a moving vehicle while running from one health centre to the other, invariably ending in a maternal death. All such individuals or survivors had no immediate redressal even after running from pillar to post, except patiently waiting for the court verdict, accessed as the only resort where one’s grievances were at least heard. Post-2000, another set of horrific stories emerged from those who accessed private health care institutions both in small towns and cities. Though they appeared to be sporadic cases, they were spiralling into an unending saga of medical malpractice, a malaise that was much deeper than what meets the eye. Such stories ranged from wrong diagnosis, unexplained diagnostic tests, deaths of women during childbirth, inaccessible or manipulated medical records, staggering hospital bills, refusal to release dead bodies without payment, intimidation of patients/relatives who 5 Lok

Adalat (People’s Court) is one of the alternative dispute redressal mechanisms in India, a legal forum where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987.

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dared to complain, conglomerates of medical fraternity organised to support the erring/accused doctors, and so on. The patient who already had lost a loved one and a huge sums of money, had no avenue that was easily available and accessible to register grievances. When eventually they did access courts, consumer forums, medical councils or police stations, as the case may be, they were up against a united establishment of private hospitals and medical fraternity who had the pronounced sympathy and allegiance of the police and the courts on their side and were overtly supported by the public health authorities. In addition, in courts of law, as respondents or as accused, the medical establishments or doctors always had high profile lawyers to fight their cases against poor patients or their representatives. As my health rights ‘gaze’ (to borrow the phrase of Foucault (2010) broadened, from a village the state and national levels, there were a couple of threads that connected the dotted lines of all stories: One, the State treated the poor as hapless beneficiaries and not as citizens with rights and entitlements. The more schemes the government announced, the less did they reach the poor. Most of these schemes had several conditions and requirements of documents that the patients were made aware of in their most vulnerable condition, i.e. when they needed health care the most. Two, despite the announcement of various programmes and schemes, the health services system was not equipped with adequate human or other critical resources such as medicines and essential infrastructure. The allocation of resources to strengthen the system and any effort to fix the systemic deficiencies have been declining over time. During the time of NRHM, there was some focus on primary health care and some signs of its revival. The Ayushman Bharat programme vouching to provide health care to everyone on a public health insurance model, on the other hand, signifies a drastic abandonment of this strategy with grave implications to the public health system. The meagre health budget, for example, is now diverted to the (empanelled) private hospitals under Pradhan Mantri Jan Arogya Yojana (PMJAY)— a component of Ayushman Bharat programme—which only caters to select hospitalisation, leaving the public health system ever starving for funds and weaker than before (Ghosh and Qadeer 2019). Observing the changing role of the State, it is argued that over the last three decades, the character of the State itself is changing from that of a welfare-state to that of acting as a conduit for promoting private and corporate interests (Flood and Gross 2016). Such realignment of the State and its complicity in the exponential and unregulated growth of the private-corporate health care sector, potentially spells a crisis for citizenship. Three, the accountability mechanism—systems for documenting grievances and to redress complaints of patients—have been non-existent, and even if they were instituted, they were not functioning. For grievances concerning health care providers in the public health system, it appeared as though citizens had acquired some knowhow to navigate the hierarchies in the administration to draw the attention of the bureaucrats or political leaders to the issues in health care, which was, however, not the case concerning health care in private institutions. The regulatory and grievance redressal system concerning the latter hardly exist, and those statutory mechanisms established such as the consumer redressal forums, are hardly accessible to aggrieved

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patients from the disadvantaged communities. Over the years as the malfunctioning of the public health system continued unabated, the number of people accessing private health care has exponentially increased (National Health Systems Resource Centre 2016). Consequently, in addition to the indignities that the poor have already been experiencing, the health care mishaps experienced by patients from middle and upper classes owing to irrational and unethical care, complemented by ethical voices from the medical fraternity against the pressure they face in perpetuating irrational care, among others, have catapulted such issues of health care into public debates and discussions (Gadre and Shukla 2016). Four, the State, displaying a pathology of power, has deployed its coercive power at will, to subject people to certain health care protocols even at the cost of their dignity and bodily integrity (Farmer 2005). Under the coercive sterilisation programme anchored by the central government, for example, women were herded into sterilisation camps; or, adhering to the institutional delivery guidance, pregnant women were invariably directed to primary health centres (PHC) which were ill-equipped with human resource or necessary infrastructure for providing quality of care. Often, such coercive measures have resulted in compromising human dignity and poor quality of care resulting in additional morbidities leaving hardly any space for redressal for such patients.6 Five, even within the domains of social rights, the discourse on social citizenship is not a settled one. Citizens’ claim to the right to health and health care world over is marked by dilemmas, contradictions and contestations in the politics that play out in shaping the expressions of policies that are intended to fulfil such a right (Oliver 2006). In this long and meandering path to get health care and of getting some redressal, denial of health care at once presents itself as a denial of justice. The critical reflections on the health and justice systems and the power that plays out within these hierarchically ordered systems constituting organised professions, helped in weaving all these experiences into a theoretical paradigm that had to move beyond the mere patronState and beneficiary-citizen understanding of welfare-state. Health and health care must be radically repositioned as justice rather than merely being considered either a benevolent service of the welfare-state or a paid service of a private professional. The lack of avenues to fix accountability for the indignities experienced, has driven civil society (both organised and individual citizens) to the higher judiciary as the final resort, a move that profoundly signifies a quest for health justice. Such a quest of civil society for justice in health and health care commenced in the late 1970s and has persisted over four decades as still an unsettled terrain. Citizens as part of the civil society, have used the power of courts symbolically to challenge State’s power and unaccountability. For example, the government of India was unwilling to regulate the profiteering interests of the corporate health care sector even by way of capping the prices of life-saving devices. Several public health experts and policy advocates had argued for the same earlier. However, such a move was kick started by the move 6 The

public interest litigation—Ramakant Rai v. Union of India and Devika Biswas v. Union of India—highlights these situations. (Vide: Chap. 3).

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of an ordinary unknown lawyer in Delhi, totally alien to the profound public health debates, who was emotionally shaken by the debt his friend incurred for his father’s cardiac treatment, moved the Delhi High Court (HC) for capping stent prices. The Delhi HC order resulted in the reduction of corona stent prices by 85% which also forced the otherwise reluctant government of India to regulate prices of such medical devices, by designating them as ‘essential drugs/medicines. The increasing challenges in the post-liberalisation era that civil society faced in realising social citizenship and challenging the powerful State calling for its Constitutional accountability in courts, set the stage for this research. This book has taken shape investigating the processes and challenges of this quest for the social right to health care (SRHC), viewed as health justice from the justice prism.

1.2 Framing Health Justice The interlinkages of health and justice have emerged from the legal, philosophical and ethics literature. Legal perspectives on justice that are applicable to health popularly connote a narrow understanding to mean reparation or punishment for wrongdoing or grievance mediated through prosecution mechanism or courts (Desai and Mahabal 2007). Philosophical approaches have provided substantial theoretical perspectives for laying down the principles and concepts for the linkages of justice and health. Rawlsian theory of justice, while providing a robust framework arguing for basic liberties and freedoms as part of social justice, had not considered health and health care as central to the concepts of social good (Segall 2018). In proposing development as freedom, the capability theory propounded by Sen (1981) broadened the horizons to include health as basic freedom. Employing and extending the capabilities approach, Venkatapuram (2011) argues for a moral right to health as health justice. In addition, distributive and redistributive theories of justice too have provided grounds for prioritising health and have considered the ethical distribution of health care as part of justice in health (Segall 2018; Olsaretti 2018). In the wake of increased burden of purchasing health care by citizens, contemporary academic literature on health has put forth cogent philosophical justifications for the use of publicly funded resources for medicine, health care and public health. Schramme (2019) for example, builds this argument, among other theories, on the sufficientarian account of justice. The sufficientarian concept argues that ‘sufficiency’ (that each citizen has enough, in this case to achieve health) not only as a moral claim but also as a demand of justice (Shields 2016). While most of these philosophical discussions have rekindled the discourse of health and justice, their influence on the policies, widening the choices available for the marginalised populations and reducing health inequalities seem to be negligible. Callahan and Jennings (2002: 171) note that ‘politics is the messy arena in which ultimate questions of the public good are worked out’. The policies that influence prioritisation, allocation and distribution of health resources are political choices, and

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hence need guidance. Ruger (2010) provides a ‘health capability paradigm’ based theory of health and social justice making a compelling case to reduce inequalities in health. Her emphasis on building effective systems and institutions to achieve health capabilities has resonance with the central argument of this book of relating health to systems and institutional framing of health justice. Ethical-moral arguments too resonate closely with the ideas of health justice, as they foreground egalitarianism and removal of inequalities in health (Daniels 1981). This book does not intend to go into the theoretical and philosophical debates on justice and health. Drawing from the philosophical and ethical discourses, health justice, the central interdisciplinary concept of this book, is framed in relation to health systems, select theories of justice and the political philosophy of the welfarestate and social citizenship. The interactions and relationships between varied disciplinary domains/disciplines such as health care/public health, juridico-legal institutions, professions/professional organisations (the legal and medical professions, in the case of this book), and political state are viewed within the overarching systems perspective. Cumulatively, such a conceptualisation is grounded on the perspective of ‘power’, philosophical-moral argument of ‘health as a public social good’ and the claim for social citizenship. In this section, we briefly discuss the conceptualisation of each of these components.

1.2.1 Power Power is an important theme in social science research and provides a key to ground the idea of health justice (Foucault 2010). It is manifested in the functioning and transactions between the key actors in each of the following systems—the State (as an organisation composed of various organs and institutions), the health care system (public, private and allied health care system, medical professions and institutions offering diagnostic, preventive, promotive, curative and rehabilitative services) and juridico-legal systems (courts, investigative and prosecution mechanisms, quasijudicial and ombudsman institutions). In each of these systems, power is manifested in the organisation of hierarchies, institutional arrangements and the varied relationships between various actors and competing interests within. A stark gradation of power is also manifest as contrasting categories—State and citizens, medical profession and patients, the legal profession and aggrieved clients—wherein the former symbolises the concentration of power, and the latter, lack of such power and hence vulnerable. Health care jurisprudence, representing the juridico-legal justice in health, symbolises in addition the competing and contrarian power categories, which could be best expressed as ‘dialectics’ of power in health. Such a ‘dialectics’ refers to the processes of challenging the hegemonic exercise of power and authority by the comparatively powerful actors in the health justice triad, viz. State, professions and civil society (Vide. Sect. 5.2). Seen through the prism of power, this book proposes, balancing power in the power asymmetry in favour of citizens, as the essential ingredients of health justice.

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1.2.2 Health as Public Social Good The concepts of public and social (common) good have their origins in the discipline of economics. However, the ethical-moral arguments have considerably broadened the scope of these concepts in their application to social rights such as health and health care. Postulating health and health care as a public good and social (common) good provide an ethical-moral substantiation for the proposition of health justice. Displaying the characteristics of being ‘non-rivalrous’, ‘non-divisible and ‘nonexcludable’, and having a universal bearing on all, health is posited as a global public good (Chen et al. 1999; Kaul et al. 1999). Though health carries the properties of private and public good, considering the unacceptable health inequities that are associated with social exclusion, ethical-moral thinkers have persistently posited health as a public good (Karsten 1995). In addition, increasingly even the idea of social (common) good is emphatically linked with health and health care. Galameau (2016: 17) notes: To say that health care is a social good is to say that it is fundamentally relational. In health care ethics, and particularly in the discourse of justice in health care, to say that health care is a social good typically means that health care is a national or societal good. The relational scope of health is assumed to be the society, and justice is often framed around the question of whether society (or the nation) has responsibility in the provision of health care to its members.

Drawing from their independent and overlapping connotations of being noncompeting, relational and representing societal good, both these concepts are used here in conjunction as ‘public social good’ in referring to health and health care. The further theoretical grounding for this idea has come from the ethics and social justice literature. Towards the late twentieth century, the growing societal health inequities, and the impacts of such inequities on the rights of individuals attracted attention. Ethics literature further built on the compelling moral arguments to foreground health as not merely a primary social good, but a ‘special good’ (Daniels 1981), ‘special social good’ and a matter of distributive justice (Daniels 1981). Critical reflection on the deprivation of health care and its implications to undermining social citizenship has further augmented justifications for health as a special moral good. Health inequities undermine people’s capacity to function as free and equal citizens (Daniels et al. 2004, Daniels 2008). Sen (1999) argues that injustice of disparities of human capabilities lead to ill-health and further jeopardise the realisation of human capabilities. Advocates for health and health care as a human right, have gone beyond the legal framework to the ontological foundations of human rights. They locate the right to health and health care in the protection and promotion of human dignity and ethics (Chapman 2015; Ruger 2004). Aristotle distinguished three kinds of justice which underlie the contemporary discussions on theories of justice, viz. retributive justice (related to punishment of crimes), compensatory justice (relating to compensating victims of wrongdoing), and distributive justice (relating to sharing benefits and burdens) (Winthrop 1978). Social justice theories have further expanded the concept

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of distributive justice to address structural dimensions of justice. John Rawls argues justice as fairness and builds a case for development of mechanisms embodying the principle of fairness (Scanlon 1973). Relating to health, just distribution of health care as a public good is deemed to be essential to attain ‘fair’ equality of opportunity, development, and self-worth (Daniels 1981; Navarro 1986; Scanlon 1973; Dutton et al. 1992). Transcending the principles of fair distribution, such thinking in addition calls for egalitarian and just health care, i.e. justice in health that requires bringing everyone to maximal health (Segall 2018). Social justice in health, interchangeably used in this research as health justice, makes a strong case for putting in place institutional mechanisms for accessing health care and health services as pathways for realising fairness and fair opportunities in an unequal society. Such an accessible mechanism, in the normative human rights language, is articulated as right to health care, and become apparent in State policies provisioning Social Right to Health Care (SRHC)7 that include social security or other welfare measures and public health care systems (World Health Organization 1999). Notably, the idea of health care as a public social good, is enshrined in the human rights treatise as ‘the highest attainable standard of health’. Besides providing a normative standard for SRHC as the international legal framework, the treatise also enshrines the ethical-moral imperatives of equity and social justices (United Nations Organisation 1948; UNOHCHR 1966). In the evolution of these treatises, General Comment 14, further laid down the systemic mechanisms as the state obligation for making health care of quality, accessible, available, affordable to citizens (UNOHCHR 2000). Researchers have commented such measures as being essential for citizens to participate in civil and political life and to realise their full humanhood with dignity (Gauri 2004). That health care is not a market commodity is the compelling moral argument underlying this book. It also emerges from a public health point of view against the market-based logic that is thrust upon national policies. The increasing pressure at the global and national levels to reposition health care as a private and commercial good is the competing claim that we encounter in many of the litigations (Karsten 1995). Various global non-State actors wield their influence on States for such policymaking in health (World Bank 1993; Foldes 2016; Oxfam 2009; Rai and Kandhari 2015). The enfeebled public health system and the rising private-corporate health care testify to the impact of such policies. Poor health outcomes are linked to social inequities that manifest, among others, in poverty, sexism and racism. In contributing to the understanding of health from a human rights framework, research has shown that violations of human rights have adverse impacts on physical, mental and social well-being and similarly, protecting and promoting human rights contributes to better health outcomes (Mann 1997). On the other hand, societies embodying egalitarian principles and socio-economic justice have higher levels of health outcomes. Compelling

7 Social right to health care (SRHC) is used here as an equivalent to the right to health care or health

rights used in common parlance. It distinguishes the right to health in the domain of social rights as compared to civil and political rights, in the normative framework of human rights.

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evidence is now put forth to bolster the proposition that conditions of social justice contribute to the public’s health (Childress et al. 2002: 175–6).

1.2.3 The Democratic, Liberal, Welfare-State and Social Citizenship The modern nation-state is the most prevalent political organisation in the world today. It operates on the principle of balance of power between its various constituent institutions—the legislature, the executive, and the judiciary—popularly referred to as the arms or organs of the State. The governance of a liberal democratic State enshrines within it the principles of rights, liberty and equality consequently carving out an active role for the civil society in the functioning of the State. However, the State continues to be a site for the interplay and struggle for the balance of power between citizens (civil society) and the ruling political class. Such contestations have been expounded through various political and sociological concepts such as bourgeoisie and proletariat (Karl Marx), the political and civil society (Antonio Gramsci), and in India, expressed through concepts of classes and masses8 (Rajni Kothari). In the post-world war II era, the balancing of power between the State and civil society was codified in modern human rights treaties with a broad consensus of the nation-states. Accordingly, the civil-political rights are said to restrain the power of the State visà-vis the rights of citizens, while the social-economic and cultural rights are deemed to bind the State to marshal resources for the welfare of citizens. Citizenship includes the political and social dimensions; the former refers to fundamental freedoms of citizens and the latter include the social rights and entitlements that citizens need to enjoy for the realisation of citizenship (Marshal and Bottomore 1992). The concept of social rights also lays down the State’s duty and central role in the equitable distribution of public social goods, in the realisation of a just social order and consequently for realising complete social citizenship. The welfarestate plays a crucial role in augmenting social citizenship through its distributive and redistributive functions, realised through policies and programmes. In health care, for example, policies and programmes determining accessibility to health care, and making them affordable, ethical, and rational, would form an important component of realising this citizenship. Structural inequities particularly in the form of unequal distribution of resources and power within society, pose significant limitations on such a distributive and welfare role of the State. Disadvantaged citizens with inadequate resources then find themselves in a relatively weaker power equation with the State in negotiating 8 The

concepts of classes and masses are used in a generic sense to represent a category of citizens who are privileged (classes) and a vast category of those deprived of basic necessities and securities (masses). The word ‘mass’ is also used as an adjective juxtaposed with movements as ‘mass movement’ to denote a sociological phenomenon of civil society formation of a massive scale on specific or multiple issues of their citizenship and rights. It should not be confused with massive (meaning huge or gigantic).

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both the social rights as well as the redressal for their violations. Such power asymmetry eventually results in a challenge to the political enterprise of realising social citizenship itself. The moral-ethical principles enshrined in the international human rights framework cast a positive obligation on the State for protecting social rights including redressal for their violations (UNOHCHR 1966, 1990). In the institutional framework of the State, it is the judiciary and courts that act as the instruments of checks and balance of State power, and are accordingly entrusted with this paramount responsibility of safeguarding these rights as integral to realising social citizenship itself.

1.2.4 The Justice System As an organ of the political State and armed with the power of law, judiciary assumes significance in the governance of modern nation-states. Courts are mandated to follow the principles of due process, fairness, and equality, in the administration of justice, enforcement of laws, and in upholding the rule of law in the State. The Indian legal and judicial system continues the legacy of Anglo-Saxon jurisprudence and follows the basic two territorial categories of law, i.e. international law, and municipal law (domestic). The relationship of citizens among themselves and with the State forms the core of contestation in courts. Courts exercise their power in adjudicating such matters from the perspectives of public laws and private laws. Public law includes constitutional, administrative, and criminal law, whereas private law includes law of persons, property (contracts, quasi-contract, and tort), obligations and conflict of laws. Public law ‘determines and regulates the organisation and functioning of the State and determines the relation of the State with its subjects’, whereas private law ‘regulates and governs the relations of citizens with one another’ (Mahajan 1987: 82). To play such a role, the legal doctrines of precedent and judicial review make constitutional and apex courts in the countries immensely powerful institutions in common law countries. Judicial precedents serve as an important source of law and are located as the operating laws in both the public and private categories. Law-making by precedents supplies the gaps in the legal system with new law and supplements an imperfectly developed body of legal doctrine. The power of the precedent flows from the fact that ‘a judicial decision is presumed to be correct’ and ‘that which is delivered in judgment must be taken for established truth’ (Mahajan 1987: 193). Precedent as a source of law has given rise to the view that judges are ‘law makers’ (albeit with limitations) and precedent is also referred to as ‘judicial legislation’ (Mahajan 1987: 191–223). The power of the precedents varies and is explained by various categories of precedents such as authoritative or persuasive, absolute, or conditional, and declaratory or original precedents. An authoritative precedent is one which judges must follow whether they approve of it or not, whereas a persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration. The precedents are known as declaratory

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13

when the judges merely declare an already existing law and they are known as original precedents when they create and apply a new rule. The jurisprudence laid down signifies the embodiment of the power of courts and plays a pivotal role in the policies. We refer to this power in discussing health care jurisprudence as the source of SRHC and health justice in this book. In common parlance, jurisprudence is described as the science of law. It implies the development of legal principles, notions and concepts, institutions and mechanisms for redressal, mediation, arbitration, defining and enforcement of rights (Mahajan 1987: 9). Courts form a significant link between the abstract jurisprudence as the study of principles of law and the recognition and positive enforcement of these principles.9 Subject matter of jurisprudence includes various relations between humans and their legal consequences, i.e. the rights and obligations falling upon them. The legal concepts such as ‘right’, ‘duty’, ‘remedy’, ‘ownership’, ‘contract’, and ‘possession’ are interlinked and indicate a general character of those legal consequences (Lefroy 1911). Jurisprudence is dynamic and is organically linked to the evolving relationship between a citizen and the State. Though this relationship is not devoid of strain and stress, the inherent flexibility foregrounds the opportunity to redefine it through constitutional jurisprudence. The thesis of social citizenship through health care jurisprudence is developed on this premise in the subsequent discussions here. A litigation concerning health care matters can reach the SCI and HCs through their normal course of redressal, through courts of appeal or through special leave petitions (SLPs). In addition, quasi-judicial institutions offer alternative avenues of redressal to citizens which are accessed in varied circumstances. Merely such orders do not contribute to or constitute jurisprudence. Health care jurisprudence, a ‘rights doctrine’ on the right to health and health care, is a body of constitutional and legal principles on SRHC, and is developed through litigations which are adjudicated in the SCI (and in HCs at the provincial level) in their capacity as constitutional courts. In many countries, the public health law has evolved in tandem with public health care discipline. In these countries, the active interface between these disciplines has added significant academic impetus to health care jurisprudence as a body of knowledge that has evolved through judicial interventions in public health and health care matters. However, in countries such as India, the academic interface between health care jurisprudence and public health, and research on these intersecting matters, are still in their ambulatory stage. In the wake of increasing health inequities resulting in gross violations of dignity, citizens and civil society organisations have demanded newer legislations or have accessed courts seeking redressal. This has been observed as a growing phenomenon in many countries including India. While in some instances newer legislations or 9 Dean Roscoe Pound defines jurisprudence as ‘the science of law, using the term law in the juridical

sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice’; For Gray jurisprudence is ‘the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules’. Summarising various ideas, Mahajan 1987 describes jurisprudence as ‘a study of the fundamental legal principles’ (p. 9). For a discussion, vide Mahajan 1987: 1–22.

14

1 Introduction

amendments have been enacted, in other cases, the orders of the apex and constitutional courts have considerable influence in enforcing government action, allocation of resources and so on. The former is referred to as ‘juridification’ (Veitch et al. 2012) and the latter is described as ‘judicialisation’ or ‘legalisation’ of health care (Yamin and Gloppen 2011). What drives citizens to the justice system (especially constitutional courts), how does the justice system respond to these petitions, and what is the significance of such litigations and their outcomes to the health care system, need examination.

1.2.5 The Health Care System At the time of independence, prompted by the Bhore Committee which was constituted in the pre-independence era, India’s elite embraced allopathic medicine as the official health care model for the country. A demography based and territorially demarcated primary health care (subcentre, PHCs, Community Health Centres) blueprint, envisioning a referral expertise at the district level was laid out. Unlike the National Health Service of the United Kingdom that was designed during the same period in England based on the Beveridge report, India’s blueprint was never supported by an enabling law to provide a legal framework (Govt of India 1946). The implications of such an arrangement was that it deprived citizens of a tool to challenge the failures and unaccountability of the State, even in matters of serious violations of citizens’ rights. The Constitution of India recognizes health/health care as a fundamental human right in principle but not as a justiciable or guaranteed or legally enforceable right. Through a series of litigations, SCI interpreted the right to life to include the right to health and health care, thus giving it the status of a fundamental right (vide. Chap. 3). However, the lack of a regulatory or redressal mechanism supported by a legal framework has created an institutional and governance vacuum that has progressively hampered fixing accountability for its functioning. Over a period of time, it is seen to build legitimacy for the failures of health functionaries in protecting the health rights of citizens as well as in incorporating corrective actions, and cumulatively create conditions that are conducive to further aggravating health rights violations. The phenomena of the protracted and progressive neglect of the public health care system, indeterminate policy vacuum to address the health rights violations of citizens and the like, have parallelly grown with the idea of allowing public social good of health care to be accepted as a private market good. Seeds of such global thinking can be traced into the ideas of investing in health (World Bank 1993). The rise of bourgeoisie-capitalists in India, using health care as a profitable business venture and the support they received from the political class illustrates the nexus of non-state actors, the political class and the elite medical profession (Baru 1998; 2005). The rise of private health service providers and the expansion of their jurisdiction both in the open market and their infiltration into the public health care in the guise of

1.2 Framing Health Justice

15

private-public partnerships, has added further dimensions to the violations of SRHC of citizens (Oxfam 2009; Qadeer and Council for Social Development 2015). In addition to these systemic considerations, the constitutional architecture determining the policy framework for the domains of public health and health care in India is beset with challenges and dilemmas with significant implications to health justice. These include primarily the constitutional status of public health, the federal nature of constitutional governance in health and the fragmented nature of the domains of health care policy in India. The constitutional mandate to health and public health care is not very definitive and is diffused across a few articles in Directive Principles of State Policy under Chapter IV of the Constitution of India.10 Though SCI has laid down a progressive jurisprudence on the right to health care, the policy framework operates within the overarching principle of non-justiciability and the justification of ‘progressive realisation’. The seventh schedule of the Constitution of India demarcates subjects of governance and the respective jurisdictions of power between the union and state governments over their governance including the power of enacting laws in these subjects. Regardless of the jurisdictions of subjects and the delineated authority over them, the attention and priority given to these subjects, both by the centre and the states, reflect the dynamics of centre-state power relations including the inherent tensions. The subjects of public health and sanitation, hospitals, and dispensaries (viz. health care system) and water are located in the state list thus making it a state subject. Several significant health-related subjects such as medical education, medical and legal professions, mental health, population control and family planning are placed in the concurrent list (Government of India 2015). While the states are expected to allocate resources for the subjects in the state list, i.e. primarily the health care health system, the central government allocates financial resources to those in the concurrent list, and therefore has greater control over them. The central government is the dominant partner in the federal governance relationship and has more control over issues that intersect closely with health care domains. Besides this, the central government has sole control over subjects such as trade and commerce, drugs and medicines, patents etc. that are enlisted in the union list which have an overarching influence on all health care matters. All the programmes are implemented through the state machinery, the success of all health care programs including those in the concurrent list is contingent upon the political will in the states. Therefore, in a federal governance arrangement, it is not very infrequent that health care becomes the arena for states to reciprocate through the demonstration of their power. In such situations where the tensions between centrestate relations cause inadequate execution of health care programmes resulting in gross violations of citizens’ right to health care, the accountability for such violations, however, is often lost in the rhetoric of centre-state blame-game. Dispersion of the critical domains of public health into various administrative jurisdictions such as ministries and further into autonomous departments without any

10 Vide,

Chap. 2.

16

1 Introduction

convergence or coordination, adds a further dimension to the aforementioned challenges. The domain of drugs and medicines, for example, is located in the Ministry of Chemicals and Fertilisers in the Union of India which is totally delinked from public health care policies and programmes. While medical education is governed by the Ministry of Human Resource Development, health services are governed by the Ministry of Health and Family Welfare without any intersectoral convergence. Plurality of systems of medicine and an asymmetrical mix of private-public health care services which operate without effective regulatory and accountability mechanisms add further complexity to the issue of health care governance. The officially recognized six Indian Systems of Medicine11 have not been adequately integrated into the mainstream public health care system. The dominant allopathic health care itself is inadequately resourced. The latter enjoys a greater share and influence on critical areas of health care such as medical education, provisioning and financing of health care, production of medicines and is devoid of any effective regulatory oversight. Hence, the presence of multiple actors, domains and systems of medicine in public health without coordination and integration, and regulatory and redressal mechanisms in the policymaking and functioning of health care services has consequences for the health rights of citizens, especially the marginalised communities (Baru 2001, 2010). Cumulatively, these factors have serious implications for health justice. They raise a few questions relating to citizen’s SRHC and health justice, and redressal in particular. Who is responsible to layout the redressal mechanisms and appoint authorities? Which authority is responsible to pay the compensation ordered as damages, for example? What is the delineated accountability for violations in health services and systemic failures delivered under the aegis of separate (state and centre) governance and control? Who will govern the private health care institutions that operate as commercial organisations? The evolution of public health in India resounds with legislations, enacted both by the centre and states. Even as many new health legislations are being enacted, most of those from the colonial era continue to exist, showing their prowess when invoked, such as the Epidemic Diseases Act 1897 invoked during the COVID19 lockdown in India in 2020. Amidst the plethora of laws that exist, there are hardly any safeguarding citizens’ rights in health care matters, thus invariably driving them to courts concerning several matters related to their health care. The structural and systemic violations that affect the vulnerable en masse, and the likelihood of the miscarriage of justice due to the absence of a composite legal framework, and consequently citizens perceiving the higher judiciary to be the only and final resort for justice, is an issue of grave disquiet to me as a public health lawyer-activist, and hence a subject matter of research. In conceptualising health justice, the focus of the book is not limited only to the analysis of the issue but extends also to seek constitutional and architectural corrections as enduring policy

11 Allopathy,

medicine).

Ayurveda, Unani, Homeopathy, Siddha, Yoga and Sawaripa (Tibetan system of

1.2 Framing Health Justice

17

Fig. 1.1 Concept of health justice. Source Author

solutions, to be able to ‘do justice’. Ultimately, the imperative of justice demands that ‘not only must justice be done; it must also be seen to be done’.12 Considering the institutional and systemic factors, and the perspectives outlined in the discussions above, we now postulate a broad definition of health justice. It entails a set of properties that intersect three systems — State, justice system and health care system—and provide a broad canvas to the systemic understanding of health justice (Fig. 1.1). Sets of attributes that are drawn from each system contributing to the definition of health justice are the following: Health care system: • A claim for a robust public health care system that provides accessible and affordable comprehensive health care of quality • Institutional/systemic rules which restore the equilibrium of power between citizens seeking13 health care/patients and health care system/health professionals 12 Lord

Hewart CJ, Lush and Sankey JJ in R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233). 13 In this book, ‘citizen/s seeking health care is/are used to include patient/s. Not everyone who seeks health care is a patient. A major portion of public health programmes is preventive immunisation, health education, ante-natal care, reproductive care which is meant for the healthy population. By citizens it is meant for all people who live within the political jurisdiction of India. It is used synonymously with people.

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1 Introduction

Justice system: • Redressal of grievances and remedies for grievances to compensate for the indignity and injuries suffered (Restorative justice) • Reinforcement of the rules of fairness and equity to meet the ends of social justice (Distributive justice) • Plugging systemic gaps giving rise to violations in the health care system (Restorative and distributive justice) • The SRHC is reinforced to strengthen social citizenship through health care jurisprudence (Restorative and distributive justice) State: • Constitutional framework of upholding right to life with dignity is incorporated and made operational in the institutions of the State • Consolidation of social citizenship through expanded/deepened SRHC • Balance of power between the State and civil society (citizens) is augmented Drawing from these analytical perspectives, in this book we define health justice as, Reordering the relationship of citizens seeking health care vis-a-vis the State, health care system (including medical profession) and justice system (including legal profession), aimed at realising substantive equality and dignity for all citizens, and the social right to health care, through institutional and systemic mechanisms protected through the Constitutional framework.

1.2.6 Civil Society and Jurisprudence Often in political and legal discourses, civil society is only mentioned as a footnote. Legal discourses, in general, see jurisprudence as the outcome of courts and legal doctrines often are seen within the confines of judicial institutions. In this book, however, we locate civil society as a key actor in health justice (and SRHC and health care jurisprudence). As the protagonist of health justice, civil society is the prime mover of courts on behalf of the vulnerable citizens and plays a significant role in navigating through the complex relationship between the State, health and legal professions and health care system, in matters of health care violations. The reform of the higher judiciary which is a great milestone in moving towards the SRHC was a response to several social movements of the 1970s and 1980s. There are several hypotheses on why the judiciary was compelled to bring about court reforms (Shankar 2009). However, as will be discussed later (Chaps. 2 and 3), social movements for civil liberties (prisoners’ rights), women’s movements, workers’ rights (trade unions), and environmental movements primarily facilitated the legal and constitutional dimensions of health care discourse through the medium of courts (i.e. the SCI, and various HCs). They used the reformatory spaces within the institution of the higher courts and used

1.2 Framing Health Justice

19

the fundamental rights jurisprudence to debate on the constitutional dimension in the medico-legal issues. Civil society leaders, however, are deeply aware of the vagaries of courts and hence are cautious. Litigations are perceived by members of civil society as one of the pathways of seeking health justice and not a replacement for democratic politics. From the civil society perspective, we consider courts as a part of the democratic politics that citizens engage with to challenge the power of the State. Courts and judicial spaces play the role of balancing power between various institutions in a democratic governance. A citizen seeking health care/patient is vulnerable, defenceless, and unprotected, and hence experiences an acute power asymmetry vis-à-vis the medical profession and health system. In the State and citizenship relationship that is characterised by power asymmetry, what is more significant besides the nominal role of negotiating or balancing power, is the act of tilting the balance of power in favour of citizens. This book foregrounds that accessing courts by citizens to seek justice is also an act of challenging the inherent power asymmetries and and therefore, an act of claiming citizenship. As many petitioners who themselves were victims of medical negligence expressed through the process of interviews, the interest in battling through the courts was not for personal gain at all, knowing very well that they may not have any positive judicial outcome as in the case of P. C. Singhi (Vide. Sect. 5.1, Case 2). However, they bear a common ethos of challenging injustice and hegemonies and engaging with courts as part of their citizenship. For many, it is a negotiating table where they can force the mighty State to hear them out. The encounter between civil society and the political entity of State through SRHC is a prospective area for in-depth inquiry in India. I conceptualise such an interface of civil society and courts as part of the struggle for social justice in health care (referred to as health justice in this book) and as a measure calling for the accountability of the State to its citizens. SRHC or right to health care—as they are popularly known—litigations referred to in this research include all those petitions/litigations which refer to any/some or all aspects of health care. In some cases, such juridico-legal spaces include other judicial or quasi-judicial forums such as consumer redressal forum, medical councils, statutory commissions such as women’s commission, national and state human rights commissions. Wherever relevant, the terms courts and judiciary are juxtaposed to distinguish legal institutions from the judiciary that forms the part of the legal profession. In the place of the popular usage right to health care (RtHC), SRHC is used to distinguish the overarching social rights domain that includes health and health care vis-a-vis the civil and political rights. When unavoidable, RtHC is interchangeably used with SRHC.

20

1 Introduction

1.3 Research Strategy and Approach The legal and academic research on social rights has considered the theme of social rights as a single terrain, often juxtaposing health with other social rights such as education, food and nutrition, shelter etc. (Coomans and Universiteit Maastricht 2006; Langford 2008; Gauri and Brinks 2008; Parmer and Wahi 2011). In this book, I delineate health care from other domains of social rights, though at times there is an inevitable overlap. Health care as a social right is significantly different from education, for example, though both are social rights. Compared to education, health care is an array of complex services and entitlements that include preventive, promotive, curative, and rehabilitative dimensions of health care. Professionals in health care have a wide range of knowledge and skill expertise and the medical profession occupies a powerful and unique position among them. The health care system, referred to in different terms such as health services system or public health care system or simply as health system, is a complex hierarchy of institutions—each level quite distinguished from others in terms of diseases and specialties, yet having some commonality—that deliver varied services through the myriads of medical knowledge and expertise. This makes the application of jurisprudence in health care distinctly challenging from other social rights. Notably, some other social rights such as food and nutrition, sanitation, shelter, water are distinct domains of services, and yet are very intricately linked to health care as its social determinants. This book foregrounds the domain of health care as the subject of exploration and a window to view its relationship to other social rights. Often literature uses the concepts of public health, health, and health care interchangeably while discussing social rights. However, there are notable conceptual and operational differences between these. Health care refers to the medical and other allied health care services received from the health care professionals or through the health care system (both private and public) for preventive, promotive, curative, and rehabilitative aspects of health care. Public health is an evolved academic discipline which focuses on population health, policies, research, and strategies to improve the health of the public. Health is an overarching concept defined as ‘the state of well-being’ ranging from subjective psycho-somatic state of an individual to those that include services, policies and wide-ranging intersecting sectors such as water, food, nutrition, hygiene and shelter, termed as ‘social determinants of health’ (CSDHWHO 2008; WHO 1948). Such a broad and undefined understanding of health and health care, however, poses challenges for policy research and analysis, especially in policy contexts such as India, wherein the components integral to health care themselves are operationally dispersed across several uncoordinated administrative units such as ministries and departments of government.14 14 For instance, in the central government the issues of drugs and vaccines, reproductive health and nutrition, access to health care, management of primary health care institutions, and management of tertiary care hospitals come under jurisdictions of the ministry of chemicals and fertilizers, ministry of women and child development, MoHFW, ministry of rural development, ministry of human resource development (which includes medical education, at the state levels ministry for medical

1.3 Research Strategy and Approach

21

The principle of intersectoral coordination was enunciated in the Alma Ata Declaration in 1978 as a pathway for synergizing and integrating health care for optimal function (World Health Organisation and UNICEF 1978). In addition, even as health is interchangeably used to mean health care or public health, the contemporary research on social rights does not distinguish between the boundaries of public health care and the private health care and the policies governing them. By health care, this research refers to the policies and services that are applicable to the public health care system or the regulatory policies that are applicable to health care providers and institutions. They are qualified while referring to ‘private’ or ‘commerical’ health care services and policies. Legal research on social rights generally treats the domain of health care as one homogenous entity. It pays less attention to the fact that health care is a bundle of varied services, provided through diverse systems of medicine and specialised institutions. This book acknowledges the diversity in health care by considering it as a composite of various subdomains of health care that include plurality of knowledge systems, disciplines, specialties, and cultural practices. This perspective has enabled this research to organise the orders and litigations in various subdomains of health care, and to undertake a subdomain level thematic and content level of various caselaws. In addition, it has facilitated in determining the scope and feasibility of this research by focusing only on litigations and case-laws primarily concerning the predominant allopathic health care system in India and its allied institutions and domains such as drugs and medicines. In jurisprudence, case-law is considered as one of the key sources of law. Hence, in legal research including that on social rights, case-law and the orders of the apex or constitutional courts occupy an authoritative place in analysis. During the process of preliminary analysis and the interconnected nature of social rights issues including that of health care, I realized the limitations of over-dependence on case-law alone. First, litigations are filed in different periods of time and there is a turnover of several benches that adjudicate them. Secondly, in every litigation there is a high degree of unpredictability as case-law is considered a judge-made or judge-led law. The interpretation of legal principles is the sole discretion of judges and hence displays the power vested in them. Several landmark cases show that in different points of time, the judiciary adjudicates the same facts and interprets the law differently, leading to altogether divergent or contradictory outcomes. Thirdly, there is a prevailing uncertainty in any case-law as the scope of interpretation is open until the largest bench in the highest court arrives at the finality of interpretation. Therefore, merely looking at the operational order as a litigation outcome limits the understanding of jurisprudence. From the trial courts to the series of appellate courts the application and interpretations of law differ significantly within the same petition as there are orders which overrule and in some cases that dissent with the majority order. The latter are referred to as dissenting order or minority order. An illustration of this can be found in Justice M. Rama Jois, who in his book, Services Under the State, describes how the Calcutta education), respectively. These five are essential but not the only ministries which lack necessary intersectoral coordination.

22

1 Introduction

and Delhi HCs came to contrasting conclusions on women’s reservation in certain posts under clause 4 of article 16 of the Indian Constitution (Johri 1989). It needs to be noted that in Indian courts the division bench order means the order of the lead judge in the bench, which is often projected as a concurrent judgement of two judges. In rare cases there are dissenting judgments, if at all given by the co-judge. However, in the hierarchical order and power that is exercised by the lead-bench, the dissenting order is not considered for the operational order, though it still forms an integral part of the jurisprudence of the courts.15 Similar is the case with the larger benches. Some of the most celebrated case-laws in the contemporary history of India also illustrate such phenomena. Naz Foundation v. Union of India questioned the constitutionality of Indian Penal Code 377 which discriminated against homosexuals as it was hampering the preventive work on HIV/AIDS with men having sex with men and male inmates in prisons. The Delhi HC in 2009 ruled IPC 377 as unconstitutional. On a special leave petition challenging this order, the SCI division judge bench in 2013 reversed this decision. Several review petitions against this were rejected by the court, thereafter. A curative petition filed in 2016 finally referred it to a five-judge constitution bench which in 2018 declared the sections of IPC 377 criminalising sexual conduct of consenting adults of the same sex as unconstitutional.16 To overcome this difficulty, this research goes beyond the mere operational orders of the SC or HCs to analyse the underlying legal principles and legal (judicial) reasoning on which the judgment is based. Known as ratio decidendi or the legal or judicial reasoning employed to arrive at a certain interpretation of the law, is the key to understanding jurisprudence. Regardless of the intervals of time between case-laws, ratio decidendi forms the continued common thread between different case-laws in the same subject matter. However, due to the personalised character of interpretation by judges who formulate the case-law, the potential for contradictions or divergent interpretations among case-laws referring to the same subject matter is significantly high. To overcome such a difficulty and to cull out a meaningful and cohesive body of principles to reflect a broad jurisprudence, it was important to go beyond focusing on any single case-law, however significant it might have been. The concept of ‘case congregation’ provided the methodological pathway for such an 15 Justice (Hans Raj) Khanna was a judge of the SCI during the emergency period (1971–1977). Two of his judgements form the basis of modern constitutional law, in the Habeas Corpus case during the Indian Emergency. Four other judges agreed with the government view that even fundamental rights like the right to life stood abrogated during emergency. Justice Khanna’s dissenting opinion, claiming that the Constitution did not permit the right to life and liberty to be subject to an executive decree, is widely regarded as a landmark in Indian democracy. Similarly, Justice K. Ramaswamy also delivered dissenting judgments in healthcare-related litigations. 16 Curative Petition: The concept of curative petition was evolved by SCI to consider if the petitioner is entitled to relief when the review petition is dismissed. In Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) [WP (civil) 509 of 1997; WP (civil) 108 of 1999] laid down requirements for a curative petition. The intention is to prevent the miscarriage of justice Vide: Naz Foundation v. Govt of NCT of Delhi 160 Delhi Law Times 277 (2009); Suresh Kumar Koushal and another v NAZ Foundation and others Civil Appeal No. 10972 OF 2013; Justice K. S. Puttaswamy Retd.) and Anr. vs Union Of India And Ors WP (CIVIL) No. 494 OF 2012; Navtej Singh Johar and Others v. Union of India W. P. (Crl.) No. 76 of 2016.

1.3 Research Strategy and Approach

23

exercise and to focus on a cluster of case-laws falling under a thematic domain or subdomain of health care. Galanter (1990) proposes the notion of ‘case congregation’ as one of the ways of analysing cases having similar features. Congregation is explained as ‘a group of cases that are seen as a defined set that share common features, that are shaped by a common history, that are subject to shared contingencies, and that lean into a common future’ (Galanter 1990: 373). The author also explains that the criteria of common fate and shared future as a loose and general coinage which can be applied to a large number of cases and further explains that ‘these congregations are cultural categories, part of the culture of the regulars, created by an act of labelling, that in turn intensifies interaction and mutual influence’ (Ibid.). The author argues that each of the congregation of cases has its own career. Though the number of litigations might vary at different intervals, the movement can be deciphered better within a congregation and that the ‘examination of these case congregations and their careers will reveal something about the internal dynamics of litigation as an institution and will assist us in constructing a more refined picture of the relation between litigation and society’ (Ibid.). This book is based on the primary interdisciplinary doctoral research work of the author. The qualitative research design in this research used document analysis and in-depth interviews as key methods. The document analysis method entailed a twostep process in this research, viz. shortlisting case-laws, and undertaking thematic and content analysis. Through keyword search in open source legal data bases—primarily indiankanoon.com and SCI’s own legal data base, reviewing the literature on legal and human rights, and case-referencing, a set of 401 case-laws that included ongoing petitions, were finalised for analysis. Having health care as the primary subject matter, among others, was applied as the inclusion and exclusion criteria for shortlisting these case-laws and petitions. Synthesising the salient features of jurisprudence in relation to SRHC was carried out using the thematic and content analysis methods. This included employing the concept of ‘case congregation’ to identify several thematic domains which then were finalised into 14 primary thematic domains. The same process was followed to identify subdomains within some of these primary domains. Within each domain and subdomain, the orders were then organised using the lens of power and the relative hierarchy in the judicial system, viz. as clusters of SCI, HCs, and others (Vide: Chap. 3). A chronological rendering of judgments/orders was then done within each cluster and subdomain for eliciting historical perspectives. While this provided a standardisation in their categorisation, during the content analysis which was subsequently carried out, however, the author had to meticulously refer to the historical contexts and the time-period of their origins as petitions/litigations. The insights and perspectives from the 47 in-depth and expert interviews, selected purposively using a snowballing method, provided rich insights while triangulating with the analysis of judgments. This resulted in cohorts of three judges, four lawyers,

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1 Introduction

22 public health/health rights experts and 18 petitioners/litigants. This book is stupendously enriched by the historical and critical perspectives of researchers, academicians, leaders, and activists from the domains of public health rights, community health, social medicine, women’s rights, and medical ethics. The doctoral research process aimed to study the socio-political contexts and determinants of the evolution of health care jurisprudence in India in the postindependence period. The research and its methodology that forms the basis of this book went through a two-level academic scrutiny apart from several peer reviews in parts. It was first reviewed and approved by the Committee for Advanced Studies and Research of the School of Social Sciences (Jawaharlal Nehru University, Delhi) and subsequently, through a separate process, it was scrutinised and approved by the Institutional Ethics Review Board of JNU. Based on the research, this book has been reshaped to understand the processes of health justice in India. The book examines contexts, actors and mechanisms that shape health care jurisprudence. Employing the prism of power coupled with institutional and systems perspectives, it analyses the potential of and limits to the transformability of such health care jurisprudence into health justice in the Indian context (as defined in this book, vide. Sect. 1.2). The concept of health justice is discussed in relation to health care jurisprudence and social citizenship.

1.4 Outline of the Book The introductory chapter lays out the context of the book, defines the concept of health justice, spells out the research questions and describes the research strategy. Chapter 2 discusses the interrelationship between citizenship, health justice and health care jurisprudence. The socio-political processes that shaped the access to justice as a fundamental right making it an integral part of the ‘right to life’ (personhood) jurisprudence paved the path to reconceptualise the SRHC not merely as access to services, but also as a matter of social justice and fundamental right to life, a process of claiming citizenship in the pursuit of health justice. In India, courts have been accessed either as a last resort of justice or as a ‘strategic instrument’ to claim citizens’ power vis-à-vis the State or medical profession. Health care jurisprudence, i.e. the body of judicial-legal principles emerging from the judgments of SCI in health care litigations, attains significance due to the power it enjoys as the domestic law or policy, in accordance with the common-law tradition. Engaging judicial power in health and health care, and the emerging health care jurisprudence symbolises the role and power of the courts in actualising citizenship especially in the matters of social rights. Chapter 3 provides a synthesis of the health care jurisprudence that has been laid down through litigations in various intersecting domains of health care in the postindependence period. The foundations of health care jurisprudence are laid in litigations on environmental justice, workers’ rights, civil liberties, and tort jurisprudence in India. Applying the foundational principles, the health care jurisprudence further

1.4 Outline of the Book

25

evolved through subsequent litigations in key health care domains—viz. emergency medical care; drugs and medicines; reproductive and maternal health care; health care of children; mental health care and rights of persons with psychosocial disabilities; rights of persons living with HIV/AIDS; health care entitlements and elite government employees; patient rights and medical profession (medical negligence); and, litigations on the issues of public health and health care health services. Both the foundational jurisprudential principles as well as the health care jurisprudence crystallised through ten subdomains of health care, unpack the gains, and challenges such processes entailed over four decades. Chapter 4 examines the scope of translation of health care jurisprudence into health justice from the procedural and substantive dimensions of legal rights and entitlements. The analysis of the procedural mechanisms for health care litigations and outcomes are guided by the lens of procedural justice and substantive justice, respectively. The former refers to the institutional spaces and navigations in the juridico-legal institutions and the latter to the restoration of equality and dignity of citizenship. The empirical inputs from the petitions, lawyers and judges, and the prolonged and arduous experiences of litigants provide the key insights shaping this chapter. It briefly reviews the contemporary juridico-legal mechanisms through which ‘right to health/health care’ is intended to be achieved for the marginalized citizens and the inherent challenges. Chapter 5 presents an analytical power discourse on the broad contours of the actors and processes of health justice. Health justice here is posited as a social right that requires systems, mechanisms and procedural rules for accessing comprehensive health care for citizens, impacting a balance of power in the triadic relationship between civil society, the medical and legal professions and the State, seen through the institutional/organisational perspectives. Interdisciplinary social science perspectives vis-a-vis the disciplines of law, public health, sociology and political science, and the related concepts of power, class, and citizenship, unpack the complex layers of the circulation and exchange of power in these triadic relationships. Employing these perspectives and concepts, this chapter interrogates (i) whether health care jurisprudence mediated through courts, translates itself into health justice, both in its restorative and distributive dimensions; (ii) whether a successful litigation will ensure the realisation of health justice for the aggrieved and vulnerable citizens, and if so under what conditions, and (iii) the inherent limits to such a process due to the mutually thwarting and subverting institutional exchange of power that characterise institutions. The discussion on dialectics of health care jurisprudence ties up the discussions in the context of citizenship, State accountability and civil society demand for declaring health care as a fundamental right as part of the democratic discourse and the requirement of the balance of power in the triadic relationship, in favour of citizens. Through the institutional perspectives, the conclusion lays out proposals for architectural reimagination and required systemic corrections in favour of citizens, in the intersecting domains of health care system, juridico-legal systems, and medical

26

1 Introduction

profession. The architectural corrections proposed for the reform of health care governance include, inter alia, redrawing the constitutional framework for health governance, promulgation of a composite legal framework, constituting a medical regulatory and enforcement authority, instituting a specialized judicial body/institution for health care jurisprudence, and initiating radical reforms including an overhaul in medical professional governance. This book argues for interdisciplinary approaches and frameworks to further expound the complexities and layers of exchange of power inherent in the evolution of health care jurisprudence. This holds profound significance for furthering and bolstering social citizenship and actualising health justice.

1.5 Final Thoughts and Caveats In the discourses on health and health care, several concepts such as public health, public health care, health and health care, health services, medical care, etc. are used to indicate the scope of ‘health as a public good’. Quite often they are used in literature with interchangeable, interrelated, overlapping and inclusive meaning which leads to conflation and ambiguity. The lack of a consistent constitutional expression or definition of SRHC that can serve as a bench mark as done in some modern constitutions such as South Africa17 pose a significant challenge (South Africa et al. 2011). The constitutionally undefined health care implies that several issues of health policy, budgets, adequacy of health programmes, the obligations of the health care system (including the private health care system), are left without any constitutional direction. The constitutional architecture with scattered references to health and health care as articulated in Article 3718 further complicates the issue of health justice. Similarly, another confounding factor of all prevailing confusions is the frequently inconsistent, loose and interchangeable usage of the terms ‘health, public health, medical care and health care’ by public health and non-public health persons including legal scholars, litigating advocates and judges, to mean, medical care though they represent distinct connotations and with some overlapping, particular subsets of services.19 To avoid this ambiguity and confusion, this research focuses primarily on ‘health care’ of which medical care constitutes a significant part, and is interchangeably used with the concept ‘public health care’, made available to citizens either through the State-run health services systems or through the private health care broadly coming under the agency of the 17 In South Africa’s constitution, for example, Section 27 on Health care, food, water and social security states (1) Everyone has the right to have access to (a) health care services, including reproductive health care (Constitution of South Africa 1996). 18 Constitution of India, Article 37 states: ‘The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’. 19 This confusion continues in various social rights and legal writings, judgments referring to public health, health, and health care, including the judgments of various courts.

1.5 Final Thoughts and Caveats

27

State both for provisioning and/or regulation. Within the framework of human rights, locating health care in the domain of social-economic-cultural rights, SRHC is used to denote citizen’s claim to these health care services. The system that delivers such health care services is interchangeably referred to as the health care, public health care or health services system. The study is focused on the subject matters relating to the allopathic health services and medical care within the health services system coming primarily under the jurisdiction of the ministry of health and family welfare (MoHFW) at the union level and in matters where MoHFW is one of the key stakeholders as a respondent in the litigation or as an implementer of the orders such as in matters of drug pricing. As part of the doctoral research methodology, the study deliberately did not consider several other organised health care systems. Those included the central government health scheme (CGHS), employees state insurance (ESI) covering the workers in the organised sector, health services under the jurisdiction of railways, tea and coffee boards, hospitals run by the beedi welfare board located under by the ministry of labour, armed forces run health services and those under the port of authority of India. The book takes into account critical observations on medical education and pharmaceutical sector and makes select references to the Indian Systems of Medicine and Homeopathy (ISM&H) which includes Ayurveda, Yoga, Unani, Siddha and Homeopathy (AYUSH) and Tibetan Medicine (Sowa-Rigpa). Nonetheless, several case-laws do find references to these domains either as one of the respondents or in the orders prescribing relevant directives. However autonomous these varied entities are, as was observed through the analysis of the orders, such an overlap seems inevitable in a petition due to the interconnectedness of the subject of health care. For example, though the MoHFW is one of the key respondents in several petitions, the ministry of chemicals and pharmaceuticals which houses the National Pharma Pricing Authority (NPPA) is invariably called upon as a respondent too. Challenges faced during the study were enormous. A rapidly expanding privatecommercial sector and the legal and political interventions of the medical professional associations opposing any regulation dominated and deviated the discourse of public health law in India. Newer and emerging issues such as biomedical research (clinical trials, stem cell research), medical technology, patents, trade and the emergence of biotechnology and their interventions in health care services often cast a shadow on the policy discourses required on the systemic issues of health care. Unpredictability of the legal processes—time, direction of orders (progressive/regressive) and sometimes even the review and reversal of orders even at the level of supreme courts. Changing political contexts in India had policy implications as well as for the health services system (MoHFW).20 The legal and policy terrain too was dynamic and changing as can be seen in the select legislations proposed as draft Bills or passed 20 For example, during the course of research the decade long policy framework of National Rural Health Mission (NRHM) was changed to National Health Mission (NHM); the Planning Commission which provided policy and research support was disbanded and was replaced by NITI Ayog; New National Health Policy was adopted in 2017; Three legislations, concerning people living with HIV/AIDS, Disability and Mental illness—were enacted. Millennium Development Goals made way for new jargon—Sustainable Development Goals.

28

1 Introduction

in the parliament (Table 1.1). Each process of legislation enactment is marked with hope, uncertainty, debates, and contestations. To understand the interface of courts and health rights issues, this research tracked The Hindu, a national English daily newspaper from March 2014 to November 2015, to follow reporting on health rights policy matters and courts (legislations, litigations report etc.). Appendix 1 provides a snapshot of prominent issues that occupy popular discourse. Table 1.1 Prominent legislations relating to SRHC (proposed/passed) since 2010 (Union Government) Legislations

Legislative intent

Status (25 September 2020)

The National Commission for Allied and Healthcare Professions Bill, 2020

Providing for regulation and Pending maintenance of the standards of education and practice of allied health care professionals

The Assisted Reproductive Technology (Regulation) Bill, 2020

Bill seeks to provide for the regulation of Assisted Reproductive Technology services in the country

Pending

The National Medical Commission Act, 2019

Regulation of medical education and profession

Passed

Consumer Protection Act, 2019

Timely and effective settlement of disputes. (Drops ‘health care’ from the ambit of service in the newly enacted legislation Consumer Protection Act 2019 which came into force on 20 July 2020, replacing the Consumer Protection Act 1986)

Passed

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act 2017

Prevention and Control of HIV; Passed Protection of human rights of persons affected by HIV

The Healthcare Service Prohibition of violence against Personnel and Clinical doctors and other healthcare Establishments (Prohibition of professional violence and damage to property) Bill, 2019

Draft in public domain for comments. (In the context of COVID19, An Ordinance was passed on 24 April 2020 to protect health care professionals under the Epidemic Diseases Act 1897)

Draft of Charters of Patient Rights prepared by NHRC

To Recommend patient rights to MoHFW

In public domain

The Surrogacy (Regulation) Bill, 2019

Regulation of the practice and process of surrogacy

Pending (continued)

1.5 Final Thoughts and Caveats

29

Table 1.1 (continued) Legislations

Legislative intent

Status (25 September 2020)

Maternity Benefit (Amendment) Act, 2017

Regulation of employment of women in certain establishments for certain periods before and after childbirth and to provide for maternity and certain other benefits.

Passed

The Mental Healthcare Act, 2017

To protect rights of persons with mental illness

Passed

The Rights of Persons with Disabilities Act, 2016

Protection of Rights of persons Passed with disabilities in line with CRPD 2006

Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971

Gestational limit increased from 20 to 24 weeks; Legal access to abortion to certain category of women

Pending

National Food Security Act 2013

To secure food entitlements to citizens

Passed

The Clinical Establishments (Registration and Regulation) Act, 2010

To register and regulate clinical establishments

Passed

The National Commission for Indian System of Medicine Bill, 2019

Providing access to quality and Passed affordable medical education in order to have ensures availability of adequate and high-quality medical professionals (in Indian Systems of Medicine)

Dentist Amendment Bill 2019

Providing a dental system that Passed improves access to quality and affordable dental education in order to ensure availability of high-quality dental professionals

Drugs and Magic Remedies Act Amendment Bill 2020

Responding to concerns about In Public Domain for misleading advertisements and Comments the need for the law to keep pace with changes in technology (refers to advertisements) (continued)

30

1 Introduction

Table 1.1 (continued) Legislations

Legislative intent

The Occupational Safety, Health and Working Conditions Code, 2020

The Act amends law regulating Passed the occupational safety, health and working conditions of employees

Status (25 September 2020)

The Indian Medicine Central Council (Amendment) Bill 2020

The Act provides for the constitution of a Central Council which regulates the education and practice of the Indian Medicine system (includes Ayurveda, Yoga, Naturopathy)

Passed

The Epidemic Diseases (Amendment) Bill 2020

The Bill amends the Act to include protections for healthcare personnel and expands the powers of the central government to prevent the spread of such diseases

Passed

Source Author

Global research too has acknowledged that there is a lack of empirical work on the impact of social rights litigations generally and health rights litigations. Research reviews indicate that even within the available empirical work in this subject matter, the body of work that considers the processes of litigation are still less. It is also acknowledged that due to the want of counterfactuals and the lack of appropriate methodologies, assessing impact of litigations on society as a whole or related systems, is a daunting task (Yamin and Gloppen 2011). While there is an established legal scholarship on the subject of courts and health care laws, scholarship viewing legal literature from a social science and interdisciplinary perspective is just emerging. Besides, the field of research in this subject matter is dynamic, fluctuating, and unpredictable. It is marked by both rapidity as well as fluidity of interface between health care systems and judicial domains (action in anyone can spark ripples in the other). An exploratory research such as this has the challenge of continuously keeping pace with the contemporary developments in the field and to factor in their resonance of the rapidly developing field in the conceptual framing. Such a venture needs to explore innovations in research methodology to make the research relevant to contemporary developments. While having recourse to empirical narratives to triangulate with the doctrinal synthesis, the author also followed contemporary commentaries and narratives which formed an important resource for this research. They included online blogs, newspaper reporting and commentaries, critical opinion pieces, media stories on judges and lawyers, debates on health care etc. The biographies of judges who gave landmark judgments and those who pioneered reforms in courts became handy to understand the personalities and their world-views that ushered in such changes. Recourse to grey literature

1.5 Final Thoughts and Caveats

31

certainly filled the gaps of the formal literature and served as a very significant source of information. The research process has led to an understanding that a blind optimism coupled with an unfounded euphoria on the power of the courts to be a ‘pill for every ill’, or a nihilistic approach to courts as holding ‘hollow hope’, cannot be the sole perspectives to understand the judicial outcomes for health care (Rosenberg 1991). Orders or judgments, range from a single line statement to literally hundreds of pages, rendering themselves to varied interpretations (Solum 2010).21 Such a process cannot be deciphered only from juridico-legal perspectives and hence needs an interdisciplinary approach for a cogent and cohesive interpretation. Besides, such jurisprudence is not a product either of courts or legal profession alone. The role of the civil society is of paramount importance in shaping such a jurisprudence for furthering and bolstering social citizenship. The judicial space, therefore, is conceptualised in this research, not as an adversarial-adjudicatory space alone but also as a discursive and dialogic space for deliberating on and negotiating social citizenship (Gargarella and Gloppen 2011). Lastly, two contemporary phenomena that attracted global attention during the writing of this book (December 1999–June 2020), of which one that rocked the Indian nation and the other, the entire world, need a special mention. Though seemingly they are unrelated between themselves but are significantly linked to the subject matter of this book. The first is Indian government’s decision requiring all people living India to prove their citizenship, allegedly to wean out non-citizens. At the turn of 2020, the streets of India literally resonated with massive protests against the move of the government which seemed to unsettle the very foundational idea of citizenship and the values of the constitution of equality, fraternity, and social justice. People protested the Citizenship Amendment Act, National Population Register and the National Register of Citizens which together are said to discriminate against Muslim minorities. Citizen groups, lawyers, and academia readout aloud in public the Preamble of the Constitution of India which encapsulates the idea of citizenship that India has embraced, as a mark of protest against the government’s move. Even as the protests in India were reaching a crescendo, the unprecedented global COVID19 pandemic that took the world by surprise, led the government to invoke a century old Epidemic Diseases Act 1897 with amendments along with Disaster Management Act 2005 that vested the State with unprecedented powers to subjugate the entire nation into a lock down for over 80 days on account of public health. All the dissent and debates around citizenship fell silent, the citizen movement was completely curtailed, and health services were suspended in view of attending to the COVID19 emergency. While the well-placed citizens—the classes—stayed indoors to avoid physical contact and infection, this public health emergency proved fatal to the masses—millions of migrant labourers, informal workers, who were stranded 21 Legal

language has a significant role to play in jurisprudence. Construction and interpretation is part of legal theories, and legal language and its interpretation is a special subject of study within law. While some authors argue for the distinction, most of the legal theorists use it synonymously. However, it points to the importance of linguistic interpretation in legal language.

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without food and basic amenities on roads, women and other vulnerable people who were refused health care, and hundreds suffered police brutalities. The country stopped counting deaths other than that of COVID19 deaths. While vouching for constitutional morality of equality, the pandemic brought to surface the caste-classgender-identity based contradictions embedded in the multi-layered society, how the well intentioned measures of the ruling classes to contain the pandemic are not sensitive to and not inclusive of the needs of the marginalised populations. Beyond the overtures of a paternalistic and benevolent State, for them justice, dignity and citizenship are existential ant not merely notional concepts. COVID19 pandemic exposed the under-preparedness and the frailty of the public health systems all over the world to meet people’s health needs in such situation. In addition, it has absolutely reasserted that public health care is ‘public social good’, requiring leadership and political will of the nations, and that it cannot be a matter left to the private-commercial interests. During the pandemic times, the vulnerable masses experienced the ruthlessness and brutality of the social exclusion, apathy, caste-class and patriarchal systemic discrimination that form the undercurrents of the State and the dominant political class in normal times (Sinha 2020; Joseph 2020). For the already vulnerable citizens, the pandemic has reconfirmed, as the benevolence of the State is on shaky grounds and that nothing less than ‘health as justice’ matters to their lives. The classes too, who otherwise are the health consumers of privatecommercial health care institutions, looked up to the State and its leadership, not merely to contain the pandemic but also for the treatment. Several states that include Karnataka and Maharashtra had to confront belligerant private-commercial health care institutions and issued orders and advisories for setting aside a portion of their beds to the government for treating COVID19 infected patients. As economic, social, cultural, and political uncertainties continue to grip the world in the twenty-first century, and even as the COVID19 pandemic continues to expose the perpetual neglect and the consequent fragility of the public health care system, this book draws attention to establishing health as justice and to reaffirming social citizenship.

Appendix 1

33

Appendix 1 Media Coverage on Health Care and Courts [The Hindu National Daily, March 2014–November 2015] No.

Date

Theme

1

20/3/2014

24 private hospitals get show cause notices

2

23/3/2014

Serology test ban needs to be enforced

3 4 5 6 7 8 9 10

15/4/2014 18/4/2014 12-05-2014 16/5/2014 18/6/2014 18/6/2014 22/6/2014 22/6/2014

High Court upholds conviction of quack NHRC orders compensation for roadside birth SC plea to govt. on sex determination advertisements More doctors, nurses [are needed] for govt. hospitals HC orders 500 beds at mental hospital Declare AES an epidemic, Paswan tells state Govt. Health ministry may take up medical student's cause Patients suffer as GTB Hospital's only CT scan machine breaks down [Delhi]

11 12 13 14 15 16 17 18

22/6/2014 17/8/2014 19/9/2014 21/9/2014 23/9/2014 06-10-2014 13/10/2014 03-11-2014

19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

06-11-2014 13/11/2014 13/11/2014 15/11/2014 15/11/2014 15/11/2014 15/11/2014 26/11/2014 03-12-2014 11-12-2014 11-12-2014 19/12/2014 25/12/2014 25/12/2014 01-01-2015 01-01-2015 15/1/2015

Patient dies outside LNJP hospital [Delhi] Insurance company asked to pay Rs.1.11 lakh to complainant NHRC takes up HIV drug shortage Jharkhand Prisoner struggles to get treatment at AIIMS Provide treatment to undertrial [Delhi HC] Court acts suo moto on Beas tragedy Public health as political priority Only 2% of drug samples are 'not of standard quality', says regulator Quality health care with public funds SC refuses to take suo motu action India can do more to tackle pneumonia and diarrhoea Retired judge to probe sterilisation deaths [Chattisgarh] A unique blend of judicial virtues Sterilisation deaths in Tamilnadu highest in the country A reality check on intellectual property concern Treat Govt. doctor like professionals, not like govt. servant Regulating stem cell therapy Chinese couple on trial for selling India made drugs States lax in cracking down on doctor's strike: SC Pay Rs. 10 lakhs to Manorama's kin SC upholds Rs.60-lakh relief for amputee Govt. endorses SC guidelines on passive euthanasia Anaemic allocation leaves healthcare gasping for more Govt. cuts health budget target to 2.5% of GDP High Court to hear plea on regularising sale of acid

(continued)

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1 Introduction

(continued) 36 37 38 39 40 41 42 43 44 45

30/1/2015 02-02-2015 19/2/2015 20/2/2015 22/2/2015 23/2/2015 23/2/2015 24/2/2015 27/2/2015 16/3/2015

MCI warns Hindu Rao Hospital over lack of teaching facilities Sanitation in school [is a concern] 40% beds for EWS patients lie vacant Band-aid solutions for health problems private labs overcharging for swine flu tests issued notices Rajasthan HC: No recognitions for school without toilets The cost of Negligence Daily wager refused dialysis, moves HC Provide dialysis to daily wage worker, HC directs hospital HC pulls up govt. hospital over denial of admission of a poor boy

46 47

16/3/2015 22/3/2015

48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68

22/3/2015 22/3/2015 23/3/2015 24/3/2015 24/3/2015 28/3/2015 30/3/2015 18/4/2015 24/5/2015 05-06-2015 05-07-2015 05-07-2015 03-08-2015 04-08-2015 20/9/15 05-10-2015 02-11-2015 04-11-2015 14/11/2015 14/11/2015 17/11/2015

If we ask govt. to clean up, we are guilty of judicial overreach High court stays appointment of new members to medical council Every Pharmacist must abide by code of medical ethics: IMA Air pollution, malnutrition responsible for persistent TB Engaging the private sector in TB control Rolling out the 'End TB Strategy' In treatment, how women always bear the burnt India’s unrealised maternity entitlements The 'greatness' of a 'landmark' judgement Obamacare and vanishing facts Make Essential drugs available to all: HC Hospital official suspended Leprosy: antiquated Indian laws breed stigma, discrimination Pollution: particulate matter in India higher than WHO limit Create single window system for poor to get health benefit: HC Conflict between two rights MCI backs probe into ads by doctors in violation of ethics Use Aadhar to identify accident victims The long road to justice Victim must get full treatment: SC Doctor blames medicine for sterilisation deaths [Chattisgarh] Stop camp method, focus on male sterilisation: activists MCI pulled up failing in its social responsibility

Source Author

References

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Oxfam, International. (2009). Blind optimism : Challenging the myths about private health care in poor countries. Oxfam Briefing Paper 125. Oxford: Oxfam International. http://ideas.repec.org/ p/ess/wpaper/id1862.html. Accessed April 14, 2016. Parliament of India—Rajya Sabha, Department-related Parliamentary Standing Committee on Health and Family Welfare. (2016). Ninety-second report. The functioning of Medical Council of India. (Ministry of Health and Family Welfare, Presented to the Rajya Sabha on 8th March, 2016, Laid on the Table of Lok Sabha on 8th March, 2016)’. New Delhi: Rajya Sabha Secretariat. http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on% 20Health%20and%20Family%20Welfare/92.pdf. Accessed March 08, 2016. Parmer, S., & Wahi, N. (2011). India: Between promise and progress? In A. F. Yamin & S. Gloppen (Eds.), Litigating health rights: Can courts bring more justice to health? (pp. 155–189). Cambridge, MA: Harvard Law School. Pitfalls of Medical Progress. Cambridge [England]; New York: Cambridge University Press. Qadeer, I., and Council for Social Development (India) (Eds.) (2015). India: Social development report 2014: Challenges of public health, 1 st ed. New Delhi, India: Oxford University Press. Rai, S., & Kandhari, R. (2015). The business of disease. Tehelka, 7 March 2015. Rosenberg, G. N. (1991). The hollow hope: Can courts bring about social change?. Chicago: Chicago University Press. Ruger, J. P. (2004). Health and social justice. The Lancet, 364(9439), 1075–1080. Ruger, J. P. (2010). Health and social justice. Oxford/ New York: Oxford University Press. Scanlon, T. M. (1973). ‘Rawls’ theory of Justice’. University of Pennsylvania Law Review, 121 (5 (May)), 1020–69. Schramme, T. (2019). Theories of health justice: Just enough health. London ; New York: Rowman & Littlefield International. Segall, S. (2018). Health. In Olsaretti, S (Ed.), The Oxford handbook of distributive justice (pp. 461– 78). Oxford: Oxford University Press. Sen, A. (1981). Rights and agency. Philosophy & Public Affairs, 2, 3–39. Sen, A. (1999). Development as Freedom. New York: Knopf. Shankar, S. (2009). Scaling justice: India’s supreme court, anti-terror laws, and social rights. Oxford: Oxford University Press. Shields, L. (2016). Just enough: Sufficiency as a demand of justice. Edinburgh: Edinburgh University Press. Sinha, N. (2020). Perception, legality and politics of the migrant worker crisis in lockdown. The WIre. https://thewire.in/labour/migrant-worker-crisis-lockdown. June 10, 2020. Solum, L. B. (2010). The interpretation-construction distinction. Georgetown public law and legal theory research paper No. 11-95. Constitution Commentary, 27, 95–118. South Africa, Parliament (1994-), Constitutional Assembly, South Africa, and Juta Law (Firm). (2011). The Constitution of the Republic of South Africa, 1996: As Adopted on 8 May 1996 and Amended on 11 October 1996. Cape Town (PO Box 1191, Cape Town 8000): Constitutional Assembly. SubhaSri, B., Sarojini, N., & Khanna, R. (2012). An investigation of maternal deaths following public protests in a Tribal district of Madhya Pradesh, Central India. Reproductive Health Matters, 20(39), 11–20. United Nations Organisation. (1948). Universal declaration of human rights. Declaration. Geneva, Switzerland: United Nations. http://www.un.org/en/documents/udhr/. Accessed May 25, 2016. UNOHCHR. (1966). International Covenant on Economic, Social and Cultural Rights (ICESCR). General Assembly Resolution 2200A (XXI). http://www.ohchr.org/en/professionalinterest/ pages/cescr.aspx. Accessed February 08, 2016. UNOHCHR, CESCR - Committee on Economic, Social and Cultural Rights. (2000). General comment 14. United Nations. http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?Ope nDocument. Accessed June 25, 2016. UNOHCHR. (1990). CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant). Adopted at the Fifth Session of the Committee on Economic,

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Social and Cultural Rights, on 14 December 1990 (Contained in Document E/1991/23)’. UNOHCHR. http://www.refworld.org/docid/4538838e10.html. Accessed August 24, 2016. Veitch, S., Christodoulidis, E. A., & Farmer, L. (2012). Jurisprudence: Themes and concepts (2nd ed.). London: Routledge. Venkatapuram, S. (Ed.). (2011). Health justice: An argument from the capabilities approach. Cambridge, MA: Polity Press. Winthrop, D. (1978). Aristotle and theories of justice. The American Political Science Review, 72(4), 1201–1216. World Bank. (1993). World development report 1993 Investing in health (Vol. 1). Washington, D.C.: The World Bank. http://www.worldbank.icebox.ingenta.com/content/wb/2292. Accessed February 08, 2016. World Health Organisation. (1948). The constitution. World Health Organization. http://www.who. int/governance/eb/who_constitution_en.pdf Accessed May 25, 2016. World Health Organisation. (1999). Health21: The Health for All Policy Framework for the WHO European Region. European Health for All Series, No. 6. Copenhagen: World Health Organization, Regional Office for Europe. http://www.euro.who.int/en/what-wepublish/abstracts/hea lth21-the-health-for-all-policy-framework-for-the-who-european-region. Accessed March 24, 2015. World Health Organisation and UNICEF. (1978). Primary health care: Report of the international conference on primary health care. Alma-Ata USSR. 6–12 September, 1978. Geneva: WHO. Yamin, A. E., & Gloppen, S. (Eds). (2011). Litigating health rights: Can courts bring more justice to health. human rights practice series. Cambridge, MA: Human Rights Program, Harvard Law School : Harvard University Press.

Chapter 2

Citizenship, Health Care Jurisprudence and Pursuit of Health Justice

Abstract This chapter discusses the interrelationship between citizenship, health care jurisprudence and health justice. The socio-political processes that shaped the access to justice as a fundamental right making it an integral part of the ‘right to life’ (personhood) jurisprudence paved the path to reconceptualise the SRHC not merely as access to services, but also as a matter of social justice and fundamental right to life, a process of claiming citizenship in the pursuit of health justice. In India, courts have been accessed either as a last resort of justice or as a ‘strategic instrument’ to claim citizens’ power vis-à-vis the State or medical profession. Health care jurisprudence, i.e. the body of judicial-legal principles emerging from the judgments of Supreme Court of India (SCI) in health care litigations, attains significance due to the power it enjoys as the domestic law or policy, in accordance with the common-law tradition. Engaging judicial power in health and health care, and the emerging health care jurisprudence symbolises the role and power of the courts in actualising citizenship especially in the matters of social rights.

We thus find ourselves at a crossroads: health care can be considered a commodity to be sold, or it can be considered a basic social right. It cannot comfortably be considered both at the same time. This, I believe, is the great drama of medicine at the start of this century. And this is the choice before all people of faith and good will in these dangerous times. (Farmer 2003: 175)

The association between citizenship and health justice is neither direct nor straightforward. The discourses on citizenship often revolve around civil and political rights, reflecting one dimension of an individual’s relationship with the State. Social, economic, and cultural rights (referred to as social rights in this book for brevity) that include health and health care, manifest a much neglected but larger facet of citizens’ relationship with the State. Social rights in general, and each of its components, are constitutive of a bundle of rights and entitlements. Globally, policies and legislations concerning these domains of rights have been evolving gradually through arduous and cumbersome processes. The lack of uniformity and cohesiveness, both in their articulation as well as enforcement, makes social rights a challenging terrain for research. With multiple actors with competing power relationships, the path to the goal of health justice, too is uneven and bumpy. This chapter explores the different facets of the relationship between health justice and citizenship actualised through © Springer Nature Singapore Pte Ltd. 2021 E. P. Pinto, Health Justice in India, https://doi.org/10.1007/978-981-15-8143-4_2

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the social right to health care. Engaging judicial power for realising citizenship with the goal of achieving health justice lays out a significant framework for the discourse of social rights jurisprudence. Section one begins with discussing the reciprocity and the power relationship between the State and citizens. Power of the State is operationalised through laws including public health laws invoked strongly during epidemics and pandemics. Whereas citizens are asymmetrically placed vis-a-vis the State and claiming of citizen power, viz. realising citizenship, is articulated through the language of rights. This book primarily focuses on the social dimension of citizenship, referred to as social citizenship, within the framework of a citizenship theory that was propounded by Marshal and explores the association of this social citizenship gained through SRHC (Marshal and Bottomore 1992). Section two critically examines citizens’ inevitable interface with the medical and legal professions in the pursuit of SRHC. Professional power is at the core of these professions where a citizen is constantly in a relationship of dependency, either for treatment (medical profession) or for mediating social rights (legal profession). It is followed by a discussion in section three on the emergence of social rights jurisprudence, that is catalysed by the renewed focus on public health and law and ethical framework bolstering the concepts of rights. This section examines the assumptions underlying the realisation of SRHC. Social citizenship through SRHC is gained quite predominantly through engaging judicial power, and both the positive and negative elements that drive citizens to courts are discussed in section four. Section five outlines the trajectory of how the powerful and elitist judicial institution became amenable to citizens through historic reforms in the higher judiciary in India. The overarching global crisis on citizenship that is discussed in section six contextualises the challenges in actualising social citizenship and health justice.

2.1 State, Social Citizenship and Rights Citizenship, a concept which became part of the wide discourse in the west after the French revolution, along with the idea of civil society, have been central to the modern political thought. The concepts of ‘civil society’ and ‘citizenship’ have been often juxtaposed and sometimes used interchangeably to denote the relationship of the individual with the State. Though described in diverse ways, such as active, passive, political, and democratic, citizenship is essentially about the nature of social membership within modern political collectives. It is concerned with the content of social rights and obligations, the form or type of such obligations and rights, the social forces that produce such practices, and the various social arrangements whereby such benefits are distributed to different sections of society (Stewart 1995; Turner 1990, 2000). Political theorists agree that ‘citizenship has become an indispensable component of modern social theory as a perspective on social rights, welfare issue, political membership and social identity’ (Turner 2000: ix). As indispensably related to justice, rights, obligations and social contract, Marshal and Bottomore (1992) propound the idea of multidimensionality of citizenship. He

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defines citizenship in terms of its three constituent elements—civil, political, and social. The civil element is composed of the rights necessary for the individual freedom—liberty of the person, freedom of speech, thought and faith, the right to own property, and to conclude valid contracts, and the right to justice. The political element is the right to participate in the exercise of political power. The element of social citizenship includes a wide range of positive measures that range ‘from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society’ (Marshal and Bottomore 1992: 30). Referring to the State institutions, he also associates courts of justice with civil rights, parliament with political rights and educational system and all social services with social rights. Historically, in the gradual consolidation of the nation-state process, sovereignty came to rest in the State and not with the citizens. State, through the power of law, regulates social relations. Jurgen Habermas explains this phenomenon of legal regulation of social relations as ‘juridification’ (Veitch et al. 2012). According to Habermas, juridification is observed in the modern State in its tendency to increase enactments of formal (positive or written) laws, both in horizontal—new laws covering new areas—and vertical expansion—newer dimensions in the existing laws—of laws. The expansion of laws or juridification correspondingly goes hand in hand with the increase in litigations. Historically, such a continuous process has given rise to the emergence of courts as powerful constituents in the liberal democratic State. The power of courts takes a centre stage as citizen—State relationship gets defined through laws which encapsulate rights and duties. In his analysis of State and citizenship, Habermas locates juridification in the processes of reproduction of political systems of power and money on the one hand, and ‘lifeworld’ on the other. The latter designates all other dimensions of society including rights and liberties. Juridification, then, is a process by which system and lifeworld, and the relationships between them, are legally structured and regulated. This process facilitates the growth of the capitalist economy but also, and crucially, establishes and guarantees political and social liberty as the State seeks to legitimise its actions through the concessions of political rights and freedoms (Veitch et al. 2012: 257).

The political freedom of citizens that define citizenship are crystallised through the juridification process that can be viewed from the standpoint of power. For the State, these are concessions given by the State to seek legitimacy. For citizenry, it resulted in institutionalising class power (i.e. power of certain classes) in legal form and in turn restrain State power. The imprint of the latter on the historical trajectory of citizenship is well noted. From the pre- Magna Carta period itself and later during the French Revolution, as Tigar and Levy (2005) note, the movement for citizenry rights was led by the bourgeoisie who emphasised on individual liberties, and consequently civil and political rights movement got enormous latitude over social rights. Often, in the historical city-state-based citizenry movement led by bourgeois leadership, citizenship was largely established and maintained through military force and invariably excluded women, slaves, homosexuals and later subaltern people.

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In the eighteenth and nineteenth centuries, there were occasional glimpses of egalitarian thought, however, were not essentially linked to citizenship. The Poor Law enacted in England, for example, treated the claims of the poor (women, destitute and paupers who were not considered citizens), not as an integral part of the rights of the citizens. Divorce of social rights from the status of citizenship could be seen here as the claims could be met only if the claimants ceased to be citizens (Rosen 1958). Power and claims of citizenship established through political power, lie at the core of social rights. Social rights are integral to social citizenship, and cannot be granted only as concessions or as benevolence. Marshal argues, therefore, ‘the normal method of establishing social rights is by the exercise of political power, for social rights imply an absolute right to a certain standard of civilisation which is conditioned only on the discharge of the general duties of citizenship’ (Marshal and Bottomore 1992: 36). As the struggle for such an idea of citizenship continued, some aspects of its realisation were seen in the mid-twentieth century, in the aftermath of World War II. In the post-world war II period, the philosophical foundations of the relationships between human beings and State came to be defined through language of rights, primarily the human rights treatise. Backed by an international consensual, these attained the status of legal instruments under the international law. The political, civil, and social rights attaining the status of a commonly agreed international human rights law began a new chapter in the history of social rights. The discourse on rights identifies at least five different types of rights. One, personal rights that relate to life, liberty, security, property, conscience); two, legal rights that refer to the due process, equal protection under the law; three, political rights denoting participation, suffrage, assembly; four, social and economic rights that include, among others, standard of living, employment, health care, education, and nutrition); and five, collective rights that include rights of ethnic communities, self-determination, and minority rights (Pinto 2018; Mishra and Subbiah 2018; Gauri 2004). While referring to human rights or rights in general, they are understood in terms of negative and positive rights. Both these concepts relate to the role of the State in the realisation of these rights. In negative rights, the State is restricted from interfering into the personal liberties of individual human lives, whereas positive rights make it incumbent on the State to take proactive measures for their realisation that include policy, budgetary allocations, and implementation mechanisms. Social rights, including SRHC belong to the genre of positive rights (Pinto 2018). For the fulfilment of all rights, especially the social rights ‘require restraint, protection and aid from the entity from whom rights are claimed, and that a reasonably effective and well -funded State is a sine qua non for all rights’ Gauri (2004: 467). Health along with education have attracted significant attention in contemporary scholarship on social rights. These are considered as fundamental to realise humanhood and dignified existence (Pinto 2018). Notably, therefore, scholars have expounded on the indispensability of these rights to human existence linking them to concepts such as human agency, needs and capabilities, human dignity, and selfrespect. They are posited as fundamental and as absolutely necessary to the exercise

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of human agency. Rawls (1971, 1999, 2001) explains such basic requirements as ‘primary goods’, Shuhe (1996) as ‘basic needs’, and, Nussbaum (2000) and Sen (1980, 1982) as ‘capabilities’. Social rights to health and education are deemed to be essential to live with human dignity in the modern and contemporary society, without being excluded from others and to relate to fellow human beings. Relatedly, ill-health (disease) and ignorance (lack of education) are considered obstacles that deter human beings from exercising their agency to live a fully human life. Accordingly, the philosophical and ontological ground of ‘human dignity’ finds a vital resonance in justifying social rights, especially the right to health and education. Rawls (1971, 2001), for example, proposes ‘self-respect’ as one of the core primary goods, and health and education are construed as the social bases of such self- respect. Similarly, from the capabilities approach such fundamental self-respect is foregrounded as ‘the ability to appear in public without shame’ (Sen 1999). For the full realisation of citizenship, along with the civil and political rights around which a strong jurisprudence has already been established, social citizenship needs emphasis. Such a citizenship is realised through social rights that are construed to be pathways towards this goal of ultimately balancing citizens’ power vis-à-vis the State. However, in the matter of SRHC, the entities to be considered in such a balance of power of citizens, also extends to the medical and legal professions as well. Both these professions encapsulate the power the professions wield and a corresponding dependency that marks citizens’ relationship with them. Medical profession is the indispensable intermediary in the delivery of health care to citizens, and the legal profession, similarly is indispensable for the processes of seeking legal justice.

2.2 Medical Profession, Legal Profession and Power The concept of power is central to both medicine as well as law, though it is more obvious in the latter compared to health care and medicine. Medical profession and by extension health care providers and health systems, are fundamental to health care and realigning citizens’ relationship with them is essential to SRHC and health justice. Medicine (medical profession) and courts (legal profession) are advanced on the power of knowledge, viz. law and biomedicine, respectively. They share a common legacy in the exercise of power over their clients which is marked by dependency of the latter on the knowledge, skills, and professional expertise of the former. A few critical accounts narrate the close linkages between the power of medical knowledge exercised by a doctor and the magisterial powers that came to be historically vested in the medical profession owing to this expertise, suggesting the overlap between these two professions and their interface in the sphere of SRHC. The magisterial powers seamlessly linked the medical professionals to the enforcement agencies such as police and legal institutions.

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2.2.1 Doctor-Magistrate and Protection of Medical Hegemony Foucault captured the close association of the medical profession with judicial power through the concept of ‘doctor-magistrate’. His accounts provide a picture how the judicial power was so enmeshed with the political power in protecting the hegemony of the elite medical profession. The term ‘doctor-magistrate’ suggests an overwhelming social power that a doctor enjoys. Foucault notes that the doctor was deemed to be ‘the guardian of public morals and public health alike’ with the varied roles assigned such as a ‘technician of medicine’, ‘economic role in the distribution of help’, and ‘a moral, quasi-judicial role’ (Foucault 2010: 48–49). The gradual increase in their judicial power was aided by a widespread radical thought during the French revolution that in an ideal State there would be no hospitals, leading to the belief that the medical professionals would be playing a far greater role in the society, rather than in health care institutions. Gradually, however, as the hospitals became vested with increasing legal power, in turn, it led to the concentration of judicial power and authority in the medical profession. Much of the legal and quasi-legal activity of exercising judicial power by the medical profession primarily focussed on controlling the unqualified or medical malpractice, and such people involved in malpractices were termed as ‘charlatans’ or quacks. Saving the patients from the medical practice was considered important. This power of the profession defined the medical jurisprudence through the health courts that were being proposed. Law and jurisprudence, thus, for most part during this time, concerned themselves with restoring a medical profession defined by qualifications and protected by laws. In areas where there was no legislation, the doctors formed their own mechanisms of control over others who practice medicine without qualification. Medical teaching was thought to be another way to restore the integrity of the medical profession, and qualified doctors started their own teaching practice. This led to medical teaching becoming another important area to be regulated and reorganised. A jury composed of doctors and pharmacists was set up intended that ‘…doctors would once again be able to control their own recruitment; they would be reconstituted as a body capable of defining their own criteria of competence’ (Foucault 2010: 93). Solving the problem of practice of medicine was considered more important compared to the reform in medical teaching, and it was believed that unless the former was tackled, the latter would not be reformed. Thus, the idea of self-regulation became entrenched in the organisation of the medical profession itself, where they regulated and judged their own. Thus, we see a gradual transition in the medical profession’s power over the human body explained through the concept of ‘medical gaze’ from the individual body to the social body, i.e. society at large. Body and social body, accordingly, form the loci of continuum of power in medicine. Foucault subtly explains the medical professional’s transition from the patient’s bedside space to that of the judicial or quasi-judicial space, and from an individual space to that of social-political space in

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the late eighteenth and early nineteenth century France through medical professionals joining forces as a social organisation. For example, in the eighteenth century, the doctors organised themselves as ‘Society of Royal Medicine’ (Société Royale de Médecine). Foucault poignantly notes on this development as follows: [But], above all, its role was constantly being enlarged: as a control body of epidemics, it gradually became a point for the centralisation of knowledge, an authority for the registration and judgement of all medical activity (Ibid. 31).

As a corollary to the new acquired status as a social organisation, a realignment of medical professionals’ new role in relation to the State and police is thus observed. Foucault notes the subtle contours of the power that is ingrained in such a new role: [m]edical experience and the doctor’s supervision of social structures, the pathology of epidemics and that of the species are confronted by the same requirements: the definition of a political status for medicine and the constitution, at state level, of a medical consciousness whose constant task would be to provide information, supervision, and constraint, all of which ‘relate as much to the police as to the field of medicine proper (Ibid. 29).

The transition of medical gaze from the space of a body to the constitution of political status that marks the birth of the modern clinic (hospital), in addition, is characterised by the emergence of medical consciousness. It is signified by the ‘essential mutation of medical knowledge’ and mutation of discourse that takes shape through the system of reorganisations of the structure and grammar of the discourse between the patient and the doctor (Ibid. pp. xii–xxii). Hence, the new power that the medical profession gained through the medical consciousness in this transition is equally political. Foucault’s observation on the new power in society that the medical profession attained, resonates generally with their alignment with the State and ruling classes in Europe which allowed them to draw close linkages with courts. This was part of upholding the medical hegemony and their newly assumed judicial power as doctor-magistrates that further consolidated their power (Foucault 2010, 2014). Given its preoccupation with protecting medical hegemony by regulating the unskilled medical practitioners, it is not very clear if such a power was deployed for the betterment of patient care. The interest of the patient appears to only be a footnote to strengthening its argument against unqualified medical practice leading to the consolidation of power The medical profession being the exponent of different types of power predicates such a consolidation of power as a profession and perpetuation of medical hegemony. The power exercised to control the medical profession (Gilson and Raphaely 2008; Friedson 1970), doctor’s power of discourse over illness (Illich 1977), and employing ‘negative power’ of resistance against regulation along with a lack positive power of intellectual capital contributing to policy processes (Sheikh and Porter 2010), allude to perpetuating self-interest by the profession. While Foucauldian insights (Foucault 2010) reconstruct the phenomena of the eighteenth and nineteenth century Europe, the historical narratives of Star (1982) account for the interface of courts in the ascendency of the medical profession in its rise as an economic power in the twentieth century in the USA. Parallels to this can be seen in contemporary India too where the medical profession has grown to wield enormous economic and political power.

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The display of collective power through public protests by medical professionals against laws enacted to regulate hospitals or doctors, or organised demonstrations to summon the government to agree to their demand to enact laws protecting them, or engaging courts against parliamentary laws seeking to curb their powers or in instances of citizens challenging their power, echo the acts of advancing self-interest by the medical profession. Historically, along with social power it wields being an elitist profession, it has sustained its hegemony through its closeness to the royal power, aligning itself with the ruling classes and elite powers, as demonstrated by its complicity even in the horrific political programs such as Nazi led genocide in the twentieth century. In India, such advancing of self-interest, expansion of medical hegemony and legacy of aligning itself with the powerful and economic interests is reflected in the phenomena of medical profession that has nose-dived so deeply into commercial health care where the patient interest is only secondary to profiteering (Gadre and Shukla 2016). Health and medical care dispensed through the skills of medical professionals. The skills and competence of the medical professionals are at the heart of the vast sway that the private-commercial establishments have over patient care in India. Further, given the fact that the private-commercial health care is so entrenched in the public health care provisioning itself in recent years, the role of the medical profession becomes indispensable to the discourse on SRHC. Therefore, in building our argument for health justice and social citizenship through consolidating SRHC, claiming citizenship cannot be posited as a process in relation to the State alone. It also includes the non-State actors such as the medical profession and health care establishments. Denial of services to vulnerable citizens, lack of affordable health care of quality and violations of dignity and health rights are a challenge to the realisation of complete citizenship. In doing so, engaging the power of courts in reinforcing State accountability, and enforcing the rights through social rights jurisprudence assumes significance.

2.2.2 Legal Profession and Courts As discussed in the previous section (vide, Sect. 2.2.1), the medical profession shares close affinity with the legal profession as much as it enjoys legal-judicial power in several aspects of dispensing health care. Laws and courts are the instruments of the State in the exercise of its power. There were six categories of law through which power was wielded—viz. Roman Law (Law laid down by Roman Empire); Feudal law (rules which defined the relationship of homage, dominance, exploitation and protection of personal feudal ties between lords and vassals); Canon Law (Law codified by Catholic Church); Royal Law (Law of monarchs); Law Merchant (the international law of traders), and Natural Law (the bourgeoisie invoking divine sanction for using force and violence). These six categories of law reflect power and the competing interests that prevailed in the feudal lords or merchants in their struggle

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against the ruling monarchs to capture and control lands or expand and protect trade, as the case might be. Court became the symbol of power in this contestation, and judges and courts came to occupy the centre stage in such negotiations of bourgeoisie with the State. The colonies and other parts of the world modelled their legal institutions and jurisprudence on that of France and England, it is the legal legacy of these European countries that pervades the larger part of the world even today (Tigar and Levy 2005). In the modern nation-state, the judiciary enjoys the status as the arm of the political State and the legal profession has become indispensable mediators for and representative of citizens’ claims to rights in courts. They are fundamental to defining and redefining rights and those processes that re-configure citizenship vis-a-vis the State and other actors. In the context of this book, the other actors include the medical profession, health care establishments, allied health care professions and plethora of health care related services and institutions that deliver them.

2.3 Social Rights and Health Care Jurisprudence Health care as a social right which could be partially or fully enforceable invoking the judicial power or using the legal power for making the State accountable is a late 20th century development. Such a discourse has developed over the last two centuries in varying political climates through the interface of State and citizens seeking health care often through the instrumentality of law. SRHC has provided the politically sound stage for advancing social citizenship, and is founded on the key political-moral foundations that include welfare-state, health as a special public social good, citizenship and state accountability, and health as part of distributive justice and ethics. Redden (2002: 356) elaborates the close association of health care and citizenship narrative: It is undeniable, however, that health care is relevant to citizenship and is often debated in the language of rights. The tension or balance between individual liberty (rights and freedoms) and collective welfare is the substance of citizenship. Thus, health care (as distribution, provision, and access) is an issue of citizenship.

Historically, in relation to public health, the pathway to health care jurisprudence can be traced through three trajectories, viz. (1) emergence of public health as discipline of ‘population’ health (State and its law making power is used to impose public health measures on citizens as collective); (2) emergence of health care as a social right and reinforcement of social citizenship (idea of welfare-state, duties of the State and rights of citizens are articulated); and, (3) philosophical—ethics perspectives on balancing power asymmetry between citizens and medical profession (patient and doctor relationship is grounded on the ontological dignity and well-being of a citizen as patient is endorsed as an ethical value). This section discusses social rights jurisprudence that include health care jurisprudence and its interface with public health and ethics while outlining the underlying assumptions of SRHC.

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2.3.1 Population Health Health care as a system of organised provisioning of health care emerged as part of the historical evolution of public health as a population health discipline. The understanding of public health propounded in the 1920s, and re-articulated in 1988 by the Institute of Medicine—IOM (1988), links the idea of health and health care to the population and to the collective action of society. Winslow (1920) describes public health as the ‘science and art’ of preventing disease, prolonging life, and promoting physical health and efficiency through organised community efforts for the preventive, promotive, curative and rehabilitative aspects, to ensure to every individual in the community ‘a standard of living adequate for the maintenance of health’. IOM emphasised population health and collective action while it defined public health as ‘one of the efforts to protect, promote and restore the people’s health. It is the combination of sciences, skills and beliefs that is directed to the maintenance and improvement of the health of all the people through collective or social actions’ (Koplan et al. 2009: 1993). In the backdrop of the rapidly growing industrialisation, public health arose as a more organised State response to the problem of sanitation to protect the public from the spread of communicable diseases in the mid-nineteenth century in Europe (Rosen 1958).1 From the eighteenth till the first half of the nineteenth century, the approach of controlling diseases in society was by intervening in the environment related issues such as sanitation. The Sanitary Condition of the Labouring Population, a report researched and submitted by Edwin Chadwick in 1842 represents the sanitation movement which was prevalent during the mid-nineteenth century in England. Other dimensions that came to be part of public health included welfare or social security measures in the mid-twentieth century or ‘social determinants of health’ in the early twenty-first century (Mckowen et al. 1972; Rosen 1958; CSDH-WHO 2008). State used law very strongly to enforce public health measures for over two centuries. In the eighteenth century itself, within a short time the efforts organised by society to protect, promote, and restore the people’s health was crystallised in England as a legislation, viz. the Public Health Act 1848, thus making legal measures a key dimension of such organised efforts. Jurisprudence in health care has its roots in approaches such as these that were taken for public health in Europe in these two centuries. Johanna Peter Frank (1745–1821), a health philosopher of the eighteenth-nineteenth century, conceived public health as good health laws enforced by the police and enunciated the principle that the State is responsible for the health of its people. Such thinking led to the first ever Public Health Act 1848, thus the State taking responsibility for the health of its people (Park 2011). Christopher Reynolds conceives the history of public health in many respects as a legal history, as law provides the powers and creates structures that assist in the system of public health (Reynolds and Howse 2004). Besides, public health law forms one of the chief organising forces for public health in any country (Turnock 2007: 76). 1 Edwin

(1842).

Chadwick’s report on sanitation, i.e. The Sanitary Condition of the Labouring Population

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The important functions of law in public health are conceived to be providing environmental controls to protect health, stopping the spread of disease, promoting conditions to advance health, providing services in general or to certain groups in the population that need them, providing financial assistance for the development of health resources and programme, and providing means to advance the quality of care (Gostin 2000, 2014). However, such legal measures have not always resulted in a greater citizenship for people, especially for those who need health care the most. Laws stressing population health affected people differently. This approach essentially entailed exercise of State power through its legislative authority and coercive machinery of enforcement. The character of law was such that quite often the poor and vulnerable were the intended targets. Did the courts protect the rights of these vulnerable citizens? The accounts of Tigar and Levy (2005) indicate that the courts continued the legacy of the bourgeois capitalist mercantile class by aligning with the ruling powers and the State. Foucault (2010) records the complicit role of the courts with the State as illustrated by the Royal Courts in England. The historical accounts note the court rulings generally divested the vulnerable of their powers. Public health historians recount the repercussions of such consolidation of power between State, medical profession, and courts to the lives of vulnerable, especially women and people with psychosocial disabilities in Europe and USA. The history of public health itself is closely knitted with the socio-cultural processes and politics of the state. Rosen (1958) while elucidating the history of public health in Europe recounts several laws such as Poor Laws being anti-poor resulting in divesting many of their power of citizenship. These measures were invariably meant to protect mercantilism and the urban elites, who often exuded exclusion and discrimination towards the poor and the labourers. In the U.S.A., in the backdrop of epidemics and deaths, the issue of compulsory vaccination became a law in the early twentieth century. Such laws have been upheld by the Supreme Court rulings as in the case of Jacobson v. Massachusetts 1905 (Albert et al. 2001). Similarly, laws and litigations, accompanied by contestations and debates, in and around the themes of reproductive and sexual health, have emerged during the twentieth century (Bruinius 2006). The treatment of the mentally ill, termed as insane and lunatics, being locked up in jails, workhouses and madhouses using the State powers illustrate the use of such powers. As in the USA, so in India, there are multiple legislations that are enacted, and they reflect the character of the State and the socio-political dynamics characterising such period. A typical illustration is the mental health care laws of the 19th—twentieth century where a person with mental illness was criminalised without any rights (Davar 2012, 2015). The Comstock laws of the USA where the State deployed its coercive power on matters related to population control and reproductive health care is another poignant illustration for using them against the vulnerable (Bruinius 2006). Prejudicial mind-sets coupled with unfounded fears, many countries have focussed on reproductive health care related laws, many of whom have been infringing the rights of women (Rao 2008). This forms an important theme of health care jurisprudence. Several countries in the late 19th—early twentieth centuries,

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enacted number of laws in the domains of reproductive health covering birth control, contraception, sterilisation, abortions and population control, as part of national health policies and programmes. Arguments backed by theories such as Malthusian theory and eugenics have led to the legalisation of such policies through legislations or landmark judgments which remained uncontested for many decades. The utilitarian logic of greater common good has provided an intellectual justification to such arguments. In some cases, such as Buck v. Bell (1927), decided by the Federal Supreme Court of the USA, provided the legitimation to eugenicists to promote sterilisation for racial purity. This has historically influenced even the genocidal programme of Germany under Hitler (Bruinius 2006). Similarly, with the influence of Comstock Act passed by the U. S. Congress in 1873, all activities promoting abortions or contraception were rendered illegal as it was considered obscene till Roe v. Wade (1973) reversed some of those prevailing orders, making contraception and legal abortions a possibility. The jurisprudence and legislations in reproductive health, often, had a suppressive reach over individual rights and their bodies, especially in the case of mentally ill and the poor. They also had a far-reaching influence over policies in other parts of the world, even after these legislations had been repealed or reversed in the country of their original enactment (Bruinius 2006). In the twentieth century, the power of medical industry and technology coupled with the hegemony of medical knowledge often overshadowed other efforts of public health as an organised community effort and diminished the role of citizens to that of clients and beneficiaries. Turnock (2007) acknowledges that the purpose of public health includes protecting and promoting health, and together, ensuring the protection of rights of individuals in the processes used to protect and promote health. However, populations with lesser wherewithal to leverage power still lack agency to exercise their influence and to interact with public health law. During this period, the relationship between a health service provider, primarily a doctor, and an individual (patient) was characterised as a contract, governed by the law of contract and this gave rise to several lawsuits. Study on the health lawsuits in the eighteenth century England reveals that the law of contract and torts were the primary legal instruments widely used in England to redress violations in health care, as health service was considered a contract (Teitelbaum and Wilensky 2009). However, the safeguards under law of contract and tort are limited to a few issues between the health care provider and the client, and do not cover several areas such as violations that can spring up due to the policies of the State including the preventive and promotive care and non-availability of life saving services History of public health overall points to a greater emphasis on the coercive powers of the State in comparison to that of citizens from the eighteenth to the mid- twentieth century, which had the overriding effect on citizenship in the sense of individual liberties and rights. Safeguarding the liberties of citizens against the intrusive and invasive State power, however, is a late twentieth century development.

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2.3.2 The Social Right to Health Care The closest interrelationship between citizenship and health and health care can be traced not in the history of citizenship in general, but in social rights theories which became one of the core themes in the post-war Keynesian reconstruction and in the construct of welfare-state. During the mid- twentieth century, in the postdepression era, the Keynesian model provided a theoretical framework to the idea of a welfare-state. Welfare-state is a creature of the framework of capitalist economy and the interventions in the social sphere (lifeworld) is intended to mitigate the ‘worst effects of the capitalist system’ (Veitch et al. 2012: 257). Legal interventions in social rights including health care are described as ‘juridification of life-risks’ intended to secure individuals against economic risks and to improve equality of opportunity. The human rights law symbolises such a juridification of great significance in the second half of the twentieth century. It is under the overwhelming influence of human rights, the broad theme of social rights and health care rights gained ground. The Keynesian economic-political philosophy contributed in prompting the State to focus on social welfare and public health. The political experiments in social democracy which are not only economic growth but on distributive justice, fair wages and general welfare of citizens are the leads that link public health in general and health care in particular to justice and rights (Edgren 1995; Qadeer and CSD 2015). The National Health Service (NHS) of the United Kingdom (UK) and the Canadian Health Care illustrate how within the capitalist economies, health care of citizens received prominence as part of social security and welfare measures. Both were supplemented by legislations (Maioni 2010; Redden 2002). In the case of the UK, the Beveridge Report 1942 was followed up by instituting NHS, backed by the National Health Service Act 1946. Similarly, in Canada, Canada Health Act 1984 provided the legal framework for health services in Canada. Human rights framework incorporates within itself a systemic vision and individual liberties and enables the identification of the barriers for such an attempt that stem from State-citizenship and societal relationships. It facilitates identification of violations such as discriminations that exist in the design or implementation of health policies to the detriment of health as illustrated by population policies that have often failed to respect individual decision-making and informed choices. The Alma Ata Declaration in 1978 played a pivotal role in bringing the idea of human rights into health and health care policy discourse for the first time. The Declaration which focused on primary health care positioned health as part of the development paradigm locating the root causes of diseases in the social conditions 2000.2 Considering primary health care as fundamental to human well-being, it stressed that it should be universally accessible to individuals and families in the community in 2 In

the 1970s and 1980s WHO played a key role in putting the agenda of Comprehensive Primary Health Care onto the agenda of governments and member nations. The Alma Ata declaration on Primary Health Care was a commitment of the world nations to ensure health as a basic right and make provisions in their respective national health systems.

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ways acceptable to them, through their full participation at a cost the community can afford (WHO and UNICEF 1978). Owing to the character of the first generation human rights that primarily focused on civil and political rights, the emphasis still remained on the rights of individuals for long (Yamin and Gloppen 2011). It is only in the late twentieth century, issues of marginalised groups, the interdisciplinary themes of public health, health systems and law research gradually emerged (Burris et al. 2010). Alongside, during this period, the focus on the second and third generation human rights—that broadened their scope to economic, cultural and social rights and identifying vulnerable social groups and articulating their human rights—has propelled health care related issues such as health care rights, health care system, rights of patients, duties of doctors, and regulation of private health care, into public gaze. The political churnings of the late 1980s and early 1990s in many parts of the world too had significant implications on repositioning citizenship in relation to social rights. Flood and Gross (2014) locate the resurgence of SRHC in various socio-political and economic churnings that took place in this period include the end of cold-war era symbolised by the collapse of the Soviet Union Block and breaking of the Berlin wall, end of apartheid regime in South Africa and transitions from dictatorial regimes to popular democratic governments in many Latin American countries. The new constitutions promulgated in these countries, explicitly provided for social rights on par with the civil-political rights. The constitutionalisation of right to health care as a fundamental right and consequently making provisions for health care and its various components through an express provision by the State or under the stewardship of the State provided a much-needed impetus to argue for health care as a fundamental right (Biehl et al. 2016).

2.3.3 Ethical Arguments for Social Rights Medical ethics and bioethics which evolved strongly in the aftermath of world war II in the backdrop of gross human atrocities committed, consolidated the foundations of moral-ethical argument for human dignity. To a large extent the discussion on health care continues to be around individuals. A strong individualised narrative of health care generally becomes inevitable in health rights discourse, as medicine too focuses on treatment and cure of individual patients (Childress et al. 2002). As discussed in Chap. 1 (Vide. Sect. 1.2.2), the firm grounding of health as a ‘special social good’ safely located SRHC in the paradigm of social justice that is inalienably related to distributive justice, protection and promotion of human dignity, and ethics (Chapman 2015; Daniels 1981; Daniels et. al. 2004; Ruger 2006). The latter are vital to the construction of social citizenship as a concept. Relating to citizenship, we note that two key themes in such a positioning of health care have accelerated the processes of health and court interface, thus giving social rights jurisprudence the much-needed impetus. They include the issue of State accountability in relation to citizenship and renewed interest on the distributive justice

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dimension of health. The former has emerged from human rights discourses, and the latter from ethics. The Universal Declaration of Human Rights (UDHR) and the body of human right treatise has redefined the ways of thinking social citizenship, by redefining an individual’s relationship with the State through the language of rights in an international law framework. Human rights perspective envisages a citizen’s full participation in the democratic governance, which is envisaged to be transparent, accountable, and participatory from the side of the State. Accountable governance also provides a compelling moral argument for social inclusion (Gauri 2004). Citizens challenging the State in court of law demanding accountability from their governments, nationally and internationally, illustrates such an assertion of citizenship. This process, however, has been gradual over the past three centuries. In diverse socio-political settings through this period, a range of public discourses and policy debates drew the significant linkages between contextual social factors and the issue of health and wellbeing of subjects. Notably in the aftermath of the second world war in the twentieth century, they were consolidated into a broader umbrella of social rights, and became part of the modern political agreements between the nation-states and a global consensus on human rights (Table 2.1). Distributive justice is an important dimension of justice framework emerging from the ethics discourses for bolstering equity and justice. It provides an important framework to bolster the realisation of the citizenship of the most marginalised. Arguably, such a concept takes the SRHR beyond the personal realm of doctorpatient relationship. Distributive justice in public health care conceptualises health care as part of the justice framework and envisages equitable distribution of health care resources such as infrastructure, services, health care professionals, resource allocation and the protection of the rights of patients as well as various providers. Human rights law, in addition, proposes judicial remedy as one of the options to compensate for the wrong. General Comment 3 alludes to this as it states: ‘[A]mong the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable’ (UNOHCHR 1990: Article 5). In health care, divesting of health care of its character of being a ‘public good’ and its rampant commodification and marketisation has aggravated violations of people’s rights. The narratives of patients analysed in litigations in this research testify to this growing trend. (Vide. Chap. 3) Resisting this commodification of health has an overriding importance as a precondition for the participation of and as citizens in the democratic, economic, and civil life (Flood and Gross 2016: 452). The ethics and human rights perspectives, with their emphasis on human dignity and autonomy of the citizens provide an antidote to the power asymmetry that the citizens are confronted with. Relating to SRHC, dignity and autonomy would consist of, at the minimum, of respecting general moral considerations (Childress et al. 2002: 176), locating citizenship in the sovereignty of people [calling on State accountability] Kothari (2002) and considering health care as part of the distributive justice framework [availability health systems and resources] (Gauri and Brinks 2008). Fulfilment of rights becomes the moral obligation of various actors including governments and

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Table 2.1 Prominent content of health related social rights from 18th to 21st centuries Period

Issues and processes in focus

Late 18th, 19th and early 20th century

Sanitation, control of infectious diseases/epidemics; reproductive and sexual health laws including abortion, sterilisation, contraception, birth control, population control etc.

Mid-20th century

Rights of individuals in medical care (deficiency and inadequate care with adverse outcomes), medical negligence, and issues of mental health care highlighted The social rights jurisprudence emerged under the international human rights law after the Second World War

Late 20th century

The regional human rights courts such as European Human Rights Court, Inter-American Human Rights Court along with the adoption of human rights treatise in domestic legal framework increased the scope of judicial intervention and court led jurisprudence in health care Litigations begin to make a shift from being predominantly individual to that of issues of the masses New initiatives in public health law research —1990, call for global health law especially in the globalised concern for the eradication of HIV/AIDS emerges

Late 20th–early 21st century (1990 onwards) Debates on increasing people’s access to health care (Affordable Care Act – USA) Detailed articulation of right to health care in the human rights law framework (General Comment 14) Litigations on violations of right to health care using international and national laws and protocols Transition from authoritarian regimes to new democracies propel the nations to draft new constitutions which include people’s aspirations for social rights Constitutionalisation of health care as ‘a fundamental and justiciable right’ in several countries (e.g., Thailand, Venezuela, and South Africa) WTO and TRIPS agreements propel the issues of health care and medicines into the domain of international trade as part of patents and compliance to international trade agreements. This is a new issue of health care jurisprudence in domestic and international courts Natural and human made disasters, terrorism and issues of security, epidemics and pandemics prompt nation-states to enact more laws often compromising human rights and SRHC, leading to further legal contestations Source Author

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private health care providers, and correspondingly deficiencies and violations invoke criticism, moral pressure and justifiable State or courts directed external intervention, as ‘social rights have become critical elements of modern social compact and modern personality’ (Gauri 2004: 468).

2.3.4 Assumptions Underlying SRHC From the judicialisation or legalisation perspective, SRHC implies the extent to which the public social good of health care can be converted into legally justiciable right or entitlement. Such a right must lay down obligations and duties on some parties and define nature and scope of liberties entailed for the other. The possibility of judicialisation of health care augmenting social citizenship through reinvigorated SRHC is contingent upon a few assumptions and conditions which are at the centre of conceptualising social rights. These assumptions include (1) conceiving State as the symbol of power and as the primary duty bearer with a core minimum obligation for social rights of citizens; (2) a well-functioning democracy; (3) the ability and power of the legal system including courts to deal with the issues of health care; and, (4) the political will to realise SRHC through strengthening public health care system. The key assumptions and factors that form the conditions for such an understanding of SRHC are discussed in the following section.

2.3.4.1

The Concept of Core Minimum as the State Obligation

The human rights framework and the concept of social rights hinge on the core concept of the State and its duty to promote, protect and fulfil the human rights of all citizens. The scope of core minimum in social rights connotes the protection of a minimum level of enjoyment of rights. The General Comment 3 of International Covenant on Economic, Social and Cultural Rights (ICESCR) proposes ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent on every State party’. In health care, for example essential primary health care is proposed as the core minimum, ‘failing which it is prima facie failure to discharge its obligations under the Covenant’ (UNOHCHR 1990: Article 5). In litigating social rights, the courts also need to subscribe to such a conception of a State with obligations. Coomans and Universiteit Maastricht (2006) argue that the studies of justiciability and enforceability including that of using the judiciary shows the willingness of courts to adopt the concept of protection of a minimum level of enjoyment of rights. Contemporary literature point to at least three approaches that bring out the mandatory nature of these social rights: 1. The obligation approach is based on the standard human rights framework of ‘respect, protect and fulfil’ mandate where the State is singularly identified as

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the responsible actor. Such obligation flows from signing and ratifying the human rights treatise; 2. The accountability approach largely focuses on the accountability of the State. State is not only accountable to follow this human rights mandate (mentioned above), but is accountable to create conditions for the availability, accessibility, acceptability, and quality of care as per the mandate of General Comment 14 (UNOCHR 2000). Its accountability also springs forth from its electoral or constitutional mandate to its people; and, 3. The enforcement approach is linked to judicial decisions of Constitutional courts which citizens approach when the obligations are not fulfilled or when accountability is breached. Comparative studies suggest that courts employ the idea of core minimum to enforce the obligation of the State. The right to food3 case in India, for example, uses the concept of core minimum obligations of the State to ensure nutritional security of vulnerable citizens. However, we do not find such a case in the right to health care litigations, though the core minimum of the right to health care is defined in General Comment 14 to include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health (UNOHCHR 2000). It acknowledges that the right to health to be a right to the enjoyment of a variety of facilities, goods, services and conditions that are necessary for the realisation of the highest attainable standard of health, while stressing on the system that should be made available, accessible, acceptability while ensuring quality of care (UNOHCHR 2000: Articles 8–12).

2.3.4.2

A Well-Functioning Democracy

A democratic State implies a strategic relationship between various actors such as individuals, collectives in society, State institutions and machineries such as legislative, executive, judiciary, and also the non-State actors such as media, corporate sector, non-profit sector and the like. A liberal democratic State is guided by the rule of law in which citizen participation and dissent too have an important role to play in policy formulations. A well-functioning democracy, well-demarcated or popular policies, cooperative governments are likely to accentuate the possibility of the realisation of SRHC or health rights (Gauri and Brinks 2008). The directives of judges are likely to be adhered to if it has the political, bureaucratic, or civil society support. It is likely to have broader impact if it is taken forward through policy decisions (Rosenberg 1991). The favourable environment to facilitate litigations is said to be consisting of processes of democratisation, social mobilisation, economic empowerment which can exist in a well-functioning democratic State. Capabilities within various actors are likely to catalyse and sustain SRHC, and when necessary pursue litigations and enforce their outcomes. An autonomous judiciary which is the hallmark of a well-functioning democracy, has powers to demand 3 People’s

Union for Civil Liberties v. Union of India WP (Civil) No. 196/2001.

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accountability from the State and non-State actors as well. Overall, these relate to the kind and level of democracy that is functioning in a given country within which the judiciary is located. The judicial review and judicial independence will gain traction only in a society where the constitutional demarcations between different institutions are well laid out, space for dissent exists, vibrant political parties are present and also a vibrant civil society and coalitions are active. In such circumstances, litigations in health care can represent the civil society’s feedback to the State on its obligations and accountability to the SRHC of citizens. Provisioning for rights including right to health care are impacted by political, social, and economic contexts of a given country even beyond the formal laws and constitutional articulations. Flood and Gross (2016: 6) illustrate that ‘two systems with similar rights provisions but different social/political systems… show dramatic differences in the realisation of health rights’. Democratic ethos is likely to provide the best possible ecosystem for the realisation of SRHC.

2.3.4.3

Access to Justice and Capability of Courts to Deal with Health Care

In the judicialisation of health care, access to justice is the gateway to act upon the SRHC. Access to justice itself is determined by several factors such as costs of litigations, inaccessibility of courts and, as in the case of many countries, the alienation of the justice system from the cultural contexts of natives and indigenous communities. Albeit, the international human rights laws and treaties, domestic constitutions and legislations play a vital role in articulating rights to health care to facilitate access to justice for the matters of health care, in many countries it has been realised that access to justice alone is not sufficient to ensure its realisation. Courts cannot function unless other supplementary systems such as ‘tutela’ (ombudsman) in Colombia or ‘Commissioners of Courts’ as occasionally practised in India, are put in place (Lamprea 2016; Srivastava et al. 2009). The advancement of SRHC takes place through the mediation of Courts under various circumstances and societal conditions which are related to the policy context and political environment. Gauri and Brinks (2008) note that courts are impactful when the political ecosystem is conducive and garner support from other political actors. This in turn leads to attracting more strategic litigations resulting in the possibility of a robust jurisprudence. On the other side, judicial remedies for social rights are deemed to be difficult due to the nature of inequitable, underdeveloped, weak, and less than impartial legal systems in many developing countries. Substantial increase in social rights litigations in such countries have the potential of further damaging the existing efficiency of the courts. On the issues of SRHC, even well-functioning courts face several challenges. SRHC is a bundle of various services and courts find it difficult the nature and the authority/person responsible for the violation of rights as numerous providers are

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involved in the process. The sources include international rights, domestic constitutional rights; legislation based statutory rights and de facto rights based on public policy (Flood and Gross 2016). The legal systems and the health care systems operate in varied socio-political contexts and yet common economic and global political factors affect all of them simultaneously such as the pressure for downsizing public health care systems, and international pressure to marketise health care. In such contexts, the kind of litigations that come to courts and the response of the courts depend on several factors. For example, the courts may not be able to provide adequate orders which will have substantial impact on the system or court orders may be adverse or orders may not be enforced at all. How much court processes lead to mobilising civil society response then becomes very important for sustaining such demands? A case from Canada4 illustrates that the courts held that the government did not have a legal obligation to fund a particular treatment for autism. This created enormous public outcry that the government was forced to make a policy for such a treatment (Flood and Gross 2016). How long and to what extent courts can function as levers of change in SRHC is a question that always comes back to this discussion on SRHC. Through extensive case studies Flood and Gross (2016: 16) conclude that ‘courts may not be the best venue if one hopes to improve equity or fairness’. At best, courts might play a positive role in several ways such as protecting the existing standards of equity or filling in some gaps towards this. Equity and fairness cannot be brought by courts alone. If there is an equitable system in place the courts might protect them from external challenges. But the court’s role is limited in bringing about equity by redistributing resources to those most in need and ‘produce equity’. There are only a few illustrations where courts have shown grit and determination to act boldly on social rights. The right to food case in India5 is an example for the issue of social rights and addressing the mother-to-child transmission of AIDS in South Africa is an example6 for court impact on SRHC (Forman and Singh 2016). From these discussions we surmise that access to SRHC is predicated on the possibility of access to justice. It implies that realisation of SRHC is contingent on socio-political settings of courts including a well-functioning democracy that upholds rule of law and the overarching legal framework that respects international human rights law providing a legal cover to right to health care.

4 Auton

v. British Columbia (Attorney General) [2004] 3 SCR 657 (Can). Union for Civil Liberties v. Union of India 396/2001 was filed in the wake of starvation death and the court over period of 15 years through ‘continuing mandamus’ has passed several orders which resulted in streamlining several nutritional schemes such as midday meals, nutritious supplementary food to under-five children in Anganwadi centres and so on. 6 Minister of Health & Another v. Treatment Action Campaign & Others 2002 (5) SA 721 (CC) (S.Afr.) – the court ordered the government to expand programs to address mother-to-child transmission of AIDS in the public health care system. 5 People’s

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Public Policy and Political Will Invested in Public Health Care System

The constitutional pronouncement and the existence of a well-functioning public health care system, in addition to the factors mentioned above, are critical to the actualisation of SRHC. The former refers to the policy or constitutional articulation of SRHC in a particular country, whereas the latter denotes the provisions of systemic arrangements and services for the realisation of health care, in some cases not even citing it as a social right. The newer democracies such as Venezuela and South Africa, adopting the international legal instruments into their domestic constitutions have articulated the right to health care as a constitutional or fundamental right. They, however, are not identified as having a well-functioning health care system to provision the SRHC. In fact, establishment of a constitutional right to health is part of the so-called second-generation rights appearing mostly in newer constitutions of emerging democracies (Flood and Gross 2016). Whereas the older democracies and primarily the capitalist countries have provided right to health care through their policies through a well laid out health care system, without having a constitutional articulation on it. In these countries, SRHC exists as de facto rights (as can be seen in Sweden, Canada, United Kingdom and New Zealand). In fact, in countries where SRHC is enjoyed the most are the ones which have a robust public health care system based on a strong and long-term public health policy which may or may not be accompanied by clear constitutional articulation of SRHC. Having an articulation of SRHC in the constitution and in law does not mean the existence of policy on public health care or a commitment to public spending on health care which is essential for the realisation of SRHC (Pinto 2018). About 68% countries are found to be having some form of articulation of on SRHC that ranges from mentioning SRHC to providing for an affirmative State action in health care provisioning (Kinney 2008). However, her research finds that countries showing the greatest constitutional commitment spend less than half as much per capita on health care compared to countries with no formal constitutional declarations on right to health and health care. The anomaly is due to historical reasons and is attributable to the fact that establishment of a constitutional right to health and health care belongs to the second-generation human rights, which appear mostly in newer constitutions of emerging democracies. By contrast, countries with stronger public health care systems are often rich democracies in which the health care system has been established as part of a welfare-state, ‘developed historically without explicit reference to health rights’ (Flood and Gross 2016: 5). For accentuating social citizenship through the realisation of SRHC, the existence of a robust public health care system supported by a pro-citizen, pro-people public policy is an ideal mix. Entitlements in health care, even when they are laid down through court interventions, appear to be a piecemeal solution, if not accompanied by a fairly functioning public health care system that can foster them. This seems to be India’s case where Constitutional articulations, legal interpretations, and court orders, among other measures, seem to have a very little impact on the public health care system.

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The Constitutional Courts have the potential of overcoming such a divide, both in countries where the Constitutions have conferred justiciable status to social rights as well as in those where they have not. Judicialisation or legal articulation could be a leveraging factor for citizens to strengthen SRHC on both counts, viz. to firm up Constitutional or policy articulation where it does not exist or to reinforce a public health care system where it is fragmented. Both these aspects form inseparable components of a robust health care jurisprudence.

2.3.5 Typology of Health Care Jurisprudence The access to courts through constitutional provisions or on the grounds of law articulating entitlements of individuals and the corresponding duties and the limits of the State powers, facilitates the interface between legal institutions and health care issues for a citizen. Resorting to courts happens on various grounds including redressal of violations, enforcing the duties of the State to safeguards the rights of the individual, to demand for action on policy and implementation gaps such as praying for regulation of the private-commercial health care institutions. The jurisprudence thus laid down is multifarious, relating to varied thematic subdomains or issues within the overarching domain of SRHC. Medical Jurisprudence Medical jurisprudence refers to the application of various principles and practices of medicine in courts of law. It deals with the legal responsibilities of a medical practitioner in matters of medico legal cases and forensic matters such as estimation of age, post-mortem, injury report, sexual offences, poison cases, suicide, and paternity detection. The nomenclature of the branch of medicine that deals with such matters also varies and is known by several names such as legal medicine, forensic medicine, state medicine and is often linked to toxicology (Sheikh et al. 2013). Therapeutic Jurisprudence Therapeutic jurisprudence refers to the study of law as a therapeutic agent and focuses on the psychological well-being. Applied primarily in the matters of mental health and law initially, the term was made popular by Prof David Wexler, who expanded it to mean legal procedures, study of law, role of legal actors in producing therapeutic and anti-therapeutic effects on those who come in contact with courts and legal procedures. Therapeutic jurisprudence was applied to drug treatment courts and was understood as the problem-solving role of the judiciary in domestic violence courts, mental health courts and juvenile courts (Wexler 2000). Conceptualising health services as an integral part of one’s well-being was another way of rationalising the interface with law. This understanding which has been deep-rooted and emerging from the domain of mental health care has given rise to the notion of ‘therapeutic jurisprudence’. Scholars dealing with this subject matter consider law as a ‘therapeutic agent’ (Yamin and Gloppen 2011; Wexler 2000; Perlin 1993; Hora et al. 1999; Davidovitch

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and Alberstein 2008). In recent years, the scope of therapeutic jurisprudence has expanded with the hitherto neglected issues of health care and social rights such as disability gaining prominence through international agreements such as Covenant on the Rights of People with Disability (CRPD) that are followed by domestic legislations and subsequent litigations (Ministry of Law and Justice 2016; UNOHCHR 2006). Public Health Jurisprudence Generally covered under the theme of public health law, public health jurisprudence deals with using law, legal procedures for effective legal, regulatory and policy solutions to improve public health. It deals with environmental and sanitation matters, food safety, health care reforms, tobacco control and such other issues. It is also referred to as global health jurisprudence in its widest sense while covering the subjects of global infectious diseases such as Severe Acute Respiratory Syndrome (SARS), Influenza (Avian and other zoonotic infections) and in the present-day era, the Coronavirus infection (COVID-19). In outbreaks of epidemics or pandemics which affect populations in large numbers, the public health law scholarship stresses the regulatory and enforcement character of law and the central role of the State in managing them (Gostin et al. 1999; Gostin and Mann 1999). Social Rights Jurisprudence In the international human rights law framework civil—political rights are considered negative rights that restrain the State from infringing individual liberties and are rendered justiciable. The economic and social rights, on the other hand, are positive rights that require the State’s proactive intervention for their realisation. In general, these rights that include health and health care, are not justiciable, and are relegated to the policy domain, persuading the State to take measures for their implementation. Under the aegis of progressive constitutional courts across the globe, the justiciability of social rights is gaining momentum through social action litigations ushered in countries such as South Africa and India. They have set precedents where health and health care matters are litigated under the broad umbrella of social rights (Langford 2008). While a very few countries including South Africa and Venezuela have made a provision for SRHC in their respective constitutions, in most of the countries the civil society has opted for judicial law making as the prime route for enforcing SRHC, by engaging constitutional courts. Filing lawsuits in matters relating to individual patient’s grievances on the grounds of breach of contract or social action litigations directly in constitutional courts in matters gross violations at scale is in vogue in these countries. Medical malpractice and medical negligence form the prominent issues in matters of deficiency of health care services (Budetti and Waters 2005; Yamin and Gloppen 2011). Aided by the international human rights framework and the gains made in social rights jurisprudence, this evolving domain has covered issues such as access to health care that include medicines, compensation for the deficiency in service and medical negligence. It has spurred the emergence of health care jurisprudence as another

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nascent subdomain within social rights jurisprudence, opening the possibility for civil society to leverage it as another avenue to consolidate social citizenship.

2.4 Drivers of Health Care Litigations in India Civil society is the prime mover of judicial power in India in matters of SRHC. It has leveraged international policy frameworks, constitutional provisions, and legal instruments to do so. This section discusses the socio-political factors relating to health policy and its implementation in India that form the immediate context of knocking on judicial portals. India is a signatory to all core human rights treaties and conventions. The Constitution of India itself incorporated the human rights framework within itself placing all the civil and political rights in the fundamental rights chapter and the social— economic rights in the chapter on directive principles of State policy. Adhering very strongly to the welfare-state idea, in the post-independence era, India took the legislative route to provide enabling laws strengthening social citizenship (Bhat et al. 2016; Bhat et al. 2016). Such steps include adoption of the international conventions and policies into domestic laws and policies on matters of social welfare. India’s adoption of international policies such as Convention on the Elimination of Discrimination Against Women (CEDAW), legislations around rights of children subsequent to signing child rights convention (CRC), legislations on disabilities pursuant to signing the Convention on Rights of People with Disability (CRPD) have certainly emboldened the efforts for social citizenship. Among others, the political openness for SRHC is indicated in being signatory to the Alma Ata Declaration for comprehensive primary health care and proactive policy to promote drug manufacturing to meet India’s needs. However, India lacked a political will to institute credible mechanisms for the implementation and enforcement of these policy measures relating to health care. As a consequence, they were neither translated into enforceable health rights nor into substantive health system measures, deranging their potential of enhancing social citizenship. In the wake of such commitment deficits and a range of violations of health rights, civil society has resorted to judicial power as a constitutional tool to demand accountability from the State for such anomalies and gaps, resulting in adversely impacting citizens. The drivers of health care litigations in India are located in the complex ecosystem of its socio-economic-political processes shaping health care policies and their implementation. Both the organisation of political governance and health system governance and the inherent paradoxes further contribute to this complexity. Some of these factors that compel civil society with no other alternative other than accessing the constitutional judiciary are briefly discussed in this section.

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2.4.1 Economic and Development Policies Affecting Health Care System India is a low-income country with 1595.7 USD as per capita GDP (The World Bank n.d.) and is ranked in the medium human development category at 135 (of 187 countries) in the Human Development Index (HDI). (United Nations Development Programme n.d.) India’s per capita expenditure on public health care by the government (i.e. US$33) and percentage of GDP (i.e. 1.2%) are one of the lowest in the world. The citizens cover 75% of health care costs privately, which is far higher compared even to other low-income countries (National Health Systems Resource Centre 2016). Ushering in the economic reforms in the 1990s is perceived to have boosted the GDP growth in India (Ramesh 2016). However, it is argued that the socio-economic inequities in this post-reform period have considerably increased and the policies vigorously supporting the corporate private sector compromising the social sectors (social security and welfare of citizens) have increased the social divide and inequities (Qadeer and Council for Social Development (India) 2015). The evidence from the health care services and the health status indicates that the [positive] impact of the economic reforms on health status has been slow, uneven and that the health inequities have widened across states and various geographic and ethnic communities (Qadeer et al. 2001; Baru 2001; Qadeer 2011; Zubrigg 2001). Of the many factors that continue to challenge the improvement in the health status of citizens are the inequities and inequitable policies. Historical inequities such as socio-economic inequities reflect in the inequities of provisioning of health care and assurance of quality of care (Baru et al. 2010; Baru 2001; Qadeer 2011a, b; Qadeer et al. 2001). Overemphasised policy impetus on a commercially oriented health care system has led to distortion of priorities and a reduced focus on preventive and promotive health measures. Medicalisation and commercialisation of health care inextricably linked to the rise of unregulated commercial health care sector have added to the complexity of health care provisioning in India (Baru 1998, 2005; Qadeer & Council for Social Development (India) 2015; Zubrigg 2001). High Level Expert Group spells out the need for policy correction in the context of 78% out of pocket expenditure as the primary mode for people accessing and availing health services (Government of India-Planning Commission 2011).

2.4.2 Political Organisation and Federal Governance Politically, India is the largest functional parliamentary democracy in the world with a universal electoral franchise system, committed to the doctrine of separation of powers (executive, legislative and judicial), and being governed by a Constitution considered to be very progressive. ‘Constitutionalism’ or ‘Constitutional Governance’ has come to be the feature of governance in India, wherein the SCI, as the

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custodian of the Constitution, is called upon to play a significant role in the Constitutional Governance (Pylee 2003). Following the doctrine of separation and devolution of powers in the federal governance, the powers and roles between the central government and state governments are constitutionally demarcated as part of the ‘the basic structure’ of the Constitution. In this complex arrangement of governance where the balance of power is safeguarded while ensuring the pivotal role of the SCI, it also brings in accountability challenges in health care governance, being sandwiched in the federal and political relationships between the centre and the states.

2.4.3 Constitutional and Decentralised Governance and Health Care The positive interventionist role of the State was accepted in India in the Constitutional scheme in the post-colonial (post-independence) period. State was assumed to be a ‘liberator, equaliser, moderniser and mobiliser’ (Kothari 2002). Kothari (2002: 73–4) succinctly summarises such a presumed role of the State as follows: [The State is] a mediator in ameliorating the harshness of traditional social structures for the purpose of ensuring justice and equality, a protector of vulnerable peoples and liberator of oppressed and colonized populations, and an engine of growth and development that would usher in a new civil order based on progress and prosperity and confer rights of life and liberty, equality and dignity, on the people at large.

The SRHC, though undefined in the Constitution, was accepted as an underlying principle in the welfarist policy of the State. The Constitution of India enshrines several civil and political rights as fundamental rights and reflects both the principles as well as the spirit of UDHR. However, the debate and divide between civil-political and social rights mentioned above, is reflected in its drafting, and organising of the text (Pinto 2018). Civil and political rights are incorporated in chapter III of the Constitution as justiciable fundamental rights, while social rights are addressed rather indirectly by the Constitution and are broadly covered under different sections of the Directive Principles of State Policy—DPSP.7 (Govt. of India n.d.). The latter are non-justiciable rights subject to progressive realisation. This division has serious implications with respect to the justiciability of social rights in general, including one of the most essential – the human right to the highest attainable standard of health, including preventive, curative and rehabilitative medical and health care (Pinto 2018). Articles 38, 39, 41 and

7 Constitution of India, Article 39 (e) ‘health and strength of workers (…) are not abused …’; 39(f):

‘that children are given opportunities and facilities to develop in a healthy manner..’; Article 41: ‘… securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement…’; Article 42: ‘humane conditions of work and for maternity relief’; Article 43: ‘conditions of work ensuring a decent standard of life…’.

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42 provide the vision and the aspirations for health governance. These Articles highlight the welfare measures that are required for workers and women, and State’s duty to provide conditions that are prerequisite for leading a ‘healthy life’.8 The closest reference to health care, as articulated in Article 47 of the Constitution of India, recognises the ‘duty of the State to raise the level of nutrition and the standard of living and to improve public health’. Courts have referred to this Article in several landmark judgments in relation to health and health care. (Vide: Chap. 3) Article 47: Duty of State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medical purposes of intoxicating drinks and of drugs which are injurious to health.

As we shall discuss later in Chapter three, these Articles of DPSP provide the much-needed critical wherewithal to lay the foundations for health care jurisprudence in India. However, scholars opine that merely a Constitutional aspiration for SRHC as inadequate and insufficient to achieve such a right. Duggal (2007) argues that despite the Constitutional provisions, it is still important to have health and health care instituted as a right within the constitution and/or established by a specific Act of Parliament guaranteeing the right. Ruth Roemer (cited in Duggal 2007: 6) notes: The principal function of a constitutional provision for the right to health care is usually symbolic. It sets forth the intention of the government to protect the health of its citizens. A statement of national policy alone is not sufficient to assure entitlement to health care; the right must be developed through specific statutes, programs, and services. But setting forth the right to health care in a constitution serves to inform the people that protection of their health is the official policy of the government and is reflected in the basic law of the land.

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38: State to secure a social order for the promotion of welfare of people: State shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life; State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also among groups of people residing in different areas or engaged in different vocations. Article 39: Certain principles of policy to be followed by State—The State shall, in particular, direct its policy towards securing- e) that health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 41: Right to work, to education and to public assistance in certain cases: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 42: Provision for just and humane conditions of work and maternity relief: The State shall make provision for securing just and humane conditions of work and for maternity relief.

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Apart from the federal feature whereby governance is distributed between the centre and states, another significant feature that characterises Indian Constitutional Governance is operationalising Indian democracy through decentralisation and participatory local governance. The Panchayati Raj Institutions (PRI) are the pivotal institutions of the local democratic governance, and it is envisaged that through the PRIs citizens at their community level are able to participate in governance and adopt measures for the realisation of their basic needs and human rights. Part IX of the Constitution of India and 73rd Constitutional amendment on local governance, makes Panchayati Raj governance and citizen participation, both a constitutional and democratic governance act to be complied with by the Indian State in its programmes and policies. Participatory and decentralised governance can be instrumental in addressing health system issues most relevant to the people, with greater accountability to the population it serves. Schedule 11 of the Constitution of India has included the health care system—especially the primary health care system—within the purview of local governance. Several policy measures have been initiated to create the community’s increased role in health governance in coordination with the gram panchayats. The NRHM, in its framework of implementation envisages ‘communitisation’ which includes decentralised community based monitoring and planning (CBMP), formation and strengthening of community institutions like the Village Health and Sanitation Committees (VHSCs), and the Rogi Kalyan Samiti (RKS), and management of untied funds by these committees in which the members of the Gram Panchayat (GP) play a key role (Government of India 2015). However, being starved of funds, human resources and adequate infrastructure, the institutions of health care services themselves are being progressively rendered weak and fragmented. Adding little value to the efficient functioning of the health care system, decentralisation tends to be merely a rhetorical exercise making it a euphemism for evading responsibility for citizens’ health care.

2.4.4 Diffused and Fragmented Health Care System Governance Within the federal governance of the country, the health care administration is dispersed between the union government, state governments and local governance. The demarcation of subject matters is delineated into union, state and concurrent lists located in the seventh schedule of the Constitution of India. The major policy making, financial allocation, prioritising of the centrally financed nationwide health programmes is decided by the union government. The health care system is governed by the states and implementation of health programmes is done through the complex bureaucracy at different levels of governance. The MoHFW is the central ministry which administers the health care programmes. However, matters closely intersecting the components of SRHC are

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distributed across different government ministries and departments that notably work in isolation without any inter-sectoral coordination (Duggal and Gangolli 2005). For example, drugs and medicines, nutrition, and distribution of food grains are governed by the ministry of chemicals and fertilizers, ministry of women and child welfare, and ministry of consumer affairs, food, and public distribution, respectively. The Central Drugs Standard Control Organisation (CDSCO) and National Pharma Pricing Authority (NPPA), the key drug regulatory bodies in India are located in two different ministries, viz. MoHFW and Ministry of Chemicals and Fertilisers, respectively. Besides, in most of the states, the public tertiary care hospitals are attached to medical colleges and are being governed by the ministry of human resource development through its department for medical education. The private-commercial health care sector, which accounts for a share of over 75% health care provisioning in India, has no regulatory or governance framework. These in addition to a plethora of allied medical care services such as diagnostics and supplies, operate purely as business enterprises. Besides not being regulated, its governance is delinked from the jurisdiction of MoHFW. The diffused and fragmented health care governance which is devoid of any intersectoral coordination and lack of political will of regulation of corporate and commercial health care system is reflected in health system factors such as weak information systems, discontinuity in care, unsupported health workers, haphazard referral system and distorted accountability mechanisms (George 2007). These, along with the underfunded and substantially weakened public health care system with suboptimal capacity to deliver appropriate services and the private health care system with the complete absence of regulatory oversight, contribute to a fertile ground for the violations of citizens’ right to health care. Officially commissioned reports by the government of India themselves bear evidence to such a fragmented system resulting in a plethora of problems such as monstrous proportions of the out of pocket expenditures in health care that impoverishes citizens on account of health care (Government of India-Planning Commission 2011). There are other innumerable ways that accounted for the violations of SRHC that include, among others, medical negligence, discrimination and denial of health care, and medical malpractice and irrational care leading to over expenditure coupled with a compromised quality of care (Pinto 2017; Vasan et al. 2017).

2.4.5 Absence of a Credible and Accessible Grievance Redressal System Lack of a credible and accessible grievance redressal system and inaccessibility of courts for the regular grievances of patients or citizens is another policy and governance deficit that has been ignored for long. (Vide: Chap. 4 for a detailed discussion) While the factors mentioned above in this section form an overarching policy context, the absence of credible and accessible mechanisms to redress grievances within the

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public health care administration or in the regular processes of seeking redressal within the justice system, forms the most proximate driving factor pushing civil society to the higher judiciary. The twin demands of the civil society while resorting to the constitutional judiciary, viz. strengthening of public health care system and regulation of private health care system which is distorting the health care policies in India, have mirrored these policy and governance deficits (Gangolli et al. 2005). The active civil society in India seized upon the constitutional vantage-points for accessing justice that became amenable to citizens along with the constitutional reforms ushered in by the higher judiciary in the realm of fundamental right to accessing justice.

2.5 Accessing Judicial Power and Health Care Jurisprudence India’s judiciary or court system functions as a single but three-tiered system, the Apex being the Supreme Court of India (SCI). Each state has a designated high court,9 and sessions courts at the district and Judicial First-Class Magistrate (JFMC) courts at the subdistrict level. The SCI was inaugurated on 28 January 1950 succeeding the Federal Court of the British administration, and has continued to be a powerful institution in the country. The SCI combines within itself two distinct roles, which are bifurcated into two separate institutions in some countries, viz. Supreme Court of Appeals and the Constitutional Court while exercising a vast jurisdiction over a range of legal issues.10 The powers of judicial review, power of precedent in case-laws, court reforms enabling citizens’ access to constitutional courts for justice, fundamental and personhood jurisprudence, and the role of quasi-judicial institutions, among others, are the foremost factors that have facilitated the health care jurisprudence.

9 The

number of High Courts does not exactly match the number of States. In the North Eastern States, except Tripura rest of the states have only one Gauhati High Court with different benches. Similarly, Goa and Maharashtra have one HC. 10 Under Article 131 of the Constitution of India (CoI) it exercises original jurisdiction in cases involving the government and appellate jurisdiction in a variety of cases. Under Article 132 of CoI it rules on cases involving constitutional interpretation; Article 133 provides it with the jurisdiction over civil cases that involve a substantial question of law of general importance. In addition, it is an appellate court for some criminal cases, it has the power to grant special leave to appeal. It also enjoys writ jurisdiction over questions of fundamental rights and has authority to issue advisory opinions.

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2.5.1 Power of Judicial Review The power of judicial review is a non-written but a presumptive power. Chief Justice Marshall of the United States of America in 180311 had stated: ‘It is emphatically the power and duty of the judiciary to say what the law is’. In A. K. Kaul v. Union of India12 SCI had observations on the judicial review power: In a written Constitution the powers of the various organs of the State are limited by the Constitution. The extent of those limitations has to be determined on the interpretation of the relevant provision of the Constitution … the task of interpreting the provision of the Constitution is entrusted to the judiciary which is vested with the power to test the validity of the actions of any authority functioning under the Constitution… in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations imposed by the Constitution on the exercise of that power. This power of judicial review is therefore implicit in a written Constitution and unless expressly excluded by the provisions of the Constitutions, the power of judicial review is available in respect of the exercise of powers under any provision of the Constitution.

This power has instituted SCI as the custodian of the Constitution. The power entails review of all legislations passed by the parliament, the compliance of executive action to the constitutional mandate, the power to review the application of constitutional provisions, and to interpret the Constitution. The executive (ruling governments) have contested this power and have tried to circumvent courts by limiting power of judicial review and passed legislations and constitutional amendments placing them under the ninth schedule of the Constitution which is beyond judicial review. In the landmark Kesavananda Bharati judgment, SCI laid down the ‘basic structure doctrine’ curtailing Parliament’s power to amend the basic structure of the Constitution, wherein it laid down power of judicial review as quintessential and integral to the basic structure of the Constitution.13 The fundamental rights jurisprudence that took wings from such an authoritative declaration, and the ensuing expansive definitions of the fundamental right to life, provided the necessary ambience for the SRHC to emerge. Deploying the power of judicial review has entailed several governance challenges. With the power of judicial review and an unrestricted jurisdiction over fundamental rights, SCI and HC have forayed into the matters of governance and matters of administration, which has been contested as ‘juristocracy’ in the name of judicial activism (Hirschl 2004; Conant and Conant 2008). Though a pro-citizen trend is traced in several of these judgments that are brought to SCI, it is also acknowledged that ruling in favour of citizens in health care matters by readily recognising it as part of right to life is challenging for the SCI (Shankar and Mehta 2008; Muralidhar 2008). There is a recognition of the inability of the courts to enforce its own orders, and the lack of capacity to handle such complex policy issues entailed in health care matters (Gauri and Brinks 2008). It is noted that in several instances, deploying 11 Marbury

v. Madison (1803) 1 Cranch 137. K. Kaul v. UOI (1995) 4 SCC 73. 13 Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461. 12 A.

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the power of judicial review meant bypassing the role of regular courts and other institutional mechanisms (Galanter 2000).

2.5.2 Power of Precedent The judgments of SCI and HCs include the power of precedent based on common law tradition. In common law tradition, the judgements laid down by the constitutional courts are vested with the power of law based on the doctrine of stare decisis in jurisprudence and are referred to as case-laws. Stare decisis implies ‘to stand by things decided’. According to the Supreme Court of USA it ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process’ (Legal Information Institute n.d.). The doctrine operates both horizontally and vertically. The former refers to a court adhering to its own precedent when it is decided by the bench of same strength. The latter refers to its binding power on the lower courts when it is laid down from a higher court or a bench of higher strength. The precedents of SCI have universal jurisdiction in India, whereas those of HCs are binding within their own jurisdictions and act as persuasive precedents for other HCs. The principles laid down in jurisprudence of SCI in India through judicial interpretation, operate as the domestic law and policy. This power of precedent has significant implications to SRHC evolved through health care litigations.

2.5.3 Court Reforms and Access to Justice Historically, evolution of the judiciary as an institution points to its emergence as part of the bourgeoisie led liberties and establishments of legal institutions to defend their rights in Europe, and hence bore an elitist character. The masses had very little to do with the affairs of the courts (Tigar and Levy 2005). Following the colonial legacy which ushered in Anglo-Saxon legal tradition in India, the Indian judiciary too is perceived to be carrying the historical colonial legacy of elitism and the disconnect from the masses (Salve 2000; Gadbois 2011). The principle of locus standi is one of the key features of the Anglo-Saxon legal tradition and was a major barrier for common people to access courts. Apart from the other requirements such as ability to pay the court fees, this principle implied that only who had an interest or stake in the case or who was a party to the case, had the right or ability to bring a legal action or appear in a court of law. Indian judiciary literally followed this technical-legal framework up to the early 1970s. However, some of the judicial stalwarts and luminaries made a historic difference to the institutions of justice while others continued the elitist legacy. The social justice

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champions among the Indian Judiciary argued for doing away with these technicallegal procedures as the first step to make a transition to social justice, a principle enshrined in the preamble of the Constitution of India itself. These path-breaking court reforms aimed at the realisation of access to justice as the fundamental right, are attributed, among others, to stalwart judges such as P. N. Bhagwati and V. R. Krishna Iyer (Gadbois 2011). V. R. Krishna Iyer, J. in his landmark judgment Municipality of Ratlam v. Vardhichand lays down the concept of processual jurisprudence: The truth is that … a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British Indian vintage. If the centre of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a path-finder in the field of people’s involvement in the justicing process, sans which as Prof. Sikes points14 out, the system may ‘crumble under the burden of its own insensitivity’ (Municipality of Ratlam v. Vardichand and Others, para 114)

Doing away with the principles of locus standi began with the issue of providing effective legal aid to indigent prisoners and under-trials that necessitated a liberal interpretation of Article 32 of the Constitution.15 It acknowledged the social, economic and other vulnerabilities of the aggrieved persons that impaired their access to the justice system. Subsequently it liberalised the principle of locus standi to accommodate any ‘public-spirited person’ or a person with ‘public interest’—and not merely the aggrieved -, to have the locus standi to approach the higher judiciary with a public cause that infringed fundamental rights of citizens from disadvantaged sections. Once, the bureaucratic and administrative procedures acting as impediments in bringing public interest matters before the SCI were cleared away, even postcards written by desperate citizens were admitted as writ petitions as part of the newly considered epistolary jurisdiction of the constitutional courts. In due course, several issues of violations and social injustices such as bonded labour, environmental degradation, and exploitation of workers and women were brought within the ambit of fundamental right to life through a very creative and expansive interpretation of Article 21 (right to life and liberty), known as the personhood jurisprudence. The reciprocity between a proactive judiciary and indigent citizens awaiting access to justice, often through the interventions of public-spirited citizens, thus laid a firm foundation for the social rights jurisprudence in India. Several authors have attributed this creative and proactive nature of the SCI, to the responsibility that the Apex Court took upon itself in the post-emergency period to redeem its tainted image it had owing to its dubious role during the pre-emergency and emergency period (Mody 2013). It was criticised for conniving with the ruling 14 The

paragraph or page numbers of an order cited in the quotes or in-text references, refer to the litigation cited or mentioned immediately before it in the text. 15 Article 32 (1): ‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed’.

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government in the imposition of emergency in 1975, where the civil and political rights of citizens were suspended. Observing SCI’s reform in the post-emergency period, Mehta notes: ‘Ironically, the judiciary emerges out of the Emergency as an even more powerful institution. It managed to legitimise itself, once again, not only as an institution of accountability of last resort but also as an institution of governance’ (Mehta 2007: 160). Baxi (1988) argues that in the 1970s and 1980s SCI moved from a technical-legal phase where the judiciary sheltered itself from the socio-political realities to a more populist direction. The personhood jurisprudence that formed the basis for the jurisprudence of several fundamental rights has singled out Indian judiciary as being progressive, authenticating such a transition.

2.5.4 Personhood Jurisprudence (Expansive Definition of Right to Life) The judicial innovation of moving beyond the legal and literal interpretation of the expression ‘right to life and liberty’ of Article 21 of the Constitution was an important milestone in establishing social rights jurisprudence (Desai and Muralidhar 2000; Kirpal et al. 2000: 159–92). It started with the case of impounding the passport of Maneka Gandhi where the seven judge constitutional bench laid down a unanimous judgment which is said to have ‘changed the landscape of the Constitution of India’16 (Varshney 2018). The jurisprudence laid down in this case expanded the meaning of right to life and liberty, while mandating any executive action depriving citizens of fundamental right to liberty to follow ‘the procedure established by law’. Laying down the test of reasonability, the jurisprudence prescribing such procedures to be reasonable, just, and fair. In addition, it established the interconnectedness and reciprocity between Articles 21 (of the constitution), 14 (Right to Equality) and 19 (Various fundamental freedoms such as movement, expression, residence etc.), decreeing any deprivation of liberty not to violate the fundamental rights and freedoms laid down in these Articles. Such a jurisprudence was dynamic and was progressively unfolding various contours of the personhood jurisprudence. Francis Coralie Mullin v. the Administrator 17 provides a peek into such a dynamic process in which the SCI further unfolded nuances of right to life stating that ‘the right to life includes the right to life with human dignity and all that goes with it …’. [Emphasis added] This opened up new vistas for human rights litigations that covered a range of civil, political and social rights issues such as rights of prisoners, environmental rights, workers’ right to work,18 right to shelter,19 and the right to food20 (Mehta 2009). 16 See,

for example, Maneka Gandhi vs. Union of India (1978) 1 SCC 248. Coralie Mullin v. The Administrator (1981) 2 SCR 516. 18 Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161, 183. 19 Olga Tellis v. Bombay Municipal Corporation (1986) 3 SCC 545. 20 People’s Union for Civil Liberties v. Union of India (2001) 5 SCALE 303. 17 Francis

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Despite the landmark jurisprudence laid down facilitating access to higher judiciary, common citizens do not have the wherewithal to access them in every instance of violation they encounter. It is expected that the jurisprudence percolates to other accessible institutions, judicial or quasi-judicial domains for the citizens to access and claim their rights.

2.5.5 Quasi-Judicial Spaces and Ombudsman Institutions Statutory institutions such as national and state human rights commissions, other statutory commissions such as women’s commission, consumer redressal forums/commissions, and national commission for protection of child rights (NCPCR) are mandated to redress citizens’ grievances, including those concerning health care. Apart from the frequently accessed institutions such as consumer redressal forums and medical councils, this research process led to discovering several other quasi-judicial spaces that are being engaged by civil society organisations on health care matters. As quasi-judicial spaces vested with the power of civil court, they have the potential to impact the litigation process positively. Scope of their redressal interventions include admitting complaints, taking suo-moto cognizance of violations in their respective thematic competencies and jurisdictions, intervening in matters as third parties in writ petitions, and when called upon in the higher courts or in appeals, the documents admitted as part of their investigation potentially form crucial pieces of legal evidence. Of all these institutions, NHRC illustrates the contributory potential of these bodies to strengthen SHRC. NHRC jointly organised public hearings on right to health care with Jan Swasthya Abhiyan (JSA)21 in 2004. The recommendations of NHRC unequivocally called for a declaration of ‘right to health care as fundamental right’ and spelt out unambiguously that a well-functioning health care system was essential for SRHC (National Human Rights Commission n.d.). This, among other things, led to a draft National Health Bill 2009 which articulated citizen rights and was placed in the parliament (MoHFW-Govt. of India 2009). Similarly, NHRC had taken keen interest in the issues of mental health care in the 1990s and had legally intervened in these matters (Vide. Chap. 3, section on psychosocial disabilities). Similarly, it had intervened as third parties in the environment related litigations such as Silicosis in the SCI. Such interventions had positive bearing on the outcomes in terms of reforming mental health care institutions or in awarding compensations to Silicosis victims. In recent times, NHRC has prepared a Charter of Patient Rights and has submitted it to the MoHFW with recommendations for adopting it as part of the policy (National Human Rights Commission 2018). Even as there is an impetus for claiming citizenship through social rights and social citizenship, as this book argues, several counter-currents in the global political 21 Largest civil society coalition for health rights in India, a national unit of the global People’s Health Movement (www.phmovement.org).

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canvas and that of India have posed serious challenges to such a process in recent years. Social-political churnings of hyper-nationalism based on religion, race and other identities have questioned the foundations of liberal notion of citizenship itself. Such global phenomena challenge the very idea of social citizenship itself. Though it is not the focus of this book to delve into this subject matter, we acknowledge this factor both to understand that the road to citizenship is rocky, rugged, and challenging, as well as to take into account that such churnings have the potential to undo the gains of citizenship that are historically accrued thus far.

2.6 Social Citizenship at Crossroads Social citizenship is strongly argued on the premise of a certain character of the State that is mandated to uphold rights of citizens and is conscious of its distributive function. The second decade of the 21st century, however, signals the reversal of social citizenship. The Rohingya crisis in Myanmar, the Syrian refugees in a prolonged conflict in the middle east, the rhetoric of banishing immigrants from the USA and the amendments to Citizenship Act in India signal the crisis of the idea of citizenship itself. It also spells a radical departure of the State from the very idea of citizenship which it is supposed to uphold. The institutional perspectives employed in this book also point to the change in character of the institutions within the State. Changes in the public health care system and State’s complicit role in promoting corporate interests in health care—as observed in India-, are said to be symptomatic of its neo-liberal character which it has obtained. Series of policies and programmes that advance exclusivist models of development reflect appeasement of the middle and upper classes who feel compelled to ‘catch up’ with modern consumerism, and an ‘ideological crystallisation’ that has replaced the welfare-state with the market. The hegemony of the classes is mirrored in the ‘control, camouflage and commandeer’ that is exercised over the State, compelling its withdrawal from the welfarist-emancipatory policies (i.e. the distribution function of the national resources), and in leveraging State power to promote the market forces (Kothari 2002: 79–80). An analysis of public institutions in judicial, ombudsman, health, and education domains, indicate the decline in their democratic functioning (Kapur and Mehta 2007). Such a development is also a salient feature of the dominant neo-liberal economic order, where the legal and formal agreements of international financial institutions such as the World Trade Organisation (WTO), International Monetary Fund (IMF) and bilateral agreements dominate over the State to change its own legal frameworks in favour of the market. Such realignment of the politics of the State with the market is deemed to result in the decline of the welfare-state itself. The shift in considering health care as a private good from that of being a public good, for example, illustrates the increased marketisation of public goods and services that were hitherto protected in favour of citizens as public goods in the overarching framework of a welfare-state. It is noted that such developments do not merely signify

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the overarching influence of the free market over the State, but rather that ‘the State has realigned itself in relation to capital (and in particular corporate capital) in such a way as to demonstrate that the State and the market are not in competition’ (Veitch et al. 2012: 262). These factors point to the complexity, paradoxes and dilemmas that have come to occupy the terrain of SRHC. On the one hand, the State is minimising its role in the domain of health care resulting in a weakened public health care system, a move that has left citizens at the behest of the market led commercial health care which is unregulated across the globe. This is the prime factor underlying violations of social rights of citizens. On the other hand, there is an increased thrust on engaging the power of law and courts for citizens to claim SRHC from the State as part of realising their social citizenship (Friedman et al. 2013; Gostin 2010, 2014; Gostin et al. 2016; Magnusson et al. 2017; Zuniga et al. 2013). So, will more judicialisation and expanded jurisprudence bring greater SRHC to people? Will more juridification result in greater social citizenship when the State itself is wriggling out of its conformity with such an idea of citizenship? SRHC and health care jurisprudence, currently, are compelled to grapple with this predicament.

2.7 A Brief Synthesis The discourse on SRHC, social citizenship and pursuit of health justice is located in complex socio-political and economic contexts that shape and determine the approach of the State, the health care systems, juridico-legal system, the demeanour of interface between citizens and medical and legal professions, and the politics that shape the civil society. The quest for health justice, both in terms of accessing health care and the possibility of redressals for violations, are contingent on a fragmented health care system and a seemingly distant justice system. The discussions in this chapter have foregrounded the composite challenges that exist in the recognition of SRHC, redressal of violations and establishment of health justice. Such challenges emanate primarily from the constitutional governance architecture that relates to the health policy and health care systems in India. As several historical narratives indicate, legal mobilisation for health care is resorted to under varied compelling socio-political circumstances in the lives of the underprivileged, and most of them account for not only the denial and negligence in health care, but dispossession of dignity and citizenship itself. Health care litigations are used as strategic tools by civil society to fix these anomalies and to redress violations of citizens’ rights to health care. Along with courts, civil society too is a central actor in the strategy for achieving SRHC. Civil society coalitions and various ideological formations have played a great role in the mobilisation of courts and advancing the cause of the underprivileged. The health care jurisprudence presents a viable option to claim social citizenship and health justice by engaging judicial power. Despite all inherent limitations, courts and judiciary are still considered powerful drivers of equality, dignity, and

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justice in India. Nonetheless, the contestations and the entrenched competing stakes in health care, are likely to make civil society’s quest for health justice, an arduous journey. Professional associations, pharmaceutical associations, hospitals, and individual medical professionals too are heavily invested in courts in consolidating their power and collaterally thwarting the claims for social rights by civil society. While this sets the stage for contestations to the claims and counterclaims for citizenship in judicial spaces, the cumulative outcomes of health care jurisprudence depend on the position and approach of the State to the issue of citizenship. State is the powerful patron of citizens in a paternalistic welfare-state framework. It is also the largest litigator and is the default respondent in most health care related litigations of civil nature and the prosecutor in criminal litigations. The approach, character and leanings of the State have severe implications to the outcomes of litigations and to the consolidation of SRHC. The discussions here have alluded to the fluctuating character of the State and its realignment with the commercial health care sector thus posing an insurmountable challenge to the realisation of SRHC. In a democratic polity, civil society has untiringly invoked judicial power to challenge the tendency of the State to abdicate its constitutional duty of welfare of citizens and the related accountability deficits. Within these competing claims and contestations, the judicial power appears to lay down the health care jurisprudence. The components of social citizenship and health justice will be further discussed through health care litigations and health care jurisprudence analysed in the subsequent chapters.

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& Health Finance Knowledge Hub—Working paper 26. Working Paper Series. Melbourne: Nossal Institute for Global Health. http://ni.unimelb.edu.au/__data/assets/pdf_file/0003/754428/ WP_26_2013.pdf. Accessed October 10, 2018. Shuhe, H. (1996). Basic rights: Subsistence, affluence, and US foreign policy. Princeton, NJ: Princeton University Press. South Africa, Parliament (1994-), Constitutional Assembly, South Africa, and Juta Law (Firm). 2011. The Constitution of the Republic of South Africa, 1996: As Adopted on 8 May 1996 and Amended on 11 October 1996. Cape Town (PO Box 1191, Cape Town 8000): Constitutional Assembly. Srivastava, A. K., Tiwary, M., Human Rights Law Network (New Delhi, India) (Eds.). (2009). Right to food (4th ed). New Delhi: Human Rights Law Network. Starr, P. (1982). The social transformation of American medicine. New York: Basic Books. Stewart, A. (1995). Two conceptions of citizenship. The British Journal of Sociology, 46(1), 63–78. Teitelbaum, J. B., & Wilensky, S. E. (Eds.) (2009). Essential readings in health policy and law. Essential public health. Sudbury, MA: Jones and Bartlett Publishers. The United Nations, The Office of the High Commissioner for Human Rights (OCHCR). (2006). The United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol. International Instrument. Geneva, Switzerland: The United Nations. http://www.un.org/disabilit ies/documents/convention/convoptprot-e.pdf. Accessed April 03, 2016. The World Bank. n.d. Data: GDP per capita. The World Bank. http://data.worldbank.org/indica tor/NY.GDP.PCAP.CD?order=wbapi_data_value_2014+wbapi_data_value+wbapi_data_valuelast&sort=desc. Accessed August 08, 2016. Tigar, M. E., & Levy, M. R. (2005). Law and the rise of capitalism. Delhi: Aakar Books. Turner, B. S. (1990). Outline of a theory of citizenship. Sociology, 24(2), 189–217. Turner, B. S. (Ed.). (2000). Citizenship and social theory. Reprint. Politics and culture. London: Sage. Turnock, B. J. (2007). Essentials of public health. Sudbury, MA: Jones and Bartlett Publishers. United Nations Development Programme. n.d. Human development reports, table 1: Human development index and its components. United Nations. Accessed 8 August 2016. http://hdr.undp.org/ en/content/table-1-human-development-index-and-its-components. Accessed August 08, 2016. UNOHCHR, CESCR—Committee on Economic, Social and Cultural Rights. (2000). General comment 14. United Nations. http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?Ope nDocument. Accessed June 25, 2016. UNOHCHR, United Nations Office of the High Commissioner for Human Rights. (1990). ‘CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant). Adopted at the Fifth Session of the Committee on Economic, Social and Cultural Rights, on 14 December 1990 (Contained in Document E/1991/23)’. UNOHCHR. http://www. refworld.org/docid/4538838e10.html. Accessed August 242016. Varshney, H. (2018). Maneka Gandhi vs Union of India— Case summary. Law Times Journal (Online), 30 August 2018. http://lawtimesjournal.in/. Accessed January 10, 2020. Vasan, A., Premdas Pinto, E., Sreenivasa, V., & Seethappa, V. K. (2017). ‘Political interests and private healthcare lobby collude to stifle patients’ rights in Karnataka. Economic and Political Weekly, 52(50) (Online ed). Veitch, S., Christodoulidis, E. A., & Farmer, L. (2012). Jurisprudence: Themes and Concepts (2nd ed.). London: Routledge. Wexler, D. (2000). Therapeutic jurisprudence: An overview. T. M. Cooley Law Review, 125(2000). Winslow, C. E. A. (1920). The untilled fields of public health. Science, New Series, 51(1306), 22–33. World Health Organisation and UNICEF. (1978). Primary health care: Report of the international conference on primary health care. Alma-Ata USSR. 6–12 September 1978. Geneva: WHO. Yamin, A. E., & Gloppen, S. (2011). Litigating health Rights: Can courts bring more justice to health? Human Rights Program. Cambridge, MA: Harvard University Press, Harvard Law School.

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Zubrigg, K. R. (2001). Re-thinking public health: Food, hunger and mortality decline in South Asian history. In Nayar, Sen and Qadeer (Eds.), Public health and the poverty of reforms. New Delhi: Sage. Zuniga, J. M., Marks, S. P., & Gostin, L. O. (Eds.). (2013). Advancing the human right to health. Oxford: Oxford University Press.

Chapter 3

An Overview of Health Care Jurisprudence in India

Abstract This chapter provides a synthesis of the health care jurisprudence that has been laid down through litigations in various intersecting domains of health care in the post-independence period. The foundations of health care jurisprudence were first laid down through litigations related to environmental justice, workers’ rights, civil liberties, and tort jurisprudence in India. Applying these foundational principles, the health care jurisprudence further evolved through subsequent litigations in key health care domains—viz. emergency medical care; drugs and medicines; reproductive and maternal health care; health care of children; mental health care and rights of persons with psychosocial disabilities; rights of persons living with HIV/AIDS; health care entitlements and elite government employees; patient rights and medical profession (medical negligence); and, litigations on the issues of public health and health care health services. Both the foundational jurisprudential principles as well as the health care jurisprudence crystallised through ten subdomains of health care, unpack the gains and challenges such processes entailed over five decades in India.

Society is guilty if anyone suffers unjustly (V.R. Krishna Iyer, J.)1

Judicialisation of health care or the phenomenon of citizens accessing courts for better health care services is noted as an increasing trend in many developing economies (Yamin and Gloppen 2011). In India, adjudication on matters concerning health and health care became possible through a two-fold reform process in courts, especially in the 1970s and in the subsequent decades. One, increased access to higher judiciary of SCI and HCs of India through a liberal interpretation of the Articles 32 and 226 of the Constitution of India for fundamental rights violations; two, the expanded interpretation of the right to life articulated in article 21 to include right to health and health care.

1 Interview

to Disability News and Information Service at the occasion of the new year (2005).

© Springer Nature Singapore Pte Ltd. 2021 E. P. Pinto, Health Justice in India, https://doi.org/10.1007/978-981-15-8143-4_3

83

84

3 An Overview of Health Care Jurisprudence in India

Fig. 3.1 Distribution of litigations by judicial domains (n = 401). Source Author

3.1 Health Care System Insights Through Litigations The jurisprudence summarised in this chapter is based on the analysis of 401 case-laws including ongoing litigations selected through keyword search in the legal portals, references through interviews and cross-referencing through literature and case-laws. Fifty-two percent (207) litigations were in the domain of SCI and 48 percent (194) were in HCs and other judicial domains such as Central Administrative Tribunals, Patent Controller’s Office, and Consumer Redressal Commissions (Fig. 3.1). The HC+ category of cases include a major portion in 18 HCs (162), and 32 litigations from other judicial/quasi-judicial domains such as National Human Rights Commission (3), National Consumer Disputes Redressal Commission (22), Central Administrative Tribunal (3), Controller of Patents (2), and Lokayukta (2) (Vide. Fig. 3.2). The 162 HC litigations are distributed across 18 HCs covering the jurisdiction of 22 states (Table 3.1). It was found that 38 case-laws had more than one strong and overlapping theme (for example: civil liberties and emergency medical care,2 environmental cases and health, and the like) and they are considered for analysis in two thematic domains (for example: medico-legal cases and reproductive health). This makes a total of 439 cases considered for thematic analysis of various domains related to health care (Fig. 3.3). Thematic Distribution and Analysis Analysis followed a five-step process using the concept of ‘case congregation’ along with thematic and content analysis. 1. Categorisation of 439 litigations into 14 thematic domains (Fig. 3.3)

2 Supreme

Court Legal Aid Committee v. State of Bihar (1991) 3 SCC 482.

3.1 Health Care System Insights Through Litigations

85

Fig. 3.2 Distribution of litigations by non-supreme court judicial domains (n = 194). Source Author

2. Subcategorisation into two overarching themes: viz. four constitutional rights constituencies (78) and ten health care system constituencies (361) 3. Clustering of the health care constituencies into four core-themes: • Basic health care services (emergency health care and drugs and medicines) • Vulnerable populations/groups3 and SRHC (people with psychosocial disabilities, reproductive and maternal health care, people living with HIV/AIDS, and children) • Health care of social elites4 and patient rights (medical negligence related to health care in private health institutions negligence and medical care claims of government employees of higher ranks) • Public health care system issues5 (public health care system and public health measures).

3 These

four categories of populations are categorised as ‘vulnerable group’ on the commonality of two key elements that render them vulnerable—(1) they need health and related care as a basic necessity; and (2) they are absolutely dependent on the health care provided by the State, as most of these litigations refer to the socially disadvantaged groups. 4 The phrase ‘Social Elites’ is used to demarcate two categories of people vis-a-vis the poor and vulnerable who absolutely are dependent on public health care system, viz. (1) middle and upper middle classes who could choose private commercial health care on account of the capacity to pay and (2) Government servants/bureaucrats of higher ranks whose health care expenses are taken care of the Government of India. 5 Litigations around two themes, viz. (1) those concerning institutions, infrastructure and services (and not individuals) and, (2) issues such as helmets, tobacco, junk food etc. are clubbed into this cluster. Clustering them into one is done also is driven by the logic of convenience.

86 Table 3.1 Distribution of litigations by high court location

3 An Overview of Health Care Jurisprudence in India State (location of the litigation)

High Court

No. of Litigations

Maharashtra

Bombay

33

Goa Rajasthan

Rajasthan

7

Madhya Pradesh

Jabalpur

6

Odisha

Odisha

3

Uttar Pradesh

Allahabad

11

Andhra Pradesh

Andhra Pradesh

15

Gujarat

Gujarat

Kerala

Kerala

6

Tamilnadu

Madras

12

Haryana

Punjab & Haryana

8

West Bengal

Kolkata

4

Tripura

Guwahati

4

2

Punjab

Nagaland Assam Delhi

Delhi

Bihar

Patna

30

Karnataka

Karnataka

11

Chattisgarh

Chattisgarh

1

Sikkim

Sikkim

1

Uttaranchal

Uttranchal

Total: 22

18

7

1 162

Source Author

4. Categorising case-laws and petitions in a judicial hierarchical order (i.e. SCI, HC and other) within each theme, followed by organising all orders in each of these categories in a chronological sequence on the basis of the date of judgments.6 5. Thematic and content analysis of each thematic domain (organised and arranged in terms of hierarchy of legal institutions and chronological sequence), to sift out the jurisprudential principles emerging in each of these themes. The section Constitutional Rights outlines the foundational principles or building blocks that form the base of health care jurisprudence. The section Domains of Health Care Litigations examines the application of the basic jurisprudence to various 6 The date of judgment does not necessarily correspond to the chronological sequence of the incident

due to the nature of the courts in dealing with the issues, the time the petition has taken to reach its finality etc. However, there is no way to verify the date of incident in most of the cases, and the date of judgment provides a standard to follow.

3.1 Health Care System Insights Through Litigations

87

Fig. 3.3 Distribution of litigations by thematic domains (n = 439). Source Author

health care domains, thus furthering and consolidating the health care jurisprudence simultaneously incorporating any new principles that might have evolved during such a process in the domains of HCs. A time period trend indicates most litigations being in the post-1990 era where radical economic reforms were undertaken in India including becoming signatory to the World Trade Organisation (WTO) led TRIPS agreement. (Fig. 3.4)

3.2 Constitutional Rights and the Foundations of Health Care Jurisprudence Three of the four key themes under this section, viz. right to a healthy environment, workers’ right to health, civil liberties, and medico-legal issues of prisoners and arrestees, correspond directly to the respective spheres of social movements and civil society struggles in the 1970s and 1980s, viz. environmental movement, workers’ movements, and civil rights movement. The fourth theme, i.e. tort jurisprudence, a weakly evolved branch of law in India, synthesises the jurisprudence relating to damages and compensation imposed by the constitutional courts responding to these social movements. Such measures aim at fixing the accountability of the State and its instrumentalities to pressing issues affecting their right to life. Notably, social or mass movements were primarily a civil society response to immense human suffering that was caused in the society at large, its manifestation in specific sectors, and to the State Apathy that exacerbated it. A closer reading of these litigations suggests that a major portion of PILs echo the suffering and human rights violations of the masses (among others, represented in this book by workers, women, children and prisoners), and were stimulated by the ethos of civil society or mass movements demanding State accountability. The litigations

0

0

1

4 0

0

0 3 0

0

0

0

0 0

0 0

0

40

21

RTHC of Children & Adolescents Med Reimbursements & Govt. Employees HC System and Services

ReproducƟve and Maternal Health

RTHC of People Living with HIV

ThemaƟc dom 9 (PH)

Fig. 3.4 Distribution of health care litigations by time-periods (n = 401). Source Author

Emergency Care

7

5 15

7 6 0 6 0 6 1 4 14 9 3 2 0

0 31 3 1 2 0 3 8

Workers Health Righs

The period of liƟgaƟons in decades

0

0

0

0

3 0 3 6 3 1 1 0 0 7 4 6 2 1 1 8 0 3 10 6 2 1 8 2 9 0 0 0 0

2 0

0

0

0

Tort Jurisprudence

0

10

20

30

40

50

60

Environmental Jurisprudence

L i t i g a t i o n s

21

Medical Negligence & Professional Conduct

Psychosocial DisabiliƟes and HC

Drugs and Medicines

Civil LiberƟes & Med-legal cases

30

59

88 3 An Overview of Health Care Jurisprudence in India

3.2 Constitutional Rights and the Foundations of Health Care Jurisprudence

89

Fig. 3.5 Constitutional rights constituencies and distribution of litigations by judicial domains (n = 78). Source Author

by civil society organisations such as Consumer Education and Research Centre (CERC), Rural Litigation and Entitlement Kendra (Dehradun) and social movements such as Bandha Mukti Morcha that advocated for the liberation of workers and bonded labourers, reflect the civil society ethos of this era. Of the 78 case-laws considered for this section, 67 percent (53) were adjudicated in the SCI and 33 percent (25), in HCs of 14 states. HCs played a paramount role in consolidating the health care jurisprudence while dealing with matters intersecting with health and medical care (Fig. 3.5).

3.2.1 Environmental Rights Litigations and Health Care Jurisprudence Article 47 (Public health) as the Principle of Constitutional Governance The first historical petition on environmental issues—Municipal Council, Ratlam v. Vardichandand others7 (hereafter, Ratlam case)—was filed by a citizen in public interest as a quasi-criminal petition under section 133 of CrPC against a municipality (Box 3.1). It sharply focuses on public health issues sanitation. It also invoked 7 Municipal

1075.

Council Ratlam v. Vardichandand others, AIR 1980 Supreme Court 1622; 1980 CriLJ

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3 An Overview of Health Care Jurisprudence in India

section 123 of the Municipality Act which imposes the duty on the statutory body to (1) (b) cleaning public streets to abate public nuisances and section 188 of Indian Penal Code (IPC) 188 that imposes penalty for disobeying directions. It reached the SCI as an appeal against the HC order, during the normal course of its adjudicatory procedure that had begun at the court of sessions. The SCI order, among other directives, declared ‘public health as the principle of governance’ and part of the constitutional duty binding the municipality. Box 3.1 Facts of Ratlam Case Pollutants from an alcohol factory were let out in the open drains and were overflowing, causing public nuisance. Across the open drains, the bridge had not been built by the municipality for long. A citizen challenged the Municipality for allowing the public nuisance to continue in the court of law using the Municipality Act in the district sessions court which favoured the complainant. As the Municipality of Ratlam appealed against each and every order of the court at every stage, first in the HC and then in the SCI, the relatively unknown petition landed in the constitutional court through the normal course of a criminal litigation. This judgment historically marks the beginning of invoking law and legal provisions for issues of health and public health. The imprint of jurisprudential acumen of Justice Krishna Iyer along with Justice P. N. Bhagwati is visible in crafting the landmark judgment. Being one of the earliest litigations, it laid the foundation for subsequent environmental litigations and became the cornerstone of the environmental movement and public interest cause in India. In this petition, public health was propounded as the main basis to highlight public nuisance of ‘pollution’ and the negligence of the municipality to take appropriate remedial action. The order makes an important link between the duties of the public bodies towards citizens as part of public law and the power of the court to enforce such actions for the good of the community while doing away with the procedural issues of the traditional legal process. Public Health is laid down as the paramount principle of constitutional governance. The jurisprudence laid down in this order emphasises that (1) Procedural justice, access to justice and duty of public bodies to uphold public health are a part of the social justice; and (2) Article 47 of the Indian Constitution is reinforced as paramount principle of governance for improvement of public health.

3.2 Constitutional Rights and the Foundations of Health Care Jurisprudence

91

Several HCs of India followed the principle of the primacy of Article 47 as the principle of governance8 and applied it to order complete free medical care, rehabilitation and monetary compensation in the fluorosis issue.9 Relating to public health governance, SCI also laid down the doctrine of preserving public health as ‘the public duty of the public authorities’, which is categorically stated in Ratlam Case (Para 14) as follows: [a] responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies.

In a similar vein, the raison d’etre of public health and health care was strongly argued in the issue of banning mining in Aravalli hill range.10 Right to ‘Healthy Environment’ The petition Rural Litigation Entitlement Kendra (RLEK) v. State of Uttar Pradesh11 is considered as the one that pioneered environmental PILs in the country. In this petition, limestone quarry mining was alleged as the cause of bonded labour practised in quarries, in addition to the ecological degradation affecting crops and quality of air. The SCI reiterated that ‘right to live in a healthy environment’ as an integral part of right to life. In subsequent petitions, based on this jurisprudential principle, right to health was pronounced to include freedom from noise pollution12 and environmental damage and controlling pollution was stated as the State obligation.13 The international principles of sustainable development enunciated in the Stockholm Declaration and the principle of right to a healthy environment are applied in enunciating this jurisprudence. An evolved and mature jurisprudence was laid down in Virender Gaur v. State of Haryana in the mid-1990s. It states: Article 21 protects the right to life as a fundamental right…Therefore, a hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment.14

8 Citizens

Action Committee, Nagpur v. Civil Surgeon, Mayo (General) Hospital, Nagpur and Ors AIR 1986 Bom 136; Siromani Mittasala v. President, Brindavanam Colony 2002 (1) ALD 136; 2002 (2) ALT 356; L. K. Koolwal v. State of Rajasthan and Ors. AIR 1988 Raj 2; 1987 (1) WLN 134; Prasanta Kumar Rout, Orissa Law Reviews v. Government of Orissa, Represented by Secretary, Urban Development Department and Others 1994 II OLR 444; Suo-moto v. State of Rajasthan AIR 2005 Raj 82; RLW 2005 (2) Raj 1437. 9 Hamid vs. State of M.P AIR 1997 MP 191. 10 M. C. Mehta v. Union of India (2009)6 SCC 142. 11 Rural Litigation Entitlement Kendra (RLEK) Dehradun and Others v. State of Uttar Pradesh and Others (1985) 2 SCC 431, para 179–180. 12 Farhad K. Wadia v. Union of India (2009) 2 SCC 442. 13 A. P. Pollution Control Board II v. Prof. M. V. Nayudu (2001) 2 SCC 62. 14 Virender Gaur v. State of Haryana, (1995) 2 SCC 377, Paragraph 25.

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In an unusual case, which was later set aside for not being in public interest, the SCI further qualified the right to live in a healthy environment as essential for the ‘quality of life’.15 However such a reasoning provided additional wherewithal that was required to investigate similar issues. Under the environmental jurisprudence, allotment of public lands to private bodies such as medical trust for constructing hospital16 and a Dharmshala17 were ruled as violating the enhancement of the quality of life. Principle of ‘Absolute Liability’ Subsequent to the Bhopal gas tragedy, in a similar incident of oleum gas leak,18 the issue of the private corporations’ liability for the health of the public was sharply raised in the SCI. The principle of ‘absolute liability’ that the SCI developed, declared that even the private corporations were liable to pay compensation. This was reinforced over and above an already existing principle of ‘strict liability’ applied to the ‘State and instrumentality of the State’.19 The principle of absolute liability20 implying that the corporation ‘owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken’ and ‘indemnifies all those who suffer on account of carrying on such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not’. Here, ‘reasonable care’ is not admitted as a defence.21 The principles of public duty and absolute liability, along with Article 47 as the principle of governance, formed a body of reciprocating jurisprudential principles, which subsequently were applied in several landmark environmental cases such as Ganga Water Pollution Case.22 Employing the principle of ‘people’s right to live in healthy environment’, civil society actors continued to file several municipal law-based litigations in the HCs of several states. HCs in turn deepened the jurisprudence laid down by the SCI by unequivocally reinforcing the principle of public duty of safeguarding public health 15 Subhash

Kumar v. State of Bihar, AIR 1991 SC 420, 1991 SCR (1) 5, para 13. Medical Trust v. B.S. Muddappa, [1991] 4 SCC 54. 17 Virender Gaur v. State of Haryana. 18 M.C. Mehta v. Union of India and Ors (Oleum Gas Case 3) 1987 SCC (1) 395. 19 For the purposes of enforcing fundamental rights against them, as enunciated in the five criteria enunciated in R. D. Shetty v. Airport Authority of India (1979) 3 SCR 1014). That included (1) Financial assistance given by the State and magnitude of such assistance (2) any other form of assistance whether of the usual kind or extraordinary (3) control of management and policies of the corporation by the State-nature and extent of control (4) State conferred or State protected monopoly status and (5) functions carried out by the corporation, whether public functions closely related to government functions. 20 Extending the principle of strict liability in Rylands v. Fletcher (L.R. 3 H.L.330), the Court, for the first time, enunciated the principle of absolute liability of corporations when they undertake hazardous and dangerous activity. 21 M. C. Mehta v. Union of India and Ors (1987) 1 SCR 819, pg. 843. 22 M. C. Mehta v. Union of India (Kanpur Tanneries) 1988 SCC (1) 471; also M. C. Mehta v. Union of India & ors., (1987) 4 S.C.C. 463. 16 Bangalore

3.2 Constitutional Rights and the Foundations of Health Care Jurisprudence

93

as an absolute constitutional obligation of the State and public bodies.23 In Gujarat Ambuja Cements Ltd. v. Chavi Raj Singh,24 the appellant (cement factory) was asked to foot the medical bills of the villagers affected by tuberculosis (TB) and asthma in villages in and around the cement factory. Doctrine of ‘Minimum Condition of Public Health’ In the case of the deaths of 12 children in 1991/92 due to cholera in the Pardi Mohalla of Gwalior city of Madhya Pradesh, a public spirited doctor’s litigation led to further consolidating the jurisprudence of public health governance.25 The court reiterated that the State is obligated to ‘provide at least the minimum conditions ensuring human dignity’26 and the right to life with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition.27 The environmental jurisprudence paved the way for establishing the fundamental health care jurisprudence laying down Article 47 as the principle of constitutional governance and ably integrating it with personhood jurisprudence enshrined in Article 21. In the same stroke, it established the ‘absolute duty’ of the public bodies to uphold and enforce Article 47. This is an important breakthrough in making health care justiciable. Legal experts have noted that the right to health as a fundamental right grew as an offshoot of environmental litigations initiated by environmental activists and that the judicial recognition of the right to ‘healthy environment’ in India preceded that of the right to health care (Desai and Chand 2007).

3.2.2 Workers’ Right to Health and Medical Care28 Injuries, diseases, and mortality are closely associated with the occupational health issues of workers. The worker’s charter of rights includes social security, with health care being one of their key demands. The mandate for the social security of the workers in India is laid out in Articles 39 (e), 42 and 43 of the Constitution of India, with a prime focus on the promotion of the health of the workers (Government of

23 Citizens Action Committee, Nagpur vs. Civil Surgeon, Mayo (General) Hospital, Nagpur and Ors AIR 1986 Bom 136; Corporation of the City of Nagpur v. Nagpur Electricity Light and Power Co AIR 1953 Bom 498; Dr. K. C. Malhotra v. State of MP and Others AIR 1994 MP 48; Citizens and Inhabitants of Ward No. 17, Municipal Corporation, Gwalior v. Municipal Corporation, Gwalior, 1992 (1) MPJR 93. 24 Gujarat Ambuja Cements Ltd. v. Chavi Raj Singh (2007) 15 SCC 632. 25 Dr. K. C. Malhotra v. State of MP and Others AIR 1994 MP 48. 26 Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782. 27 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746, (1981 Cri LJ 306 (Paragraph 7). 28 In this book, the concept of workers includes all citizens in the informal as well as formal sectors of economy. When not qualified as formal and organized sectors, it primarily means workers in the informal and unorganized sectors.

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3 An Overview of Health Care Jurisprudence in India

India and India.gov.in—National Portal of India n.d.). Though there is no substantially aggregated governmental data that is available on health conditions of workers, Leigh et al. (1999) estimate an annual incidence of occupational diseases that range between 924,700 and 1,902,300 in India, and about 121,000 annual deaths. Given the sheer volume of the unorganised and informal workforce, even such a calculation appears to be an underestimate. In 2007, the National Commission for Enterprises Among Unorganised Sector (NCEUS) categorised 77 percent of the population, constituting 92 percent of the workforce in the country, as informal and not having any social security (Government of India—NCEUS 2007).29 Notably, the PILs that were brought before the SCI reflected the pitiable plight of workers in the 1980s, 1990s and early years post-2000. They point to an irrefutable gaping hole that exists in providing them adequate health care as part of the much-needed social security. The issue of health care that is raised in these petitions, is a commentary on their working conditions and the lamentable status of their social security of workers especially in the informal and unorganised sectors even today. In contemporary times, the neglect of the wellbeing of informal sector workers became starkly visible in their plight during the COVID19 related lockdown in India that was imposed in view of the coronavirus.30 The jurisprudence laid down on the issue of health and medical care has the potential to strengthen the social security of workers. Right to Medical Care as a Fundamental Right The prime contributors to this jurisprudence are P. N. Bhagwati, V. R. Krishna Iyer and K. Ramaswamy, JJ. They infused social justice interpretation of the constitution in referring to litigations on workers’ rights that were primarily filed as PILs, raising the issues of constitutional rights of workers. Two petitions, i.e. Asiad Construction Workers Case (PUDR v. Union of India 1982) and the bonded labour case (Bandhua Mukti Morcha v. Union of India 1984) were admitted in the SCI in its ‘epistolary jurisdiction’, i.e. simple letters addressed to the court on conditions of workers that were admitted as PILs. Regional Director, E.S.I Corporation v. Francis De Costa and Another 31 [henceforth, ESI corporation case] crisply summarises the essence of social rights jurisprudence stating that ‘ Right to medical benefit is, thus, a fundamental right to the workman’. Right to health to include medical care was pronounced as a fundamental right in this case by the division bench. Subsequently, a three-judge bench in Confederation of Ex-Servicemen Associations v. Union of India32 declared as a fundamental right, the right to health and medical aid to workers, both during as well as after the service. 29 This report by the National Commission for Enterprises Among Unorganised Sector 2007 has startling statistics on the unorganized sector, was not made public and was removed from the government website within a few days of its publication. 30 The newspapers and online portals, starting from 23 March 2020, carried innumerable stories of over 150 million migrant workers, who were stranded in cities and highways, facing hunger and death, disease and denial of care, police brutality and inhuman living conditions. 31 Regional Director, E.S.I Corporation v. Francis De Costa And Anr1992 SCR (3) 23; 1993 SCC Supl. (4) 100; JT 1992 (3) 332; 1992 SCALE (1)1083. 32 Confederation of Ex-Servicemen Associations v. Union of India (2005) 13 SCC 265.

3.2 Constitutional Rights and the Foundations of Health Care Jurisprudence

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In Pradip Chandra Parija v. Pramod Chandra Patnaik 33 a five-judge bench, and later in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra34 [Dawoodi Bohra case], a seven-judge bench, affirmed and upheld the same. Right to Health as Integral to the ‘Meaningful Right to Life’ The principle of ‘meaningful right to life’ further qualified and fortified the personhood jurisprudence in the judgment in Consumer Education & Research Centre v. Union of India (henceforth, CERC case, Box 3.2).35 This case unequivocally states: Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person (Paragraph 27).

Meanwhile, in another special leave appeal, in Kirloskar Brothers Ltd. V. Employees’ State Insurance Corporation36 [henceforth, Kirloskar Brothers case], jurisprudence reinforced that medical facilities and health insurance as fundamental rights of workers. Linking health and social justice, in L.I.C. of India and Another v. Consumer Education and Research Centre and Others,37 the court very strongly asserted that India was a welfare-state and every action of the State should be a step towards establishing socio-economic justice.38 Box 3.2 International Linkages of Occupational Health Jurisprudence in CERC case CERC case is one of the first litigations which covered the health issues of workers in the asbestos industry, comprehensively. This case was seriously argued with the background of international conventions leading to a landmark jurisprudence in occupational health. Though in the previous petitions health was one of the grounds for granting relief and medical facilities, in the CERC case the health of the workers in asbestos industries suffering from and vulnerable to ‘asbestosis’ became the most important concern. SCI leaned heavily upon the ‘Asbestos Convention 1986’ which was adopted in the 162nd

33 Pradip

Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1. Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr, (2005) 2 SCC 673. 35 Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42. 36 Kirloskar Brothers Ltd. V. Employees’ State Insurance Corporation, (1996) 2 SCC 682. 37 L.I.C. of India and Anr. v. Consumer Education and Research Centre and Ors. 1995 SCC (5) 482. 38 The Court invoked, amongst others, Articles 14 (right to equality), 21 (right to life), 38 (directive principle establishing the welfare nature of the state), 39 (right to livelihood and health of workers), 41 (right to social security) and 47 (duty of the state to improve standard of living and public health). India’s international obligations for socio-economic justice was specifically mentioned as owing obligations to Article 25 of the UDHR 1948 (right to a standard of living adequate for health and wellbeing of a person) and Article 7 of the ICESCR 1966 (right to enjoyment of just and favourable conditions of work). 34 Central

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International Labour Conference held in June 1986, to which India was a signatory. Subsequently, the Rules were framed by the International Labour Office, Geneva. It also drew on the social justice, equality, and directives for welfare of citizens and workers as prescribed in the constitution, and the Bill of Rights— UDHR, ICCPR, ICESCR (Para 22–23). In this historical case, SCI held that the right to health of a worker is an integral facet of a meaningful right to life. The court ordered maintenance of health records of workers, Membrane Filter Test to detect asbestos fibre, compulsory insurance health coverage to every worker, and compensation to all workers diagnosed with asbestosis. C.E.S.C. Ltd. v. Subhash Chandra Bose39 [henceforth, CESC case] further confirms the intersectionality between fundamental right to health care and social security of workers, on the grounds of the spirit of the preamble and Part IV of the Constitution of India being the incontrovertible bed-rock of an ‘egalitarian social order’. Doctrine of Medical Aid and Hospitalisation as Part of ‘Right to Human Dignity’ In Bandhua Mukti Morcha v. Union of India,40 the three-judge bench (A. N. Sen, P. N. Bhagwati and R. S. Pathak) laid down key jurisprudential principles and articulated the firm link between right to life (Article 21) and workers’ right to dignity: [r]ight to live with human dignity enshrined in Art.21 derives its life breath from the Directive Principles of State Policy and Particularly clauses (e) and (f) of Articles 39, 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just as humane conditions of work, and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity (Paragraph 14). [emphasis added]

The Court was very emphatic when it affirmed that ‘no state neither the central Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials’ and ‘it is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this court in Francis Mullin’s case (1981) 1 SCC 608, to live with human dignity, free from exploitation’ (Ibid., Paragraph 14). In ESI Corporation case41 the right to medical and disability benefits to a workman were declared as her/his fundamental right. Private Law, Employment and Workers’ Rights In India, the PILs focused on the accountability of the State and consequently, as related to the workers’ social security, the private employers escaped civil society’s 39 C.E.S.C.

Ltd. v. Subhash Chandra Bose 1992 (1) SCC 461. Mukti Morcha v. Union of India 1984 (3) SCC 161. 41 Regional Director, E.S.I Corporation v. Francis De Costa And Anr1992 SCR (3) 23; 1993 SCC Supl. (4) 100; JT 1992 (3) 332; 1992 SCALE (1)1083. 40 Bandhua

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vigilance and as a practice they shrugged off their responsibility to the health and medical care of workers. Workers’ rights litigations, over a period, resulted in laying down a jurisprudence that related to the obligations of private employers and private entities to the health care and social security of workers. They are summarised here: • Private law and business principles are subservient to the constitutional ideals of social justice: In L.I.C. of India and Another v. Consumer Education and Research Centre and Others (LIC case),42 the court stated that actions of private companies had to be informed by concern for workers. It unequivocally held that the private and business entities had to comply with the constitutional ideals of socioeconomic justice ensuring social security of workers. Further the jurisprudence notes that the Directive Principles of the Constitution laid a reasonable restriction on the freedom of trade and profession under Article 19 (1)(g). • Public Character of the Private Law: Jurisprudence developed by Justice V. K. R. Iyer on public duty was reconfirmed in the LIC case laid down that laws and policies which ‘bear the imprint of the public character’ are to be subjected to the principle of public duty. Court declared that ‘when a policy bears the imprint of the public character, they are under constitutional obligations such as ‘the duty to act fairly is part of fair procedure envisaged under Articles 14 and 21’ (LIC case, Page 19). The court also noted that the plea of contractual obligations stands rejected when they are alleged to violate Article 14 of the Constitution. • Tortious and Vicarious Liability of the Employer for the Health of the Workers: The tortious liability of the employer for the life and health care of workers was upheld and reinforced as part of ‘right to life’ in CERC case. In another case43 the tortious liability of the employer and the right to health of the workmen was upheld. The corresponding duty cast on the employers by the workers’ right to health was further defined by the Apex Court in Kirloskar Brothers case, in which it held that employers had a duty to ensure that their employees can lead a meaningful life. In the CERC case as employers even in private industries were obliged by the constitutional duty to provide health facilities to its employees. Gujarat HC laid down the principle that the employer is vicariously liable to pay damages in case of occupational diseases, herein this case asbestosis.44 • Enforcement of Fundamental Rights Against Private Entity/Individuals: Bhagwati and Ramaswamy, JJ., both emphatically ruled on the enforceability of fundamental rights against private individuals in several judgments. In People’s Union for Democratic Rights v. Union of India,45 better known as the Asiad Workers case, it was emphatically stated: ‘[i]t is the constitutional obligation of the State to take necessary steps for the purpose of interdicting [such] violation and ensuring observance of the fundamental right by the 42 L.I.C. of India and Anr. v. Consumer Education and Research Centre and Ors. 1995 SCC (5) 482

(This was a civil appeal no.7711 OF 1994). 43 Rajangam, Secretary, Dist. Beedi Workers Union v. State of Tamil Nadu AIR 1993 SC 401. 44 Praveen Rashtrapal, I.R.S. v. Chief Officer, Kadi Municipality (2006) 3 GLR 1809. 45 People’s Union for Democratic Rights v. union of India (1982) 2 SCC 235.

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3 An Overview of Health Care Jurisprudence in India private individual who is transgressing the same’. (PUDR v. Union of India, Paragraph 493) [emphasis added].

• Workers’ Good Health is Employer’s Obligation: In Mangesh Salodkar v. Monsanto Chemicals of India Ltd (Mangesh Salodkar case)46 the court reiterated the inextricable link between the legislative intent of the welfare legislations and the duty of the State to protect and promote worker’s right to health. The order states: Support for the preservation and enjoyment of good health is hence an important obligation of the State and the employer. There can be no contracting out of such obligations. No fine print of exceptions can be countenanced. The mandate to support life is inalienable. (Paragraph 14)

• Right to Medical Records: In Mangesh Salodkar case, the HC directed that (i) the copies of medical records of workmen must be handed over to them as and when medical examinations are conducted; (ii) appropriate government to consider the issuance of suitable directions mandating the permanent preservation of medical records in the electronic form by factories engaged in hazardous processes. • Working Hours to be Rationalised, Made Just, Reasonable and Humane: In Seenath Beevi v. State of Kerala,47 in the issue of the working hours of nurses, the HC of Kerala asserted the binding nature of respecting the worker’s rights on all. It states that ‘in the light of the Constitutional mandate under Article 21 no employer whether private, Government or quasi-Government has got the unfettered freedom to prescribe conditions of work and imposing duty hours exceeding certain limits. Some of the key principles that evolved as part of the jurisprudence on workers’ rights, discussed in this section, therefore include the obligations of State for the social security of workers as the principal employer, right to health and medical care as fundamental rights, tortious and vicarious liability of the employer, and the constitutional obligation that is caste on the private employers to the health care and social security of workers as part of the just and humane working conditions. 46 Mangesh Salodkar v. Monsanto Chemicals of India Ltd. 2007 (2) BomCR 883 Bombay [Writ Petition No. 2820 of 2003]; cited exposure to pesticides was alleged as the reason for the brain haemorrhage suffered by one of the workers. Though the worker was hospitalized and the dispute between the worker and the employer was settled outside court for about 17.80 lakh rupees, the Bombay High Court took up the petitions on the larger issue of the right to workers’ health. The court appointed an amicus curiae and a commissioner to investigate into the issue. The commissioner filed an expert report by the Director of National Institute of Occupational Health (Indian Council of Medical Research) Ahmadabad. 47 Seenath Beevi v. State of Kerala (2003) 3 KLT 788; This petition was filed by a head nurse who was working in the taluka headquarters at Thirroorangadi in the Health Services Department of the State of Kerala. In this petition she challenged 14 h of work for six consecutive days. The order stated that ‘compelling the petitioner to be on duty continuously for 14 h a day for 6 days consecutively in a week is illegal and unconstitutional’. (Ibid. Paragraph 24) Court ordered the state to stop the prolonged hours of work and to introduce three shifts for nurses on duty in all the government hospitals. The legal reasoning confirmed the jurisprudence of SCI. It rejected the argument of financial burden by the State.

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3.2.3 Civil Liberties, Prisoners’ Rights and Medical Care Detention, imprisonment, house-arrests, torture, deprivation of civil liberties based on political opinion are often associated with the violations of rights to medical and health care. Chronic illness, including mental illness and access to health care are the constant issues that the inmates of prisons face due to the nature of incarceration, deprivation of liberty and imprisonment (Wilper et al. 2009; Watson 2012; Berkman 1995) In India, several eminent personalities, including jurists such as V. R. Krishna Iyer, had bemoaned the conditions of prisons and prisoners which directly reflected the status of deprivation of civil liberties due to the nature of their socio-economic status and lack of access to legal aid (Krishnaswamy 2015). As in the cases of sexual violence such as rape, owing to the criminal nature of prosecution, health care jurisprudence conflicts with the forensic and criminal jurisprudence. In these instances, the overwhelming focus on the pursuit of evidence the survivors are deprived of timely access to emergency treatment and much-needed health care.48 In the mid-1970s and in the 1980s, responding to the civil society movements on civil liberties, the SCI emerged as the champion of prisoners’ rights with a focus on reforms in which legal aid and prison reforms were the key components. The civil rights movement in India, through several litigations in the 1970s and 1980s, was successful in expanding the rights of prisoners and detainees. They directly addressed oppressive conditions of prisoners such as inhuman treatment, oppressive measures to curb political beliefs,49 torture and injury to prisoners,50 cases of mentally ill persons detained in prisons,51 restricted monthly visit by legal advisor or family members,52 and conditions of under-trials.53 The PIL movement then had opened doors of the SCI both to civil society leaders and the deprived with much receptivity to their pleas. PIL itself had its origins in a letter addressed to the courts by prisoners who were ill-treated and tortured, having no access to legal counsel.54 Most of them were under-trials and from poor families who did not have the capacity to engage a lawyer to represent them. Issues of right to health care closely intersect with civil and political rights as exemplified in the issue of criminalisation of homosexuality55 and the right to health

48 Intervention petition by CEHAT, a civil society organisation, on sexual violence. Original petition was by Ranjana Pardhi and others in the Nagpur bench of the HC of Bombay. 49 Bhuvan Mohan Pattnaik v. State of Andhra Pradesh AIR 1974 SC 2092. 50 Charles Shobraj v. The Superintendent, Central Jail, Tihar 1979 SCR (1) 512. 51 Veena Sethi v. State of Bihar AIR 1983 SC 339 (1982 (2) SCR 583); Sant Bir v. State of Bihar AIR 1982. SC 1470, 1982 (3) SCC (31); and Sheela Barse v. Union Territory 1993 (4) SCC 204. 52 Francis Coralie v. Union Territory of Delhi 1981 (8) SCR 516. 53 Supreme Court Legal Aid Committee representing Under-trial Prisoners v. Union of India 1994 (6) SCC 731. 54 Sunil Batra AIR 1978 SC 1675. 55 Naz Foundation vs. Government of NCT of Delhi 50 and 7455/2001 (2 July, 2009).

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of transgenders.56 The case-laws considered here raise issues of medical care for the under-trials, right to medical care of persons in police custody and issues of negligence of medical care to persons in police or judicial custody. Right to Life with Dignity Vikram Deo Singh Tomar v. State of Bihar,57 one of the earliest writ petitions, was concerning the living conditions of female inmates in a ‘care home’ in Bihar. Through a letter, the inhuman conditions and ill treatment and lack of medical care were brought to the notice of SCI. The SCI applied the constitutional legal principles of right to life with dignity and ordered alternative accommodation, restoration of the existing home and the provision of sufficient amenities including furniture, cots, blankets, and clothing. The daily allowance was increased to Rs. 200/-. Right to Medical Examination and Medical Care D. K. Basu v. State of West Bengal53 marks a watershed concerning jurisprudence on the rights of prisoners against torture and ill treatment, and of the orders passed on the rights of arrestees, two of them pertained to health. The SCI defined the rights of the arrestees and convicts in this petition, in which right to medical examination and care becomes a constitutional right. The court too laid down procedures such as medical examination of arrestees and issuance of the ‘inspection memo’ and medical examination of the arrestee by a trained doctor every 48 hours during his/her detention in custody. This was reinforced in other subsequent petitions.58 In Poonam Sharma v. Union of India and others59 the court declared the right to emergency medical care as a fundamental right. The order in this petition clearly articulates that medical treatment of the arrestee/accused is a part of right to life, taking precedence over the criminal prosecution. That even the accused or a convict is entitled to the right to life is the core element that underlies health care jurisprudence that is laid down in this petition. Doctrine of ‘Minimum Conditions of Human Dignity’ to Include Right to Medical Treatment/Facilities The order in Marri Yadamma v. State of Andhra Pradesh (AP)60 further elucidated the minimum conditions that are to be ensured by the State as part of Article 21 of Constitution of India. Providing at least the minimum conditions of ensuring human dignity was prescribed by the courts as incumbent upon the State while assigning women and children to ‘Care Homes’.61 Furthering such principles, in Noorunissa

56 National

Legal Services Authority v. Union of India & Ors. [(2014) 5 SCC 438] (NALSA case). Deo Singh Tomar Vs. State Of Bihar 1988 SCC Supl. 734 53 D.K. Basu v. State of West Bengal AIR 1997 SC 610. 58 Rama Moorthy v. State of Karnataka 1997 2 SCC 642. 59 Poonam Sharma v. Union of India AIR 2003 Delhi 50. 60 Marri Yadamma v. State of Andhra Pradesh AIR 2002 AP 164. 61 Vikram Deo Singh Tomar Vs. State Of Bihar 1988 SCR Supl. (1) 755, page 3. 57 Vikram

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Begum v. District Collector, Kammam,62 [henceforth, Noorunissa Begum case] the court reiterated and summarised the jurisprudence as follows: The fundamental rights of prisoners are conclusively established in various judgments. Health and medical care are part of the fundamental rights of prisoners based on various judgments. Emergency medical treatment to take precedence above criminal law (Paramanand Katara). (Paragraph 9)

Vicarious and Tortious Liability of the State for Negligence of Medical Care The SCI in Chairman, Railway Board v. Chandrima Das63 [henceforth, Chandrima Das case] held that if the employees charged with the discharge of public duties commit an act of tort, their respective state governments will be held vicariously liable. A compensation of two lakh rupees was immediately ordered to be paid as compensation. Additionally, the order allowed petitioners to claim separate compensations for custodial deaths and for medical negligence. This case laid down the compensatory principles under the law of tort for the violation of fundamental rights. The petition was regarding a lady, national of Bangladesh, travelling in Indian Railways, who was accompanied to Yathri Nivas run by Railways. She was raped by an employee of the railways. The HC reasoned that rape was a private matter, that remedy was available only under private law, and that remedy under fundamental rights was not available to non-citizens. SCI reversed the HC order and overruled its reasoning. The principle of the instrumentality of the State was applied to the railways as the State enterprise under public law, holding it vicariously liable for the act. SCI ordered compensation in this case. The law of compensation under tort for the vicarious liability of the State and its instrumentalities, is firmly established through this judgment. In another case,64 the wife of the deceased prisoner alleged that her husband died due to the denial of timely medical treatment by the jail authorities. The HC of AP upheld the allegation of negligence against the jail authorities and held the government vicariously liable, in the lines of Chandrima Das case. Duty of the Doctors for Medical Care as ‘Absolute Duty’ In various litigations, courts evolved jurisprudence on the duty of the doctors to safeguard the rights of patients. In Paramanand Katara v. Union of India, [henceforth, Paramanand Katara case] the duty of doctors in the government hospitals to meet the State obligation of medical care to its citizens was declared as total, absolute and paramount. Emergency medical care is proposed as the basic rights of people in custody.65 Building on this, in the Noorunissa Begum case, the HC of AP, further elaborated the right to health and medical care jurisprudence. While decrying ‘death 62 Noorunissa

Begum v. District Collector, Khammam And Ors. 2001 CriLJ 3857, paragraph 9. Railway Board v. Chandrima Das, 988 [Civil appeal no. 639 of 2000, (arising out of SLP © No.16439 of 1998) dt. 28 January 2000]; Judgment was delivered by R. P.Sethi and S. Saghir Ahmad, J. J., 28 January, 2000. 64 Marri Yadamma v. State of Andhra Pradesh AIR 2002 AP 164. 65 Pt. Paramanand Katara v. Union of India 1981 SCC (4) 286. 63 Chairman,

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due to negligence’, HC in the same vein emphasised the ‘absolute duty of the doctors’ to save life. In addition to the compensation and disciplinary action against jail authorities, rule 10A to the prison rules was inserted to authorise police to take the prisoner to the hospital. The sharp legal reasoning used by the bench in these case-laws, interlinks various aspects of the seminal case-laws developed in the 1990s with health care jurisprudence (Box 3.3). The key elements of such a harmonised fine-grain jurisprudence include several elements of criminal jurisprudence, public law, and constitutional governance. It interlinks, among others, the right to medical care under CrPC 53-54 (as part of the prisoners’ rights), jurisprudence on negligence (as breach of public duty), vicarious liability of the State, government’s duty as public duty, and right to life in the case of medico-legal cases Box 3.3 Negligence of Medical Care of Person in Custody Supreme Court Legal Aid Committee v. State of Bihar66 This case is representative of the hundreds of cases in which the legal aid committee of the SCI took a keen interest in facilitating justice to the indigent during 1970s and 1980s This case law is of particular significance to health care jurisprudence as the issues of medical and health care are construed as violations of the fundamental rights of persons in police custody. The SCI took a serious note of custodial deaths through this petition. The Supreme Court Legal Aid Committee filed this petition under Article 32 of the Constitution on the basis of a news item published in the Illustrated Weekly of India of July 1, 1989 that reported the inhumane behaviour meted out to a person in police custody resulting in death. In the instance of looting in a passenger train, the victim Mahesh Mahto was nabbed along with several other persons and was seriously injured by the police brutality. Mahesh had received serious injuries and had to be taken to the hospital for treatment. As no transport was available a rickshaw was hired for the purpose of moving the injured to the hospital. By then the injured had become unconscious and the constable tied him with rope to the footboard of the rickshaw. As no timely medical treatment was provided to the injured, he succumbed to death. This affidavit of the Deputy Superintendent filed along with the postmortem certificate accepts that if appropriate and timely medical care had been provided, the life of the victim could have been saved. The court said that it is negligence of the police constable that has led to the death of the victim. The SCI, in its order, built up its legal reasoning stating that ‘it is the obligation of the police particularly after taking a person in custody to ensure appropriate protection of the person in custody including medical care if such person needs it’ (Supreme Court Legal Aid Committee v. State of Bihar, Paragraph 2). A sum of rupees twenty thousand was ordered as compensation to the heir of the deceased.

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(as enunciated in Paramanand Katara case). The jurisprudence on the rights of persons in police or judicial custody has endorsed the right to medical care as integral to the right to life. In the subsequent decades, such jurisprudence further got refined around the issues of discrimination and de-criminalisation of same sex relationships, which raised considerable debate in the country in recent years.67 Access to health care constituted a strong ground to such a jurisprudence.

3.2.4 Tort Jurisprudence in Negligence of Medical Care Law of tort is constructed on the legal maxim—ubi jus, ibi remedium, i.e. where there is a right, there is a remedy. This lays the foundation for compensation in matters of negligence. It primarily deals with breaches of duty, independent of contract giving rise to an action for unliquidated damages (Divan 2000). Legal scholarship has argued that the tort law in India is underdeveloped (Galanter 1986). Galanter, an eminent legal scholar, traces the roots to the colonial heritage in the weak civil remedy scenario in India. The British imposed ad valorem [literally meaning in proportion to the value] fees on the use of court and the principle of sovereign immunity of the Crown concerning the colonial government and officers. This was a legal hurdle for the development of tort jurisprudence in India. In the post-independence period, the beginnings of the tort jurisprudence can be traced to the compelling socio-political circumstances of 1970s and 1980s. This was when the SCI exercised its jurisdiction under Article 32 of the Constitution of India read with Article 21 and fashioned the doctrine of awarding compensation for breach of fundamental rights. In the development of tort jurisprudence, Divan (2000) traces five key areas—i.e. defamation against government and public officials, the rule of absolute liability (as developed in Shri Ram and Union Carbide gas leak cases), the defence of sovereign immunity of the State, compensation/damages for breach of fundamental rights (tort, quasi-tort, or not a tort) and misfeasance in public office (arbitrary, oppressive, and unconstitutional actions by the State and its officials). The practice of tort jurisprudence began primarily for violation of the constitutional right of personal liberty where compensation was awarded. In several cases68 where the conduct of the public servants had been proved to be oppressive, arbitrary, capricious and unconstitutional, termed as a ‘misfeasance in public office’, the principles of awarding exemplary damages and compensation, were consistently followed (Divan 2000: 426). 66 Supreme

Court Legal Aid Committee Vs. State Of Bihar (1991) 3 SCC 482. Legal Services Authority v. Union of India & Ors. [(2014) 5 SCC 438] (NALSA case). 68 Rudal Shah v. State of Bihar (1983) 4 SCC 141; Nilabati Behera v. State of Orissa (1993) 2 SCC 746; D. K. Basu v. State of West Bengal (1997)1SCC 416; Lucknow Development Authority v. M. K. Gupta, Common Cause v. Union of India (1996) 6 SCC 530, (1996) 6 SCC 593; Shiv Sagar Tiwari v.Union of India (1996) 6 SCC 558, (1996) 6 SCC 599; Shiv Sagar Tiwari v.Union of India (1996) 6 SCC 558, (1996) 6 SCC 599; State of Andhra Pradesh v. Challa Ramkrishna Reddy [2000] INSC 264 (26 April 2000). 67 National

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The key milestones in the tort jurisprudence included (1) upholding the rule of absolute liability in accordance with the principles evolved in Rylands v. Fletcher;69 (2) establishing the vicarious liability of the ‘sovereign’, applied here to the State, for the actions of its servants (removing the defence of a sovereign immunity in a tort action established on the dictum—the king can do no wrong;70 and, (3) ordering compensation/damages for the breach of fundamental rights.71 Chandrima Das case (discussed above) became a very significant landmark case in the application of the legal principle of compensation to the violations of fundamental right to life. Negligence in Medical Care and Compensation Award In many countries such as the USA, law of tort is the one which is used extensively in matters of negligence in health care when a patient suffers injury. Such a law which is not punitive but compensatory has not been adequately used in India in matters of health care. The Consumer Protection Act (CPA) 1986 purported to address this issue defining the health care issue in terms of deficiency of services wherein patients are construed as consumers. Such a move was fiercely contested and resisted by the medical associations. In the Indian Medical Association v. V. P. Shanta72 [henceforth, IMA Case], the SCI played a key role in bringing the private health care services under the ambit of CPA in 1995, almost a decade after its enactment, paving the path for the application of tort jurisprudence to medical and health care services. Under the tort law, damages are awarded for the deficiency of services or negligence, considering it as a civil wrong. Damages are considered as compensation to victims and as deterrent for negligent behaviour of health care providers (Schwartz and Komesar 1978). In India, such matters of medical negligence find their space in public debates episodically, either when media highlights such issues taking place in private-corporate hospitals on issues catching its attention or when the SCI or National Consumer Disputes Redressal Commission (NCDRC) exceptionally awards a huge sum of compensation as in the case of Dr. Kunal Saha73 in 2014. In this case Supreme Court awarded Rs. 110 million (11 crore) to Dr. Kunal Saha in damages (inclusive of interest) against several doctors and a private hospital for the negligent death of the petitioner’s wife. Kunal Saha argues that in the event of failure of regulation by the Medical Council of India (MCI) ‘large pay-outs awarded by the courts of law may therefore be the only way to instil accountability for wayward doctors and to save lives’. For the legal right to compensation (tort liability) to be productive, it 69 Rylands

v. Fletcher (L.R. 3 H.L.330).

70 State of Rajasthan v. Vidhyavati (1962) Supp 2 SCR 989; In the Constitution bench of five judges

rejected the defence of sovereign immunity in a case when a man died under a jeep driven by the Collector’s driver. Both the defences, that the State was not liable under Article 300 of the Constitution and that jeep was being maintained ‘in exercise of sovereign functions’ were rejected; Shyam Sunder v. State of Rajasthan (1974) 1 SCC690; Smt Basavva Patil v. State of Mysore (1977) 4 SCC 358. 71 Chairman, Railway Board v. Chandrima Das 2000 AIR 988 [Civil appeal no. 639 of 2000, (arising out of SLP © No.16439 of 1998) dt. 28 January 2000]. 72 Indian Medical Association v. V. P. Shanta (1995) 6 SCC 651. 73 Kunal Saha v. Sukumar Mukherjee (20111) 13 SCC 98.

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must, inter alia, ‘act as a deterrent against future negligent behaviour by other doctors and hospitals’ (Saha and Shetty 2014: n.d.). Technically, the issue of negligence in health care includes the medical malpractice, deficiency of medical services and negligence in care (medical negligence) taking place both in the public as well as private-commercial health care sectors. However, the jurisprudence laid down in IMA case precludes the public health care services from the ambit of negligence on account of them being rendered free. It is only through the special leave petitions or writ petitions such issues of public health care hospitals are taken note by the higher judiciary. On the contrary, though the IMA case brought private health care services under the definition of consumer services, as public health experts point out, it is an onerous and uphill task for the aggrieved patient to prove medical negligence taking place in the private health care settings, due to the lack of appropriate legal or policy framework to regulate the commercial health care institutions (Jesani et al. 2004). Two cases considered below illustrate the application of tort jurisprudence for negligence in medical care in health care institutions of the State. They were litigated in the first decade of this millennium and they provide jurisprudential insights of the creative mix of tort and fundamental rights (i.e. right to life) jurisprudence built on the principles of Constitutional duty (public duty) of the State and its instrumentalities in varied situations. M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. Hyderabad and Others74 In this case, the principle of negligence as a violation of public duty imposed by public law, is applied. The HC awarded compensation in the case of an hospital affiliated to a government company that transfused blood infected with HIV. This case draws significance from the fact that a five-judge bench of HC of AP deliberated on a matter of health care and medical negligence. The Court ordered a sum of rupees one lakh as compensation. As part of the policy, the Court recommended the Government of AP to introduce legislation directed towards the prevention and treatment of HIV/AIDS in the state. It further issued exhaustive guidelines in this regard relating to the obligations of the state towards the prevention and treatment of HIV/AIDS in public and private hospitals. Among the number of directions issued, point no. 9 states that doctrine of constitutional tort should be recognised even for prevention and control of AIDS and State should be made liable for any negligence in health care services (Ibid. Paragraph 72). Legal reasoning in this case is constructed on the personhood jurisprudence and the already established interrelationship with health care governance as enshrined in Articles 38, 39 and 47 of the Constitution of India. It asserted: ‘by reason of expansive interpretation of ‘life’ in Article 21 of the Constitution of India in various Supreme Court judgments, which is now the law of the land, right to life includes the right to all reasonable health facilities’ (Ibid. Paragraph 47). 74 M.

Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. Hyderabad. And Ors AIR 2001 AP 502.

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In addition, public law remedy is called upon as the constitutional ground for the tort (negligence) committed by the hospital. The Court held that the hospital was liable for negligence, for failing to conduct proper tests on the blood donated by the petitioner’s brother and for not detecting the presence of HIV therein. State of Tripura v. Amrita Bala Sen and Others75 Legal reasoning uses a different principle here as evidence, i.e. res ipsa loquitur is used to bolster the negligence in medical care. This petition was filed by two petitioners (Civil Rule No. 511 of 1996) alleging negligence by the health care providers and was considered by a single judge bench in the Gauhati HC. The petitioners were patients admitted in the B.R. Ambedkar Memorial Hospital at Hapania, West Tripura on 17 June 1996. After the eye operation, they developed infection and subsequently lost their eyesight. Writ petition prayed for a compensation of rupees two lakh, alleging negligence in health care. The single judge bench held that it was a case of negligence and ordered compensation of rupees 60,000/- to each of the petitioners. However, the state government appealed against the compensation, and the case was considered by a division bench consisting of Ranjan Gogoi, T Vaiphei, JJ. Along with the reasoning of negligence of public duty and the jurisprudence of tort, the division bench of the HC applied the principle of res ipsa loquitur for the consideration of medical care. Res ipsa loquitur is essentially a rule of evidence which literally means that ‘the thing speaks for itself’ and is applied to situations where negligence is apparent on face of the record. This principle of res ipsa loquitur 76 has the effect of placing the burden of disproving negligence on the defendants. The division bench which heard the appeal, upheld both the negligence and the award of compensation. The court reasoned if tort is based on fact and if it is evident (res ipsa loquitur), compensation can be proceeded under Article 226 of the Constitution of India.

3.2.5 Brief Summary of the Health Care Doctrine Laid Down in Constitutional Rights Themes The four constitutional rights themes discussed above, have laid down groundbreaking principles of jurisprudence that are applied in the issues of health care. They are briefly summarised 75 State

Of Tripura And Anr. vs Amrita Bala Sen And Ors. (2005) 1 GLR 7. principle has received application to cases of medical negligence as is available in the judgment of the Apex Court in the case of State of Haryana and Ors. v. Smt. Santra (AIR 2000 SC 888). In this judgment, there is no explicit reference to the principle of res ipsa loquitur, but it is mentioned as ‘negligence per se’. Besides applying this principle to cases of medical negligence, this has also been applied for determination of liability/culpability in a disciplinary proceeding against a Govt. servant [Karnataka State Road Transport Corporation v. B.S. Hullikatti, (2001) 2 SCC 574]. 76 This

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Environmental Jurisprudence (1) Public duty of the public authorities under Article 47 of the Constitution of India is an absolute duty; (2) Public health is an imperative of the statutory duty cast on the State (municipality). Article 47 is to be enforced relentlessly for public health governance and abating public nuisance; (3) In a welfare-state, providing minimum conditions of public health is State’s constitutional obligation; (4) Right to life under Article 21 of the Constitution of India includes the right to a healthy and decent environment; (5) Preservation of ‘life and health of people’ is a Constitutional obligation. Obligation under Article 47 combined with right to life under Article 21, is a constitutional ground for the State’s obligation to improve health of the public; (6) Consumers’ right to know (e.g. ingredients of food) is a basic right. Workers’ Rights (1) In the welfare-state, legislative intent is for an egalitarian social order and includes the intent to secure health of the workers; (2) Welfare-state casts a constitutional obligation on the State for the social security and welfare of workers; (3) Right to health and medical care is part of the socio-economic justice, constitutional goal of the welfare-state, integral part of the minimum conditions of right to human dignity and social security of workers, and is part of the meaningful right to life; (4) Medical benefits and facilities and SRHC are the fundamental rights of workers; (5) Any policy with an imprint of public character to be a public law imposing constitutional duty on the State and the parties; (6) Private law and business are subservient to the Constitutional principles of socioeconomic justice; the State is constitutionally obligated to enforce fundamental rights against private parties; (7) Tortious liability binds the employer for the health of the workers; the private industries and employers are Constitutionally mandated by duty for the welfare of the workers. Civil Liberties and the Right to Medical Care (1) SRHC and the right to emergency medical care are part of right to life and are fundamental rights; (2) Right to medical examination and medical care are the constitutional rights of the arrestees; (3) Access to medical aid (among other rights), hygiene, nutritious food, conducive living conditions in prisons are part of SRHC; (4) Constitutional obligation of the police towards person in custody includes ensuring appropriate medical care;

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(5) Providing medical care [to persons in custody or jail] is an ‘absolute duty of the doctors’; (6) Dereliction of public duty is negligence and gives rise to tortious liability; (7) Deprivation of timely medical care is medical negligence; (8) Government is vicariously liable for the wrong actions of its servants (doctors, police etc.). Compensation can be claimed for both the issues of custodial death and medical negligence. Law of Tort (1) If employees charged with public duties commit an act of tort, the state government is vicariously liable; (2) On the grounds of vicarious liability, compensation is to be awarded under public law in the cases relating to custodial deaths and those relating to medical negligence; (3) The State does not enjoy any immunity for the tortious act of its servants including jail authorities and medical doctors; (4) Public law remedy is to be applied as a constitutional ground for the tort (negligence) committed by the hospital; compensation is to be paid for negligence if the act of the medical authorities is of the nature of negligence and in violation of a person’s fundamental rights to life and liberty under article 21 of the Constitution of India.

3.3 Domains of Health Care Services and Litigations A total of 361 cases are considered here for analysing court interventions (and in a few cases other quasi-judicial institutions such as NHRC) that touch upon various aspects of health care of citizens. Using the methodology of ‘case congregation’ they were categorised into various thematic domains of health care and again subclassified into relevant subdomains. Table 3.2 presents the distribution of cases across various domains and subdomains of health care and indicates the location of judical domains of these litigations. • 18.6 percent (67) litigations relate to the basic or essential health care components viz. emergency care and access to medicines; • 25.9 percent (93) litigations relate to health care issues of four groups viz., women (maternal and reproductive health care), children and adolescents, people with psychosocial disabilities and persons living with HIV/AIDS, which are considered together under the ‘vulnerable group’ category, on account of their extreme dependency on the public health care; • 32.9 percent (119) refer to two privileged social groups considered here under the category of ‘social elites’77 and consists of citizens belonging to the upper 77 The higher echelons of the Government employees (Class I and II categories) accessed courts for

enforcement of their entitlements. On the other hand, upper middle class patients accessing private

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Table 3.2 Distribution of litigations by thematic and judicial domains (n = 361) SC

HC

Othersa

Total

Percentage

Cumulative % (No. of cases)

Basic health Emergency care medical care services Drugs and medicines

6

3

1

10

2.8

18.6 (67)

33

22

2

57

15.8

Vulnerable citizen groups and access to health care

Children and adolescents

5

1

6

1.7

Psychosocial disabilities

12

3

3

18

5.0

People with HIV/AIDS

7

12

-

19

5.3

Repro—maternal health

24

25

1

50

13.9

Health care of the social elites and middle class

Health care of Govt employees

6

15

2

23

6.4

Medical negligence and patient rights

54

22

20

96

26.5

Systemic dimensions and health care

Public health measures

16

25

-

41

11.3

Health care system

18

20

3

41

11.3

181 (50.1)

148 (41)

32 (8.9)

361

100

Theme

Total

Sub-domain

25.9 (93)

32.9 (119)

22.6 (82)

100

a Others

NCDRC, CAT, NHRC, Controller of Patents, Lokayukta Source Author

middle classes and those in higher ranks of government service. Both these, besides sharing somewhat a similar social ethos, their approach to health care and redressal had commonality as they sought health care in private-corporate health care institutions and approached courts for redressal of their grievances; and, • 22.6 percent (82) refer to the category of systemic dimension of health care and determinants of health consists of two related themes—one directly concerned health care filed litigations on varied issues such as medical negligence, professional misconduct and breach of professional ethics. The government employees of higher ranks are provided social security to health care and the middle/upper class citizens access private health care services primarily by choice. Both these social categories, having the financial capability, social capital and the other necessary wherewithal to access private health care and to access courts, together are termed as ‘social elites’ for this research in relation to their status in society and the privileges they have. Most of the litigations considered for analysis relate to doctors of allopathic medicine, and a few were concerning practitioners of non-allopathic medicine doing cross-practice.

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with the health care system and the other issues related to public health such as smoking and pollution which are indirectly related to health care and institutional regulations. 50.1 percent cases (181) were litigated in the SCI, 41 percent (148) were in the HCs and 8.9 percent (32) were in other judicial/quasi-judicial domains. The other domains include National/State Human Rights Commissions (NHRC/SHRC), National Consumer Disputes Redressal Commission (NCDRC), Central Administrative Tribunals (CAT), Controller of Patents and Lokayukta Court. The NCDRC considers complaints filed under CPA in its original or appellatory jurisdiction and its orders concerning medical negligence are significant while considering the principles of jurisprudence in this domain. CAT adjudicates the disputes of government employees on various administrative matters including those concerning the provision of health care and medical reimbursements. Similarly NHRC adds a significant value to the litigations on health care or to the complaints brought before the commission. Though the rest of the legal fora are of limited significance for health care jurisprudence, they indicate both the diverse avenues employed seeking redressal as well as various legal spaces where the health care jurisprudence is applied. The analysis here has not included complaints filed in state medical councils and MCI, as systematic data on these complaints and redressals are not available in the public domain. Similarly, several cases tried at the district and sub-district level courts also include health care issues. They are not included in the analysis as such classified data on health care are not available in the public domain.78

3.3.1 Thematic Cluster 1: Basic Health Care Services Two health care domains which refer to essential or basic health care are discussed here, viz. emergency medical care and the domain of drugs and medicines.

3.3.1.1

Emergency Medical Care

Of the 10 litigations analysed in this domain, eight refer to mishaps of various kinds (accidents, cardiac arrest, and custodial ill treatment), while two of them relate to generic policy issues (medical negligence and protection of bystanders). Of the former, three cases are concerning the accidents and delay in or denial of care in public health care institutions79 ; one relates to the earliest litigation on record on medical 78 Under

the court programme, presently the data on the number of cases litigated and pending is available for the district courts also. However the orders are not available and no disaggregated data on litigations concerning their themes is available. 79 Pt. Parmandand Katara v. Union of India and Ors. 1989 SCC (4) 286; Paschim Banga Khet Mazdoor Samiti vs State of West Bengal (1996) 4 SCC 37.

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negligence in post-Independence India, viz. a litigation filed by a doctor against another doctor; one writ petition deals with the provision of emergency medical care in public enterprises in cases of accidents (railways, in this case); and, two are medicolegal and criminal cases dealing with the issue of duty of public authorities, custody and emergency medical care; and, one case is a landmark case regarding medical care and police. Collectively, the litigations point to the denial of care in public hospitals and to medical malpractices and ethical violations in private hospitals that include discontinuation of medical care for not depositing money instantly, negligence in medical care and charging exorbitant amounts for treatment. The complete failure to provide medical care for people in police custody is another aspect that is brought out by these cases. Preservation of Life and Saving Life—Absolute Constitutional Obligation The ethical dimensions of the jurisprudence in this area are founded on and are integral to the principle of the ‘right to life and dignity’, enshrined in Article 21 of the Constitution. Building on this principle, the SCI judgments have established that the ethical duty to ‘save or preserve life’ is the unequivocal jurisprudential principle. The courts declared that it is binding both on the State as well as the medical profession. In the Parmanand Katara judgment, access to emergency care was declared a fundamental right. In a litigation the Bombay HC applied the principle of ‘saving life’ to public services, specifically in the case of the railways, and issued directives for the establishment of an emergency response and care system. The scope of railway’s duty was fixed to save the lives of all accident victims within the railway premises (inclusive of those travelling without tickets). Owing to the fear of harassment by police and courts, accidents, and unavailability of timely emergency care resulting in death is a major concern in medico-legal cases. In a PIL filed in 2012, by-stander protection in accident cases was prayed for. SCI took steps to usher in another law with respect to accidents and emergency care by asking the Central government to formulate guidelines for the protection of helping by-standers [Good Samaritans] from the police or other authorities in cases of emergencies and other medico-legal cases (Government of India 2016). Earlier in Poonam Sharma v. Union of India, the Delhi HC had reinforced the constitutional obligation of policemen and doctors to treat the injured in medico-legal cases. Duty of Care as the Foremost Obligation of the Medical Profession The doctrine of ‘duty of care’ applicable to the medical profession and health care providers was declared as being ‘total, absolute and paramount’ as part of Article 21 of the Constitution and was read in conjunction with the duty of ‘saving life’.80 The ‘duty of care’ is declared to be unequivocally binding all medical professionals, both in public and private health care institutions.81 Whether the patient be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community 80 Pt.

Parmandand Katara vs. Union of India and Ors 1989 SCR (3) 997, p. 1005–7. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, pg. 16, 21 (filed in 1953, finally decided on May 2, 1968). 81 Dr.

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to preserve life … Every doctor, whether at a government hospital or otherwise, has the professional obligation to extend his services with due expertise for protecting life.82

Conversely, in the landmark Pashchim Banga case83 the jurisprudence clarified that the failure to provide medical treatment is a violation of right to life guaranteed under Article 21 (Paschim Banga, p. 5). The legal framework for the duty of care as a binding ethical and constitutional principle was provided by the SCI in a judgment which declared the Code of Medical Ethics84 as the prevailing law for the medical profession.85 Providing Adequate Medical Facilities as Constitutional Obligation The jurisprudence reiterates the principles of welfare-state and emphasises the Constitutional obligation of the State in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal [henceforth, Pashchim Banga case], while it lays down such an obligation as an ‘absolute duty’. The SCI drew a parallel with the access to justice and legal aid as the constitutional duty: In the context of the constitutional obligation to provide free legal aid to a poor accused, this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints.86 The said observations would apply with equal, if not greater force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life.87

Through the jurisprudence of emergency medical care, the courts have emphasised the right to meaningful and dignified life in a welfare-state. In addition, constitutional obligation, and liability of the State as well as of health care providers and noncompliance with the constitutional obligations are declared to be part of Article 21 of the Constitution. Litigations in several other domains of health care evolved building on the fundamental jurisprudence that was laid down in emergency care litigations. The significance of emergency medical care jurisprudence is marked by the fact that the Law Commission took note of such a development and submitted the Law Commission Report 201 to the Ministry of Law recommending an enactment on emergency medical care in these lines (Law Commission of India 2006).

3.3.1.2

Drugs, Medicines and Medical Technology

Both the affordable drugs as well as availability of essential medicines are integral to the realisation of the right to health care. The litigations in this domain revolved 82 Pt. Parmandand Katara vs. Union of India and Ors 1989 SCR (3) 997, pp. Pt. Parmandand Katara

vs. Union of India and Ors 1989 SCR (3) 997, pp. 1005-7. 83 Paschim Banga Khet Mazdoor Samiti vs State of West Bengal (1996) 4 SCC 37. 84 Section 33 of the Indian Medical Council Act, 1956. 85 Pt. Parmandand Katara vs. Union of India and Ors 1989 SCR (3) 997, pp. 1005–6. 86 Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631. 87 Paschim Banga Khet Mazdoor Samiti vs. State of West Bengal (1996) 4 SCC 37, pp. 9–10.

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around the legal framework developed around the time of independence that included two key legislations, viz. Drugs and Cosmetics Act 1940 (DCA) and Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (DMRA). While these focused on governance of manufacture and quality of drugs, legislations in 1970s and later—Indian Patents Act (IPA) 1970 and Drugs Price (Control) Order, (DPCO) 1978—relate to the public interest of availability and affordability of medicines. Of the 57 litigations in the domain of drugs and medicines, 15 relate to technical issues such as definition of drugs, advertisement, storage and licensing; 30 litigations are concerned with range of issues of public interest, drug pricing and regulatory measures, constitutionality of the legal provisions, and drug pricing. Up to the mid1970s, litigations were around the technical issues whereas, after the enactment of IPA 1970 and the promulgation of DPCO88 1978, petitions have been filed on the issues of hazardous and spurious drugs, availability and affordability of medicines, and compliance with trade-laws. Technical Issues on Legal Dimensions of Drug Legislations The key issues that were raised through litigations related to the technical aspects of the definition of ‘drug’89 under the DCA and DMRA, the propriety of advertisements on products and remedies and quality of drugs. The key litigators in this period were pharmaceutical companies who challenged the constitutionality of legislations and looked to wriggle out of the stringency of licensing, manufacturing, stocking and selling provisions of drugs by seeking exemptions of products from the definition 88 The Drug Price Control Orders (DPCO) are issued by the Ministry of Chemicals and Fertilisers, which is the main nodal administrative ministry for pharmaceutical companies. They are issued under Section 3 of the ‘Essential Commodities Act 1955’. The aim of DPCO is to enable the Government to declare a ceiling price for essential and lifesaving medicines to ensure that these medicines—of late also referred to as formulations—are available at a reasonable price to the general public. The latest Drug Price Control Order (DPCO-2013) was issued on 15 May 2013. Since 2013, scheduled formulations consist of the essential medicines declared so by the Government through its National List of Essential Medicines (NLEM). National Pharmaceutical Pricing Policy (NPPP) is the policy governing price control and DPCO is the order by which price control is enforced. Drug prices are monitored and controlled by the National Pharmaceutical Pricing Authority (NPPA). 89 Section 3(b) of the Drugs and Cosmetics Act defines drugs as which includes:

(i)

all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes; (ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of (vermin) or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette; (iii) all substances intended for use as components of a drug including empty gelatin capsules; and (iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board.

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of drugs as defined in Section 3 of DCA 1940. Courts have given a liberal meaning to the term ‘drug’. Any article intended to influence the organic function of the human body was a declared ‘drug’. The jurisprudence was a strict construction and interpretation of the statute. It also laid down a twin test for classifying a substance as ‘drug’ or ‘medicament’. The twin elements of this test are (1) Common parlance test—if it is commonly accepted as ‘medicament’.90 (2) ‘not of common use’ test—if a substance is commonly understood as medicament it will not be an item of common use91 (Desai and Chand 2007). Curtailing advertisement on drugs was challenged by industries as violating the freedom to speech and expression under Article 19(1) (a), in many instances. Most of such litigations dealt with Section 392 of the Act concerning the advertisement. The jurisprudence laid down is not conclusive and ambivalent. In some cases SCI prohibited advertising as not violative of Article 19(1)(a).93 However, in some other cases such as items claimed to cure for tuberculosis and sexual rigour,94 bust developer’ articles,95 capsules for men to enhance vigour and vitality,96 and such other items challenged in courts as adversely impacting people, were ruled as ‘not drugs’ and thus precluding them from scope of the Act. Since the charges are of criminal nature, the criminal jurisprudence rather than public health, is taken as the ground by the Courts. In criminal jurisprudence, the onus of proving charges beyond reasonable doubt is on the prosecution. The litigations considered under the subtheme of safeguarding quality—licensing, sale and stock of drugs dealt with storage of medicines and drugs covered by Schedule

90 CCE V. Richardson Hindustan Ltd. 2004 9 SCC 136, Puma Ayurvedic Herbal (P) Ltd. v. CCE 2006 3 SCC 266. 91 Cadila Pharmaceuticals Ltd. V. State of Kerala AIR 2002 Kerala 357; Chimanlal v. State of Maharashtra AIR 1963 SC 665; Prabhudas Kalyanji Adhia v. State AIR 1970 BOM 134. 92 Section 3: Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders. Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for—(a) the procurement of miscarriage in women or prevention of conception in women; or

(b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule, or any other disease, disorder or condition (by whatsoever name called) which may be specified in the rules made under this Act. 93 Hamdard Dawakhana v. Union of India AIR 1960 SC 554; Sections 3(d) & 8 were also challenged for giving unhindered power to the executive under the Act, and both were held ultra vires. In 1963 Parliament rectified the flaws; Dr. Yash Pal Sahi v. Delhi Administration (1963) 5 SCR 582; K. S. Saini v. Union of India AIR 1967 P&H 322; Zaffar Mohammad v. State of West Bengal AIR 1976 SC 171. 94 State of Karnataka v. R.M.K. Sivasubramanya Om 1978 CRI.L.J. 853 (Karnataka HC). 95 Kantirani Jaynarayan Mangal v. State of Maharashtra 1982 MLJ 822. 96 Anand Mohan Chapparwal v. State of Maharashtra 1996 CR LJ 596.

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115

H,97 transportation, storage of drugs in transit, licensing for such storage.98 These follow the criminal jurisprudence and are interpreted on a case-to-case basis. A key clarification evolved as an outcome of jurisprudence in this domain on exemption of storage of allopathic drugs was applied only to hospitals/dispensaries under the supervision of Government or local medical bodies, and not to private parties including charitable hospitals.99 Public Interest of Health: Access to Affordable Medicines v. Right to Trade In the post-emergency era, the routine litigations between the State authorities and drug companies continued. However, the character of the litigations changed in the 1970s and the issues of right to health care in public interest were raised. These litigations have a special significance, as not the availability of drugs in the market alone, but the appropriateness of the drugs that determines the right to health. SRHC is positively impacted by the availability and affordability of life-saving medicines. However, paradoxically, it is affected negatively by the inundation of markets with irrational and banned drugs which are either harmful or not justified on the grounds of therapeutic efficacy. What makes matters worse is the fact that such harmful drugs flood the market at the expense of the life-saving drugs. Not surprisingly, the issue of harmful and hazardous drugs has been at the centre of litigations on drugs and medicines in India. Historically, three key petitions pioneered engaging courts in health care matters, viz. Stree Shakti Sanghatana and Saheli v. Union of India100 (Net-en trial case), All India Democratic Women’s Association v. Union of India101 (Quinacrine trial case) and Vincent Panikulangara v. Union of India102 (henceforth, hazardous drugs case). Petitioner in the hazardous drugs case was from the Public Interest Law Service Society, Cochin (Kerala). This was the first petition filed in SCI for banning import, manufacture, sale and distribution of hazardous drugs, and such a ban was recommended by the Drugs Consultative Committee set up by the Government of India itself. The petition also prayed for the setting up of a high powered committee to identify the hazards suffered by people due to these drugs and for awarding compensation to such persons. SCI ordered the government to hold public hearings on this issue so that affected people can come and present themselves. Subsequently however, the SCI which had taken such a keen interest in the case, opined that Courts were not the appropriate forums to decide about such issues and left it to the government to act. Though the writ petition itself did not end up with any substantial jurisprudence, for 97 Under the DCA and DCA Rules 1945, Schedule H lists a class of prescription drugs in India which are drugs that cannot be purchased over the counter without the prescription of a qualified doctor. 98 Kasim Bhai v. State of UP AIR 1956 Allahabad 703; Swantraj v. State of Maharashtra (1975) 3 SCC322; Sagar Medical Hall v. State of Bihar (CWJC) Patna HC DT. 7/12/01. 99 Bharat Prasad Gupta v. State of West Bengal 1995 SUPP 3 SCC 640; Holy Cross Hospital v. State of Kerala, Kerala HC decided on 25/2/2002. 100 Stree Shakti Sanghatana and Saheli v. Union of India WP © 680 of 1986. 101 Democratic Women Association v.Union of India, (1998)5 SCC 214. 102 Vincent Panikurlangara v. Union of India (1987) 2 SCC 165.

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civil society it was one of the first experiences of navigating through courts on matters related to health care. In health care jurisprudence, it stands out as one of the first PILs that paved the path for other litigations to follow. The critical issue of banned and bannable drugs was discussed in the highest judicial forum of the country with civil society and the State on either side. In this and some other litigations that followed, a few hazardous drugs got banned. For example, manufacture, sale, and distribution of fixed combinations of analgen and antispasmodics were banned as per the recommendations of the court appointed committee.103 Also, ayurvedic drugs with tobacco containing carcinogenic elements were banned in toothpastes.104 The practice of seeking expert opinions by courts on technical matters of health care, began with these petitions and continued through other drugs related petitions. Another set of litigations include the issue of the government’s acts of surreptitiously introducing hazardous and anti-fertility drugs as contraceptives in public health programmes. These were challenged in the SCI by progressive women’s rights organisations and civil society alliances. These petitions consistently expose the discrimination of women that such services perpetuate and bring out vividly the vulnerabilities and violations that women’s bodies are subjected to (Sarojini and Murthy 2005). The petition in 1986 by Stree Shakti Sanghatana, Saheli and others challenged the introduction of Net-en (Norethisterone Enanthate), an injectable hormonal contraceptive, and prayed for an injunction on the same. This anti-fertility drug’s administration in public health services was undertaken by the Indian Council for Medical Research (ICMR) and was in the nature of a clinical trial. Subsequently, the introduction of Depo-Provera and quinacrine as contraceptives, also considered hazardous, was challenged in the SCI in separate litigations. Almost two decades later, a similar modus operandi of the government of India was seen in the HPV vaccine trial done on adivasi (tribal/indigenous) girls in the state of AP. It was undertaken in the guise of a research on prevention of cervical cancer, due to which deaths of several adivasi girls were reported. In 2011, SAMA, a women’s resource centre in Delhi, impleaded in the ongoing litigations on this issue in the SCI. In all these, women’s groups, health groups and human rights groups collectively opposed the unethical move by the government of introducing anti-fertility hazardous technologies which besides being harmful to their health also compromised women’s autonomy. These litigations also ingrained within them the resistance to the authoritarian unilateral and top-down way such acts were done by the government, without involving civil society and providing adequate information on the drugs (Sama 2003). Although the litigations were inconclusive in providing a definitive jurisprudence, yet the court processes themselves served as a policy deterrent to their entry or continuation in public health services. In the case of quinacrine, during the inconclusive hearings, the government silently withdrew its plan to introduce them in public health services in India. Another set of litigations pursued by the civil society organisations (CSOs) included the issue of regulating drug pricing towards making essential medicines 103 Drug

Action Forum Karnataka (DAF-K) v. Union of India, WP (C) 698 of 1993. Panikurlangara v. UoI; DAFK v. UoI; Laxmikant v. Union of India 1997) 4 SCC 739.

104 Vincent

3.3 Domains of Health Care Services and Litigations

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available and affordable to citizens. Civil society networks, All India Drug Action Network (AIDAN) being at the forefront, continued engaging constitutional courts on several issues related to drug pricing including price regulation. During the longdrawn litigation process, the Pharmaceutical Policy of 2002 which was perceived as overwhelmingly favouring the pharmaceutical industry for deregulation of prices was shelved by the Government of India and a National Pharmaceutical Pricing Policy 2012 was formulated. The petitioner in AIDAN v. Union of India, interviewed as part of this research on drug related litigations, described the new policy as ‘much better’ on matters of drug pricing, despite continuing to have its overarching problems.105 Quite notably, the issue of irrational drugs in the market, occupies a substantial amount of time in litigations as well as in the public discourse which civil society engages with. The regulatory machinery that is inadequately equipped with human and other resources by the government of India and on its own being resistant to exercising their authority under Section 26 of DCA, have been highlighted in these litigations. The sway of the drug manufacturers over the regulatory authorities and experts and this nexus resulting in inadequate enforcement of regulations was underscored in the 59th parliamentary standing committee report on the Central Drugs Standard Control Organisation (CDSCO). The report has indicted the collusion between industry, experts and doctors for the malfunctioning manifested in inundation of the market with irrational drugs adversely affecting access to medicines and public health (Parliament of India—Rajya Sabha 2012; Sandhya Srinivasan and Jesani 2012). In March 2016, based on a government commissioned Kokate Committee recommendations, 344 Fixed Dose Combination drugs (FDCs) were banned on the grounds of safety, efficacy and therapeutic justification.106 This was hailed as a significant move by the government to protect public health (Srinivasan et al. 2016). However, slew of pharma companies filed 454 petitions in Delhi HC challenging this move. Delhi HC initially stayed and later quashed this notification dated 01 December 2016, on the ground of Drugs Technical Advisory Board (DTAB) not being consulted107 (Jain 2016: 4). A Special Leave Petition (SLP) was then filed in the SCI by Government of India and AIDAN challenging the Delhi HC order. The SCI while quashing the order of Delhi HC, [curiously], constituted another subcommittee to investigate 105 Interview,

P3 – Petitioner, dt. 30 May 2015, Baroda; Vide order of July 15, 2015 in AIDAN v. Union of India WP (C) 423/2003. 106 An FDC contains two or more active drug ingredients in a fixed ratio of doses. The Centre had banned 344 FDC drugs on 10 March 2016 citing health risks and lack of therapeutic justification. The ban covered brands of major pharma houses including Pfizer Ltd, Wockhardt Ltd, Alkem Laboratories Ltd, Cipla Ltd, Sanofi India Ltd, Sun Pharmaceutical Industries Ltd. The ban was imposed following a report by a six member committee headed by Chandrakant Kokate, vice chancellor of KLE University, Karnataka. The Kokate panel, which submitted its report on 20 January 2015, had termed 963 FDCs “irrational”, posing health threats. In December 2016 Delhi high court quashed the March 2016 notification, against which the Centre filed an appeal. On March 31, 2017, SCI stayed proceedings in all high courts against the ban on 344 fixed dose combination (FDC) drugs. 107 Pfizer Ltd. and ors v. Union of India, WP (c) 2212/2016, dt. 01 December, 2016, Delhi High Court.

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the [very] scientific rationality underlying previous (Kokate) Committee’s recommended ban on FDCs itself. Based on the confirmation of the findings of the Kokate Committee by the subcommittee, Govt. of India made a gazetted notification on ban of FDCs in August 2018. A slew of manufacturers of such FDCs then filed ‘vexatious’ petitions in Delhi HC challenging the subcommittee report itself on flimsy grounds such as clarity and communication in language in the report (Srinivasan 2018). The contentious, inadvertent, and indiscrete deployment of the power of judicial review by the courts in matters such as these has surprised many civil society leaders. Even when the irrational combinations of drugs being harmful for public’s health has been established by two committees of scientists during the course of the litigations, courts allowed further ‘vexatious’ petitions of manufactures, not on content related grounds but based on language of the report (Ibid.). The contradictions of the court in its positions on the same matter also is a matter of grave concern for public health. In the hazardous drugs case, for example, the SCI opined that adjudication is beyond the scope of judicial review in policy matters. However, in the issue of FDCs it is seen that courts are wilfully interfering into the expert committees’ reports, even when not warranted. The pharma companies are heavily invested in engaging courts regularly to challenge moves intended for their regulation by regulatory agencies such as National Pharma Pricing Authority (NPPA) which draw its statutory power under Para 19 of the DPCO enacted under the Essential Commodities Act 1955 to regulate prices of essential medicines (Government of India 1955). Civil society also confronted the government of India’s move to close the public sector vaccine production units in India in 2008. This move was perceived as part of the multiple ways of deregulating, outsourcing and privatising essential services—a process termed as privatisation -, viz. aimed at creating private markets for vaccines by abruptly shutting down public sector manufacturing, with serious consequences to drug prices and hence to people’s access to these drugs (Jan Swasthya Abhiyan 2014). The petition in the SCI challenged the closure of the vaccine manufacturing units and demanded their revival. When the petition was still pending, SCI abruptly closed the case without citing any order. Meanwhile, the civil society in India was able to build a strong public discourse on this issue through a concerted campaign demanding the revival of the units. The government of India, subsequently, restarted the vaccine production, a move that is ascribed, among others, to the pressure the civil society was able to exert including the usage of courts in addition to the campaign against such a move. WTO Compliance, Trade and Affordability Patents and trade agreements have constantly challenged the policy framework relating to drugs and medicines in India, affecting their availability and affordability to common people. Indian Patent Act 1970 protected the processes of manufacturing drugs and kept the prices under control. After becoming a signatory to trade related intellectual property rights (TRIPS) Agreement in 1995, which came into effect in India in 2005, new policy issues came before the judiciary. They included, among

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others, patent issues, de-control of drug pricing, clinical trials, fixed dose combination drugs, and compulsory licensing. TRIPS related changes were effected in the domestic legal framework in India that included amendment to amend IPA 1970 to replace process patenting with product patenting.108 However, Section 3(d) of the IPA 1970 restricts granting patent for ‘incremental innovations’ in drugs devoid of any significant therapeutic advantages to existing molecules and also prohibits evergreening,109 thus is a deterrent for any monopoly in drug manufacturing. This section of IPA is at the centre of disputes in India around the Intellectual Property Rights (IPR) regime that have steered trade related relationships in the third millennium. Several corporate giants such as Novartis AG have challenged the constitutionality of this section and has inevitable links to the discourse on SRHC (Box 3.4). Box 3.4 Case of Novartis’ Patent Claim on Gleevec (Imatinib) In 1998, Novartis International AG, one of the largest pharmaceutical companies in the world, filed an application for the patent on ‘Gleevec’ (Imatinib), in the Indian Patent Office in Chennai. The drug is used to treat cancer, particularly Chronic Myeloid Leukaemia (CML). Novartis’ patent application was opposed by cancer patient’s society on the ground that the corporate giant was doing an ‘evergreening’. The application was rejected, after which the company appealed in the HC of Madras, where it lost the appeal. In both places it lost, based on Section 3(d) of the IPA 1970 which does not allow patenting to any drug if it is an incremental change over the molecules that already was discovered prior to 1995. Novartis filed a SLP in SCI, challenging the constitutionality of Section 3(d) of the IPA 1970. It became a test case in India between the public interest of the right to access to medicines and the right to trade and monopoly.110 The SLP was later dismissed in 2013.

Newer Medical Technologies and Clinical Trials Post-2000, there was a surge in issues that closely related to employing newer technologies (including drugs) that infringed citizens’ rights. These include new drugs, clinical trials, testing of vaccines, life-saving devices such as stents and their pricing, newer reproductive technologies that were part of the global commercial ventures 108 A

process patent is a form of utility patent that covers methods of changing the functionality or characteristics of a material during a particular use. Whereas, a product patent regime bestows an exclusive right on the original inventor of a product, prohibiting anyone from producing the same product through the same or any other process. It implies that there will not be a competitor for the producer, hence increasing monopoly with exclusive right to dictate the price. 109 Evergreening implies that producers seek to extend the lifetime of their patents that are about to expire, in order to retain royalties from them, for longer periods of time than would normally be permissible under the law. 110 In the matter of an application for patent No. 1602/MAS/98 filed on July 17, 1998. Order of the Controller of Patents dated 25th January, 2006.

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such as surrogacy and fertility clinics (Sama 2012). The varied types of violations of rights of people prominently including mortality and morbidity prompted CSOs to raise the rights and ethical issues linked to these ventures, some of them leading to litigations in the SCI. The core contentions included the lack or inadequacy of regulatory mechanisms, ethical violations, and absence of mechanisms to protect citizen’s rights. These wide range of issues are viewed and analysed together in this subsection. The litigations on clinical trials111 and administration of HPV vaccine to tribal girls in Andhra Pradesh112 illustrate the infringement citizens’ right to health care. Some of the outcomes in these litigations included suspension of all clinical trials during the pendency of the case, putting in place new stringent measures such as registration of the mandatory institutional ethics committees, video recording of the consent of participants in the clinical trials, and the like. The petitioners consider the discourse which emerged on regulatory gaps including weak monitoring mechanisms and complete absence of a legal framework to regulate contract research organisations (CROs), the parliamentary report which exposed the nexus of health authorities and pharma companies and some regulatory measures put in place to protect the rights of participants in clinical trials as some major gains this issue.113 The new legislations such as Assisted Reproductive Technology (Regulation) Act, 2017 (passed in the parliament) and the Surrogacy (Regulation) Bill, 2019 (introduced in the parliament) are deemed to be measures to plug the regulatory gaps and an outcome of these discourses. The practice of accessing courts on compelling life-saving issues by individuals from the society not linked to any CSOs have come to prominence in recent years (see Box 3.5). This research has not examined such cases exhaustively. However, it needs to be acknowledged that some of them, have significantly impacted some critical aspects of certain domains of health policy and programmes, as the issue of ‘stent-pricing’ illustrates. An advocate Birender Sangwan, moved by the plight of his friend’s family feeling the burden of stent prices, moved the Delhi HC in 2014 seeking price regulation of the life-saving device for which he received a favourable order to cap the prices on stents. When the government did not respond to Delhi HC order, it was followed by another contempt petition in 2016, praying that the coronary stents be brought under the National List of Essential Medicines (NLEM) to cap prices. The NPPA followed this up by declaring stent as a ‘drug’ and placing it in NLEM and capping its price to a maximum of Rs. 30,000/-. This policy move resulted in slashing the prices of stents by 85% (Kaul 2017).

111 Swasthya Adhikar Manch v. Union of India WP (C) 33 of 2012 (along with AR 79 of 2012, KM

558 0f 2012). v. Union of India IA 921 of 2013. 113 Interview, P2 Petitioner, Delhi, dt. 03 July 2015. 112 Sama

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Box 3.5 Access to Life-Saving Drugs and Treatment (Mohd Ahmed (Minor) v. Union of India & Ors.114 High Court of Delhi) The petitioner, a young boy of seven years is a son of a rickshaw puller, aged about seven years was suffering from a rare genetic disease called Gaucher Disease which needed expensive treatment that was not available in the public health care system.115 The non-availability was contended as violative of Articles 14 and 21 of the Constitution. In this litigation, the Court upheld the nonnegotiable and absolute nature of the obligations of the State under Article 21 to provide access to life-saving medicines at affordable prices. The Court directed the Government of NCT of Delhi, to discharge its constitutional obligation and provide the petitioner with enzyme replacement therapy at AIIMS free of charge as and when he requires it.

3.3.1.3

Brief Summary of the Application of the Health Care Jurisprudence in the Domain of Basic Health Care Services

Emergency Medical Care (1) ‘Saving life’ or ‘preservation of human life’ is the constitutional obligation of a welfare-state, and providing adequate medical facilities part of this obligation; (2) Preserving life is ‘paramount, absolute and non-negotiable’ duty of medical professionals under Article 21 of the Constitution of India, binding both government and private doctors; (3) Duty of Care by doctors is a paramount obligation that flows from the Constitution; Emergency medical care is unequivocally declared as integral part of Right to Life (hence, a fundamental right); (4) Negligence or failure to provide emergency and adequate medical treatment by public authorities (police and doctors included) is a violation of right to life; (5) Code of Medical Ethics is the standing law for the medical profession; (6) Right to seek parallel remedies in tort and private law are the rights of aggrieved citizens. Drugs and Medicines (1) Right to Health is a Fundamental Right; (2) Availability of essential and life-saving medicines is integral to right to health and right to life; (3) Reasonable restrictions on advertisement in public interest is not violative of Article 19(6) of the Constitution (to carry on trade or business); 114 Mohd

Ahmed (Minor) v. Union of India & Ors. W.P.(C) 7279/2013 (High court of Delhi). is a Lysosomal Storage Disorder, wherein the body cannot process fat resulting in accumulation of fat around vital organs of the body. If this disease is left untreated, it can be fatal.

115 This

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(4) Adjudication, in policy decisions based on the consideration of people’s health and in matters when the Government acts on the advice of expert committee, is beyond the scope of judicial review; (5) Any article intended to influence the organic function of the human body is ‘drug’; (6) Twin test for classifying a substance as ‘drug’ or ‘medicament’ is laid down: (1) ‘common parlance’ test (2) ‘not of common use’ test In this section of basic health care including emergency care and drugs and medicines, the application of jurisprudence developed on SRHC is varied and differential. While, in emergency health care, its application appears to be emphatic, in the domain of drugs and medicines, it appears to be differentiated and graded. In the policy measures concerning accessibility and affordability of medicines, courts have been cautious and slow in providing mandatory orders and enforcing them and have left it to the technical experts and the will of the executive.

3.3.2 Thematic Cluster 2: Health Care and Vulnerable Groups 3.3.2.1

Reproductive and Maternal Health Care

The violations of women’s reproductive and maternal health rights are located in India’s policy context that is marked by an overwhelming emphasis on population control (coercive sterilisations) and institutional deliveries even as the health services system continues to be neglected. India accounts for over 20 percent of global maternal deaths (Unicef India n.d.). Several intersecting policy issues have added complexity to the issue of maternal morbidity and deaths. They include the increased role of the unregulated private-commercial entities in health care provisioning, dis-incentivisation of home deliveries, de-legitimisation of traditional birth attendants, privileging institutional delivery over safe deliveries and the neglect of quality of care in reproductive and maternal health care. Of the 76 litigations considered in this theme, 52 percent litigations (n = 26) are on reproductive health and 48 percent litigations (n = 24) are on maternal health care issues. The former indicates to three areas of systemic violations, viz. (1) policies and gender discrimination; (2) quality of reproductive health care services; and, (3) access to abortion services. The latter addresses issues of (1) access to maternal health care; (2) quality of care; and, (3) discrimination, negligence, and maternal deaths. While 24 litigations filed in SCI were either appeals or PILs on policy matters, the 26 litigations in HCs specifically demanded better maternal health services in the context of specific violations. An overwhelming number of petitions (92 percent, n = 46) fall in the post-2000 era. They highlight systemic failures at the district level and below, along with the persistent gaps in primary health care services which are critical to

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maternal health care. The petitions in HCs, generally served as questioning the lack of accountability of the governments rather than seeking for a new jurisprudence. Reproductive Health Services Some of the earliest litigations filed in SCI by women’s rights organisations in the 1970s and 1980s were concerning the policies and reproductive services that that were blotched with gender discrimination. The petitions questioning the commissioning of injectable contraceptives—Net-en,116 Quinacrine117 and Depo-Provera— brought forth the issue of adverse health impact these contraceptives had on women’s health. The petitions also highlighted the issue of commissioning them surreptitiously in public health programmes without adequate information and public debate and without framing any regulatory measures, all of which transgressed the provisions of Helsinki Declaration on Human Experiment (World Medical Association 1964).118 Though the prolonged court processes, did not result in any significant legal doctrine, Neten and Depo-Provera were successfully stopped from being introduced in the population control programme in India in the 1990s. The discourse on the role of ethics in public health programmes and the issue of women’s autonomy over their bodies got increased attention. Another set of petitions that drew SCI’s attention were on the continued practice of sex-determination and sex-selective abortions despite the enactment of PNDT Act 1994, purported to curb the menace of sex-determination and the declining female child ratio.119 Alongside, the petitions related to the issue of population control engaged the civil society and courts on a considerable intensity as the civil society perceived them as infringing upon citizen rights. Over 100 petitions were filed against the two-child norm that was proposed as the eligibility criterion to contest Gram Panchayat elections in Haryana.120 SCI disregarded the argument of infringement of civil rights violations that this government order entailed and dismissed the petitions, which was a severe setback to civil society. Such a petition being dismissed in Apex Court meant that legal avenues were now shut for such petitions in the future. Given such a situation, many other states such as Maharashtra and Rajasthan subsequently made two-child norm as a precondition for jobs and for women to receive cash incentives such as Janani Suraksha Yojana (JSY). On another count, the right to

116 Stree

Shakti Sanghatan and Others vs. Union of India WPC NO. 680 OF 1986. India] Democratic Women’s Association and others v. Union of India. 118 The Declaration of Helsinki (DoH) is a set of ethical principles regarding human experimentation developed for the medical community by the World Medical Association (WMA). It is widely regarded as the cornerstone document on human research ethics. The Declaration is intended to be read as a whole along with other constituent paragraphs. The Declaration is addressed primarily to physicians, the WMA encourages other participants in medical research involving human subjects to adopt these principles. The original declaration is amended in the 8 subsequent General Assemblies of WMA and seeks to protect the rights of the human subjects. 112 Cehat and Ors. v. Union of India AIR 2003 SC 3309. 119 Voluntary Health Association of Punjab (VHAP) v. Union of India WP (Civil) No. 349 of 2006. 120 Javed v. State of Haryana and ors AIR 2003 SC 3057. 117 [All

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contest election for any office was declared neither fundamental nor a common law right but as a conditional right. The population control programme has continued to occupy a prime space in the national health programmes as central government’s flagship health programme. It was severely contested during the days of emergency for enforcing male sterilisation (vasectomy). However, in the subsequent decades, tubectomy was pursued as the key method of the population control programme and they were conducted in sterilisation camps where severe human rights violations were reported by civil society leaders and health rights activists.121 Since raising this issue on the grounds of population control was legally not possible after the setback received in Javed v. State of Haryana, a petition was filed in SCI on the grounds of ‘lack of quality of care’ in sterilisations.122 Though the SCI issued orders on maintaining quality standards in sterilisation camps, deaths and morbidity continue to be reported in the sterilisation camps (e.g. Bihar 2010; Chhattisgarh 2014). Civil society followed this up with a contempt petition in the SCI.123 This resulted in court orders to dismantle the camp as a method of population control and to provide them as routine services in health centres. However, given the proactiveness the SCI takes in its own judgements on social rights, there is scepticism if these orders will be implemented (Pinto 2016). In petitions around sterilisation failures, the lower courts and some HCs invariably turned down the petitions, but on an appeal a few HCs awarded compensation.124 The courts reinforced that the State is vicariously liable for the negligence of its officers (in performing the sterilisation) and upheld that negligence is to be compensated in damages, while laying down the principle that claiming compensation in failed sterilisation comes only on account of negligence and not on account of child birth. Such reliefs, however, were not a standard remedy that HCs uniformly awarded. In State of Punjab v. Shiv Ram and Others,125 for example, the court exonerated the poor quality of services by doctors and de-linked medical negligence from sterilisation failure. Similarly, the judicial commission appointed to inquire into the matter of women’s deaths in Chhattisgarh (in 2014), exonerated the surgeon (Dr Gupta) and others on technical grounds after taking two and a half years for the investigation (Ghose 2017). Another issue that has periodically occupied public discourse is the issue of access to abortion services and the manner with which courts have dealt with it. The Medical Termination of Pregnancy (MTP) Act 1978 stipulates 20 weeks of gestation as the permissible period for a legal abortion with the permission of the medical doctor. Two types of petitions have been dealt by courts in this matter. One, criminal petitions on causing miscarriage and death, and involves doctors as the accused/appellants 121 Dr.

Abhijit Das, Interview, Delhi, 13 June 2015. Rai and Health Watch UP & Bihar v. Union of India 1994. 123 Devika Biswas v. Union of India. 124 Ms.X v. Mr. Z and Anr 96 (2002) DLT 354, I (2002) DMC 448; State of Haryana v. Smt. Santara AIR (2000). SC 1888 [SLP]; State of M.P. v. Smt Sundari Bai AIR 2003 MP 284 [Appeal]. 125 State of Punjab v. Shiv Ram and Ors AIR (2005) SC3280 [SLP]. 122 Ramakant

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in matters where they were not licensed to conduct abortions. The general pattern in these petitions was the conviction of the accused. The courts, however, did not express any opinion on the rights of the deceased woman or women’s right to abortion. Two, petitions seeking termination of pregnancy beyond the stipulated 20-week time period, in peculiar and critical circumstances such as rape resulting in unwanted pregnancy especially in the case of minor girls (Press Trust of India 2015a, b, 2016). The analysis of these cases indicate that in such cases, the HCs have played safe and gone by the rule book without providing any quick relief to the survivor.126 However, on an appeal, the SCI in several cases has allowed the termination of pregnancy in such cases, invoking the legal reasoning of ‘in the best interest of woman’127 (Desai and Chand 2007). The opinion built up in the media seem to be having considerable traction with the courts in minor girl rape survivors getting an urgent hearing and an immediate formation of medical board for an expert medical opinion and a subsequent relief. However, filing a SLP in SCI in every case and getting an urgent hearing is not an option that is easily available for poor women, nor it can be seen as a substitute for the availability of abortion services is the public health care system. Taking a serious note of the non-availability of abortion services, National Alliance for Maternal Health and Human Rights (NAMHHR) filed a petition in the HC of Bilaspur, praying for making these services available.128 Most of the litigations in this domain are filed on a pragmatic basis and courts also have continued to treat this on a case-to-case basis. In general, the judiciary’s approach to these issues is very ad-hoc often marked by denial to terminate pregnancy (Deosthali and Rege 2019). A petition by a medical doctor sought to rectify the policy of limiting MTP to 20 weeks of gestation that was causing insurmountable burden on the hapless survivors of rape and other mishaps. Seeking an extension of the legally permissible period to 24 weeks and for systemic and policy mechanisms, he filed a SLP and is still pending in the SCI. In 2017, SCI, in an interim order, enhanced the duration to 24 weeks129 (Datar 2017). Subsequently, in 2020, the cabinet approved this proposal and has tabled the bill in the parliament to enhance the period of gestation to 24 weeks.130 The Loksabha has passed the bill and is in the public domain for comments. Civil society organisations, led by women’s rights coalitions, have expressed certain persisting barriers in this MTP Amendment Bill 2020.131 Civil society strongly believes that laws that restrict access to abortion infringe on women’s privacy, dignity and decisional autonomy 126 There are several media reports on these issues of rape victim abortions. for instance, refer: www. ndtv.com/topic/rape-victim-abortion. 127 Chandigarh Administration v. Nemo, High Court of Punjab & Haryana. 128 NAMHHR v. State of Chattisgarh WP 32 of 2014, a PIL was filed in Bilaspur High Court on June 30, 2014. 129 Special leave Petition, Dr. Nikhil D. Datar v. Union of India & Ors., S.l.P. (Civ.) No. XXXX of 2008 (Supreme Court of India). 130 Medical Termination of Pregnancy (Amendment) Bill, 2020 is proposed by the Government of India. Yet to be tabled in the parliament (10 February 2020). 131 Personal Correspondence, dt.13 June 2020—Subject: Civil Society Recommendations on making the Medical Termination of Pregnancy (Amendment) Bill 2020 a Rights Based Legislation.

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with respect to their sexual and reproductive health. With this perspective, civil society coalitions, have highlighted some problematic issues in the draft bill such as, the amendment Bill has an overarching paternalistic doctor-centric framework of the MTP Act, where the decision to terminate vests with the doctor and not the pregnant person; the extension of the gestation limit from 20 to 24 weeks is made conditional to ‘certain category of women’ instead of making it universal to all women; the requirement of the medical board still continues which is a great barrier in seeking abortion; the Bill also allows a doctor to reveal details of the person whose pregnancy has been terminated to any person ‘authorised by law’ which is a violation of confidentiality and privacy; the Bill fails to incorporate the perspective of pregnant persons from marginalised groups, for whom systemic discrimination due to caste, class, religion and gender impacts livelihoods and access to quality health care service. In general, dilemmas and confusions continue in the jurisprudence concerning abortions (Box 3.6). The discussion also highlights the derailment of rights when the laid down jurisprudence is proposed to find a legal framework. The overarching patriarchal and doctor-centric approach to health rights continues to be a severe stumbling block in legalising women’s reproductive rights. Box 3.6 Ambivalence in Abortion Case Adjudication In Suchita Srivastava v. Chandigarh Administration132 the issue of MTP reached the SCI in a case where a mentally ill woman was pregnant. The expert committee did not recommend MTP against which HC granted permission for the abortion. This was stayed and reversed by the SCI on a SLP that was filed. The pregnancy forces the survivors to break the silence on rape, however, by that time, the limitation of twenty weeks becomes a barrier. Many such cases are reported in the print media (Press Trust of India 2015b).133 Gujarat HC allowed termination of 22-week pregnancy, of a 14-year-old rape survivor, though she was very anaemic. A lower court had earlier rejected the petition. In a similar case earlier, Gujarat HC had declined termination of 24 week pregnancy of a 14-year-old girl raped by a doctor in PHC for which the court in Sabarkantha district and the HC both refused permission and the survivor had to get the nod from the SCI with an appeal (Press Trust of India 2015a).134 In a number of cases the Apex court has granted permission for the termination of pregnancy with the rationale of ‘best interest of the victim’ which has set the precedents for such cases. However, there is no consistent jurisprudence even in SCI as exemplified by several cases. In one case, a 10-year-old girl who was 30 weeks pregnant due to rape and was denied permission for abortion in August 2017 citing it was advanced pregnancy. On 29 July 2017, on the same day, SCI allowed MTP of a 21-year-old woman from Bombay who was 24 weeks pregnant and foetal abnormalities were found in the foetus (Datar 2017).

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Maternal Health Services It is estimated that about 45,000 women die in India annually, from complications related to pregnancy and childbirth. Most of these deaths are attributed to systemic deficiencies resulting in violations of women’s SRHC. Two civil society reports that have analysed the intersecting and compounding factors in maternal deaths in India allude to various structural factors and the unavailability of important life-saving health care services such as emergency obstetric care that could have saved life (Sri & Khanna 2014; National Alliance for Maternal Health and Human Rights 2016). Litigations in this subtheme are on three issues—(1) access to maternal health care services, (2) quality of care and, (3) maternal deaths. Perusal of petitions from Madhya Pradesh,135 Bihar,136 Assam,137 and Sikkim138 point to two key aspects regarding the availability of and access to the services, viz. malfunctioning of PHCs (hence, inadequacy of ante-natal and postnatal services) and non-availability of allied preventive services such as nutrition. Maternal health and wellbeing are linked to various socio-structural factors, described as social determinants of health (CSDH-WHO 2008). The litigations highlighted the deficiency of nutrition services,139 lack of treatment for malaria,140 poorly maintained roads leading to delay in care,141 poorly functioning PHCs and the lack of general health care services.142 The key jurisprudence laid down declares maternal health as a fundamental right and obligates the State to comply with provisioning basic services. In Sandesh Bansal v. State of Madhya Pradesh, maternal death was declared a violation of fundamental right of the woman which would conversely mean maternal health is a fundamental right of the woman. The flip side of some of the promising declarations, however, is that they are devoid of any concrete directives to be complied with or time frame or accountability measures to be followed. 132 Suchita

Srivastava v. Chandigarh Administration (2009) 14 SCR 989. was the case of a pregnancy of a 16-year-old girl due to rape. 134 A girl of 14 years was raped by a doctor in a PHC in Sabarkantha district. The district court refused permission for the termination of pregnancy due to which they appealed to the high court. This case Chandrakant Janyantilal Suthan v. State of Gujrat was taken up in the SC and in a swift move the SC granted permission for MTP ‘in the best interest of the victim. 135 Sandesh Bansal v. Union of India, High Court of Madhya Pradesh at Indore W.P. 9061/2008. 136 Centre for Health and Resource Management (CHARM) v. State of Bihar & Ors., High Court of Patna W.P. (C) 7650/2011. 137 Promotion and Advancement of Justice, Harmony, and Rights of Adivasis (PAJHRA) v. State of Assam, Gauhati High Court W.P. 21/2012. 138 Shri Rinsing Chewing Kazi v. State of Sikkim & Ors., High Court of Sikkim PIL No. 39/2012. 139 People’s Union for Civil Liberties (PUCL) v. Union of India W.P. (C) 196/2001; Premlata w/o Ram Sagar & Ors. v. Government of NCT of Delhi, W.P. (C) 7687/2010. 140 Centre for Youth and Social Action (CYSA) v. Nagaland, Laxmi Singh w/o Manas Ranjan v. State of Odisha & Ors. 141 Shri Rinsing Chewang Kazi v. State of Sikkim &Ors., High Court of Sikkim PIL No. 39/2012. 142 Centre for Health and Resource Management (CHARM) v. State of Bihar &Ors., High Court of Patna W.P. (C) 7650/2011. 133 This

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Lack of quality in maternal health services leading to morbidity was another issue that these litigations highlighted. Death of a woman due to the infection by left-over mop (towel) during sterilisation operation after delivery in Maharashtra,143 death of another women in similar circumstances where a surgical equipment was left inside woman’s abdomen in Andhra Pradesh,144 instance of removal of uterus without consent while operating on ovarian cyst and abdomen pad left inside the stomach in Tamilnadu,145 a debilitating injury after child birth in a public hospital in Uttar Pradesh which developed into an obstetric fistula146 are some of the significant cases that HCs received. Several other petitions on issues of negligence, deficiency of services, discrimination, and irrational care such as unwarranted mass hysterectomies are still pending the SCI.147 These cases indicate multiple and multifarious negligence and interrelated issues surfacing in each of them. The response of HCs and the jurisprudence applied has been varied—in some, vicarious liability for the negligence of government servants is upheld resulting in compensation award. Relying on an earlier case148 the Court held that damages could be awarded for the violation of fundamental rights and directed the State to compensate the Petitioner. However, in several other cases such a reasoning is not followed and the ethics of informed consent, for example, is completely overlooked. Several litigations dealt with the issue of systemic discrimination, violations of health care and maternal deaths. Maternal death incidents illustrate the multiple ways how the system fails women. For example, a contract labourer woman was denied permanent appointment as Junior Chemist on the ground of being pregnant for more than 4 months in a private company149 ; maternity leave was not available for the nonregularised employees150 ; medical reimbursement for the emergency lower segment caesarean section was refused.151 In these cases, the courts favoured the litigants. In the case of woman being denied employment in private company, the court directly incorporated the provisions of Article 11 of CEDAW, 1979 into the Indian Law and held that, [t]he right to beget a child is undoubtedly a fundamental right and the state or an authority like the Respondent Corporation cannot, by enforcing a regulation, impose itself in this manner, curtailing the personal freedom of a woman who chooses to have a child. Depriving a woman of her right to earn a livelihood in spite of her selection, especially in times when 143 Achutrao

Haribhau Khodwa v. State of Maharashtra And Ors (2004) 3 CAL LT 609 (HC). Shantha v. State Of Andhra Pradesh and Ors AIR 1998 AP 51. 145 Arun Balakrishnan Iyer and Anr Vs. Soni Hospital and Ors AIR 2003 Mad 389. 146 Snehalata “Salenta” Singh v. State of Uttar Pradesh PIL no. 14588/2009. 147 Narendra Gupta v. Union of India WP © 131 of 2013; Karnataka Janaarogya Chaluvali vs. Union of India, IA along with Narendra Gupta v. Union of India petition (Interlocutory petition admitted in the SCI). 148 Nilabati Behra v. State of Orissa, (1993) 2 SCR 581. 149 S. Amudha v. Chairman, Neyveli Lignite Corporation (1991) IILLJ 234; WP was dismissed by a single judge bench, a review petition considered the petition favourably. 150 Municipal Corporation of Delhi v. Female Workers (Muster Roll) Special Leave Petition (civil) 12797 of 1998. 151 Veena Bhatia v. Department of Telecommunication and Others T.A. No.606/2009. 144 Mrs.

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unemployment is widespread and acute cannot be appreciated. (S. Amudha v. Neyveli Lignite Corporation)

Considering the denial of maternity leave for non-regular employees, SCI held that not just regular women employees but even women who are engaged on a casual basis or on muster roll on a daily wage basis can avail of the benefits of the Maternity Benefit Act 1961. In the Laxmi Mandal Case, the HC of Delhi demonstrated its willingness to enforce these rights in the face of inaction and inertia by the government. [Vide. Box 3.7] The Court reiterated that it was unwilling to be a ‘silent spectator’ and ordered the state government to provide a review of state-funded shelters and reaffirmed its order to create at least two more shelter homes. In the petition concerning a series of maternal deaths in MP, the Indore bench of the HC of MP issued interim orders for the state government to formulate an action plan to combat maternal deaths and provide appropriate health care services in the rural areas. This case is pending in the court for seven years. Similarly, a petition on the unhygienic conditions in Umaid Hospital in Rajasthan, HC in its interim orders asked Umaid hospital to file a report stating what support it got from district administration for maintaining cleanliness at hospital. Further, two litigations (viz. Laxmi Mandal and Sandesh Bansal) made some path-breaking jurisprudential declarations. The former declared that ‘to be protected from maternal mortality is a legally enforceable right’ while the latter declared that ‘access to maternal health services is a fundamental right’. It can be noted that in HCs the application is not uniform and sometimes paradoxical. The HC of MP, for example, said that the doctor has to show only a reasonable standard of care, but cannot give a contractual warranty and cannot insure against all possible risks and cannot be held guilty for error of judgment. In another case,152 the HC stated that a child which was born due to the negligence and callous attitude of the surgeon (in a failed sterilisation operation), who is an officer of the State, it is the duty of the State to maintain the child. The compensation is awarded as part of Article 21 Right to life. Court also reasoned that in exceptional cases, court can exercise its powers under Article 226 of the Constitution of India and the court can grant relief by providing damages to an aggrieved person (Box 3.7). Box 3.7 Landmark Judgment by the Delhi High Court on Maternal Health153 The case of Laxmi Mandal, refers to two women and orders delivered on 4th June 2010 in the Delhi HC, has been cited as one of the very successful court interventions in streamlining maternal health services. (Centre for Reproductive Rights and Human Rights Law Network n.d.) The order also declared the right to maternity as a fundamental right which cannot be denied. There were two petitions clubbed together in this.

152 Shakuntala Sharma v. State of U.P 2001 ACJ 620, 2000 (2) AWC 1455, (2000) 2 UPLBEC 1804.

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Shanti Devi case: In 2008, Shanti Devi, a poor woman belonging to Scheduled Caste, living in the slums of Delhi, was forced to carry a dead foetus in her womb for five days after being denied medical treatment at several hospitals because her husband was unable to show a valid ration card for medical services. On January 20, 2010, she died immediately after giving birth at home to a premature baby girl. Jaitun case: Fatema, daughter of the Petitioner Jaitun, is a poor, uneducated, and homeless woman and suffers from epileptic fits. Her husband abandoned her after she became pregnant. She inquired at a Maternity Home run by the Municipal Corporation of Delhi (MCD), Jangpura for vaccination, and inquired about the cash benefits for which she received no response from authorities. On 29.5.2009 she delivered a girl child in full public view, under a tree. She made several visits thereafter to the Maternity Home but was refused payment. Writ petition was filed with the help of a human rights organisation in which Fatema’s mother prayed for compensation, proper implementation of schemes and providing mother and child with nutrition and health care. Jurisprudence developed here, articulates that the right to be protected from maternal mortality as an unequivocal, legally enforceable right, and establishes that where women are deprived of this right, compensation must be provided. This is the first decision where the judiciary has used the reproductive rights framework into its decisions dealing with Article 21. Although there are conflicting and paradoxical positions of the courts in these matters, it also mirrors the larger society’s viewpoint on these issues. It is important to note that the personhood of a woman either during pregnancy or motherhood is not treated with respect and dignity in India. The reproductive services available in the country subjects a woman’s body to the scalpel of the State machinery and the view taken by the courts is therefore seen to be instrumental most often lacking the lens of equity and justice.

3.3.2.2

Children’s Right to Healthy Development

India is home to the largest number of children in the world, of which 20 percent are in the age of 0–4 years, accounting for 20 percent of child-deaths in the world. Undernutrition and malnutrition have been identified as the most prominent reasons for children’s deaths worldwide, including India (United Nations Children’s Fund 2011). The litigations on children’s health, considered in this section, include issues of working children (child and bonded labour) and their nutrition, and cumulatively reflect the deep intersections of their life-conditions and wellbeing. PILs used United Nations Convention on the Rights of Children, Child Labour Regulation Act 1986, 153 Laxmi

Mandal petition, Jaitun v. Maternity Home, MCD, Jangpura, &Ors.

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and Juvenile Justice (Children in Conflict with Law and need of Care) Act 2000 to address the issues of children’s health and wellbeing. Right to health and a healthy environment formed the key grounds in these petitions. It is noted in these litigations that the issues of children reflected in these petitions are not systematic nor consistent. They have emerged in the context of issues identified by civil society actors, and hence appear to be anecdotal and not representative of all the issues faced by children. Hence, the orders and court directives too appear to be piecemeal. In the Sivakasi and Kamraj district Child Labour Case154 the court prohibited direct employment of children in the manufacture of matches but allowed it in packaging. Constructing the jurisprudence on the principles of ‘sound physical growth’ and ‘adverse effect on health as a serious problem’, it directed to make available the dietary and medical facilities available to children in these workplaces. Court took a paternalistic view and sympathised with the issue, but did not take any position on enforcing prohibition on child labour. In the subsequent petitions on the same issue that were filed in the context of deaths of 39 children in a fire accident, seeking prohibition of child labour in the matchmaking factories of Sivakasi in Tamilnadu,155 the principles of ‘right to healthy development of the child’ and the arguments of public health are used. The jurisprudence in these litigations did not substantially alter court position on the total ban on child labour. In petitions asking for banning child labour in carpet industry,156 SCI did not consider the prayer for a total ban on child labour but directed for a progressive elimination of employment of children. The legal reasoning was based on the International Covenant on the Rights of the Child and the Constitution of India Articles 21, 23 and 24. Addressing issues of child trafficking that is linked to the entertainment industry such as circus, in a petition Bachpan Bachao Andolan v. Union of India and Others,157 the petitioner brought to the notice of court the problems faced by children that included insufficient space, inadequate food, erratic sleep timings, poor sanitation and lack of health care in such a high risk entertainment industry. Lack of health care and medical personnel, among others, were presented as primary grounds for seeking relief to children. SCI directed the central government to issue notification to prohibit children below the age 18 in the circus, to protect their right to life and to rehabilitate them in Protection and Care Homes. Several petitions raised the issue of children’s access to food for children in the wake of malnutrition and starvation deaths. In PUCL v. Union of India and Others,158 SCI issued orders to make food and nutrition available to children and the directives included operationalising universal midday meals, and the provision of supplementary nutrition for adolescent girls through Integrated Child Development Scheme (ICDS) and through Public Distribution System (PDS) (Right to Food 154 M.C.

Mehta v. State of Tamil Nadu and Ors. AIR 1991 SC 417. Mehta v. State of Tamil Nadu and Ors. AIR 1997 SC 699; (1996) 6 SCC 756. 156 Bandhu Mukti Morcha v. Union of India AIR (1997) 10 SC 2218. 157 Bachpan Bachao Andolan v. Union of India and Others, WP (Civil) 51 of 2006, Supreme Court of India. 158 PUCL v. Union of India and Others WP (C) 196 of 2001. 155 M.C.

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Campaign n.d.). In a stark contrast to the issue of starvation, another petition prayed for restricting the availability of junk food in school campuses deemed to be adversely affecting children’s health. In Uday Foundation and Others v. Union of India,159 the petitioners drew on expert reports which link junk food as the cause for development disorder in children, and sought a ban on the junk food around schools. In this litigation filed in 2010, about 33 orders were passed and the final judgment was given on 25 February 2016 (Uday Foundation, Delhi n.d.). Food Safety and Standards Authority of India, the statutory body, was directed to form guidelines for the sale of quality and safe food in school campuses and within 500 yards of the schools.160 Compared to starvation and non-availability of food that reflects the reality of rural and hard to reach areas, the latter petition reflects an urban scenario and the problems generally faced by children coming from slightly privileged families. As can be noted in the outcomes of these litigations, the courts applied the prevailing personhood jurisprudence along with the international human rights principles that include right to healthy development as the right of every child and emphasised the liability of the employer to the healthy development of the child. Right to health and health care is a firm but an indirect ground for the protection of right to life of adolescents and children in the petitions filed in the SCI. However, the jurisprudence lacked robustness to effect any substantial change in the lives of children on issues such as child and bonded labour.

3.3.2.3

Rights of Persons with Psychosocial Disabilities

The discrimination and violations of health care of persons with psychosocial disabilities in India are intrinsic to the construction of their ‘patienthood’ as having no legal rights and the simultaneous denial of ‘personhood’ to them.161 This is endorsed and upheld by a plethora of legislations (The National Alliance on Access to Justice for People Living with a Mental Illness—NAAJMI 2011; Davar 2015). Such a conception of ‘patienthood’ strips them of their citizenship itself as Davar (2015: 8) notes: ‘[t]he ‘mentally ill’,… the authorities first have to arrest them, strip them of all subjecthood and citizenship, and then bring them into an asylum/custodial treatment setting’. The discussion on jurisprudence applied in this domain broadly comes from 18 litigations considered for the analysis. They are analysed under two categories—(a) under-trials, women and children in jails and mental illness162 (6 litigations) and, 159 Uday

Foundation for Congenital Defects and Rare Blood Groups and others vs. Union of India WP (Civil) 8568 of 2010 (High Court Delhi). 160 Ibid. vide final order dt 25 February 2016. 161 The legislation The Mental Healthcare Act, 2017, technically has made provisions to affirm the personhood. However, there are no steps taken for its realisation even after three years of its enactment (May 2020) and will be a long-drawn battle in the future. 162 The book prefers to use the word psychosocial disabilities and person with psychosocial disabilities; however, contextually, the words mental illness and mentally ill/person with mental illness are used.

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(b) mental health institutions, and patient rights (12 litigations). In the 1990s, the NHRC played a pivotal role in the advancement of these litigations. The petitions on illegal detention of a mentally ill person for about 30 years.163 and 28 inmates in the Mental Asylum in Erwadi village in Ramanathapuram district (Tamilnadu) in 2001164 symptomatically point to the severity of human rights violations both as individuals and as a community of persons with psychosocial disabilities. Two Significant Cases Concerning Rights of Persons with Psychosocial Disabilities (PPSDs) Ajoy Ghosh v. State of West Bengal This is a story of one of the longest illegal detentions of a mentally ill person in the history of post-independent India. He was arrested in 1962 on charges of his brother’s murder. He was declared insane during his trial. His mother, the only relative, and all other witnesses died too during this trial. As an under-trial he could not be acquitted unless tried and could not be tried since he was of ‘unsound mind’. In 1989, a public spirited advocate Shri P. K. Sinha drew the attention of the HC of Kolkata to the plight of prison inmates, the case of Ajoy Ghosh surfaced and was taken up by the division bench of the HC in 1989. Subsequently, in 1999, this case was taken up by the SCI along with others, and was ordered to be released and put in the care of the Missionaries of Charity. The Court also ordered a two lakh rupees compensation to be paid to the Missionaries of Charity as donation. His release without a trial was realised after 37 years of his arrest. The magisterial report which was ordered by the SCI reveals that between the period 1964 and 1995 the Additional Chief Metropolitan Magistrate (ACCM) made no efforts to take any action in this case and no treatment was given. He was last produced in the court on 8 November 1962, and the next order was found to be dated 8 February 1964. There is absolutely no record of the trial whereabouts till 12 November 1983, on which the subsequent order is dated, confining him to judicial custody till he is ‘mentally fit’. The three member SCI bench headed by Justice Dr. A. S. Anand lamented the state of affairs: ‘This case presents a pathetic state of affairs and demonstrates the manner in which Ajoy Ghosh was treated. We are distressed. The blatant manner in which the fundamental human rights of Ajoy Ghosh, including the rights under Article 21 of the Constitution, have been violated, presents a depressing picture’ (Jai 2003). Re. v. Union of India This is the case of tragic deaths of 28 inmates in the faith based Moideen Badusha Mental Home in Erwadi village in Ramanathapuram district (Tamilnadu) in 2001, who were chained and tied to poles and beds. They were charred to death in the fire accident that occurred on the night of 6th August 2001. Based on the submission note of the Registrar (Judicial), the SCI took a suo motu action in taking up the case in public interest. A five-Judge Bench of the Supreme Court, comprising A. S. Anand 163 Ajoy Ghosh v. State of West Bengal IA No. 4, WP © No.559 of 1994, decided on November 29,

2000 [IA in R. D. Updhyay v. State of Andhra Pradesh (2001) 1 SCC437]. v. Union of India (2002) 3 SCC 31 [WP (C) 334 of 2001].

164 Re.

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CJI, K. T. Thomas, R. C. Lahoti, N. Santosh Hegde and S. N. Variava, JJ., issued suo moto notice to the State and Central governments, on the basis of media reports on the Erwadi tragedy. Even after the enactment of the Mental Health Act (MHA) 1987, this incident showed the continued apathy and indifference shown by the State and private agencies towards the mental ill. However, what followed this incident is the closure of all privately run mental asylums and the State took all the inmates into its custody. Medical attention and monetary compensation were given by the government to the survivors (Krishnakumar 2001). In this case SCI issued orders for implementation of the MHA 1987 towards fixing accountability of the authorities. Notably, the MHA 1987 itself is fraught with serious problems as far as the rights of patients are concerned. There is insufficient research to suggest if any systemic level change happened due to this order in the way care and social support is offered to PPSDs. Examination of litigations indicates that courts have used the jurisprudence of personhood (right to life), duty of the governments to safeguard human rights, and unconstitutionality of the incarceration of mentally ill. The Mental Healthcare Act 2017, which replaced the MHA 1987 has enacted certain provisions which incorporate this jurisprudence by acknowledging the legal personhood status of the PPSDs and among others, their legal capacity to consent in matters of their health care. Duty of the State to Safeguard Right to Life and Access to Justice Many petitions revealed how persons with mental illness were kept in indefinite judicial custody,165 unwillingness of the State authorities to order release of ‘insane acquittees’,166 abuse of human rights of women and children in State protective homes or jails,167 and conditions of convicts sentenced to death.168 Invoking the jurisprudence of the right to life of PPSDs, SCI reiterated their fundamental right to access justice, while laying down the imprisonment of non-criminal persons with mental illness as unconstitutional, and providing treatment and safeguarding human rights of the PPSDs as the duty of the State. Another set of persons whose right to life was negated were the convicts sentenced to death whose mercy petitions were rejected by the President of India and most of them were suffering from mental illness. Review petitions were submitted in the SCI to consider the grounds of delay, insanity, solitary confinement and procedural lapses as ‘supervening circumstances’ 165 Veena

Sethi vs State of Bihar AIR1983 SC 339 [ W P ( Cri) No 73 Of 1982]. criminal law, the provision of safe custody also extends to ‘insane acquittees’ (sic). When a court acquits a person on grounds of unsoundness of mind, acquittal does not mean discharge. The court can under Section 335 of the CrPC either release the ‘insane acquittee’ on security of a friend or relative or order the ‘insane acquittee’ to be kept in safe custody of jail or a mental hospital. Once again, release can be secured only if family support is available. The statute provides no guidelines on the periods for which ‘insane acquittees’ can be kept in place of safe custody. 167 Dr. Upendra Baxi v. State of Uttar Pradesh 1983 2 SCC 308; Sheela Barse v. Union of India 1986 3 SCC 632, Vide order dated 15.4.1986 (Children); Sheela Barse v. Union of India 1993 (4) SCC 204(Women and children). 168 Shatrughan Chahan and Anr vs. Union of India and Ors WP (Cri) 55 of 2013 (Supreme Court) 157 Ibid. para 24. 166 In

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and to declare death sentences per incuriam. Consequently, the SCI commutated their death sentences to life sentences.157 Constitutional Obligation of the State to Provide Medical Care In Shukri v. State of Maharashtra169 the negligence of medical care resulting in the death of the petitioner’s mother in the Central Institute of Mental Hygiene and Research, Yerwada, Pune was the issue. In Rakesh Chandra Nararyan v. State of Bihar,170 letters on the conditions of Ranchi Mansik Arogyashala, a State run mental health care hospital near Ranchi were admitted as a PIL by SCI. SCI re-articulated the jurisprudential principles of welfare-state and duty of the State as applicable to these institutions: In the welfare-state - and we take it that the State of Bihar considers itself to be one such it is the obligation of the State to provide medical attention to every citizen. Running of the mental hospital, therefore, is in the discharge of the State’s obligation to the citizens … The State has to realise its obligation and the Government of the day has got to perform its duties by running the hospital in a perfect standard and serving the patients in an appropriate way.

Based on the orders in Rakesh Chandra Narayan on the Ranchi Manasik Arogyashala, the SCI legal aid committee took up the issues of deficiencies in Gwalior Manasik Arogyashala171 and the Hospital for Mental Diseases located at Shahdara (Delhi Administration).172 In these cases, it was ordered that an autonomous body to manage these institutions. In Chandan Kumar Banik v. State of West Bengal, SCI deplored the conditions of mental hospital at Mankundu of Hooghly District,173 and ordered discontinuing the practice of tying up patients with iron chains followed by treatment. In other cases, courts regulated the prescription of indiscriminate electric shocks to mentally ill persons that were routinely done in several hospitals even without administering anaesthesia (CEHAT and ICHRL 2007).174 In these PILs, the SCI orders included provisions to strengthen and refurbish the system of mental health care services.175 Pursuant to ratifying the United Nations Conventions on Rights of Persons with Disabilities (CRPD) in 2007, the government of India enacted the Mental Health Care Act 2017. Incorporating some of the principles of jurisprudence laid down thus far, this legislation, among others, has de-criminalised suicide and has made provisions to accept the autonomy and personhood of the mental health patients (Government of India, Ministry of Law 2013). However, any measures towards strengthening mental health care institutions or commitments towards allocating required financial resources are not provided for in the said Act, including access to care and medicines 169 Shukri

v. State of Maharashtra WP no. 7560 of 1988, Bombay High Court. Chandra Nararyan v. State of Bihar 1989 SUPP 1 SCC 644. 171 Supreme Court Legal Aid Committee v. State of M.P. and Ors. 1994 Supp (3) SCC 489. 172 B. R. Kapoor v. Union of India, (1989) 3 SCC 387 [WP ( Cri) No 1777-1778 of 1983]. 173 Chandan Kumar Banik v. State of West Bengal 1995 Supp. 4 SCC 505. 174 S.P. Sathe v State of Maharashtra W P No 1537 of 1984, Bombay High Court. 175 Re. v Union of India (2002) 3 SCC 31; Saarthak Registered Society and another v. Union of India (2002) 3 SCC 31. 170 Rakesh

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which are critical for the care of PPSDs. The transformability of the legislation into operational health system measures to realise the SRHC of PPSDs is not evident in this policy making process (Pinto 2017a).

3.3.2.4

Rights of People Living with HIV/AIDS

Human Immuno Virus (HIV) became the focus of public health policy and programmes in the mid-1990s. Litigations concerning People Living with HIV/AIDS (PLHAs) that came before the courts highlighted primarily the transgression of civil rights of infected persons and the issues of systemic gaps that manifested in making health care available to patients. The 19 litigations analysed here, 7 from SCI and 12 from HCs, bring out the palpable tension inherent in resolving conflicts of rights and striking a balance between protecting personal rights and addressing the concerns of the health of the public, as exemplified in the issue of right to privacy and confidentiality vis-à-vis the disclosure that is required to protect others. In the early years, a primitive jurisprudence emerged which made individual dignity, right to privacy and confidentiality subservient to public health.176 However, a more mature jurisprudence was eventually laid down within the framework of personhood jurisprudence. Quite importantly, this reflects the evolving understanding of the public health issues by the judiciary and its influence on the interpretation of the constitutional principles in their application to the specific issues in public health care. Right to Dignity and Civil Rights The persistent litigations concerning the issues of health care of the PLHAs over the years resulted in several court directed guidelines that upheld the jurisprudence of equality and right to life. They included, for example, anonymisation of names in court dossiers, and declaration of termination from employment owing to HIV status and mandatory testing without consent as discriminatory and as violative of Articles 14 and 21 of the Constitution.177 The stigma that is linked to the HIV status of a person and its intersectionality with civil and social rights came to the fore while challenging criminalisation of homosexuality embedded in IPC 377. This petition had its origins in the civil society coaltion AIDS Bhedbhav Virodhi Andolan (ABVA) against the police harassment and policy barriers that restricted the provision of HIV preventive care and treatment to homosexuals as homosexuality was criminalised under IPC 377.178 The Delhi HC declared IPC 377 as unconstitutional on the grounds of violating several fundamental rights including equality (Article 14) and right to life (Article 21). This was, however, was reversed by SCI on an appeal by the state

176 Mr.

X v. Hospital Z AIR 2003 SC 664; Dr. Tokugha Yepthomi v. Apollo Hospital and Anr AIR 1999 SC 495. 177 Mr. X, Indian Inhabitant v. Chairman, State level Police Recruitment Board. 178 Naz Foundation v. Government of NCT of Delhi and Ors. (2009) DLT 27; Suresh Kumar Koushal and Anor. v. Naz Foundation Civil Appeal No. 10972 of 2013.

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which also refused to admit any review petitions. Later, responding to the civil society and media outcry, through a curative petition, the SCI decriminalised IPC 377. Right to Access Treatment with Dignity There are few litigations that addressed the issues of systemic deficiencies in the provisioning of health care to PLHAs. In the order in a petition in Assam,179 the court presumed the constitutional public duty of the state of Assam through its public health department for the health of PLHAs. It issued various directions for proper implementation of guidelines, strategies and policies formulated by the National AIDS Control Organization (NACO). Legal Doctrine Two landmark legal principles were developed in M. Vijaya v the Chairman and Managing Director, Singareni Collieries Company Ltd.180 The Petitioner, wife of a Pump Operator working for the Respondent Public Sector Company, Singareni Collieries Co. Ltd. underwent a sterilisation operation. She got HIV infection through blood transfusion. The petitioner alleged that the Hospital did not test her brother’s blood for HIV at the time of donation. She filed a writ petition in the HC alleging negligence on the part of the Hospital. The judgment is firmly footed in the welfare state philosophy of the state and Articles 39 and 47 of the Constitution of India. The elaborate order takes into consideration all the fundamental rights judgments and HIV/AIDS related judgments delivered prior to 2002. The jurisprudence in this case attains significance on account of the five-judge constitution bench in the HC of AP that laid down the legal doctrine and that it took into consideration a whole gamut of preceding judgements. 1. Fundamental rights prevail over the doctrine of sovereign immunity and acts done in good faith (Ibid., Paragraph 68). 2. Doctrine of constitutional tort is applicable when right to life under Article 21 of the Constitution of India is violated (Ibid., Paragraph 69). Call for civil society to enact legislation, finally was realised in the enactment of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act 2017. This Act has a predominant focus on addressing the issue discrimination which relates to the civil rights of citizens. It, however, does not address the issue of access to care of PLHAs which is a social right (Pinto 2017b).

179 Subodh Sarma and Anr. v. State of Assam and Ors. WP (Civ)No. 3984/96, decided on 26.9.2000

(Gauhati High Court). Vijaya v. The Chairman and Managing Director, Singareni Collieries Company Ltd, 2002 ACJ 32 [WP No. 5104 of 2001, Andhra Pradesh HC].

180 M.

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3.3.2.5

3 An Overview of Health Care Jurisprudence in India

Brief Summary of the Application of Health Care Jurisprudence for the Rights of Vulnerable Groups

Reproductive and Maternal Health (1) The right to beget a child is a fundamental right and the State or an authority cannot curtail the personal freedom of a woman who chooses to have a child; (2) Right to be protected from maternal mortality is an unequivocal, legally enforceable right, and where women are deprived of this right, compensation must be provided; (3) The inability of a woman to survive pregnancy and childbirth violates her fundamental right to live guaranteed under Article 21 of the Constitution of India; (4) State is under obligation to secure their [mother and child] life. It is the primary duty of the government to ensure that every woman survives pregnancy and childbirth; (5) Right to life in Article 21 of the Constitution of India extends to receiving proper and complete medical attention from medical practitioners, whether working in a government or private hospitals; (6) Claiming compensation in failed sterilisation comes only on account of negligence and not on account of childbirth; (7) Doctrine of ‘best interest of the woman’ is to be followed in medical termination of pregnancy; (8) Patient rights and ethical protocols are part of fundamental right to life with dignity; (9) The State is vicariously liable for the negligence of its officers and liable for compensation. Rights of People Living with HIV/AIDS (1) Criminalisation of one’s personality based on sexuality is violative of Articles 14 and 21 of the Constitution of India; (2) It is the constitutional public duty of the State to provide medical care; (3) People living with HIV/AIDS have a right to access ‘treatment with dignity’ in State run hospitals; (4) The doctrine of sovereign immunity is subservient to the fundamental rights; State is liable if it violates fundamental rights (applicable to HIV/AIDS cases); (5) Doctrine of constitutional tort and remedy in public as well as private law for negligence is applicable [the violations of constitutional rights]; (6) Right to life includes the right to all reasonable health facilities; (7) Any act of discrimination towards an employee based on their HIV-positive status is a violation of Fundamental Right; (8) Justification on grounds of executive policy is not acceptable when the policy itself is discriminatory and arbitrary. Articles 14 and 16 of the Constitution of India is applicable to administrative actions. (e.g. Mandatory testing without

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explicit consent of the patient, including for ‘pre- or in-service’ employment screening or insurance procedure is discriminatory). People with Psychosocial Disabilities (1) Duty of the State and governments to provide medical care to all citizens; (2) Right to life and human rights [of the inmates] imply adequate medical care and treatment; (3) Imprisonment of the non-criminal mentally ill is unconstitutional; (4) Right to life under Article 21 and right to access justice under Article 32 of the Constitution are available even for convicts sentenced to death.

3.3.3 Thematic Cluster 3: Health Care of Social Elites and Patient Rights In this section we consider the health care issues of the government employees of higher rank and citizens belonging to middle and upper classes. The former is covered by the Central Government Health Scheme (CGHS) and have filed several litigations on issues related to their health care. The latter, accessed health care in private institutions, and had the wherewithal to litigate against the medical negligence. Hence, we assume they belonged to a class which could afford both health care and access to justice in the matters of health care. Distinguishing those who solely are dependent on public health care system, referred to as ‘the marginalised’—the subject matter of most of the litigations considered in this book—, the protagonists of jurisprudence emerging from the select litigations in this section are considered under the nomenclature of ‘social elites’.

3.3.3.1

Health Care Entitlements of Elite Government Employees

In India, the protocols for medical care of persons in permanent government employment and persons in armed forces are well developed. The policies and rules for medical attendance are developed and amended periodically by the respective Departments of Personnel either at the central or state government level for its employees under the Constitutional provision of ‘conditions of service’ articulated in article 309 of the Constitution of India. Central government employees are covered under the Central Government Health Scheme (CGHS), for whom medical care is provided through hospitalisation in public hospitals or through medical reimbursements. The disputes concerning the reimbursement of expenditure by the CGHS is the key issue in the petitions analysed under this theme. Six petitions in the SCI, 14 in the HCs and three in CATs are taken into consideration for analysis in this section. In four of the six petitions, the aggrieved individuals had appealed against the order of the HC and the SCI heard the matter. Significantly, in two petitions, the state of Punjab is the appellant against the order of the HC—State of Punjab and Others. v. Mohinder

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Singh Chawala181 (hereafter, Mohinder Singh Chawala) and State of Punjab v. Ram Lubhaya Bagga171 (hereafter, Ram Lubhaya Bagga). These two petitions consolidate the jurisprudence in adjudicating such matters in the HCs as landmark judgments. They also gain significance due to the strong character of the jurisprudence principles laid down marked by a conclusive and incontrovertible position of courts in these matters. Jurisprudence The courts primarily leaned on the earlier four landmark litigations to develop jurisprudence in this domain, viz. Right to life (CERC case), right to health of the workers (Kirloskar Brothers), right to health (Hazardous drugs case) and right to emergency medical care (Paschim Banga case). Mohinder Singh Chawala and Ram Lubhaya Bagga are the key petitions where the preceding cumulative jurisprudence was applied in matters of health care. Right to Health is Integral to the Right to Life with Dignity In Mohinder Singh Chawla, the SCI ruled that room rent was an integral part of the expenses for treatment and should therefore be reimbursed. This claim was refuted in the appeal in the SCI, on the ground that rent at the cost of AIIMS was not part of the policy of the government. SCI upheld the decision of the HC stating that the government had a constitutional obligation to pay for medical bills incurred by its current and retired employees and as per the policy formulated by the state government. The jurisprudence laid down by the bench, K. Ramaswamy, J. as the author, is based on the socialistic interpretation of the Constitution and highlights the principle of the constitutional obligation of the State ‘to bear the expenses of the government servant while in service or after retirement from service’ and the duty of the government ‘to fulfil the constitutional obligation’. In several other petitions, courts reinforced the right to medical reimbursements as part of right to life, reasoning that the right to health is an integral part of right to life and reiterated the constitutional obligation of the State to reimburse the entire amount incurred as expenditure.182 This jurisprudence was further reinforced in Ram Lubhaya Bagga, in which a policy that was amended to reimburse lower costs was challenged. The health care jurisprudence in this important case further emphasises the concept of welfare-state and the obligation of the State to ensure conditions congenial to good health,183 and the right to life of citizens. It also emphasises the corresponding duty of the State 181 State

of Punjab and Ors. v Mohinder Singh Chawala AIR (1997) 2 SCC 83 [CIVIL APPEAL NOS.16980-81 OF 1996 @SLP (C) Nos.12945 and 18828 of 1996 & CA No.16979/96 @ SLP (C) No.12472/96] 171 State of Punjab v Ram Lubhaya Bagga (1998) 4 SCC 117. 182 Daljit Singh v. State of Punjab and Ors. 1997 (116) PunLR 600 (Para 7); Milap Singh v. Union of India 113 (2004) DLT 91; 2004 (76) DRJ 126; Prithvi Nath Chopra v. Union of India 2004 (74) DRJ 175; Kartar Singh Virk v. State of Punjab and Ors. (1997) 116 PLR 573. 183 ‘In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health….. In a series of pronouncements during the recent years, this court has culled out from the provisions of Part- IV of the Constitution, the several obligations of the State and called upon it to effectuate them in order that the resultant picture by the

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explained in Article 47 of the Constitution of India, terming it as the ‘one of the most sacrosanct and a valuable right of a citizen and equally sacrosanct sacred obligation of the State’. Self-preservation of One’s Life as Part of Right to Life In Sadhu R. Pall v State of Punjab184 and Surjeet Singh v State of Punjab,185 the court incorporated the principles of self-preservation to declare the right to health and medical care as part of right to life. It stated that ‘self-preservation of one’s life is the necessary concomitant of the right to life enshrined in Article 21 of the constitution of India, fundamental in nature, sacred, precious and inviolable’. Special Considerations to Social Elites The special consideration bestowed on the social elites by the courts, primarily the government employees of higher ranks, is tangible in the judgements of the courts. It manifests in two-fold ways, viz. striking down some policies of reimbursement on the grounds of discrimination and being generous in providing reimbursements classifying some of them as emergency cases. In several cases courts struck down policies which denied full reimbursement or medical facilities to the current or retired employees, and in some cases even to their spouses, on the grounds of discrimination. In two cases,186 courts struck down policies that excluded reimbursement and medical facilities to pensioners, as violative of articles 14 and 21, and hence unconstitutional. The legal reasoning was that the subordinate legislation is a policy and must be consistent with the Constitution. In Veena Sharma v. State Bank of India and Ors,187 the court ordered the respondent to reformulate the Rules keeping in mind the constitutional mandate. In some cases, the HC of Delhi overruled the office memorandum containing the revised rates which was more than two years old, based on which a full reimbursement was not given.188 In another instance, CAT applied the jurisprudence of State obligation to provide health care respecting the principle of equality, and expanded the scope of medical reimbursements to cover even the pensioners.189 In some instances, Courts were lavish in offering special consideration of emergency situations and were very generous in granting concessions to Government servants. For example, reimbursement beyond the permitted levels was allowed citing

constitution fathers may become a reality.’ Vincent Panikulangara vs. Union of India AIR (1987) SC 990, page 10. 184 Sadhu R. Pall v. State of Punjab 1994(1) SLR 283. 185 Surjeet Singh v. State of Punjab (1996) 2 SCC 336, p. 8. 186 Kamlesh Sharma v. Municipal Corporation of Delhi 2003 (66) DRJ 237, 2003 (3) SLJ 394; A.B. Colaco v. Coffee Board Writ Petition No.39031 of 2003 (S-R). 187 Veena Sharma v State Bank of India and Ors. 2001 (49) BLJR 1543; (2001) IILLJ 1333. 188 Shri V.K. Gupta v Union of India and Anr. 2002 IIIAD Delhi 1054; 97 (2002) DLT 337; K.S. Mathew v. Union of India 2005 (83) DRJ 714. 189 Laxmi Chand v Comptroller and Auditor General 2005 (2) SLJ 145 CAT.

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emergency in the case of kidney operation;190 apex court in one case191 and HC in another case192 ordered full reimbursement even if disease was not a recognised one in the policy; where a govt hospital was not available, the rates of the private hospital were directed to be reimbursed.193 The imprint of K. Ramaswamy J. is visible in two of the widely acclaimed cases discussed above. Most of these cases were in the mid-1990s. K. Ramaswamy’s socialist interpretation of the Constitution forms a common thread between the jurisprudence of right to health of the workers and right to health/medical care in the case of government employees, workers of a dissimilar character and status. The articulation of social justice, welfare-state philosophy and consequent state responsibility for citizen’s health and medical care is found in these principles of justice in health care. The petitions perused unequivocally apply the health care jurisprudence in reimbursements and even striking down the executive policy making which is discriminatory. In addition to the already existing practice of reimbursements of medical expenditure by the State, in 2013, the Department of Personnel and Training (DOPT) offered to reimburse to the rank of IAS and IPS officers, the entire medical expenditure incurred abroad. When the health sector is continuously being under-resourced, academicians and policy analysts have criticised the move for the misplaced priorities and for the nexus and collusion that this move would promote as part of reciprocation between politicians and civil servants. It is a move that will impair health care in India besides sending ‘wrong signals for the public health care policy in India’ (Baru 2013).

3.3.3.2

Patient Rights and Medical Negligence

The path to attain patient rights in India through litigations has been indirect and tortuous. Most of the litigations that we analyse in this chapter do not refer to any particular patient right, but the violation of right to health care in general. The litigations concerning medical negligence, among all the domains considered in this chapter, draw the closest links with the rights of individual patients or patients’ rights. Such 47 litigations considered here—SCI (5), HCs (21) and Consumer Redressal Commissions (21) -, include issues that directly refer to patient rights such as duties and conduct of medical professionals, doctor—patient relationships, medical negligence and medical malpractice. The analysis of jurisprudence is summarised here under three themes, viz. (1) principles of medical negligence (2) remedies for medical negligence, and (3) medical practice. In the end, the discussion on jurisprudence in this domain is synthesised in the context of patient rights.

190 Devindar

Singh Shergil v State of Punjab (1998) 8 SCC 552. Rakheja v State of Haryana and another, (2004) 2 SCC 563. 192 Mani v. Secretary of Government 2007 (3) MLJ 34 [W.P. No.3947 of 2006}. 193 K.P. Singh v Union of India (2001) 10 SCC 167. 191 Suman

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Jurisprudence on Principles of Medical Negligence The international medical jurisprudence has laid down the test of medical negligence on the doctrine that consisted of three principles, viz. duty of care, doctrine of ‘res ipsa loquitur’, and discovery rule. Indian jurisprudence primarily has applied and confirmed these as tests of medical negligence. These principles are elaborated below. Doctrine of the Duty of Care Bolam test lays down the scope of negligence as applicable to the medical profession. In Bolam v Friern Hospital Management Committee194 duty of care was laid down as determining the scope of negligence for the medical profession.195 Building on international jurisprudence, SCI in Jacob Mathew v State of Punjab196 confirmed the essential ingredient to test medical negligence as duty of care and defined as ‘an ordinary competent person exercising ordinary skill in that profession’. However, such an explanation was muddled with a lot of confusion and ambivalence when the same judgement excluded ‘a simple lack of care, an error of judgment or an accident’ as proof of negligence on the part of a medical professional’ and added that additional considerations will apply without specifying them. Jurisprudence laid down in several judgments, however, continuously reiterated the standard applied to determine negligence as that of an ordinary person exercising skill in that profession while clarifying that the highest and specialised skills were not expected to be employed.197 Doctrine of ‘Res Ipsa Loquitur’ The doctrine of res ipsa loquitur was applied in M/s Spring Meadows Hospital Case.198 Res Ipsa Loquitur literally means that the thing speaks for itself. When the plaintiff/complainant does not have the knowledge of the true cause of mishap but knows only the medical doctor as closely related to it and is in a position to prove the accident, then the principle of res ipsa loquitur is invoked. The accident is shown to be under the management of the defendant or his subordinates, and the accident as such does not happen in the ordinary course of things if the professional were to use proper care. In Shyam Sunder v State of Rajasthan,199 this was discussed in the context of a medical mishap and the plaintiff’s inability to prove negligence.

194 Bolam

v Friern Hospital Management Committee 1957 2 ALL ER 118. ingredients of Bolam test include: (1) Existence of a duty to take care, which is owed by the doctor to the complainant; (2) Failure to attain that standard of care, prescribed by the law, thereby committing breach of such duty; and, (3) Damage which is both casually connected with such breach and recognised by the law, has been occasioned to the complainant. 196 Jacob Mathew v State of Punjab (2005) 6 SCC 1. 197 Postgraduate Institute of Medical Education and Research (PGIMER) v Jaspal Singh (2009) 7 SCC 330; (2009) 3 SCC (Cri) 399. 198 M/s. Spring Meadows Hospital & Anr. v Harjol Ahluwalia (1998) 4 SCC 39 (in Civil Appeal No. 7858 of 1997). 199 Shyam Sunder v State of Rajasthan AIR 74 SC 876. 195 Basic

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The court illustrated the instances of employing this doctrine by stating that ‘gross medical mistake will always result in a finding of negligence’. Discovery Rule Discovery of the injury or negligence and its relation to the cause of injury holds prime key in adjudicating on medical negligence. Several instances of medical negligence come to light after a considerable amount of time has lapsed and are impeded by limitation of time for admission in the court of law. In V. N. Shrikhande (Dr) v Anita Sena Fernandes,200 after nine years of her surgery, the respondent nurse discovered the cause of her abdominal pain as the gauze pieces left behind by the doctor who operated on her. The SCI held that where the effect of negligence is manifest, the cause of action arises on the date on which negligence was committed. But when the effect is latent, cause of action arises when harm or injury is discovered or could have been discovered by exercising reasonable diligence. In this case, it was held that the respondent was barred by limitation (of time) and the discovery rule was not applicable to her. Select Prominent Cases in Medical Negligence Jurisprudence • Malay Kumar Ganguly v Dr. Sukumar Mukherjee201 In this case, the patient’s death was attributed to the combined effect of giving treatment contrary to established medical treatment protocols and the negligence of the hospital. Patient suffering from Toxic Epidermal Necrolysis (TEN) was not diagnosed initially by a doctor (who was not a dermatologist) prescribed a high dose of long-acting steroid, depomedrol. A second doctor prescribed a quickacting steroid, prednisolone, without considering the harmful effect of the already accumulated steroid in the patient’s body. A third doctor, when the patient was diagnosed with TEN, failed to provide supportive therapy. Patient died eventually. In this case, the doctors individually and the hospital were held negligent on the grounds of the lack of due care. • Jacob Mathew v State of Punjab In this significant and landmark judgment, SCI stipulated guidelines to be followed in the prosecution of doctor for criminal negligence. On February 15, 1995, a patient was admitted in the private ward of a hospital. On February 22, 1995 at about 11 p.m., when the patient experienced difficulty in breathing, the complainant’s elder brother, who was present in the room, contacted the duty nurse, who in turn called a doctor to attend to the patient. The doctor came to the room only after about 25 min and connected the oxygen cylinder to the mouth of the patient, however, the breathing problem increased further. The oxygen cylinder was found to be empty, and as there was no other gas cylinder available in the room, the patient’s son brought a gas cylinder from the adjoining room. However, there was no arrangement to make the gas cylinder functional and meanwhile, a precious time of 5–7 min had lapsed. Another doctor who meanwhile reached the room 200 V.

N. Shrikhande (Dr) v Anita Sena Fernandes (2011) 1 SCC 53; AIR 2011 SC 212. Kumar Ganguly v Dr. Sukumar Mukerjee (2009) 9 SCC 221; (2010) 2 SCC (Cri) 299.

201 Malay

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examined and declared the patient dead. A criminal complaint was filed, and a case was registered under Sections 304-A and 34 of the Indian Penal Code. The appellant, a medical doctor, filed a plea for quashing the criminal complaint. The single judge who heard the petition formed an opinion that the plea raised by the appellant for quashing the charge was not made out. Feeling aggrieved, the appellant filed a special leave petition before SCI. In the judgment, the SCI laid down guidelines towards the prosecution of medical professionals (Subrahmanyam 2013). [Vide. Section criminal jurisprudence in medical negligence, below] • Samira Kohli v Dr. Prabha Manchanda202 The appellant, an unmarried woman of 44 years, approached the respondent for treatment for excessive menstrual bleeding. After the ultrasound test, she was advised laparoscopic procedures for a surgery. However, only when the patient was under general anaesthesia, the doctor took oral consent from the mother and conducted hysterectomy (removal of uterus) and bilateral salpingo-oophorectomy (the surgery to remove the ovaries and fallopian tubes) on the patient. Subsequently, when the patient contested this and refused to pay the doctor, the respondent doctor lodged a complaint with the police for non-payment of bills, in addition to sending her a legal notice. The appellant in turn, filed a complaint with the NCDRC for compensation, which was dismissed on the grounds that ‘the informed choice has to be left to the operating surgeon depending on his/her discretion’, which prompted the appellant to approach the SCI. The jurisprudence considered the issue of ‘consent’ at length, contextualising the case law in the inadvertent practices of profit-making in private-commercial health care institutions, thus making this a landmark reference case in the issue of patient’s right to ‘consent’. The judgement, inter alia, finds the position of the NCDRC on the issue of consent untenable, and adds the element of valid/real consent after discussing at length the issues of ‘express’ and ‘informed’ consent (Box 3.8). In this case, the SCI concluded that there was no real consent for the surgery and set aside the order of NCDRC, while ordering a compensation of Rs.25,000/- to the appellant to be paid by the doctor. The prevailing medical jurisprudence referred to ‘informed’ or ‘express’ consent which relies on the principle of ‘reasonably prudent patient test’. However, the court emphasised the need to go beyond this to real or valid consent in India: We have however, consciously preferred the ‘real consent’ concept evolved in Bolam and Sidaway in preference to the ‘reasonably prudent patient test’ in Canterbury, having regard to the ground realities in medical and healthcare in India. But if medical practitioners and private hospitals become more and more commercialized, and if there is a corresponding increase in the awareness of patient’s rights among the public, inevitably, a day may come when we may have to move towards Canterbury. But not for the present. (Ibid., Paragraph 33)

• Martin F. D’Souza v. Mohd. Ishfaq203 202 Samira 203 Martin

Kohli v. Dr. Prabha Manchanda (2008) 2 SCC 1 [WP Civil 1949 of 2004]. F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 [CIVIL APPEAL NO. 3541 OF 2002].

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The respondent already suffering from chronic renal failure was brought to Nanavati Hospital, Mumbai, for an acute urinary problem which needed immediate medical attention. He was administered an antibiotic amikacin. Later, he underwent a kidney transplantation in a different hospital and subsequently lost his hearing. He filed a complaint against the appellant for damages in the NCDRC (Commission), holding him responsible for the loss of hearing on account of administering the antibiotic amikacin. The commission appointed an expert from AIIMS to examine the complaint who submitted his report which said that the antibiotic amikacin which was administered was a life-saving drug. However, the commission held the act of the appellant as medical negligence and ordered compensation. The Commission on 9 April 2002, awarded Rs. 4 lakh with interest @ 12% from 1.8.1992 as well as Rs.3 lakh as compensation in addition to Rs. 5000/- as costs. The appellant filed an appeal in the SCI under Section 23 of the CPA, 1986. The SCI considered the issue of medical negligence at length, set aside the medical negligence order of the Commission, and upheld the jurisprudence laid down in Jacob Mathew case. It laid down as follows: [b]efore issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case … the policemen will themselves have to face legal action (Dr. Martin F. D’Souza v. Mohd. Ishfaq, Paragraph 117).

Box 3.8 Defining ‘real’ or ‘valid’ consent (Samira Kohli v Dr. Prabha Manchanda) 1. A doctor has to secure the consent of the patient before commencing a ‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained should be real and valid, viz. the patient should have the capacity and competence to consent, consent should be voluntary, it should be on the basis of ‘adequate information’ concerning the nature of the treatment procedure; 2. The ‘adequate information’ to be furnished by the doctor who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit oneself to the treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits, and effect; (b) alternatives if any available; 3. Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorised additional surgery is beneficial to the patient,

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or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery; 4. There can be a common consent for diagnostic and operative procedures where they are contemplated; 5. The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree [mentioned in Canterbury], but should be of the extent which is accepted as normal and proper by a body of medical persons skilled and experienced in the particular field. Jurisprudence Regarding Remedies for Medical Negligence There are three remedies available for patients alleging medical negligence primarily in the private-commercial health care facilities. The course of litigations has further refined the nuances of these existing pathways, thus in several ways redefining the potency of these pathways for securing justice for citizens. [Vide. Chap. 4, for a detailed discussion] • Civil Remedy This consists of a civil suit for damages or for compensation for the injuries suffered, followed under the law of tort. The CPA 1985 aimed at simplifying procedures and provides redressal outside the formal court through the consumer redressal forum. • Criminal Prosecution In the case of deaths or gross negligence, IPC Section 304B (culpable homicide not amounting to murder), Section 336 (causing danger to human life or personal safety through a rash or negligent act), Section 337 and 338 (causing simple or grievous hurt) are invoked. The punishment entails imprisonment and cash compensation. • Complaint in Medical Councils Against Professional Misconduct The Medical Councils are regulatory bodies for the medical profession and function as quasijudicial bodies. In addition to civil and criminal remedies, complaints against a doctor can be filed before the state medical councils for professional misconduct asking for suspension of license of medical practice with a possibility of appeal in the medical council of India (MCI). Civil Negligence and Deficiency of Service Doctor-patient relationship is considered as a private contractual relationship under law for which civil law is deemed to be the appropriate legal framework offering private remedy. The burden of proof in such a private law remedy rests on the plaintiff. In India, however, the doctor-patient relationship itself—which is closely related to defining medical service—was not legally defined for long, constituting a critical barrier to access justice in matters of health care. When the CPA 1986 was enacted, resistance of medical professional associations to consider medical care as ‘service’ delayed the application of CPA to issues of medical negligence for over a decade. Only

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in 1996 in the Indian Medical Association v V. P. Shantha (henceforth IMA case),204 jurisprudence decisively brought the medical profession and medical services within the scope of ‘service’, thus subjecting it to the jurisdiction of CPA (Box 3.9). Box 3.9 Definition of ‘Service’ and ‘Consumer’ (IMA v. V. P. Shantha) 1. Services rendered to patient by 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 medical and surgical, would fall within the ambit of services as defined in Section 2(1)(o) of the Act. 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 would not exclude the services rendered by them from the ambit of the Act. 3. Services rendered at private or Government hospital, nursing home, health centres and dispensaries for a fee for all, are ‘services’ under the Act; 4. Services rendered free of charge for all, are exempted from the definition of service. Payment of a token amount for purposes of registration will not alter the nature of services provided for free. 5. Services rendered at a Government or a private hospital, nursing home, health centres and dispensaries where bulk of services are rendered on payment of fees to those who can afford, and free of charge to those who cannot, is also ‘service’ under Section 2(1)(o) of the Act. Hence in such cases the persons who are rendered free services are ‘beneficiaries’ under Section 2(1) (d) thereby ‘consumer’ under the Act. 6. Services rendered free of charge by a medical practitioner attached to a hospital/ nursing home or where he is employed in a hospital/nursing home that provides free medical facilities, is not ‘services’ under the Act. 7. Where an insurance company pays, under the insurance policy, for consultation, diagnosis and medical treatment of the insurer then such insurer is a consumer under Section 291)(d) and services rendered either by the hospital or the medical practitioner is ‘service’ under Section 2(1)(o). Similarly, where an employer bears the expenses of medical treatment of its employee, the employee is consumer under the Act. The nature of the doctor-patient relationship was clarified as ‘contract for service’ and not a ‘contract of service’.205 The latter ‘implies a relationship of master and servant and involves an obligation to obey order in the work to be performed and as to its mode and manner of performance’:

204 Indian

Medical Association v V.P. Shantha (1995) 6 SCC 651. Lal v ESI Corporation (2007) 4 SCC 579.

205 Kishore

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The relationship between a medical practitioner and a patient carries within a certain degree of mutual confidence and trust and, therefore, service rendered by the medical practitioners can be regarded as a service of a personal nature, but since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service and it is a contract for service… (Kishore Lal v ESI Corporation, Paragraph 8)

Factors Constituting Negligence or Deficiency of Service The nuances of what constitutes ‘deficiency of service’ continue to be refined through the ongoing litigations. The following illustrate some of those defined as such as deficient services: • Failure of the hospital to maintain nurses’ register in a private hospital—(Malay Kumar Ganguly v. Dr. Sukumar Mukherjee); • Nurses not keeping a watch over a patient or not administering medicine in the pretext of preventing infection to themselves—(Ibid.); • Doctors treating without having requisite expertise—(Ibid.); • Doctors not following medical treatment protocols laid down by experts—(Ibid.); • Duty to act with reasonable care and skill not exercised in a failed sterilisation operation—(State of Haryana v Santra)206 ; • Persons lacking requisite skill which one professed to possess and failure to exercise with reasonable competence the skill possessed by a professional—(PGIMER v Jaspal Singh)207 ; • Failure to prevent nosocomial infections (‘health care associated infections’ that appear in a patient which was absent at the time of admission). It is the duty of the hospitals to prevent infections when a patient has high risk of infections—(Malay Kumar Ganguly v. Dr. Sukumar Mukherjee); • Failure to provide basic amenities by hospitals—(Ibid.); • Informed consent of the patient or his relative/attendant is not taken—(Ibid.); • Omission to carry out requisite preparation tests due to which the operation culminated in acute paraplegia and lack of complete investigation prior to actual operation—(Nizam’s Institute of Medical Sciences v Prasanth S. Dhananka)208 ; • An error which a hospital/doctor exercising ordinary care would not make is not an error of professional judgment but a case of medical negligence—(PGIMER v Jaspal Singh). Notably, such articulations as mentioned above, are not conclusive. Intermittently, anomalies and ambiguities crop up indicating the inchoate character of jurisprudence in this domain. For example, the SCI concluded that the proof of medical negligence

206 State

of Haryana v Santra (2000) 5 SCC 182; AIR 2000 SC 1888.

207 Post Graduate Institute of Medical Education & Research (PGIMER), Chandigarh v Jaspal Singh

& Ors CIVIL APPEAL NO. 7950 OF 2002, order of SCI dt. 29 May, 2009. Institute of Medical Sciences v Prasanth S. Dhananka and Others, CIVIL APPEAL NO.4119 OF 1999, SCI order dt.14 May 2009.

208 Nizam’s

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is intrinsically linked to the liability of doctors, while reiterating that unless negligence of the doctor is established, primary liability cannot be fastened on them (Ins. Malhotra v Dr. A. Kriplani).209 Criminal Jurisprudence in Medical Negligence Both the criminal complaints against doctors as well as medico-legal cases come under the purview of criminal jurisprudence, where the State assumes the role of the prosecutor. The HCs and SCI have progressively ruled in favour of doctors and courts have applied cautious and guarded approaches in fixing criminal liability of medical professionals.210 In Malay Kumar Ganguly v Dr. Sukumar Mukherjee, the court distinguished between the negligence considered under civil as distinguished from criminal law: Jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be of much higher degree. A negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution (Paragraph 180) [emphasis added].

Distinction between civil and criminal negligence was sorted out in Kusum Sharma v. Batra Hospital case. The jurisprudence laid down that ‘simple lack of care’ attracts civil liability whereas ‘very high degree of negligence’ is a requirement for it to be considered as criminal negligence. The following broad principles have been evolved in the consideration of criminal negligence in jurisprudence. Criminal Prosecution in ‘Gross Negligence Only’ The SCI has laid down that simple lack of care or an error of judgment is insufficient to constitute medical negligence, while emphasising that such negligence ‘must be of a gross or a very high degree’.211 The following guidelines have been laid down in the criminal prosecution of doctors: (1) A credible opinion given by another competent doctor to support the charge of rashness or negligence; (2) The investigating officer, before proceeding against a doctor, should obtain an independent medical opinion preferably from a doctor in government service qualified in that branch of medical practice; (3) The accused doctor should not be arrested in a routine manner unless his arrest is necessary for furthering investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor will abscond. Hence, the degree of negligence manifested as ‘recklessness and indifference to the consequences and the knowledge of imminent injury’ as an essential component of criminal negligence (Kusum Sharma v Batra Hospital, Malay Kumar Ganguly, Sreekumarn (Dr.) v. S. Ramanujam). 209 Ins.

Malhotra (Ms.) v. Dr. A. Kriplani Civil Appeal No. 1386 OF 2001, decided on 24 March 2009. 210 Dr. Anand R. Nerkar v. Smt Rahimbi Shaikh Madar 1991(1) Bom. C. R. p. 629; C. P. Sreekumar (Dr) v S. Ramanujam (2009) 7 SCC 130; Kusum Sharma v.Batra Hospital (2010) 3 SCC 480; (2010) 2 SCC (Cri) 1127. 211 Dr. Suresh Gupta v. Govt. of Delhi (2004) 6 SCC 422.

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Cautious Application of ‘Res Ipsa Loquitur’ Against the incontrovertible proof of medical negligence of res ipsa loquitur, i.e. the thing speaks for itself, the courts have opined that res ipsa loquitur is not of universal application. In significant judgments, courts have cautioned that this principle must be applied with extreme care in the case of professional cases such as doctors.212 Test of Criminal Negligence In Jacob Mathew, the Bolam test is applied to determine criminal jurisprudence in addition to other factors. The following doctrine is laid down as a test of criminal negligence: To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent (Jacob Mathew, Paragraph 48/7).

In matters of deaths in hospital, which forms a considerable ground for pursuing criminal prosecution, the court laid down a precondition to invoke Section 304-A IPC. It states: [i]t is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non’ (Ibid., Paras 48(6) and 38).

Expert Opinion and Evidence The requirement of an opinion of the medical experts (a medical practitioner or a medical board) has been set as the precondition for the criminal prosecution of medical professionals. While this protects the medical professionals to a large extent, such a requirement presents insurmountable legal challenges for the complainant to pursue the matter. The unwillingness of doctors to testify against other doctors213 and even when patients (complainants) do manage to get a medical opinion, conflicting medical opinions offered by the accused party supporting their action are some of the key hurdles that patients/complainants face. In Senthil Scan Centre v Shanthi Sridharan,214 NCDRC awarded compensation to the plaintiff for failing to detect deformity in the foetus. The SCI, holding that there was no expert evidence to counter the claims of the appellant centre and in addition, accepting that the doctor was qualified and ultrasound was done with due care and diligence, reversed the award of NCDRC. The issue of expert medical opinion is fraught with severe confusion at the level of processing complaints. Later, a case V. Kishan Rao v Nikhil Super Speciality Hospital 215 which traversed from the district consumer forum to state and national 212 Jacob

Mathew v. State of Punjab 2005 6 SCC 1; 2005 SCC (Cri) 1369. Malhotra v. Dr. A. Kriplani (2009) 4 SCC 705; (2009) 2 SCC (cri) 561. 214 Senthil Scan Centre vs. Shanthi Sridharan (2010) 15 SCC 193; (2011) 3 CPJ 54 (SC). 215 Also refer to Marghesh K. Parikh v Dr. Mayur H. Mehta (2011) 1 SCC 31 (page 38). 213 Ins.

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commissions, and then while landing in the SCI, the court provided a clarification that expert opinion is required only when a case is complicated enough warranting expert opinion (Paragraph 106). Summary of the Prominent Jurisprudence on Medical Negligence (Jacob Mathew Case) Jurisprudence in Jacob Mathew v State of Punjab, represents the current benchmark in the consideration of medical negligence in India. It attained a landmark status by its reinforcement and consolidation in other litigations such as Martin F. D’Souza v. Mohd. Ishfaq, C. P. Sreekumar (DR) v. S. Ramanujam and V. Kishan Rao v. Nikhil Super Speciality Hospital. Key components of this jurisprudence are summarised here below. • Bolam Test: In a claim of medical negligence, it suffices for the defendant to demonstrate that the standard of care applied was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill (Bolam Test). • Standard of Care and State of knowledge: Standard of care when assessing the practice adopted in a case, is judged in the light of knowledge available at the time of the incident and not at the date of trial. [Paragraphs 48(2), 48(4), 19 and 24)] • Standard of care in case of failure of equipment: If the equipment was not generally available at the time of incident, the charge of negligence is not applicable. [Paragraphs 48(2), 48(4), 19 and 24)] • Failure to take precaution: It is to be seen whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be standard for judging the alleged negligence. [Paragraphs 48(2), 48(4), 19 and 24)] • Mere accident is is not negligence: Mere accident during medical or surgical treatment and error of judgment is not negligence per se and depends on the circumstances. If it is made by a reasonably competent professional who held himself out to be possessing that skill, then it is negligence. If it is done by acting with ordinary care, it is not negligence. [Paragraphs 25, 33 and 45] • Deviation from normal practice is not a sufficient ground for negligence: If it can be found that the procedure which was in fact adopted was one which was acceptable to medical science at the time of alleged incident, the medical practitioner cannot be held negligent merely because s/he chose to follow one procedure and not another and the result was a failure. Liability arises if (1) there is a usual and normal practice; (2) that the defendant (medical professional) has not adopted it; and (3) that the course adopted is one that no professional man of ordinary skill would have taken had he been acting with ordinary care. [Paragraphs 21, 23 and 25]

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Jurisprudence Relating to Medical Profession and Patient Rights Litigations and ensuing jurisprudence in this domain relate to two broad themes, viz. medical practice, and the duties of doctors (towards profession and patients). Medical Profession and Practice of Medicine The principle briefly summarised as ‘the statutory duty to practice what one is licensed to’ represents the key doctrine regarding the medical practice in relation to medical negligence. Practice by those not qualified amounting to negligence has been the reasoning that has prevailed in several judgments in this theme. In M. Jeeva v R. Lalitha,216 the NCDRC awarded compensation of Rs. 2 lakhs in the case of a qualified nurse and midwife not qualified to practice medicine running a gynaecology hospital for 40 years. In Poonam Verma v Ashwin Patel,217 the SCI ruled that a homeopath undertaking allopathic practice amounted to an actionable negligence. In Mukhtiar Chand (Dr.) v State of Punjab,218 it was held that the right to prescribe drugs and issue certificates is concomitant to the right to practice medicine. The right to prescribe allopathic medicines was held to be restricted only to those registered for the practice of that branch of medicine. The constitutional validity of imposing reasonable restrictions on medical practitioners to limit their practice to any designated branch of medicine of their qualification was upheld by SCI in the interest of Public Health, under Articles 19(1)(g) and (6) of the Constitution of India. In Ayurvedic Enlisted Doctors’ Association v State of Maharashtra,219 it was stipulated that one could not practice unless the practitioner’s name was included in the Central Register maintained under the Indian Medicine Central Council Act, 1970. Following the same reasoning, in Akhtar Hussain Delvi (Dr.) v State of Karnataka,220 a registered allopathic medical practitioner who sought the right to prescribe ayurvedic medicines was disallowed. Duties of Doctors (in Relation to Patients’ Rights) Patients rights have neither been codified nor have been notified in India. The pathway of identifying and recognising some of them have been has been through litigations on medical negligence and hence, they find a mention as the corresponding duties of medical professionals towards their practice of medicine. Through several litigations, they evolved as guidelines, precautions, reminders or as reprimands of the medical profession for their failure in safeguarding lives of patients. 1. Duty of self-regulation and accountability to the public: In State of Punjab v. Shiv Ram,221 the SCI reminded the doctors and medical establishments of their 216 M.

Jeeva v. R. Lalitha 1994 2 CPJ 73. Verma v. Ashwin Patel (1996)4 SCC 332. 218 Mukhtiar Chand (Dr.) v. State of Punjab (1998)7 SCC 579. 219 Ayurvedic Enlisted Doctors’ Association v. State of Maharashtra (2009) 16 SCC 170; Udai Singh Dagar v. Union of India, (2007) 10 SCC 306; Rajasthan Pradesh Vaidya Samiti v. Union of India (2010) 12 SC 609 at pp.625, 627. 220 Akhtar Hussain Delvi (Dr.) v. State of Karnataka AIR 2003 Karnataka 388. 221 State of Punjab v. Shiv Ram (2005) 7 SCC 1. 217 Poonam

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ethical duty to the society and ‘self-regulation as the heart of their profession’ (Paragraph 34). Duty to take express consent from patients: In an elaborate jurisprudence laid down in Samira Kohli v Dr. Prabha Manchanda the issue of informed consent was elaborately discussed as the duty of a doctor and a corresponding right of the patient, while explicating the nuances of valid and real consent. It was laid down that consent must be an express consent, known in American jurisprudence as ‘informed consent’ and in the UK as ‘real consent’. NIMS v Prasanth S. Dhananka further held that the implied consent (consent given for one, by inference, taken as implied consent for another) was no consent. Duty to disclose and inform the patient: In Malay Kumar Ganguly v Dr. Sukumar Mukherjee, duty of disclosure implying a reasonable guarantee of a patient’s right self-determination was established. Duty of the doctor not to use privileged medical information in criminal investigation without consent: In Selvi v State of Karnataka,222 upholding the medical ethics, it was held that testimonial acts such as results of psychiatric examination cannot be used in evidence without the subject’s informed consent. Duty of the Doctors to act in emergency: Duty of the doctors to treat patients in emergency was reinforced in State of Kerala v Raneef 223 and in Martin F. D’Souza v. Mohd. Ishfaq the mandate to commence treatment without waiting for the police formalities was reiterated. Such prescriptions followed from Parmanand Katara v. Union of India which held that immediate medical aid to injured persons with an obligation to preserve life was a professional obligation of all doctors in emergency situations. Duty to protect a patient’s privacy and to maintain confidentiality: Right to confidentiality and privacy is a well-established right of a citizen. This was applied to the corresponding duty of the doctors in HIV related cases, where the issue of privacy was closely associated with the stigma patients faced. This was vitiated in ‘X’ v Hospital ‘Z’224 where the court held such a duty as not binding on doctors in the case of HIV patients. However, later in ‘X’ v Hospital ‘Z’,225 the three-judge bench reversed the opinion. Such an impediment was partially overcome with the clarity that was provided in Selvi v State of Karnataka upholding patient’s right to privacy. Duty of Care and liability for medical negligence: In Laxman Balkrishna Joshi v Trimbak Bapu Godbole—one of the earliest and long-drawn court battle in postindependent India that involved two medical doctors as the litigants-, the issue of doctor’s ‘duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment’ was firmly articulated. The order stated that a breach of any of those duties gives a right of action for negligence to the patient. This was explained as

222 Selvi

v. State of Karnataka (2010) 7 SCC 263. of Kerala v. Raneef (2011) 1 SCC 784. 224 ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296. 225 ‘X’ v. Hospital ‘Z’ (2003) 1 SCC 500. 223 State

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a duty to act with reasonable care and skill, the failure of which makes the doctor liable for negligence.226 This duty of care was buttressed with the doctrine of legitimate expectation, casting an obligation on a medical profession that entitles a patient to a legitimate expectation of a standard of care and treatment. The doctrine of legitimate expectation which was evolved in administrative law was extended to medical treatment as part of duty of care (Malay Kumar Ganguly v. Dr. Sukumar Mukherjee). The jurisprudence on duty of care was decisively clinched in the Jacob Mathew case. Patient Rights and Challenges Notably, there have been very few litigations on the rights of patients in India. Although a jurisprudence on health care has been articulated as seen in this chapter, distinct rights of patients have not been laid down as part of these litigations. Hence a clear articulation on patients’ rights has been missing in the health care jurisprudence in India. In a few other cases, rights of patients were articulated during litigations. The application of such entitlements, however, at best, has been limited to the particular case in hand. The universalisation of such entitlements as rights of patients has suffered due to the lack of a cohesive legal framework to embed them. Analysis of litigations on quality of care, medical negligence and professional misconduct provide a very patchy picture of jurisprudence on the medical profession and and indicate to the piecemeal gains accrued on the citizens as patient rights. Right to medical records (Raghunath Raheja, Mumbai),227 admitting medical opinion as evidence through video conferencing—in this case expert medical opinion of a doctor based in the USA, admitted for the first time in India by the Bombay HC (P. C. Singhi v. Dr. P. D. Desai)228 —illustrate such piecemeal gains. Most of the litigations in this domain predominantly represent issues as individual grievances as they are litigated on a case-to-case basis, thus overwhelmingly obscuring the systemic malaise of unaccountability and non-regulation that triggers violations of patients’ rights. Consequently, the outcomes of litigations too have been confined to individual cases without making a dent in rectifying the systemic mishaps that sporadically manifest as violations of patients’ rights at scale. Meanwhile, in the realm of medical negligence, a transition in the scale of violations of patient rights in the private-commercial health care institutions, has gained 226 This

judgment was based on the jurisprudence developed in a number of other judgments on medical negligence and was based on a two-judge bench. However, it is deemed to have been overruled by the State of Punjab v. Raj Rani which was delivered by the division bench (2 judges) along with the jurisprudence developed in State of Punjab v. Shiv Ram (3 judge bench).. 227 Raghunath Raheja v. Maharashtra Medical Council, Writ Petition No. 3720 of 1991, decided on 11th January 1996. 228 The State of Maharashtra v Dr Praful B. Desai. April 1, 2003. Cri. L.J. 2033; Dr PB Desai v State of Maharashtra, Criminal Revision Application No. 166 of 2012, High Court of Bombay, order dated October 15, 2012; Dr PB Desai v State of Maharashtra, Criminal Appeal No. 1432 of 2013 (arising out of SLP (Cri.) No. 9568 of 2012, Supreme Court of India, order dated September 13, 2013.

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centre stage in public discourses (Gadre and Shukla 2016). The unregulated commercial sector in health care driven by an unbridled profiteering motive and a lack of regulatory framework fixing its accountability, is seen to be the immediate context of such grave medical malpractices prominently marked by irrational medical practice and ethical aberrations. The unwarranted hysterectomies conducted on 471 tribal women in 37 private hospitals in a small district of Kalburgi in Karnataka (2011– 2015), or clinical trials related deaths of over 1800 persons in several states, among others, anecdotally point to both the scale and intensity of such violations. Charter of Patient Rights In a recent move, NHRC has compiled some of the accrued rights of patients into a charter of patient rights in 2019 and has recommended the same to the MoHFW. The Charter enumerates 17 rights of patients that emanate from the international human rights commitments, the right to life enshrined in Article 21 of the Constitution of India and deems it to be a guidance document for the central and state governments to take adequate measures for the protection of patients’ rights and make them operational and enforceable by law (Box 3.10). Notably, the imperative for such a charter is acknowledged as the regulatory gap that exists in India for mediating patients’ rights. It states that ‘India does not have a dedicated regulator like other countries and the existing regulations in the interest of patients, governing the healthcare delivery system is on the anvil…’ (NHRC 2018:2). Codification of these rights is a significant step in their recognition. Though most of them evolved through litigations in SCI or HCs as a body of rights, however, as a charter they merely serve as an advisory to the central government, and would need a statutory recognition to acquire the force of an enforceable right. The Charter of Patient Rights compiled by NHRC is a guidance document and is recommendatory in its nature, leaving much to the political will of the State to take it into consideration. Box 3.10 Patient Rights as per the Charter 1. Right to Information 2. Right to records and reports 3. Right to emergency medical care 4. Right to Informed consent 5. Right to confidentiality, human dignity, and privacy 6. Right to the second opinion 7. Right to transparency in rates and care as per prescribed rates 8. Right to non-discrimination 9. Right to safety and quality care according to the standards 10. Right to choose alternative treatment options if available 11. Right to choose the source for obtaining medicines or tests 12. Right to proper referral and transfer, which is free from perverse commercial influences 13. Right to protection for patients involved in clinical trials

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14. Right to protection of participants involved in biomedical and health research 15. Right to take discharge of the patient, or receive the body of deceased from the hospital 16. Right to patient education 17. Right to be heard and seek redressal

Challenges in Safeguarding Patient Rights Media is galore with stories of individuals from diverse parts of the country facing similar issues of negligence in medical care, exorbitant costs of care, subsequent deaths and challenges to prove medical negligence explained as ‘rocky road to justice’ marked by delay, harassment and uncertainty. In a contemporary case that occurred in Lucknow (Uttar Pradesh) where a patient died in a private hospital in 2014 and only in 2020, after an arduous struggle over six years, the NCDRC awarded compensation holding the doctors guilty of medical negligence (Pattanaik 2020). During the COVID19 pandemic times, there have been several instances where patients needing critical care have been turned away in the pretext of attending only to COVID19, the corona virus infected patients have been charged exorbitantly in the privatecommercial hospitals, and such infected persons from the marginalised communities have not been given timely treatment resulting in deaths. Such accounts illustrate the gaping hole in safeguarding patient rights and in providing redressal as part of health justice. They are also indicative of the unsurmountable challenges faced by citizens in pursuing justice in health and of the health justice governance related confounding factors in such a pursuit. One, the moral, ethical and governance decline and practically a collapse of MCI in the last twenty-five years (1995–2020) has added to the existing woes of medical regulation in India. MCI, which was suspended intermittently on account of malgovernance and corruption is finally repealed by a parliamentary Act, viz. National Medical Commission Act 2019. Even while being suspended and placed under the oversight body appointed by the SCI earlier, MCI did not show any signs of reform. The MCI as an institution symbolises the rot of malgovernance,229 corruption and unaccountability that runs deep into its institutional structures of medical professional governance stretching upto the state and district levels. The disbanding of the MCI appears to be only a symbolic act that needs a comprehensive reform for patients to repose their trust in the medical profession. The National Medical Commission Act 2019 promises, inter alia, to reform medical education and the governance of medical profession. Two, while the collapse of medical professional governance under the MCI had serious repercussions for the protection of patient rights, it is only exacerbated by the collusion of the public authorities and medical professionals with private-commercial 229 Word used in place of bad governance or misgovernance to mean not only bad or poor governance

but bad governance with a moral connotation such as corruption entangled governance.

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health care establishments that include the pharmaceutical and diagnostic industry. In an abysmally regulated policy and regulatory ecosystem in India, the privatecommercial health care institutions enjoy an absolute immunity from being transparent and accountable, that provide a conducive atmosphere for the violations of patient rights. Medical profession, through its unquestioning acceptance of and collusion with the profiteering commercial health care establishments and putting up organised resistance to any reform of regulation in health care has exacerbated the vulnerability of patients, and in turn, the cycle of violations of patient rights. Three, adding further uncertainty to establishing patient rights, in the Consumer Protection Amendment Act of 2019, the hard-fought legal doctrine of ‘health as service’ has been dropped. This marks an uncertain future for the very possibility of litigations on medical negligence in India. Four, the legal framework in India and the jurisprudence on medical negligence, has added additional burdens on patients that impede the pathways for justice. An overtly doctor-sympathetic judiciary (and the legal profession) and a non-relenting medical profession do appear as the major barriers in the health care jurisprudence being successful in effecting systemic changes towards realising health for all. The following factors weigh heavily against the patients venturing into pursuing health justice in the juridico-legal institutions. • Requirement of medical expert’s testimony to prosecute medical doctors and hospitals in cases of criminal negligence • Presumptions of having no negligence in doctors puts the burden of proof on the suffering patient or survivor • Contributory negligence as a mitigating factor is an easy defence that courts admit favouring doctors • Burden of proof on the plaintiff to prove causal linkages to the lack of due care • The medical councils which adjudicate complaints on professional misconduct of doctors in their capacity as quasi-judicial institutions, are constituted only of doctors. They do not follow the open court system, are often hostile to complainants and invariably end up exonerating doctors as indicated by the abysmally low rate of finding the doctors guilty. Even when some doctors are found guilty of misconduct, the punsihment imposed is often symbolic and tokenistic. As the analysis in this section has indicated, contrary to putting in place the measures for the reform of the medical profession and the medical practice, the jurisprudence has buttressed the impunity of the medical profession. In addition, it has constricted the avenues available for citizens for redressal against the medical profession.

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Brief Summary of the Legal Doctrine Concerning Health Care of Social Elites and Patient Rights

Health Care of Social Elites (1) Self-preservation of life is necessary concomitant of right to life and includes medical treatment; (2) Meaningful life and quality of life is part of right to life; (3) Right to life—casts corresponding duty on the State to create congenial conditions for good health; (4) Article 47 [of the Constitution of India] casts duty on the welfare-state for the health of citizens; (5) Right to health, medical aid and [medical] care are fundamental rights guaranteed under Article 21 read with Article 39(e) of the Constitution; (6) Government is under a constitutional mandate to improve public health. Patient Rights and Medical Profession (1) The unauthorised practice and adverse impact on the patient are an unfair trade practices; (2) Providing medical service not qualified to offer, is violation of the mandatory statutory provisions and is a breach of legal duty; (3) Non-exercise of reasonable care and skill—is ‘negligence per se’—and is liable under the Constitutional mandate and law of tort; (4) ‘Medical service’ is consumer ‘service’; (5) Doctrine of legitimate expectation casts duty on doctors for the ‘duty of care’ for patients;

3.3.4 Thematic Cluster 4: Public Health Measures In this section two overlapping themes within the overarching paradigm of public health are considered, viz. public health measures and health care services. The former cover issues such as regulation on smoking, sale, and consumption of liquor, use of helmets while driving two-wheeler motor vehicles and regulating vehicular pollution. The latter cover issues of primary health centres etc. In these litigations the fundamental right to health has been employed as a strong ground to argue for adequate public health measures to be put in place. Although there is no further refinement of jurisprudence, these litigations illustrate the contextual interpretation and application of the settled jurisprudence to several issues that are integral to public health.

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Accentuating Public Health Measures

Of the 41 litigations considered for analysis, 25 petitions are litigated in HCs and 16 in SCI. This section deals with litigations on various intersecting public health issues such as regulating tobacco, usage of helmets, access to food, and agricultural policies that impact health. They also demonstrate the scope of health care jurisprudence and its contribution to the discourse on right to health care. Regulation of Smoking and Tobacco Sales India is a signatory to WHO Framework Convention of Tobacco Control (FCTC) (World Health Organisation n.d.). The Central government enacted Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) in 2003 and its rules were framed in 2004. Since then, civil society has filed several PILs using this legal framework for issues such as seeking a ban on public smoking,230 restriction of government participation in tobacco promotion events,231 prohibition of sale of tobacco products around educational institutions,232 restraining surrogate advertising,233 and, restricting the sale and distribution of ‘pan masala’ and ‘gutka’ containing tobacco as ‘food items’.234 Apart from the application of the health care jurisprudence in this domain, the politics that plays out in engaging courts narrates an interesting story on the intersections of power—both economic and political—and the judicial institutions. The power of the court has been used both by the industry and the civil society to further their respective goals.235 However, this research opens up avenues to probe further 230 Murli

S Deora v. Union of India and others (2001) 8 SCC 765; [WP(C) 316 of 1999]. Institute of Public Health v. The State Government of Karnataka and Ors. (Vide Order dt. September 17, 2010) W.P. No. 27692/2010 GM-RES-PIL (The High Court of Karnataka, India); petition prayed for restraining the Tobacco Board, a statutory body constituted under the Tobacco Board Act 1975 from participating in the Global Tobacco Network Forum 2010. 232 The Cancer Patients Aid Association v. The State of Karnataka and Ors. (March 29, 2011) W.P. No. 17958/2009 GM-RES-PIL (The High Court of Karnataka, India); World Lung Foundation South Asia v. Ministry of Health and Family Welfare, India. (February 2, 2011) W.P. (C) 7540/2010 (The High Court of Delhi, India); Kerala Voluntary Health Services v. Union of India et al. (March 26, 2012) WP No. 38513 (The High Court of Kerala India). 233 R. Arul v. The Secretary to Government, Health, and Family Welfare Department and Ors. (November 27, 2012) W.P. No.26527 (The High Court of Madras, India). 234 Indian Dental Association UP State and another v. State of UP and another. (September 17, 2012) (PIL) No. – 19126 of 2012. 235 For example: Supreme Court: Ankur Gutkha v. Indian Asthma Care Society and Ors. (April 3, 2013), SLP(C) No.16314/2007, SCI; Miraj Products Pvt. Ltd. v. Indian Asthama Care Society and Ors. (February 17, 2011) SLP (Civil) No(s). 19467-19469/2007, SCI; Union of India v. ITC Ltd. India. (September 29, 2008) Diary No. 28322, SCI High Cours: Amarsinh Z Choudhari v. State of Gujarat and Ors. (December 22, 2010) Special Civil Application No. 4848 of 2009 (HC of Gujarat); Berrys Hotel (MOCHA), et al. v. Municipal Corporation of Greater Mumbai, et al. (August 11, 2011) WP-L-1531-2011, HC Bombay; Concepts and More v. Bruhat Bengaluru Mahanagara Palike et al. (March 8, 2012) WP No. 16820, HC Karnataka; Ghoi Foods Private Limited v. UOI. India.(May 7, 2012) WP No. 3131, HC Madhya Pradesh; M/S Omkar Agency v. The Union of India 231 The

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into the line of interpretation and the nuances of application of the constitutional principles by courts and what drives the final outcomes of these litigations. Such research needs to delve into the art, skills, philosophy and perspectives of the judiciary that goes into the interpretation and application of these principles to these highly political issues that are presented as legal briefs in the court of law. Two industry petitions challenged the constitutional validity of COTPA 2003 and some of the Rules framed in 2004.236 The petition by the Central Government to transfer these petitions to the SCI was rejected by the Bombay HC which ordered an injunction on the Act and Rules.237 In this case the raiding and seizing of gutka stock under the Food Safety Act by the Commissioner of Food safety was challenged by business barons as unconstitutional.238 In 2015, SCI transferred all the pending petitions from various HCs (about 50) to the HC of Karnataka (Bangalore). The HC of Karnataka, however, disposed off all these petitions without any noticeable order in favour of public health. Regulating Vehicular Pollution for Improving Public Health In Smoke Affected Residents v. Municipal Corporation of Greater Mumbai239 petitioners prayed for control and reduction of auto emissions from vehicles. The Bombay HC in its orders reinforced the duty to improve public health and issued a series of orders that included directions for all transport vehicles to run on cleaner fuels. Meanwhile, SCI too had issued wide ranging orders in similar petitions for the regulation of vehicular pollution under the mandate in Article 47 of the Constitution of India for reducing vehicular pollution.240 Wearing Protective Helmets In two HCs, viz. Andhra Pradesh and Allahabad,241 petitions were filed challenging the imposition of wearing helmets. In T.V. Rajagopala Rao v. Additional Director of the Central Government Health Scheme,242 the provision of wearing helmets was

and Ors. (July 20, 2012) No.10702 of 2012, HC Patna; M/S R.K. Products Company v. The Union of India and Ors. (July 20, 2012) No.12871 of 2012, HC Patna; Mahesh Bhatt and Kasturi and Sons v. Union of India and Anr. 147 (2008) DLT 561, HC Delhi; Naya Bans Sarv Vyapar Association v. Union of India and Ors. (November 9, 2012) W.P. No.7292/2011, HC Delhi; Ramakrishnan and Anr. v State Of Kerala And Ors.AIR 1999 Ker 385. 236 Sridhar S. Kulkarni and Others v. Union of India, WP 6151 of 2005 (Civil), Bombay High Court; Namdeo Kamathe and Others v. Union of India WP 8763 of 2005 (Civil), Bombay High Court. 237 Health of Millions v. Union of India and Ors. (July 22, 2013) Nos. 5912-5913/2013, SLP(C) Nos. 413414/2013 (The Supreme Court of India), p. 3. 238 Lal Babu Yadav v. The State of Bihar and Ors. (July 10, 2012) No. 10297 (The High Court of Patna, India). 239 Smoke Affected Residents v. Municipal Corporation of Greater Mumbai 2003 (3) BomCR 323. 240 M. C. Mehta v. Union of India (1998) 6 SCC 60; also see (2001) 3 SCC 763. 241 Anand Mohan v. Union of India II (2002) ACC 260; 2002 (1) AWC 819 Allahabad. 242 T.V. Rajagopala Rao v. Additional Director of the Central Government Health Scheme 2003 (3) ALD 476; 2003 (3) ALT 632 Andhra Pradesh.

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validated as part of right to life and under Section 129 of Motor Vehicles Act while declaring it to be a beneficial legislation for saving life from injuries. Public Health Governance and Sale of Alcohol In many unsuccessful petitions challenging the government’s role in the sale of alcohol and seeking a prohibition on the sale of alcohol, the reasoning of public health protection and the legal doctrine of health care were employed. The courts, however, took a stringent technical view of the matter as belonging to the policy domain where courts will not interfere in addition to it being non-justiciable as part of DPSP. The court also refused to admit it under the article 32 of the Constitution.243 However, as such matters continued appearing in the SCI, in a recent PIL to ban sale of alcohol around highways, the court finally banned sale of all alcohol within 500 metres of National and State highways all over the country (excepting Sikkim and Meghalaya), including the restaurants and licensed bars and wine shops. The SCI took note of the issue of drunken driving and increasing vehicular accidents that are related to the availability of alcohol around the highways. The judgment, however, is contested for its practicality (Editorial 2017). Right to Food and Nutrition Security People’s Union for Civil Liberties v. Union of India and Ors244 is a well celebrated PIL in the history of India and demonstrates the jurisprudence of continuing mandamus, as the SCI continued issuing important orders over a period of 17 years. In this comprehensive case the right to life and right to health care jurisprudence were extensively employed. In the backdrop of the malnutrition and starvation related deaths, SCI affirmed the right to food as quintessential to the articulation of necessary to ‘the fundamental right to life with human dignity’ enshrined in Article 21 of the Constitution of India. (Human Rights Law Network n.d.) The apex court orders on the PDS, midday meals, rural employment, drought relief, enhanced pension as social security to the elderly were intended to provide food and nutrition to people, all contributing to the realisation of right to health. This is one of the most successful civil society litigations filed before the SCI in the post-independent era on several issues intersecting health and health care. ‘Since inception of the case in 2001, 427 affidavits have been submitted by the petitioner and respondents and 71 IA’s (interlocutory applications) have been filed and 21 main or important orders issued’ (Human Rights Law Network n.d.). Regulation on Genetically Modified Organisms (GMOs) for Protection of Public Health New trade policies and the interest of transnational companies in the agriculture industry led to the introduction of GMOs in India. Among others, critical concerns on environmental and biosafety and impact on the health of the populations were 243 Smt. Mala Banerjee v. State of West Bengal and Ors. 2008 (1) CHN 979 Calcutta; Krishna Bhat

v. Union of India (1990) 3 SCC 65. Union for Civil Liberties v. Union of India and Ors Writ Petition (Civil) 196/2001.

244 People’s

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raised in this litigation. The Genetic Engineering Approval Committee (GEAC) had recommended to withhold approval to all applications for GM crops. In the applications that came to seek approval of SCI, the Court considered the ground of right to life and right to health under Article 21 as forming the core of the argument. In the orders that ensued, conditions were laid down and GEAC was asked to publish guidelines for approval keeping in mind public health and biosafety. Conditions for the field testing of GMOs included putting the data on toxicity and allergenicity in the public domain for enabling effective regulation and transparency and taking safety measures to avoid contamination. An expert committee was formed to submit a report within three months of the order (2012).245 Other Public Health Issues Several other issues were brought before the apex court on the grounds of safeguarding public health, albeit unsuccessfully. Such issues included challenging the policy on imposing compulsory iodisation of salt replacing the voluntary iodisation246 ; public health impacts in constructing dams and environmental damage247 ; demolitions of houses in slums and its adverse health impacts248 ; issue of liability of corporations for people’s health and damages to be paid as in Bhopal Gas tragedy249 ; demanding shelter by urban poor250 ; containing dog bite as a public nuisance for public health.251 Some of these litigations bring out the intersectionality of the determinants of health and health care and their impact on the health of the populations. The status of health and wellbeing is determined by various other social-economic and environmental factors that necessitates pursuing social citizenship in the wider dimensions of health—known as the social determinants of health—that includes social security and wellbeing (CSDH-WHO 2008). These two, viz. health care and determinants of health, are mutually reinforcing and significantly convey that any gain in one domain can only be sustained by such gains in the other, or vice versa. On the other hand, setbacks any one can nullify the gains in the other. The principle of intersectionality, enunciated in the Alma Ata Declaration, has convincingly proposed the mutuality of various determinants of health (World Health Organisation and UNICEF 1978). Often, in several petitions that challenged the State policies contravening the wider dimensions of health and wellbeing, courts have taken very ambivalent positions. Such ambivalence is reflected in their stated inability to direct the State to legislate 245 Aruna

Rodrigues v. Union of India (2012) 5 SCC 331. of Nutrition Improvement v. Union of India (2011) 8 SCC 274. 247 Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664. 248 Olga Tellis and Others v Bombay Municipal Council (1985) 2 SCR 51; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123. 249 Charan lal Sahu v. Union of India (1990) 1 SCC 613. 250 Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997) 11 SCC 123 (right to shelter – pavement dwellers); Sodan Singh v. NDMC (1989) 4 SCC 155: petition on evictions, categorization of people and allotment of place – right to trade is not under 21, but 19 (g). 251 Sanjay Phophaliya v. State of Rajasthan and Ors. AIR 1998 Raj 96; 1997 (3) WLC 431; 1997 (2) WLN 112 Rajasthan. 246 Academy

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any law in tune with Article 47 or to invalidate a law infringing the right to health, or in the view that passing orders was tantamount to making policy which was not the intent of Article 32 of the Constitution.

3.3.4.2

Health Care Services

Health care system or health services system is central to the understanding of public health care. The blueprint of India’s health care system was proposed to be crafted adopting an allopathic medical system organised through the network of primary health care centres with adequate referral system in a district. Such a model was proposed by Bhore Committee incidentally right at the time of Indian independence Govt of India (1946). This was contemporaneous to the Beveridge report in England (1945) which played a monumental role in shaping the health care system in England, much known as the National Health Service (NHS). In addition, India also subscribed to the Alma Ata Declaration, which vouched for strengthening people’s health through a primary health care model, intended to be closer to the people while being very cost-effective. However, the analysis in this book (vide Chaps. 1 and 2) and several litigations poignantly indicate the lack of political will in strengthening such a system. The litigations that are considered in this section, summarise the critical issues that point to the glaring gaps in an ailing public health care system. Of the 41 litigations analysed here, 18 are from SCI and 23 are from various HCs. Some of these litigations overlap with other themes and belong to the 38 litigations that are considered in two domains separately for analysis. They are considered here for a synthesis as they raise systemic issues including health care infrastructure and services. Some of the systemic deficiencies and inadequacy of services that these litigations raise include collecting, storing, and supplying blood,252 access to mental health services,253 availability of food and nutrition,254 negligence of medical care in custody,255 and availability of medical aid to the visually impaired.256 Some other petitions include the issues of policy gaps as well with varied gains and include policy issues of sterilisation, hysterectomies and drug pricing.257 Sexual violence that formed the subject matter of a litigation illustrates the varied issues that come before the courts with public health and health rights aligned subject matters.258 The 252 Common

Cause v. Union of India, (1998) 2 SCC 367 [WP(c) 91 of 1992; Date of judgment: 04/01/1996}. 253 Rakesh Chandra Narayan v. State of Bihar and Ors. 1989 SCC Supl. (1) 644. 254 Peoples’ Union of Civil Liberties v. Union of India Writ Petition (civil) 196 of 2001. 255 Supreme Court Legal Aid Committee v State Of Bihar (1991) 3 SCC 482, 1991 ACJ 1034; Poonam Sharma v. Union of India AIR 2003 Delhi 50. 256 Indian Council of Legal Aid and Advice v.Union of India, (2000) 10 SCC 542. 257 Rama Kant Rai v. Union of India [W.P ( C) No 209 of 2003]; Devika Biswas v. Union of India [WP (C) 95/2012]; All India Drug Action Network v. Union of India (2011) 14 SCC 479; All India Drug Action Network v. Union of India (2011) 14 SCC 479. 258 CEHAT v. Government of Maharashtra challenging the two-finger test.

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outcomes of these litigations vary substantially. The application of jurisprudence in matters related to health care services is summarised in this section. Demanding Adequate Health Care Centres and Appropriate Infrastructure Employing the jurisprudence of health care that emerged grounding itself on the foundations of right to life and public health—referring to Articles 21 and 47 of the Constitution of India -, several litigations were filed in the HCs of various states. They raised the issues concerning the lack of health centres, inadequate infrastructure, unhygienic conditions in the existing hospitals, and the unavailability of appropriate services. Two petitions in diverse socio-political settings and independent of each other, raised the issue of the need of PHC in rural areas and health infrastructure in semiurban areas. In one of the unique cases, an Ex-sarpanch (Sarpanch is the elected president of a gram panchayat) of Pachhikote Grama Panchayat in Odisha (Orissa) approached the HC to direct the respondent government to establish a PHC at Pachhikote village within Korei block in the district of Jeypore.259 The HC of Orissa developed the jurisprudence around the need of healthy life to achieve great things in life and to build a healthy society. The court noted as follows: [t]he Government is required to assist people, and its endeavour should be to see that the people get treatment and lead a healthy life. Healthy society is a collective gain and no Government should make any effort to smother it. Primary concern should be the primary health centre and technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centre (Ibid.).

The HC directed that a PHC should be started in the Grama Panchayat building and continued there till the new building is completed for running of the health centre. Apparently, this is the only case in which a judgement on establishing a PHC is passed to uphold the right to health. In a similar vein, an advocate in Uttar Pradesh raised the issue of the requirement of well-equipped urban health centres in Allahabad district, invoking the Articles 21 and 47 of the Constitution of India.260 This case was decided in 1999 with no clear directives. Together, these litigations depict the conditions of the health care system in the mid-1990s. The jurisprudence linked the citizens’ rights to the Constitutional framework of welfare-state. In K. Garg v. State of Uttar Pradesh, the court reiterated: ‘this is a welfare State, and the people have a right to get proper medical treatment’ (Paragraph 5). Finding the petitioner’s allegations to be true, the court acknowledged that government hospitals in Allahabad were in ‘very bad shape’ and needed ‘drastic improvement’. The Court directed the State of UP to set up a committee to investigate the affairs of government hospitals. Several other petitions highlighted the issues of unhygienic conditions and inadequate infrastructure in health centres and hospitals. These petitions grounded their petitions on the jurisprudence developed in the Municipality of Ratlam case, where the Article 47 of the Constitution of India was unequivocally stated as the principle 259 Mahendra 260 S.K.

Pratap Singh v. State of Orissa AIR 1997Ori 37. Garg v. State of Uttar Pradesh and Ors. 1999 (1) AWC 847 Allahabad.

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of public health governance [Vide Sect. 3.2.1]. Applying the jurisprudence, viz. statutory duty and constitutional obligation of the statutory bodies and the duty of public bodies for governance, HCs, in these petitions ordered for removal of public health nuisance. Additional orders were issued to improve infrastructure, hygiene, and sanitation in public hospitals.261 The litigations on reproductive health services, in particular, singularly highlighted the malfunctioning of PHCs even while there was unspent money or diversion of funds allocated under the NRHM.262 Such malfunctioning of the health system at the village level consequently resulted in serious violations of women’s health rights in the centrally administered programmes such as sterilisation or maternal health services.263 As discussed in this chapter, the litigation outcomes by way of systemic changes vary across health care thematic domains. However, a salient feature became expressly manifest through the litigation process that despite a laudable and considerably sound jurisprudence, the courts did not [want to] engage themselves either in fixing accountability in the public health care system or in enforcing their own orders to fulfil such an objective. Notably, this has resulted in persisting gaps in the public health care infrastructure and health services. Public Sector Enterprises and Health Care Several public sector enterprises or undertakings such as railways, armed forces, tea gardens and beedi sector, run their own health care services for employees under their jurisdiction. A few petitions on railway services provide a peek into such arrangements. The practice of sending medical teams in railway coaches, for example, had been discontinued on account of under-utilisation. Drawing court’s attention, a petition264 prayed for adequate medical facilities at Railway Stations/Platforms, including the availability of life-saving drugs/medicines. In this case, the court creatively linked the fundamental right to movement (Article 19), right to life (Article 21) and public health governance (Article 47), to declare railways as ‘State’ having the obligation of the duties cast under Article 47. [R]ailway Board to provide for effective medical facilities during the course of journey through rail transport for convenient and safe movement of people from one place to the other as a measure ensuring improvement in public health, standard of living and also for protection of life and liberties of people (Ram Dutt Sharma v. State of Rajasthan and Others, Paragraph 13). 261 Citizens

Action Committee, Nagpur vs. Civil Surgeon, Mayo (General) Hospital, Nagpur and Ors AIR 1986 Bom 136; Suo Moto v. State of Rajasthan, Rajasthan High Court, AIR 2005 Raj 82; The Registrar, Aurangabad. 262 Fact finding reports & petitions Centre for Health and Resource Management (CHARM) v. State of Bihar & Ors., High Court of Patna W.P. (C) 7650/2011 and Dunabai v. State of Madhya Pradesh; For instance, the scam unearthed in Uttar Pradesh was diverting about 5000 crore of rupees from NRHM to other works. 263 Sandesh Bansal v. Union of India, High Court of Madhya Pradesh at Indore W.P. 9061/2008; Promotion and Advancement of Justice, Harmony, and Rights of Adivasis (PAJHRA) v. State of Assam, Gauhati High Court W.P. 21/2012; Shri Rinsing ChewangKazi v. State of Sikkim &Ors., High Court of Sikkim PIL No. 39/2012. 264 Ram Dutt Sharma v State of Rajasthan And Ors. AIR 2005 RAJ 317.

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Constitutional Obligation of Private Charitable Hospitals to Provide Free Health Services In India, apart from the public health care system, people also access the privatecommercial health facilities and private charitable hospitals. The latter are supported by the State through incentives and concessions to provide free and subsidised health care to citizens. Hence, notwithstanding all the limitations, it can be presumed that the citizens’ right to access health care extends also to the private charitable hospitals within the scope provided by the legal framework. This provision was used by citizens to claim health care services to the poor.265 In Social Jurist v. Govt of NCT of Delhi and Others, the HC of Delhi widened this issue of allocating free beds to poor patients beyond the scope of one hospital questioned in the petition to all hospitals built on land provided by government at a concessional rate under the Governments Grant Act, 1895 (the Act) and the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981 (the Rules). Such concessions included the precondition of providing free treatment to a limited percentage both in-patient (IPD) and out-patient departments (OPD). The petitioner’s prayer to the court was to direct the concerned authorities to act against defaulting hospitals. The orders in this litigation laid down certain principles for charitable hospitals established through government grant and reinforced the State’s power to impose conditions on private hospitals including the duty to treat and clarified the meaning of free treatment. Several concessions were granted to these hospitals which the court considered ‘advantageous situation because of the help or allotment of vital assets’. Based on this and providing a wider interpretation under Article 21 read with Article 47 of the Constitution of India, the court mandated these hospitals to provide free care, stating ‘…The principle of equality, fairness and equity would command these hospitals to discharge their obligations of free patient treatment to poor strata of Delhi’ (Social Jurist v. Government of NCT of Delhi, Paragraph 94). It also mandated super speciality hospitals to have free emergency services so that any patient could be given first aid treatment before being sent to an appropriate hospital. The meaning of free treatment was clarified in the order as inclusive of all facilities to be free of charge including services, treatment, consumables, and non-consumables (Box 3.11). In the Supreme Court Young Advocates Forum v. Union of India and others,266 known as the Apollo Hospital case, Delhi HC directed the State to reserve 33 percent beds and 40 percent out-patient services for the poor in private hospitals built on the largesse provided by the government. Similarly, All India Lawyers Union v. Government of NCT of Delhi and Ors.,267 the issue of largesse provided to the private entities and non-compliance by the private parties to those conditions was raised. The Government of the National Capital Territory of Delhi (GNCTD) had provided a vacant Players Building to a multi-specialty hospital (IMCL), subject to providing free medical care to patients, both in-patient and out-patient care, one third and 265 Social

Jurist v. Government of NCT of Delhi and Ors. 140 (2007) DLT 698 High Court, Delhi. Court Young Advocates Forum v. Union of India and others, Delhi High Court, 99 (2002) DLT 290. 267 All India Lawyers Union v. Government of NCT of Delhi and Ors. WP(C) No.5410/199 Delhi. 266 Supreme

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40 percent, respectively. Later, the IMCL did not comply with this condition and challenged the very concept of ‘free care’ as not applying to Box 3.11 Free Medical Care in Charitable Hospitals (Social Jurist v. Government of NCT of Delhi) The Court made a balancing act in this petition when the argument of financial non-viability of providing free care was provided in defense and limited the percentage of free and complete treatment of patients to 10 percent IPD and 25 percent OPD patients. A special committee was constituted by the Court to overlook the creation and maintenance of this pool as well as to monitor compliance with the rest of the conditions imposed by it. (Ibid., Paragraph 63) The Court also held that if any hospital was found not complying with the conditions and the directions issued by it, the head of such a hospital would be liable to be proceeded against in accordance with law. The Court constituted an Inspection Committee to carry out inspections at the twenty hospitals dealt with in the petition. It was granted the power to ‘revive this petition…against the defaulters under the Contempt of Courts Act’. it as a public limited company. The lawyers’ association impleaded in this case. In the jurisprudence developed in this litigation, the HC of Delhi has laid down the following principles: 1. The private party is a State instrumentality by virtue of the agreement: By agreeing to be a partner with the State in the matter of health care, with stipulations about free health care to the specified extent, IMCL had taken onto itself the mantle of State instrumentality (Paragraph 30). 2. State has the mandate to regulate, for assuring basic health care to all citizens: Health care is essential concomitant to quality of life. Its demand and supply cannot therefore be left to be regulated solely by the invisible hands of the market. The State must strive to move towards a system where every citizen has assured access to basic health care, irrespective of their capacity to pay (Paragraph 43). 3. Writ of mandamus maintainable against any authorities, instrumentalities of the State, private parties performing public function, under the wider powers of the Article 226 of the Constitution of India 4. Free treatment is comprehensive: The expression ‘free medical diagnostic and other facilities’ must be interpreted to mean ‘treatment not only in the nature of providing admission and accommodation to the hospital, diagnosis and investigation but free medicines and consumables also’ (Paragraph 57). In another case on allocation of government land reserved for public purpose to construct a private hospital in Karnataka,268 the SCI constructed its judgment on the jurisprudential principle of ‘statutory/legislative intent’. Referring to the statutory object of the Bangalore Corporation, the court reiterated that it aimed to promote and 268 Bangalore

Medical Trust vs B.S. Muddappa And Ors [1991] 4 SCC 54.

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enhance quality of life and healthy growth and development of the city of Bangalore. It will be achieved by providing maximum space for the benefit of the public at large for recreation, enjoyment, ventilation, fresh air, and protection of health of the public at large. Hence allotting land reserved for public purpose to a private party to construct hospital was held violative of the legislative intent.

3.3.4.3

Summary of the Key Jurisprudence Applied in the Thematic Domain of Public Health Measures

The litigations demanding adequate health care and infrastructure and to regulate those components vitiating public health originated from diverse civil society actors. Most of them were context specific and addressing specific issues at hand. Collectively, these provide a sense of the application of the existing health care jurisprudence to these specific issues. Key jurisprudence in the themes discussed in this section is summarised here. Public Health Measures (1) In a welfare-state it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health; (2) Article 47 [of the Constitution of India] casts a fundamental duty on the State to improve public health, and to endeavour to prohibit consumption of intoxicating substances which are injurious to health; (3) Article 21 of the Constitution makes provision for safeguarding the life of a person wearing a helmet. It is in consonance with the provisions of Article 21 of the Constitution of India. The provision is neither arbitrary nor unreasonable; (4) The right to food is necessary to uphold Article 21 of the Constitution of India, which guarantees the fundamental right to ‘life with human dignity’. Health Care Services (1) Article 21 of the Constitution, as interpreted in a series of judgments of the Supreme Court, has the legal effect that no hospital can refuse medical treatment to a person on the ground irrespective of his poverty or inability to pay; (2) ‘Healthy environment’ principle includes people’s right to live in a healthy environment’; (3) Railways is a ‘State’ under Article 12 of the Constitution. Accordingly, Articles 19 and 21 read with Article 47 [of the Constitution of India] obligate the Railway Board to provide for effective medical facilities during the course of journey, as a measure ensuring improvement in public health, standard of living and also for protection of life and liberties of people; (4) It is the duty of the State under Article 47 to provide the citizens proper health care. The State cannot deny a citizen of the medical treatment while s/he is travelling in a train; (5) The right of the State to impose conditions on the [private] hospitals to make it accessible to citizens is upheld on the grounds of Article 47 and Article 21;

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(6) The right to access health care extends to health services in the private charitable hospitals within the legal framework of India; (7) The expression ‘free medical diagnostic and other facilities’ must be interpreted to mean treatment not only in the nature of providing admission and accommodation to the hospital, diagnosis and investigation but free medicines and consumables also; (8) The private party is a ‘State instrumentality’ by virtue of the agreement to participate in public programmes. State has the mandate to regulate for assuring basic health care to all citizens; (9) Writ of mandamus is maintainable against any authorities, instrumentalities of the state, private parties performing public function, under the wider powers of the Article 226 of the Constitution of India.

3.4 A Brief Synthesis The key principles of jurisprudence in health care laid down in India’s Apex Court point to a further progression of jurisprudence of personhood (right to life) and access to justice as integral to dignity and personhood. They reinforce the underlying principles of the Constitution of India itself, viz. the concept of welfare-state and State’s ‘public duty’ which is oftentimes described as an absolute duty with no exceptions. Such a duty is enunciated in the jurisprudence in several terms such as ‘removing public nuisance’, ‘creating a healthy environment’, ‘enhancement of quality of life’, and ‘protection of health and public at large’. The analysis in the chapter unambiguously points to the fact that the right to health care is unequivocally laid down as a fundamental right. With 67 percent cases litigated in the SCI, the firm imprint of the apex court in the jurisprudence is visible across the rights constituencies. The evolution of health care jurisprudence over the last five decades also vouches for the fact of it being incontrovertible and irreversible. Health care jurisprudence is founded on the foundations laid in the environmental rights, rights of workers and movement for civil liberties. The argument of welfarestate is well founded in the judgements concerning workers’ right to health and medical care. This is built on the principles of considering welfare in broad terms as ‘the legislative intent’ in many of the legislations concerning workers. The welfare of the workers, social security, right to dignity, protecting their health and strength are considered part of the welfare-state concept and the legislative intent. Historically, the churnings on workers’ rights issues were spearheaded through workers’ unions in public sector undertakings. Therefore, the argument that the State as the principal employer was bound by public duty to provide medical and health care became unassailable in constructing the edifice of SRHC. Civil liberties and progressive criminal jurisprudence, on the other hand, which took cognisance of the violations of health and medical care of under-trials, prisoners and arrestees, provided critical reinforcement in making ‘health care jurisprudence’ relevant to segments other than

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the organised workforce as well. Realising the right of medical care to these vulnerable sections, imprints a stamp of definitiveness on the declaration of health care as integral to the fundamental right to life. The litigation on hazardous drugs forms an important piece of health care jurisprudence within the health care domains, wherein the SRHC was alluded to as a fundamental right. It formed the springboard for other health care related litigations that were subsequently filed. The relative ease of establishing such jurisprudence in the rights domains of workers and civil liberties, can be fairly attributed to the centrality of welfare-state and the accountability of public servants and institutions to Constitutional governance. The issue of violations by non-State actors and private-commercial entities and subjecting them to Constitutional governance, however, is emerging as another barrier that civil society must cross. The liability of the private-commercial health care establishments is yet to find a substantive space in the jurisprudential discourse of SRHC. Among other considerations, the ability in the civil society actors or the aggrieved to manoeuvre courts on health care related matters brings the issue of social class into the forefront. As most of the petitions strongly indicate, the patients or the aggrieved from the marginalised communities had no wherewithal required for the legal mobilisation. The thematic domain of social elites and patient rights indicate that the socially privileged class had the competence to access to private health care and to mobilise legal institutions to redress their grievances. Being higher ranked government employees provided them the ecosystem of influence, power of networking among themselves and the capability to engage experts to raise issues of complete reimbursement of financial expenditure for medical care, room rent during the hospitalisation, excess of expenditure for medical care in the private hospitals, and appropriate remedial action on undue delay in reimbursement. Being an elite class, they were able to consistently bring petitions into courts. Consequently, the medical services to government employees are spelt out clearly as ‘entitlements’.269 Their status also enabled them to resolve the issue even moving beyond the HC into the SCI. The optimum utilisation of the health care jurisprudence, with a fair degree of success in litigations, is visible in the domain of social elites. As a class, they left no stone unturned to claim their rights. Contrastingly, it is not the same for citizens from underprivileged classes who are the primary subjects in the major portion of health care domains that we discussed in this book. Hence the role of socially sensitive ‘organic individuals’ drawn from the civil society belonging to the middle class professionals or civil society alliances emerges as very critical to broach and advance the rights of the marginalised. Right to life (i.e. personhood jurisprudence) and the framework of the welfarestate form the fulcrum of health care jurisprudence. The framework of constitutional governance itself stands on the philosophical edifice of the welfare-state that 269 For

example, vide Government of Karnataka 1963, which is amended from time to time with major amendments in 2006; Clause 10(1) states: ‘A Government servant shall be entitled free of charges to medical attendance by the authorized medical attendant. Medical Officers shall not be allowed to charge any fees for Government Servants for whom they are appointed medical attendant.’ [emphasis added].

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submits itself to constitutional duties and obligations. In the case of our discussion, we attribute such subjection to the mandate of Articles 21 and 47, among others, to secure SRHC to its citizens. The changing character of the State from being a welfare-state to that of promoting health care as a business together with the oscillating positions of the judiciary on the State vis-a-vis the rights of people, indicate among other things, the predicament of such a jurisprudence vis-a-vis the political philosophy of the State and the paradoxes that the judiciary embed in the jurisprudence, which in the long run result in negating each other. The courts have emphasised that the State cannot shirk its obligation to provide medical facilities which would be ex-facie violative of Article 21. Courts have considered, in some occasions, the limitations of resources as one of the arguments for not providing medical facilities to its citizens including its employees. (See, Ram Lubhaya Bagga case). On the other hand, the jurisprudence analysed also amply finds the paradoxical and contradictory statements. For example, one judgement states: ‘Cannot direct the State to legislate law in tune with Article 47 nor can it invalidate a law on the ground that the same is in conflict with the said Article’ and that the ‘interpretation of Statute should not frustrate the goals set out in the Directive Principles of the Policy of the States’. In another judgement it is stated, ‘To make the State accept a particular policy, desirable and necessary as the policy might be, is not the function of Article 32 of the Constitution. Article 32 of the Indian Constitution is not the nest for all the bees in the bonnet of ‘public spirited persons’. The paradoxes and contradictions in several judgments in the same domain of health care or across thematic domains of litigations, leave ample scope for its variant interpretation in its application by the executive. As noted by scholars, it affirms the subjectivity that is involved in interpreting the Constitution and its application to the issues of violations of SRHC of citizens. The area of policy making by judicial orders is a contested space determined by the doctrine of separation of powers. Courts, while generally accepting the State’s prerogative to make or change its policies, are often caught in the dilemma of asserting their power of judicial review and respecting the doctrine of separation of powers. The analysis finds some glimpses of the delicate art of navigating through this puzzle that courts exercised by way of articulating rights of citizens, even as it took care not to negate the State’s prerogative in policy making. In a Constitutional governance such as in the case of India, due to the power vested in the constitutional courts, the jurisprudence itself forms the part of the domestic policy and law. Through a sharp application of jurisprudential acumen, the judiciary has incrementally refined the canvas of health care policy by incrementally sharpening the articulations on SRHC. However, executing its orders and monitoring the policy implementation for effectively realising SRHC has remained elusive which needs an in-depth analysis, which will be done in the subsequent chapters (Vide Chaps. 4 and 5). Considering the global and local socio-political contexts determined by the COVID19 pandemic at the time of writing this book, one cannot but underscore and reaffirm the importance of positing health as justice and the quintessential need for a robust public health care system to deliver health care as a fundamental right. The centrality of the welfare-state too is poignantly recognised during this time,

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even in the avowed capitalist countries, who have invested enormous resources to contain and treat the COVID19 infections. Instead of situational and relative articulations on the obligations of the welfare-state—as we have seen in certain parts of the jurisprudence analysis -, the health care jurisprudence must unwaveringly declare the absolute centrality of the welfare-state for SRHC to be a reality. Considering the health care jurisprudence as one whole, its positive and progressive dimensions hypothetically outweigh the constraints that are seen in parts. The articulations of SRHC and the jurisprudential principles laid down, in essence, are progressive and as a body of legal principles, encapsulate within it, the potential and far reaching insights for unassailably establishing the SRHC as a fundamental right. Paradoxically however, regardless of having a progressive jurisprudence in hand, aggrieved patients are still grappling within the confines of the unchanging health care and justice systems. As seen in the domain of patient rights and medical negligence, the weight of the parts of jurisprudence have outdone the gains of the totality of jurisprudence, by making it virtually impossible for patients to produce convincing evidence even as they are handcuffed to prosecute the violators, most importantly, the private-commercial health care institutions. With the unbridled expansion of the private-commercial health care sector, violations of patient rights have emerged as the most serious concern in India. Despite the body of legal principles pointing towards its fundamental rights character, patients continue to experience the violations of their rights and are struggling to get justice. The complexities in pursuing health justice within the paradigm of the prevailing health care and justice systems, need critical examination to decode such paradoxes and predicaments. The mechanisms available for such patients are discussed and critically examined in chapter four. It is followed by a theoretical discourse in chapter five, on the exchange of power and actors that intersect in positing the possibility of health justice.

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Datar, N. D. (2017). SC remarks welcome, but Indian abortion law far from ideal. Daily News Analysis (DNA), 31 July 2017, online edition. http://www.dnaindia.com/analysis/column-sc-rem arks-welcome-but-indianabortion-law-far-from-ideal-2518607. Accessed August 15, 2017. Davar, B. V. (2015). The discriminatory standards of constructing “patienthood” of the “Mentally Ill” within public health. Medico Friend Circle Bulletin, 363–364(February), 5–9. Deosthali, P., & Rege, S. (2019). Denial of safe abortion to survivors of rape in India. Health and Human Rights, 21(2), 189–198. Desai, M., & Chand, D. (2007). Fundamental right to health and public health care. In M. Desai et al. (Eds.), Health care case law in India: A reader (pp. 17–35). Mumbai: Centre for Enquiry into Health and Allied Themes : India Centre for Human Rights & Law. Divan, A. (2000). The supreme court and tort litigation. In B. N. Kirpal, et al. (Eds.), Supreme but not infallible (pp. 404–432). New Delhi: Oxford University Press. Editorial. (2017). Editorial—Wine and whimper. The Hindu, 3 April 2017. Gadre, A., & Shukla, A. (2016). Dissenting diagnosis. Gurgaon, Haryana, India: Penguin Books India. Galanter, M. (1986). When legal worlds collide: Reflections on Bhopal, the good lawyer, and the American Law School. Journal of Legal Education, 36, 292–310. Ghose, D. (2017). Chhattisgarh sterilisation tragedy: Two and a half years, deaths of 13 mothers later. The Indian Express, 9 April 2017, online edition. http://indianexpress.com/article/india/ chhattisgarh-sterilisation-tragedy-two-and-ahalf-years-deaths-of-13-mothers-later-4605460/. Accessed August 15, 2017. Government of India. (1955). The Essential Commodities Act, 1955. Vol. No.10 of 1955. https://ind iacode.nic.in/bitstream/123456789/7053/1/essential_commodities_act_1955.pdf. Accessed May 17, 2020. Govt of India. (1946). Report of the Health Survey and Development Committee (Chairperson: Sir Joseph Bhore) (Vol. IV). New Delhi: Government of India Press. Government of India, and India.gov.in—National Portal of India. n.d. Constitution of India (Full Text). https://india.gov.in/my-government/constitution-india/constitutionindia-fulltext. Accessed February 13, 2016. Government of India, Ministry of Law. (2013). The mental health care bill. Introduced in the Rajya Sabha by Shri Ghulam Nabi Azad, Minister of Health and Family Welfare. http://www.prsindia.org/billtrack/the-mental-health-care-bill-20132864/. Accessed April 03, 2016. Government of India, Ministry of Road Transport and Highways. (2016). Ministry of road transport and highways notification Dt. May 12, 2015, Extraordinary Part 1, Section 1 4 (2015). Ministry of Road Transport and Highways. http://egazette.nic.in/WriteReadData/2015/164095.pdf. Accessed June 10, 2017. Government of India-National Commission for Enterprises among Unorganised Sector. (2007). Report on the conditions of work and promotion of livelihoods in the unorganised sector. New Delhi: National Commission for Enterprises among Unorganised Sector. http://www.prsindia.org/uploads/media/Unorganised%20Sector/bill150_2007112 3150_Condition_of_workers_sep_2007.pdf. Accessed October 10, 2009. Government of Karnataka, Department of Personnel and Administrative Reforms. (1963). Karnataka Government Servants’ (Medical Attendance) Rules 1963, (As Provided by DPAR in Their U.O. Note No. DPAR 250 SENIF 2006, Dated: 29.03.2006). Notification No. GAD 7 OMR 63 Dated 25th March 1963. http://dpal.kar.nic.in/Kanunu%20padakosha%20PDF%20F iles/med-rul.pdf. Accessed March 13, 2016. Human Rights Law Network. n.d. ‘PUCL vs. Union of India and Others’. NGO website. PUCL vs. Union of India and Others (blog). n.d. http://www.hrln.org/hrln/right-tofood/pils-a-cases/255pucl-vs-union-of-india-a-others-.html. Accessed June 21, 2017. Jai, J. R. (2003). Commissions and omissions in the administration of justice. New Delhi: Regency Publications. Jain, A. (2016). Verdict reserved on healthcare firms Plea’. The Hindu, 3 June 2016.

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Jan Swasthya Abhiyan. (2014). Realising the right to health care: A policy brief. Jan Swasthya Abhiyan. http://phmindia.org/wp-content/uploads/2015/09/Realizing-the-right-to-hea lthcare.pdf. Accessed May 17, 2020. Jesani, A., Singhi, P. C., & Prakash, P. (2004). Market, medicine and malpractice. Mumbai: Centre for Enquiry into Health and Allied Themes : Society for Public Health Awareness and Action. Kaul, R. (2017). Lawyer with a heart: Birender Sangwan’s Fight to cap price of coronary stents. The Hindustan Times, 20 February 2017. Krishnakumar, A. (2001). Mental health: Escape from Erwadi. Frontline, 1 September 2001, Vol 18, Issue 18 edition. http://www.frontline.in/static/html/fl1818/18180270.htm. Accessed April 03, 2016 Krishnaswamy, P. (2015). V. R. Krishna Iyer: A living legend. Gurgaon, Haryana: LexisNexis. Law Commission of India. (2006). 201st report on emergency medical care to victims of accidents and during emergency medical condition and women under labour (Draft Model Law Annexed)— August 2006. http://lawcommissionofindia.nic.in/reports/rep201.pdf. Accessed April 25, 2013. Leigh, J., Macaskill, P., Kusoma, E., & Mandryk, J. (1999). Global burden of disease and injuries due to occupational factors. Epidemiology, 10, 626–631. National Alliance for Maternal Health and Human Rights, Sahayog. (2016). Chronicles of deaths foretold: A civil society analysis of maternal deaths in seven districts from the states of Odisha, West Bengal, Jharkhand and Uttar Pradesh, India. SAHAYOG. http://www.sahayogindia.org/wpcontent/uploads/2012/06/chronicles-of-deathsforetold.pdf. Accessed November 08, 2016. Parliament of India—Rajya Sabha. (2012). Fifty-Ninth report on the functioning on the functioning of the central drugs standard control organization (CDSCO), Presented to the Rajya Sabha on 8th May 2012. Parliamentary Standing Committee Report (Health and Family Welfare) 59. New Delhi: Rajya Sabha Secretariat. http://164.100.47.5/newcommittee/reports/englishcommi ttees/committee%20on%20health%20and%20family%20welfare/59.pdf. Accessed November 07, 2016. Pattanaik, S. (2020). Delay, harassment, uncertainty: The Rocky road to justice against medical negligence. News18. news18.com/news/ind, Accessed 06 June 2020. Pinto, E. P. (2016). Decoding the politics of the Supreme Court judgment on sterilisation camps. The Wire. https://thewire.in/67590/decoding-politics-sterilisation-judgment/. Accessed February 12, 2017. Pinto, E. P. (2017a). Pinto EP. Mental Healthcare Bill 2013: The Politics of Silence That Eclipses Public Health Vision. The Dialogue, New Delhi, April 12, 2017. Available at: Http://Www.Thedialogue.Co/Mental-Healthcare-Bill-2013-the-Politics-of-Silence-ThatEclipses-Public-Health-Vision/. Accessed April 20, 2017. Pinto, E. P. (2017b). A New Year Reminder: India’s HIV Bill Does Little to Ensure Access to Treatment. Scroll.in. https://scroll.in/pulse/825978/a-new-year-reminder-indias-hiv-bill-does-lit tle-to-ensure-access-to-treatment. Accessed February 12, 2017. Press Trust of India. (2015a). Gujrat HC refuses permission for abortion in rape victim’s case. The Indian Express, 23 July 2015, Delhi edition. Press Trust of India. (2015b). Minor rape survivor can abort 8-week foetus: Gujrat HC. The Times of India, 29 December 2015, Online ed. edition. http://timesofindia.indiatimes.com/india/ Minor-rape-survivor-can-abort-8-week-fetus-Gujarat-HC/articleshow/50361266.cms. Accessed June 20, 2016. Press Trust of India. (2016). Rape victim get HC nod to end pregnancy. The Hindu, 18 June 2016, Delhi edition. National Right to Food Campaign. n.d. Right to food campaign. The ‘Right to Food’ Case (blog). n.d. http://www.righttofoodcampaign.in/legal-action/-right-to-food-case. Accessed June 16, 2016. Saha, K., & Shetty, D. (2014). Are large compensation pay-outs for negligence good for medicine in India? BMJ, 349 (Aug 27 8), g5229–g5229. Sama, Resource Group for Women and Health. (2012). Birthing a market—A study on commercial surrogacy. Delhi: Sama-Resource Group for Women and Health.

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Sarojini, N. B., & Murthy, L. (2005). Why women’s groups oppose injectable contraceptives. Indian Journal of Medical Ethics, 2(1), 14–15. Schwartz, W. B., & Komesar, N. K. (1978). Doctors, damages and deterrence: An economic view of medical malpractice. New England Journal of Medicine, 298(23), 1282–1289. Sharma, T. (2008). Govt not bound to reimburse full medical bill of employees, rules apex court. The Indian Express, 4 January 2008, Online Edition. http://archive.indianexpress.com/news/govt-notbound-to-reimburse-full-medicalbill-of-employees-rules-apex-court/291261/. Accessed March 13, 2016. SubhaSri, B., & Khanna, R. (2014). Dead women talking—A Civil society report on maternal deaths in India. CommonHealth and Jan Swasthya Abhiyan. http://www.commonhealth.in/Dead%20W omen%20Talking%20full%20report%20final.pdf. Accessed November 10, 2016. Srinivasan, S. (2018). FDC ban and endless rounds of litigation. Economic and Political Weekly LIII, 51, 16–18. Srinivasan, S., Shiva, S., & Aisola, M. (2016). Cleaning up the pharma industry: A landmark ban on irrational drugs. Economic and Political Weekly, 51(14), 21–23. Srinivasan, S., & Jesani, A. (2012). Standing committee report on CDSCO: Hard facts confirm an open secret. Indian Journal of Medical Ethics, no. 3 (July). Subrahmanyam, B. (2013). Jacob Mathew v. State of Punjab, the judgment stipulates the guidelines to be followed before launching a prosecution against a doctor for negligence. Journal of Neurosciences in Rural Practice, 4(1), 99. The National Alliance on Access to Justice for People Living with a Mental, and Illness. [NAAJMI]. (2011). Visions and dreams: NAAJMI Consultation on National Mental Health Policy Held at Citi Hotel, Pune, 26th& 27th July 2011. National Consultation. Pune: NAAJMI. Uday Foundation, Delhi. n.d ‘Petition in Delhi High Court to Ban Junk Food and Carbonated Drinks in Schools. NGO, private website. Our Public Interest Litigation in Delhi High Court to Ban Junk Food and Carbonated Drinks in the Schools and Also for Its Sell within a Radius of 500 Yards (blog). n.d. http://www.udayfoundationindia.org/petition-in-delhi-high-court-to-banjunk-foodand-carbonated-drinks-in-schools/. Accessed January 10, 2016. Unicef India. n.d. Maternal Health. What do we do: Maternal health (blog). http://www.unicef.in/ Whatwedo/1/Maternal-Health. Accessed December 18, 2019. United Nations Children’s Fund. 2011. ‘The Situation of Children in India—A Profile’. Mapping Report. New Delhi: United Nations Children’s Fund. https://docs.google.com/viewerng/viewer? url=http://www.hrln.org/hrln/images/stories/pdf/UNICEF-REPORT-ON-SITUATION-OF-CHI LDREN.pdf. Accessed July 23, 2017. Watson, D. P. (2012). The evolving understanding of recovery: What does the sociology of mental health have to offer? Humanity & Society, 36(4), 290–308. Wilper, A. P., Steffie Woolhandler, J., Boyd, W., Lasser, K. E., McCormick, D., Bor, D. H., et al. (2009). The health and health care of US prisoners: Results of a nationwide survey. American Journal of Public Health, 99(4), 666–672. World Health Organisation and UNICEF. (1978). Primary health care: Report of the international conference on primary health care. Alma-Ata USSR. 6–12 September 1978. Geneva: WHO. World Health Organisation. n.d. WHO Framework Convention on Tobacco Control. World Health Assembly Resolutions’. n.d. http://www.who.int/fctc/about/wha_resolutions/en/. Accessed May 21, 2016. World Medical Association. (1964). World Medical Association Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects. Adopted by the 18th WMA General Assembly, Helsinki, Finland, June 1964’. Declaration. Helsinki, Finland: World Medical Association. http://www.wma.net/en/30publications/10policies/b3/17c.pdf. Accessed March 25, 2016. Yamin, A. E., & Gloppen, S. (Eds.). (2011). Litigating health rights: Can courts bring more justice to health. Human rights practice series. Human rights program. Cambridge, MA: Harvard University Press, Harvard Law School.

Chapter 4

Health Care Jurisprudence and Health Justice: Procedural and Substantive Justice Dimensions

Abstract The scope of the translation of health care jurisprudence into health justice is discussed in this chapter from the perspectives of procedural justice and substantive justice. The former relates to the procedural mechanisms for health care litigations, and the latter, to the outcomes of such a process, i.e. equality, dignity, and reinforced social citizenship. The empirical inputs from lawyers and judges, and the experiences of litigants on moving courts for justice in matters of health care, provide the key insights of this chapter. It will briefly delve into the challenges of the processes involved in achieving the ‘right to health care’ jurisprudence on the one hand, and, will critically analyse the contemporary juridico-legal mechanisms through which such jurisprudence is transformed into health justice for the marginalisedcitizens. Literature points to two key factors that stand out in understanding the processes of health care litigations. One, understanding the phenomena of health care litigations constitutive of its drivers, outcomes, and impact on health policy and programming in a given country. Two, a less explored dimension of processing health care litigations in (Indian) courts (as institutions) and the interface of judicial-administrative and socio-political processes in legalising entitlements. This chapter will reflect on the socio-political processes that impact litigations and influence the ecosystem of courts.

It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.1

This book centrally places the argument that health justice is the goal of health care jurisprudence. It is conceptualised essentially as a process of establishing social citizenship of fundamental equality and dignity through health care jurisprudence and to accomplish it through SRHC. Further, it postulates such a process of engaging the institutional and procedural mechanisms with an aim of realizing substantive dignity and equality as fundamental and integral to social citizenship. In this chapter we examine the procedural justice mechanisms followed by a discussion on substantive justice employing the concepts of justiciability, enforceability, and transformability of health care jurisprudence. Structural constraints in seeking health justice are then reviewed through institutional relationships and various stages of adjudicating health 1R

v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233).

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care litigations, within an overarching theoretical framework of justice, including social justice. Theories of justice consider commutative or retributive (relating to punishment of crimes), restorative (relating to compensating victims of wrongdoing) and distributive justice (relating to sharing benefits and burdens) as three key facets of justice. Aristotle considered justice as part of ethics and distinguished them as three kinds of justice (Winthrop 1978). Theories of social justice that were expounded in the second half of twentieth century refer fundamentally to the unpacking of distributive justice. Health and health care, as social goods, are considered as intrinsic components of distributive justice (Rawls 1971, 2001). Scholars have made distinctions between social justice and legal justice. The former is related to the outcomes seen as distributive justice, and the latter is related to the legal procedures to attain such outcomes. The outcome and procedure of realizing such justice are described as ‘substantive justice’ and ‘procedural justice’, respectively. Substantive justice is the justice of outcome while procedural justice is the justice of process which brings about this outcome (Sadurski 1984:346). This book positions SRHC as an integral part of social justice in both the dimensions, i.e. substantive justice, whose final outcomes is social citizenship as well as its procedural mechanisms which are located in the fundamental right to access justice in the Indian constitutional framework. Health care jurisprudence is a critical expression of such a substantive justice in health aimed at fair distribution of social rights. Health care jurisprudence, in a technical sense, can end up as a ‘hollow hope’ with grandiose articulations without substance, as can be seen in several court orders (Rosenberg 1991). Applying the Rawlsian principles of fairness, in this book we consider health justice to be imbued with fairness both in its outcomes (substantive justice) as well as in its procedures (legal or procedural justice). Substantive justice is navigated through the instrumentality of procedural justice, a process of adjudicating health care litigations through navigating the maze of juridico-legal institutional mechanisms. This chapter critically reviews the existing institutional mechanisms for such navigation in health care matters, and the challenges of establishing social citizenship in relation to health and justice systems. The idea of health justice, therefore, is predicated on the systems perspective. (Vide. Figure 1.1) To translate the doctrines of SRHC secured through the health care jurisprudence over the last five decades, a robust health system and a welldeveloped procedural justice system would be quintessential prerequisites. Public health care systems are essential for the availability of health care services, whereas the justice system is a sine qua non not only for the resolution of grievances but also as a deterrent against further violations. Health justice or the systemic arrangements for realising SRHC and resolution for grievances thus form the real goal of healthcare jurisprudence that has historically evolved through the litigations in India. From an institutional and power perspective, health rights in general or SRHC can be conceived as a balance of power between various actors through institutional rules. Young (1990:25 cited in Gauri and Brinks 2008:13) proposed that ‘rights are

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not possessions but institutionally defined rules specifying what people can do in relation to one another’. Right to healthcare is not a right to a set of properties, goods, or services alone. It quintessentially entails redefining the relationships of citizenship that will govern the enjoyment of goods or services. It is also a claim to change the rules that govern the production and distribution of all goods, services, and relationships of healthcare. It means establishing institutional mechanisms and procedures by which the goods and services related to health care can be re-distributed equitably, which can be better described as health justice. The role of judicial and quasi-judicial institutions expands much beyond merely being procedural mechanisms to that of creating political space for these discourses and influencing various institutions to redefine these relationships. This health justice seeking process, among other things, reveals the various power structures that underlie the violations and those that influence the outcomes of health justice initiatives. In the triadic relationship of actors between the State, citizens, and professions that we take into account in conceptualizing health justice, citizens seeking health care are the most powerless constituents compared to the State and the medical profession. The relationship between other two actors (State and medical profession) is characterized by varying degrees of mutual dependency and reciprocity. However, for a citizen, the dependency on professions and the State is symbolised by inequality and high dependency, with very less reciprocity. State considers a citizen as beneficiary and is a client for the medical or legal professional when s/he pays for the service. Hence the citizens who access public health care and subsequently resort to justice systems on account of violations invariably are vulnerable. They face their vulnerability vis-à-vis several actors in this process, especially the organised professions and associated institutions, viz. the medical profession and health care institutions (as health care seekers or patients), and legal profession and judicial institutions (as seekers of justice). Such vulnerability experienced by citizens tends to be acute, as both health care and justice are availed through a myriad institutions and scores of mediators, often with the anxiety over outcomes that are unpredictable. The health care litigations illustrate the health system aspects of this vulnerability, experienced as violations of health rights by the marginalised. In addition to the marginalisation itself arising out of structural inequalities within which the underprivileged are located, an enfeebled and fragmented health care system is likely to heighten these violations further. The analysis of the factors behind health care litigations in this research showed a very close correlation with the web of these systemic factors (Fig. 4.1). Citizens invariably have turned to justice systems in these situations and this forms the context of context of health care jurisprudence. We postulate that such a jurisprudence embeds within it the power not only to provide individual resolution but also to plug systemic holes that give rise to these violations, leading to better access to health care, and in turn effect restoration of dignity and citizenship. This assumption forms the core of the idea of health justice in this book. The concept of health justice couched in a systems perspective evolved within the praxis of health and human rights activism of the author. Critical insights from

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Structural Inequality, marginalisa on & viola ons State Policies – class & caste prejudices (leads to Social Exclusion & discrimina on) Health vulnerabili es, morbidity, disease & suffering Health care policy vacuum: Gaps in regula on (exacerbate vulnerabili es)

Viola ons in Public health care and private health care ins tu ons

Health System viola ons

Ethical viola ons

Viola on of human Dignity

Policy induced viola ons

Redressal and jus ce viola ons

Fig. 4.1 Conceptual depiction of structural inequalities and violations of health rights. Source Author

academic-political economy discourses and contemporary civil society debates have contributed towards shaping this concept further. It also bears an imprint of civil society and human rights thinkers that include several petitioners, victims of violations, public health experts, human rights lawyers, and judges who have subscribed to such an idea. Health justice is thus set within the overarching eco-system and political economy of the interface of justice and health care systems, seen as integral to the realisation of social citizenship both in their institutional (procedural) as well as outcome (substantive) dimensions. Accordingly, we define health justice as, Reordering the relationship of citizens seeking health care vis-a-vis the State, health care system (including medical profession) and justice system (including legal profession), aimed at realising substantive equality and dignity for all citizens, and the social right to health care, through institutional and systemic mechanisms protected through the Constitutional framework. (Vide. Chap. 1, Fig. 1.1 and Chap. 5, Fig. 5.1)

4.1 Procedural Justice and Healthcare The modern justice system is established on the principles of rule of law, due process, transparency and fairness. Independent judiciary or judicial independence is seen to be the hallmark of such a rule of law based judicial system. Indian justice system bears the legacy of British law known as common law practiced in commonwealth countries. The quality of justice delivered, and its perception is determined by the

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ecosystem surrounding the justice system and its capacity to safeguard the rule of law. This is applicable to the Indian justice system as well. The Rule of Law study has ranked India low in its rule of law index. The operational definition of the rule of law includes four universal principles derived from internationally accepted standards relating to accountability under the law, nature of the law, enforcement with fairness, delivery of justice (The World Justice Project 2015):10).2 Among the 126 countries assessed in 2019, India ranks 68 in the Rule of Law Index 2019, ranking at 97 for civil justice and 77 for criminal justice (Tata Trusts 2019). Indian legal-judicial system is overburdened by pendency-delay-backlog of cases, and is marked by acute vacancy of judges, low case clearance, and astonishingly low number of women judges. In general, taking into account the functioning of police, prisons, legal procedures, and judiciary, it affirms the sub-optimal performance of the justice delivery system. This resonates with the experiences of several petitioners in the primary research. Of the several problems that surround the Indian legal system, the report highlights high human resource shortages, resource misallocation, financial shortfall and structural inadequacies as needing immediate attention (Tata Trusts 2019). An overwhelming number of 3.3 crore cases are pending in the courts of India3 [Ministry of Law and Justice n.d. (a)]. A sense of pessimism and cynicism prevails in people concerning the possibility of getting justice in courts due to the costs involved, slow pace, quantum of time and in the end, an unpredictability and uncertainty of outcomes of justice to the aggrieved (Dasra and Daksha 2017). Judicial independence, which is a prerequisite to uphold rule of law, has been a subject of intense debate in India. Tension between the judiciary and the executive has come to the spotlight in recent years and it revolved around the power of judicial appointments. Since the mid-1990s, India followed the collegium system for appointing higher judiciary and was proposed to be curbed through the National Judicial Accountability Commission Act (NJAC) that was subsequently struck down by SCI as unconstitutional. Apart from this, the integrity and efficiency of courts, especially concerning the higher judiciary (i.e. HCs and SCI), have time and again been the focus of public debates. Efficiency of courts came under intense scrutiny in the backdrop of pending caseload, whereas transparency of judiciary was debated when Chief Information Commissioner under Right to Information (RTI) Act passed 2 The

rule of law is a system where the following four universal principles are upheld): 1. The government and its officials and agents as well as individuals and private entities are accountable under the law. 2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property. 3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient. 4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals that are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. 3 58,029 (SCI, dt.01 Feb. 2019) 40,92,732 (HC, 05 Feb. 2019) and 2,91,73,911 cases are pending in district and subordinate courts (in total 3,33,24,672) as per the reporting of Law minister in the Rajya Sabha.

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an order declaring courts as public institutions. Does the judiciary uphold the Constitution and its foundational principles impartially without fear or favour? This was debated in the contemporary socio-political circumstances of India, that included the suspension of civil and political liberties of people of Kashmir after the suppression of Article 370 of the Constitution of India, admitting review petitions against the compromise of citizenship in the Citizenship Amendment Act and police brutalities on citizens and migrant workers during the COVID19 related stringent lockdown. In addition, indiscriminate contempt proceedings against those who express opinions about the judiciary has prompted civil society and even respected legal luminaries to raise concerns over the intolerance exhibited by the judiciary towards dissent and plurality of opinions. These and such related circumstances suggest that judiciary and the justice institutions are under stress, scrutiny, and intense public gaze. The mechanisms employed for seeking health justice and their capability to deliver justice are contingent on the functioning of legal system of justice dispensation, threshold of access, and opportunity structures available for citizens to mediate their use (Yamin and Gloppen 2011; Gauri and Brinks 2008). Most importantly, the procedural mechanisms which are laid down and are supposed to uphold the rule of law hold the key to meet the ends of justice, i.e. substantive justice. Such mechanisms are required for grievance redressal in the instances of healthcare violations to an individual or to a community. How do these mechanisms work and what is the politics that defines their functionality and their ability to convert healthcare litigation into health justice for the aggrieved? The legal literature denotes three ways of seeking redressal for health care related grievances in India, viz. engaging Consumer Redressal System (Consumer Redressal Forum at the district and Commissions at the State and National level) for negligence or deficiency of service, considered civil wrong under tort law; accesssing the criminal justice system for criminal negligence; and, employing medical councils for confronting professional misconduct of medical personnel in matters of medical negligence and violation of the code of medical ethics (Desai and Chand 2007). The first two procedures are based on substantive law—i.e. Civil Procedure Code (CPC) and Criminal Procedure Code (CRPC) and could be concurrent redressals. In the CPA 1986 based consumer redressal fora/commissions have emerged as the quasi-judicial forums for redressing civil litigations (complaints) on deficiency of service or in products, which includes medical negligence cases. Adjudicating on professional misconduct by the medical councils is considered as the self-regulatory exercise of the medical profession for which the legal framework is provided by the Indian Medical Council Act 1956 (recently replaced by the National Medical Commission Act 2019). The research process led to documenting additional four pathways engaged by citizens for seeking justice in the matters of health care. They are classified under healthcare system based institutional complaints mechanisms, specific statute-based redressal, oversight quasi-judicial institution-based redressal, and Constitution based

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writ petitions.4 The quasi-judicial institutions such as medical councils or statutory commissions referred here, enjoy the power of civil courts for procedural matters, that include powers to admit evidence, to summon witnesses and to provide orders or recommendations. Table 4.1 provides an analysis of the various procedural mechanisms of seeking redressal for grievances in health care that are currently engaged by citizens.

4.1.1 Consumer Protection and Civil Remedy Accessing consumer fora at the district level or the commissions at the state or the central level depend on the quantum of compensation for the medical negligence that is prayed for. Only the aggrieved persons who are seeking care in private health care facilities can arguably access this remedy as the SCI has defined the doctor—patient relationship only in terms of consideration (fees) paid. Although the public health care services are managed on tax-based revenues allocated by the government, they are apparently considered free at the point of delivery, and hence are excluded from this remedy. The blurring boundaries between the private and public health care services and several grey areas of such a demarcation, are seen to be subjecting citizens into serious disadvantage. In most of the public hospitals, patients are made to pay user fees for several services. Additionally, under the Public Private Partnerships (PPPS), an approach that the governments have increasingly adopted, health care centres/hospitals and often significant services are outsourced to private parties. However, it is challenging for patients to differentiate between these services provided in the same institution. In addition, as government of India has launched public insurance-based health care (Rastriya Swasthya Bima YojanaRSBY or Pradhan Mantri Jan Arogya Yojana-PMJAY), patients are prompted to avail services from the empanelled private health care institutions. If these publicly funded and privately provided services come under the definition of ‘service’ is a matter that has no clarity in the prevailing jurisprudence. The complaints filed in the redressal fora are potentially subject to a protracted legal battle, as the dissatisfied party can move up to the National Commission and then to SCI in appeal for the final remedy. A vulnerable patient can lose out or give up at any stage, starting from consumer redressal forums at the district level. 4 The

health care system based institutional complaints mechanism such as complaining to higher authorities in the health care system or through the help lines established for the purpose forms other usual mechanisms. The specific issue-based statute defined redressal mechanism provides for another mechanism illustrated by PCPNDT Act, Lokayukta Act, Clinical establishment Act etc. Quasi-judicial bodies instituted oversight institutions and commissions through specific or general statutes supposed to provide easy access to citizens—medical councils under MCI Act, NHRC, Women’s Commission. Constitution based system of writ-based redressal mainly through PILs (Constitution 32 and 226 of the Constitution of India) forms the forum of original jurisdiction or an appellate institution for all the above is the most significant and most authoritative redressal authority.

Legal platform

Civil procedure code

Criminal procedure code

Type

Civil remedy

Criminal law

The courts from the lowest level to appeallate courts at higher levels

The court system from JMFC to appellate courts

Offences defined as criminal offences, i.e. offence against the State

Disputes between two individuals considered private or civil wrong

Legal system Scope

Deterrent in general

NO

Patient rights protection?

No

NO

Patient can file criminal complaints against gross criminal negligence in health care services

Civil suit for various kinds of damages and injunctions. This function is currently delegated to consumer disputes forums und CPA

Regulation of Kinds of actions establishments? available for patients

Table 4.1 An analysis of the prevailing legal frameworks for redressal of patient grievances Challenges for patients

Expert medical opinion by a medical doctor/board is required for criminal prosecution

(continued)

Obtaining medical opinion against doctors is challenging ; Police resist filing FIRs against hospitals and doctors; Outcomes are contingent on the public prosecutor and investigating officers to produce evidence; Outcome is punishment—does not enhance health justice positively for the suffering patient even if prosecuted successfully

Time consuming; Time consuming, subject to further appeal requires financial and legal resources

Limitations

184 4 Health Care Jurisprudence and Health Justice: Procedural …

Lokayukta courts

Lokayukta

Corruption and mal-administration

Sessions Specific offences courts (for or isues as defined Criminal in Acts matters) Designated Appropriated Authority (Civil matters)

PCPNDT, TOHO, MTP, Nursing homes Acts; Clinical Establishment or relevant state level Acts etc.

Specific statute based avenues (Criminal or Civil)

Legal system Scope

Legal platform

Type

Table 4.1 (continued)

NO

Criminal Procedures—Serve as deterrent in general Civil issues such as those in CEA— Generally ineffective

Patient rights protection?

Yes (limited to corruption)

Regulation of specific services (Ultra Sound)

Limitations

Complaints with Lokayukta for specific acts of corruption, irregularity and maladministration

Lokayukta is not very proactive; Many states have not appointed Lokayuktas; There are inherent limitations—Lokayukta needs an upalokayukta to focus on specific issues such as health

Complaint with Outcomes subject to designated/appropriate criminal prosecution; authorities Collateral adverse impacts (Victimising women seeking abortion; harassment of doctors on administrative matters, e.g. keeping records etc.)

Regulation of Kinds of actions establishments? available for patients

(continued)

The complainants are rendered as witnesses as the matter is between the State and the accused; the challenge is to attend the courts, to be present at hearings. The outcome, even if it is positive, is punishment. It has no personal gain for the patient

The outcome is punishment of the accused; It depends on the court proceedings and the prosecution. The victims need to other legal avenues for compensation

Challenges for patients

4.1 Procedural Justice and Healthcare 185

Type

Deficiency of service and negligence

Legal system Scope

Consumer Consumer protection Act forums and commissions

Legal platform

Table 4.1 (continued) Limitations

Pray for compensation Orders are recommendatory, appealable; Time consuming and financial resources are required; the complaints are admitted in relation to the value of compensation sought for the goods and services which is problematic in health care matters; the district forum is ill-equipped to deal with the technical matters of health care services whose deficiency is construed as negligence by patients.

Regulation of Kinds of actions establishments? available for patients

Yes, in terms of NO awarding damages/compensation

Patient rights protection?

(continued)

Patients need medical records and documents; Need legal counsels to follow up; Patients give up almost after the district level orders; Generally, if it is pro-patient, the doctors and hospitals appeal to the State commissions; health care as service is not included in the CPA 2019 and will face legal challenges to bring health care matters to the consumer disputes redressal fora.

Challenges for patients

186 4 Health Care Jurisprudence and Health Justice: Procedural …

Legal platform

MCI Act (Now replaced by NMCA)

Type

Professional regulation

Table 4.1 (continued)

Medical councils

Patient rights protection?

The No ethical-professional conduct of ‘doctors’ alone

Legal system Scope No

Patients can complain—demand suspension or cancellation of license

Regulation of Kinds of actions establishments? available for patients Conflict of interest—doctors body judges doctors; MCI/State bodies do not follow open court procedure in conducting hearings; Non transparent; Medical Councils admit complaints only against doctors and not other health care professionals; MCI is limited only to allopathic doctors; Allegations of nexus and corruption in medical councils

Limitations

(continued)

The suspension and revocation of licenses are not enforced; Appeals from state councils to MCI—challenging for patients to follow up; Medical councils are hostile to patients

Challenges for patients

4.1 Procedural Justice and Healthcare 187

Source Author

Under the Constitution Articles 32 and 226

Writ jurisdiction

HC and SC

Central Act of Commission the is established Parliament at the National and State levels

Statutory Commissions

Patient rights protection?

Can take suo-moto Yes, All encompassing cognizance, receive powers appeals, use powers under different writs (e.g. injunction)

Sectoral No complaints; have suo-moto powers to take cognisance; enjoy the power of civil court.

Legal system Scope

Legal platform

Type

Table 4.1 (continued)

Yes, All encompassing powers

No

File writ petitions; Force the State to act or refrain.

Enquiry reports and recommendations

Regulation of Kinds of actions establishments? available for patients

Challenging to get specific reliefs of health care; Time-consuming.

Recommendatory in nature; Chairpersons are political appointees—do not take a stand against the ruling governments; Very few health care related matters addressed;

Limitations

Very sympathetic and lenient towards doctors; Need experienced lawyer to represent; Unaffordable and inaccesible to individual patients; Can have adverse policy setbacks and outcomes

Generally, commissions are inactive; Needs strong media Mobilisation and opinion building to move them; The onus is on patients to mobilise them

Challenges for patients

188 4 Health Care Jurisprudence and Health Justice: Procedural …

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At what level and under what circumstances does a patient give up? This needs further investigation. A few known cases indicate that it is a time-consuming process, requiring enormous resources, time, legal support to sail through this hierarchy.5 The proceedings in the consumer forum or commissions are based solely on documentary evidence. As gathered from interviews, since the right to medical records is not a legislated right so far, it is a great ordeal for patients to secure medical records from private-commercial health care institutions. Private hospitals are not covered under the jurisdiction of RTI, and hence, getting required documents was an uphill task for several patients. Unlike a patient challenging the hospitals or doctors in the district fora as an isolated individuals, the available studies suggest that doctors are well organised through their networks at the district level to offer mutual support in cases of medical negligence. Hence, it becomes cumbersome for patients to face such an organised force. Besides, as the redressal forums are ill-equipped to deal with and to understand the technical matters in these issues, the respondent hospitals are better equipped to confuse and circumvent the officials. In addition, unlike some countries such as the USA where the law of tort is well evolved to settle matters such as medical negligence, patients face disadvantage in India as the discipline of tort is under-developed. Lawyers are not oriented to the basics of health care discipline to understand the health systems and hence are ill-equipped to deal with the legal aspects of healthcare and medical negligence. The jurisprudence of SCI on matters of criminal prosecution of doctors has a negative cascading impact on the consumer redressals as well. The twin judgements, viz. Jacob Mathew case and Martin F. D’Souza v Mohd. Ishfaq, cumulatively, have dealt a severe blow to the consumer protection remedy as the fora are now demanding a medical opinion to even admit the complaints on medical negligence. It is virtually impossible for a patient to get such an opinion from the medical fraternity. Though such a reading has been reversed in the subsequent judgments, the practice of demanding medical opinion, is still in practice in several districts. In the consumer redressal forum, the only easily accessible remedy, majority of the decided cases are in favour of doctors. Several complaints are dismissed due to lack of evidence for negligence and quite several cases the orders cite medical opinion not substantiating medical negligence (Institute of Public Health 2012). Although the consumer redressal fora are touted to be cost-effective and easily accessible to people, they are still out of reach in health care matters. They serve as the first point of demanding justice at least in some aspects of health care. However, the issues of deficiency of service and medical negligence, often are fiercely contested in the hierarchy of appeals, and the finality of outcomes depends on several factors that are associated with pursuing litigations in the higher domains of judicial or quasi-judicial institutions. Bringing health care under the jurisdiction of CPA 1986 was itself a long-drawn court battle which the medical associations waged. Defining medical care as ‘service’ was done in 1995, ten years after the promulgation of CPA, 5 V.

P. Shanta v. Indian Medical Association, Kunal Saha versus. AMRI, P. C. Singhi versus. Dr. P. D. Desai.

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in the IMA v. V. P. Shantha case in 1995. In the newly promulgated a Consumer Protection Act 2019 that repealed the CPA 1986, ‘health’ does not find a mention as one of the services listed or covered. This has again added uncertainty and ambiguity to the existing perplexities in availing this procedural remedy for health care matters.

4.1.2 Criminal Law Remedy For gross negligence of criminal nature (criminal negligence), patients have the option of resorting to Indian Penal Code (IPC) 304B (death caused by negligent act)6 and section 319–322 (causing hurt, grievous hurt) to pursue criminal prosecution. However, SCI judgments have imposed restraints on the criminal prosecution of doctors.7 (Vide: Sec. 3.3) This has stifled the options available for patients to prosecute medical professionals for professional misconduct or for criminal negligence. On the other hand, it is seen in some instances that the government is swift to arrest whistleblower doctors who speak out against its unaccountability and inaction.8 In recent years, rather than the criminal law offering a remedy for aggrieved patients, the practice of medical professionals using criminal law against patients has seen an upward trend. Several states have passed legislations for protecting doctors in the backdrop of assaults on doctors and a synchronised protest by doctors across India demanding such a legislation.9 While the demand for a central act is pending, the central government has promulgated an ordinance to make violence against health care workers deployed to combat COVID19, a non-bailable offence. The Ordinance moots six months to seven years of imprisonment as punishment along with fine that

6 Sec.

304-A: Deals with death caused by a negligent act: Causing death by negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]. 7 In the Jacob Mathew case police were ordered not to file FIR without a favourable medical opinion on negligence. In civil appeal to the SCI, Martin F. D’Souza (appellant) v Mohd. Ishfaq (respondent), Civil Appeal No. 3541 of 2002 decided on February 17, 2009 justice Markandey Katiju and Justice M. Lodha restrained police cannot arrest doctors over complaints of medical negligence without prima facie evidence and restrained courts, including consumer fora, from issuing notices to doctors for alleged medical negligence without seeking an opinion from experts. [Martin F. D’Souza (appellant) v Mohd. Ishfaq (respondent), Civil Appeal No. 3541 of 2002 decided on February 17, 2009]. 8 In August 2017, 63 children died at the Gorakhpur hospital in Uttar Pradesh after the hospital’s piped oxygen supply ran out which was a lapse in administration. However, Dr. Kafeel who saved many lives was arrested. He was cleared of all allegations after several months in Jail. He was arrested again for speaking out against the government. 9 At least 19 states—including West Bengal, the epicentre of the protests—have passed what is called the Protection of Medicare Service Persons And Medicare Service Institutions (Prevention Of Violence And Damage To Property) Act, also known as the Medical Protection Act (MPA).

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can range from Rs.50,000/—to two lakhs and is enacted by bringing an amendment to the Epidemic Diseases Act 1897 (The Wire 2020).

4.1.3 Health System Based Institutional Mechanisms The avenues of departmental inquiries and access to higher authorities on the grievances with a personal representation or helplines is an accountability mechanism that is feasible for people to access. However, experiences of civil society engaging such measures indicate that they effectively elicit response only when media is mobilised or when pressure is exerted through influential people such as elected representatives. Such responses are short lived and might result in commissioning internal inquiry (such as in the matters of individual maternal deaths) or judicial inquiries (owing to the public pressure as in the case of Chattisgarh sterilisation deaths). Excepting some rare cases,10 such inquiries are conducted secretively and are seen to invariably exonerate doctors or hospital authorities, shifting the blame squarely on the deceased or their families. In cases where civil society is persistent, at the most such blame shifts to the lowest frontline health care functionary such as ANM or an ASHA (Singh 2016).11

4.1.4 Statute Based Mechanisms Individual legislations enacted on specific health care issues provide for complaint mechanisms for both civil and criminal remedies. The following legislations are a few illustrations: • Consumer Protection Act 1986, for example, provided for the consumer redressal forums. • The Clinical Establishment Act 2010 and its state counterparts such as Karnataka Private Medical Establishment [KPME] Act 2007 (and its amendment in 2016) incorporate civil remedy mechanisms for redressal. 10 In the case of unwarranted hysterectomies in Karnataka, civil society mobilisation was so strong that the women commission instituted a thorough inquiry which became a significant piece of evidence in the litigation filed in the SCI. 11 Fact finding report accessed the maternal death of Vandana, a young woman who was made to run from one public hospital to the other without providing treatment, in Satna District of Madhya Pradesh, finally the blame was put on the dead patient. Similarly, in the death of an infant in Sidhi District, a complaint and then an inquiry was enforced. Finally, the ANM and ASHA and dayi were blamed for the mishap, though the doctor never attended the PHC. A follow up discussion with a community activist revealed that ASHA got restored to her work by paying Rs. 2000 to ANM and in turn ANM escaped any penalty by using her influence and perhaps even money. But a dayi (traditional birth attendant) who used to earn some livelihood by conducting deliveries in PHC was penalised by being barred from the work.

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• The Lokayukta Act covers public health establishments under its overarching mandate of reforming administration (includes corruption and maladministration). • The Pre-conception and Pre-natal Diagnostics Technologies (Regulation) Act [PCPNDT Act] 1996 provides for inspection of clinics and criminal prosecution when procedures are not followed. • The Medical Termination of Pregnancy Act 1971 provides for safe abortions under some conditions up to the period of 20 weeks of gestation. Those who violate the provisions are prosecuted under IPC 312, 313 and 314 (Causing miscarriage and abortion).12 • The Transplantation of Human Organs Act [TOHO] 1994 provides for prosecution in violation of the provisions of the Act. • The Nantional Medical Commission Act 2019 has proposed to establish National Medical Council and Autonomous Boards. [However, it is silent on the adjudicatory functions of the Boards for grievance redressal]. The statute-based mechanisms vary in their effectiveness of providing relief to the aggrieved patients. The redressal under CEA 2010 is generally deemed to be quite toothless. The two cases of Lokayukta case in Karnataka (Haveri District) that were analysed as part of this research indicate the possibility of using Lokayukta for systemic issues in healthcare. However, it is contingent on any local leader to pursue the case. Lokayukta legislation provides for addressing administrative reforms, but it is hardly used to address healthcare issues. The complaints to Lokayukta, by nature of the law, are treated as criminal matters and are prosecuted using CRPC. More importantly, the individual leadership and the personality of the appointed Lokayukta appears to have made a great difference in a few cases as in the case of Karnataka. Lokayukta in Karnataka when it was headed by (Retd.) Justice Venkatachala (2004– 06), appointed a Uplokayukta for health who focussed on corruption in public health hospitals (Sudarshan and Prashanth 2011). Similarly, Santosh Hegde, J. (Retd.) when headed the same office, also wider issues of corruption that included hospitals were taken up. The influence of this office has seen steady decline in recent years. 12 Section 312. Causing miscarriage: Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 313. Causing miscarriage without woman’s consent: Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 314. Death caused by act done with intent to cause miscarriage: Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; if act done without woman’s consent, if act done without woman’s consent and if the act is done without the consent of the woman, shall be punished either with [imprisonment for life], or with the punishment above mentioned.

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It is also seen that when implementation is perceived to be effective and stringent, as is seen in the instances of action under PCPNDT Act, the medical professional associations have raised their ante against it. The associations of radiologists have persistently lobbied for the appropriate amendment of PCPNDT Act. Such organised resistance by the medical associations has also been seen in other issues such as against bringing medical professionals under the CPA 1986. In the instances when the provisions of other legislations are used, the medical professionals and associations have steadily engaged courts and legal measures to obstruct such proceedings.13

4.1.5 Oversight–Quasi-Judicial (Ombudsman) Institutions Statutory Commissions Various statutory commissions at the state and national level—NHRC and SHRCs, district consumer fora and commissions, MCI, and its state bodies—are vested with judicial power and they function as quasi-judicial institutions. In principle, these bodies are vested with powers of civil court to take cognizance of the complaint, summon respondents and witnesses on matters relating to healthcare violations. However, except for NHRC and MCI (and its state bodies), most of the other institutions have not used their power for addressing health care matters. In some states these institutions serve only decorative and cosmetic functions without any institutional capacity or willingness to engage with patient’s grievances or violations they face.14 Citizens who accessed NHRC to draw its attention to the failures of the healthcare system, have received precious little. NHRC’s legislative mandate is limited to take cognizance of human rights violations committed only by public servants. Its jurisdiction is barred if any other commission of enquiry is instituted by the government on any matter of human rights violation or by the limitation period of one year from the occurrence of the alleged violation.15

13 In the case of an infants’ death due to negligence of the private hospital, when the appropriate authority under KPME Act 2007 was moved to impose the highest available penalty of Rs. 25,000/-, the hospital brought an injunction from the Dharwad bench of the HC of Karnataka; doctors have started issuing defamation notices to patients when they speak out against medical negligence as in the case in Kolkata where a neurosurgeon has filed a defamation suit of 10 crores in a case where the person blamed doctor for the serious health condition of his wife in a fakebook post. 14 Files accessed on the complaints filed with women’s commission, SC/ST Commission and State Human Rights Commission in Madhya Pradesh, by Maternal Health Rights Campaign (MHRC) reveals that though over 50 complaints on gross negligence and deaths of women were filed, they did not receive a single reply. Similarly, activists who approached the chairperson of the women’s commission were given to understand that the chairperson had not even taken cognisance of the complaints. (Personal discussion with Advocate Azam Khan and Ajay Lal, MHRC activists, Delhi, 1 September 2016). 15 Vide, Section 12(a) and 36 of the Protection of Human Rights Act 1993.

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Table 4.2 Health related complaints filed with various national commissions (Source RTI filed in 2016 April seeking data for the period 2000–2016) Statutory commissions

Period

SRHC

National Commission for Women

2000–2014

5829a

Other

Total

134,970

140,799

National Commission for Scheduled Tribes

2007-2016

2

375

377

National Commission for Minorities

2011–2015

0

7501

7501

National Commission for People with Disability

2007–2015

1b

20

21

National Commission for the Protection of Children’s Rights

1991–2014

0

35

35

National Human Rights Commission

2005–2016

12,406c

NA

12,406

National Commission for Scheduled Castes

2004-2016

NA

NA

NA

a Acid

attack (105), Rape (5542), reproductive health matters (27), sex-selective abortions (155) b Medical Reimbursement and Cochlear Implants c Total: 12406, Disposed 11102, pending 1304 (no disaggregated data provided) Source Author

Statutory commissions are constituted for varied sections of vulnerable groups in India—Women’s Commission, Minority Commission, Scheduled Castes Commission, Scheduled Tribe Commission, Commission for People with Disability and National Commission for the Protection of Child Rights—, and are empowered to take up the issues of health rights violations of these respective social groups. However, the analysis of the data obtained through RTI overwhelmingly indicates that most of these commissions except for women’s commission in some instances, have not handled the issues of health care violations. (See Table 4.2) NHRC under the leadership of then proactive Chairperson/s (such as J.S. Verma, J.), in the 1990s, seemed to make a difference when it took an active role on issues of health care violations, especially related to mental health care institutions. (Vide Chap. 3, Sect. 3.3.2.3 on psychosocial disabilities) The Commission also added its weight to the civil society PILs while it intervened as a third party, as in the case of silicosis.16 In a very promising move, NHRC held public hearings jointly with Jan Swasthya Abhiyan (Civil society coalition for health) in 2004. Its recommendations included declaring health as a fundamental right and to implement it with appropriate legislation. Further, it formulated a charter of patient’s rights in 2018 and has recommended it to the MoHFW of the union government (National Human Rights Commission 2018). Except in some rare cases, NHRC which is constituted of retired judges and headed by a retired Chief Justice of SCI, operates as a very dogmatic, bureaucratic and an orthodox institution. Operationally, it functions as an extension of bureaucratic court formalities rather than an ombudsman body constituted to protect human rights of citizens, while dealing with gross violations of health rights (Jan Swasthya Abhiyan 16 Swasthya Adhikar Manch v. Union of India and Ors. WP 33 of 2012 (Along with AR 79 of 2012 and KM 558 of 2012); Interview with the petitioner—senior health rights activist from Madhya Pradesh, dt. 03 July 2015.

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2016).17 The civil society leaders consulted opined the NHRC or SHRC bodies as being non-proactive and unresponsive. Medical Councils The MCI is the apex professional regulatory body in India for the allopathic medical professionals which is constituted under the Indian Medical Council of Act 1956. Its affiliate bodies in the states are constituted under various state acts. The medical councils are quasi-judicial bodies to which MCI is the appellate body. The mandate of the MCI is regulation and conduct of medical education and medical profession (the allopathic medical doctors). The other systems of medicine have their own regulatory bodies. The accounts of respondents who have filed complaints in medical councils and doctors who have fought against the non-transparency and corruption in these bodies, allude to the non-transparency, corruption, nepotism, and professional collegiality over protection of patient rights. The MCI itself was suspended and put under its supervision by the SCI for corruption and mal-administration. (Vide: Chap. 5, Sec. 5.2 Health Justice Triad) As an exclusive body of allopathic medical professionals, the patients do not have a free and open atmosphere for putting forth their grievances in state medical councils. The appellate procedure to pursue the case in the MCI against medical doctors is not feasible for them. Above all, the penalty that will be imposed at the end of a tedious process is only suspension of licence of the doctor, often tokenistic and without any monitoring on enforcement of the MCI orders. Such remedies do not have any relief for the suffering patients or their survivors. As this ombudsman body was steeped in corruption, in a sweeping change in 2019, the central government promulgated the National Medical Commission Act 2019, repealed the IMC Act 1956 and thus effectively dissolved MCI.18 What it augurs for patients and for grievance redressal is yet to be seen through the rules that will be formulated by the Government of India.

4.1.6 Constitution Based Remedies (Writ Petitions) Writ jurisdiction of courts is enshrined in the constitution of India to protect the fundamental rights of citizens under articles 124–144 of the Constitution of India. As right to health care is declared as a fundamental right by the SCI, any aggrieved citizen can access apex court under section 32 and HCs under article 226 of the Constitution. The writ petitions can also be filed as individual petitions (Government of India 2015). The health care jurisprudence discussed in this book emanates from this judicial remedy (Vide, Chap. 3). It has the potential to bring about systemic 17 When NHRC presided over the public hearings on health care violations organised jointly by Jan

Swasthya Abhiyan (coalition of civil society organisations in India for health rights) and NHRC in 2017, the acting chairperson and member secretary, a retired judge of SCI, dismissed cases filed which had exceeded one year and even refused to listen to the issues of medical negligence. 18 Vide Section 60 of the National Medical Commission Act 2019.

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change, which is not yet exploited adequately, and it is a very expensive mechanism to be used for individual remedies. When the outcome of the writ petition is deemed to be not fair and just, then occasionally review petitions are filed in the courts. In very exceptional circumstances curative petitions too are filed.19 Civil society in India has used this constitutional provision quite extensively on various matters with varied degrees of satisfaction in outcomes. However, as petitioners expressed, accessing constitutional courts both in the states and at the apex level is tedious, time-consuming, expensive, and contingent on pro-bono lawyers who can plead in those courts.

4.2 Health Justice: Substantive Justice The aspirations of justice in health care are articulated in the goal of the medical profession itself. The Constitutional goal for the welfare-state of India is stated to be substantive equality, justice (social economic and political) and a solidarity among citizens articulated through the concept of ‘fraternity’. This resonates closely with the noble goals of both the professions, viz. of the medical profession, which is to alleviate suffering, and of the legal profession which is to uphold justice. The voices of citizens aggrieved by the aberrations and violations in accessing health care supported by the voice of civil society demanding substantive social citizenship coalesce to form a formidable force in demanding SRHC and social citizenship through the mediation of the courts. The SCI is approached by citizens as the court of last resort seeking substantive justice in health care. What has been the role of the world’s ‘most powerful court’ (as Justice V. R. Krishna Iyer remarked) in furthering substantive health justice, the translatability of health care jurisprudence into substantive justice, is a deeper question that underlies the research of this book. Implementation of judgments paves the path for the realisation of health care jurisprudence and is a step towards realising social citizenship. Nonetheless, from judgment to justice could be a long and arduous path where implementation of judgements itself is said to be ‘an acid test of any legal system’ (Baluarte 2010). M. C. Mehta, an ardent environmental rights jurist, Mehta (2009:457) poignantly indicate to the reality check despite having a robust jurisprudence. Environmental justice jurisprudence signifies a mature jurisprudence through litigations in Constitutional Courts for over four decades. He notes:

19 The curative petition is fairly a new concept in the Indian legal system. It is the last judicial resort

available for redressal of grievances in court which is normally decided by judges in-chamber. It is only in rare cases that such petitions are given an open-court hearing. The concept of curative petition was first evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra versus. Ashok Hurra and Anr. AIR 2002 SC 177 where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition. It is done under Article 137 of the Constitution of India. Reference of 8 petitions on IPC 377 to a five-judge bench is the recent instance of a curative petition being admitted.

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[t]he Supreme Court of India adopted a landmark legal principle of environmental law, or issued a judgment that provided long overdue protections, seem to paint a rosy picture. Yet, as any resident or visitor to India will tell you, our battle for sustainability and justice is far from being won. Despite India’s dazzling GDP growth rate, the air in our cities is still badly polluted as automobile numbers explode. Despite the rise of our modern cities, our rivers are still teeming with disease and filth from uncontrolled municipal sewage. Despite our focus on infrastructure, ground water is still being extracted, far in excess of its carrying capacity, for the uncontrolled development of residential high-rises….

Such an observation echoes both the potentials as well as the limits to the jurisprudence in accentuating social rights. The aspirations of justice in civil society is a quest primarily for distributive and restorative justice, that seek a systemic change in terms of plugging loopholes or policy gaps, implementation of policy and putting in place policy and regulatory framework. The politics that drives citizens to courts on the one hand signifies a grievous sense of injustice and indignity that is experienced in the face of gross violations, and on the other, it is also driven by the aspirations of justice. Locating the miscarriage of justice in health in institutional failures and varied types of violations (Vide. Fig. 4.1), the aspirations of justice in health care posit itself as a quest for distributive and restorative justice. Such a quest seeks systemic changes for making health care a matter of citizens’ legitimate entitlement and a matter of justice. The litigations analysed that range from individual petitions (claims) to collective claims testify to the underlying quest for health justice. Scholars engaged in comparative research note that in India individual health rights claims are less common (Roseman and Gloppen 2011). This research too found very few individual litigations demanding personal benefits as compared to several PILs that demanded, inter alia, plugging loopholes and policy gaps, implementation of the people oriented policies, and putting in place regulatory and redressal framework in favour of citizens. Essentially it reinforces the understanding that health care litigations in India aim at systemic changes and strengthening the health care system.

4.2.1 Assessing Systemic Impacts and Limitations In an emerging and exploratory domain of social rights jurisprudence and SRHC, lack of adequate evaluatory frameworks and tools are challenges to gauge the impacts of jurisprudence on equity and social justice in health (Yamin and Gloppen 2011). Change in the health system is the ultimate aim of social rights jurisprudence in health. While the specific orders in litigations are tangible legal instruments, their outcomes in terms of systemic changes will only become visible over a longer period of time that need to be assessed. In this section we discuss the possibility of health justice employing the concepts of justiciability, enforceability, and transformability. Justiciability

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In relation to the social rights, Coomans (2006:4) broadly defines justiciability to mean ‘the extent to which an alleged violation of an economic or social subjective right invoked in a particular case is suitable for judicial or quasi-judicial review at the domestic level’. The historic baggage of treating economic-social-cultural rights as being inferior to civil-political rights has overshadowed the popular imagination on social rights as being inferior to civil-political rights. Such a cleavage is also reflected in the Constitution of India and the approach of court institutions and legal profession. The legal profession as a whole and judiciary, lack orientation to human and social rights. Interviews with judges and discussions held with law experts dealing with judicial academies confirmed such a view.20 India’s Constitution enshrined both these aspects, but with divergent and variant emphasis. The liberal democratic rights were justiciable while the positive rights were not and were subject to ‘progressive realisation’. The social rights, being placed under DPSP and hence were not justiciable. India took about three and a half decades to constitutionally establish the justiciability of the social rights in principle in the late 1970s and such a move came through the judiciary known for their radical views amidst the huge political turmoil of the 1970s (Gadbois 2011). Justiciability of social rights is established in multiple ways. In the Constitutions of new democracies such as many Latin American Countries, South Africa, and some of the neo-colonial countries such as Thailand, the new Constitutions expressly included the expression of right to health care as a constitutional right. Such Constitutional provision seems to advantage the social rights as shown in these countries. In India, however, this was achieved by a progressive judiciary through a series of judgments on social rights and right to healthcare. However, this is no guarantee for the realisation of rights as it requires systems and mechanisms which need to be put in place by the executive. It is rightly observed that ‘the constitutionalisation of social and economic rights does not result in their automatic protection’ while their absence does not prevent countries either in instituting fairly well crafted welfare policies, irrespective of the nature of political regimes (Uitz and Sajo 2006:121). The findings of the research described and analysed in chapter three and supported by sound academic literature, confirms that the Constitutionalisation of right to healthcare has been achieved in India. Theoretically, it would imply that any violation of SRHC can now be brought into the Constitutional Courts with a comparative ease. The philosophical barrier to justiciability or access to justice in healthcare violations has now been crossed. However, such a move does not guarantee the redressal for any violation, better access to healthcare or the re-distribution of the public good of healthcare. Significantly, due to the power embedded in the jurisprudence laid down by the SCI, patients and citizens stand a greater chance of being heard in the highest court of the land. That, however, stands no guarantee for the resolution of grievances in local courts or through independent tribunals or authorities. The 20 Discussion

with an associate professor of law engaged in judicial academies, New Delhi, 11 February 2017, India Habitat Centre, New Delhi. The constitutional expert also remarked that during the training in judicial academies, most of the time is spent on the skills of drafting judgments and sentencing.

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only limited option that is available for citizens with a relatively fair ease is the consumer redressal fora. It still does not solve the systemic issue of inadequacy of the overall grievance redressal and justice dispensation mechanisms in health care at an individual or collective level for different kinds of violations that take place. Muralidhar (2006:256–264)21 draws attention to a couple of important barriers for the justiciability of social rights. These include law and policy divide (courts are reluctant to touch the policy arena), conflict of rights claimed, failures of the legal system which is ridden with formalism, lack of legal aid, the negative experiences the poor have of the police/law enforcement agencies and the court system as they are dragged there for reasons linked to their poverty, and failures to integrate non-formal legal system. Enforcing jurisprudence towards the realisation of SRHC is usually the missing link between court declarations and the lived reality of people’s lives. Enforceability Execution of the court order, response of compliance, remedy from the government machinery or department which allegedly is non-compliant or non-adherent or unaccountable is an uphill task for the courts to do. There is no independent agency or authority to aid the courts, and hence, courts are dependent on the executive. In many instances, the courts have instituted ad hoc committees or have appointed amicus curiae led by some expert or advocates to submit reports to the court. The lack of defining the justiciability of social rights and lack of a legal framework makes enforceability an uphill challenge for the judiciary. Placing health care in India under the DPSP, i.e. chapter four of the Constitution of India is itself a constitutional limitation on its realization. Comparative studies on the justiciability and enforceability show that mere constitutional provisions on social rights are not sufficient for an effective realisation of SRHC (Coomans and Universities Maastricht 2006). The governments of the day continue to put forth arguments of ‘lack of resources’ and resort to the proviso ‘progressive realisation subject to the availability of resources’ for the lack of substantial measures in the realisation of SRHC. A finely articulated legal framework within the constitutional vision that restrains the State from being regressive in its policymaking and that obligates it to institute mechanisms such as strengthening primary healthcare along with adequate budgetary allocation is necessary. Health care being a terrain of ever-expanding thematic domains, specialized judicial institutions akin to the National Green Tribunal or a national regulatory authority akin to the telecom regulatory authority of India (TRAI), for example, would go a long way in aiding the courts enforce compliance with the jurisprudence, even as continuing to be institutional ombudsperson. Transformability Translation of orders into institutional rules and mechanisms which empower and enable citizens/patients to access health care and access redressal is the core of health justice. There are several factors interlinked with justiciability and enforceability, that are instrumental to the transformation of healthcare jurisprudence into health 21 The

author later became a judge of Delhi High Court in 2010.

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justice. In India, translation of orders into accessible entitlements or redressals is said to be the primary gap in health justice. In an international symposium which discussed ten years of jurisprudence in reproductive health care matters in India in 2017, litigants, advocates, constitutional experts resonated a similar perception. They overwhelmingly contended that outcomes in the form of implementation of the orders continued to be a gaping hole in the far advanced reproductive health jurisprudence in India (Jindal Law School—CHLET 2017). Transforming social rights into legal rights is said to be one of the key outcomes of judicialisation of social rights. Some of the leading researchers in social rights have proposed equity to be central to such outcomes along with health system changes. Yamin and Gloppen (2011:337) argue that judicialisation should be located within broader efforts to achieve justice in health, including comprehensive and democratic priority setting. One difficulty, however, in assessing the effect of judicialisation is that impacts such as improved health delivery system, fixing loopholes and changing the behaviour of the providers, evolve over a period. Besides, impacts such as those related to equity and social justice are complex to be assessed. Gauri and Brinks (2008: 304) describe this process as ‘legalisation of policy’ which is explained as engaging legal actors and use of legal concepts in policy making. The various stages of such legalisation include legal mobilisation (placing of cases on the courts’ docket), judicial decision, response (bureaucratic, political, or private party response) and follow-up litigations. These researchers agree that assessing court impact beyond the court orders is a daunting task and methodologies for such a venture have not yet been adequately developed (Gauri and Brinks 2008). The ten health care domains analysed in Chapter three, point to varied and differential outcomes in each of the domains, with a negligible perceived impact on the health care system. The individual elite citizens such as bureaucrats and higher rank government officers have effectively gained from such jurisprudence as compared to other citizens, especially the vulnerable citizens. The gains though are individual in nature, have also gained currency as the rightful claims of the entire elite class as can be seen by the policy provisions that have followed including provision of health care overseas done at State expenditure (Baru 2013). On the contrary, the jurisprudence laid down in the Paschim Banga Case had a potential for systemic reform at least in primary health care that is very close to the people. This jurisprudence was progressive in nature and had references to the domain of emergency health care, essential medicines and drug pricing which was articulated in terms such as ‘absolute and ethical duties’ of the medical profession and the ‘constitutional duty’ of the State in saving lives. Though this is one of the earliest litigations, the jurisprudence was not consistently applied to the subsequent litigations. Even one of the key components of ‘emergency care’ being a fundamental right was not transformed into a legal right for the poor citizens. The gains of this jurisprudence, however, benefited the middle/upper class citizens, two decades later, in a litigation by SaveLIFE Foundation concerning the emergency care that is essential for the victims of road accidents. The litigation outcomes resulted in the legal protection that was required for good Samaritans (by-standers) in saving the lives of such accident victims. This litigation

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overwhelmingly highlighted the concerns of middle/upper classes driving on highways rather than the disadvantaged citizens struggling to access basic health care. Paradoxically, the jurisprudence laid down in Paschim Banga case (1996) formed the key legal reasoning in the writ petition of SaveLIFE foundation (2017) concerning accident victims. The demand for patient rights and the rights of citizens in health care have invariably emphasised systemic change as the most desirable response rather than punitive measures on individual health care providers. In the domains of drugs and medicines, for example, such demand has focussed on implementation of drug pricing, whereas in maternal health care litigations plugging systemic gaps was the key issue. The analysis points to certain gains in some individual litigations addressing specific aspects of health services (for example: female sterilisation and quality of care), and a gaping hole in the translation of the judgments into a systemic response or reform. With an unambiguous jurisprudence laid down, one would expect that the number of litigations in health care would decline. However, the time-period analysis (Fig. 5.3) indicates to a significant increase in health care litigations in the post-2000 period, indicating to the contrary. Several individual gains can be enumerated based on individual writ petitions filed on some pressing issues. Examples of individual awards such access to termination of pregnancy in some difficult cases such as rape of a minor after the legally permissible period of 20 weeks or individual reliefs gained in getting a patient admitted in hospitals, award of compensation etc. illustrate such limited outcomes. However, there is little or frail evidence to substantiate systemic reforms attributed to the health care jurisprudence in the ten health care domains. Follow up discussions with litigating lawyers and petitioners in Bihar (respondents in the interview), overwhelmingly confirmed that individual outcomes of such jurisprudence are short lived and health centres quickly regress to their previous condition, once the litigation is disposed off.22 A general perception that is prevailing in civil society is that regardless of a robust jurisprudence on SRHC, there is no substantial and sustained change in the way the healthcare system operates. The continued violations as seen in the unabated maternal deaths are attributed to the malfunctioning health care system (NAMHHR 2016; SubhaSri and Khanna 2014).23 The court pronouncements and even the infrequent but furious outbursts of the judiciary against the State officials do not appear to have converted into any policy measures to improve the health care system as can be 22 Follow up Interview, Delhi, dt.11 February 2017: Follow up interviews with Devika Biswas, petitioner (Devika Biswas v. Union of India) and advocate Vikas Pankaj (Patna), India Habitat Centre, New Delhi, 11 February 2017. In the cases of Patna medical college hospital, Guru Gobind Singh hospital (Patna) the HC had ordered shifting maternity ward to ground floor from the second floor. It was followed during the pendency of the litigation. Later, it was shifted back to the first floor. Similarly, the order on sterilization lays down dismantling camps for sterilisation. However, the camps have continued both in Bihar and Madhya Pradesh. 23 A systematic analysis of maternal deaths has been undertaken by two groups of women’s organisations and they indicate the continued gross systemic failures in the post-NRHM period which is renamed as NHM.

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gathered from several accounts. The jurisprudence, for example, has not translated itself into any increase in budgetary allocation that has remained abysmally stagnant at 1.2 percent of GDP and consequently there is no reduction in the out of pocket expenditure (National Health Systems Resource Centre 2016); the gross violations of the bodily integrity of women continued in sterilisation camps even during the pendency of a follow up contempt petition in the SCI on the same issue of sterilisation24 ; and, though emergency medical care was declared as a fundamental right in the mid-1990s, violations in the form of refusal to admit patients resulting in deaths continued unabated.25 It is often contended that judgements, orders, and pronouncements of the courts have only ‘symbolic impacts’ and some of them have ‘instrumental impacts’ (Rodrigues-Garavito 2011, 2017). The symbolic judgments are rhetorical in their formulation, however, are devoid of any concrete measures for change. The ones with instrumental impacts refer to those with some micro or individual need that is fulfilled in health care. The analysis in this research closely resonates with such an opinion. There are several symbolic declarations and a huge list of individual outcomes, without necessarily changing in the health care system. Often the question arises—if it is worth pursuing litigations only to get individualized orders inconsequential to the larger community or the health care system. The analysis which points to sporadic individual gains and a consistent setback in systemic changes, then necessitates an examination of the structural constraints and the limits to jurisprudence and judicial power.

4.3 Structural Constraints in Health Justice Employing any mechanism for grievance redressal is only the first step in accomplishing health justice. The probability of such attempts turning into substantial gains for health justice is subject to several structural and institutional considerations related to the actors, power structures, institutional hierarchies, and professional hegemonies.

24 Rama Kant Rai v. Union of India litigation had detailed orders with protocols. However, the government of India led sterilisation programme for population control continued violating these orders and even deaths en masse (as in Chhattisgarh) occurred during the pendency of Devika Biswas v. Union of India in 2014. The affidavits submitted to the SCI in Devika Biswas versus. Union of India, accounts from various states on the manner of conducting sterilisations of women document that the violations of SCI orders such as conducting sterilisations in school building without basic amenities, conducting as many as 50 deliveries in two hours by consultant surgeons have continued. 25 The issue of Avinash in 2015, where both the parents committed suicide when the child was denied admission in as many as 7 hospitals in Delhi when he needed emergency admission for dengue.

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Some petitioners, especially those dealing with medical negligence, have pursued simultaneous and parallel redressal pathways, such as criminal prosecution, compensation under consumer act and complaint against professional misconduct/negligence in the medical council. The overwhelming experience of petitioners and complainants is that these procedures are unfriendly to the petitioners, tedious and invariably render the sufferer or health justice seeker even more vulnerable, fatigued, and frustrated. The lack of an integral and adequate legal framework to address violations of health rights emerges as a key structural constraint in this research. The prevailing legal framework for adjudicating health care matters in India is weak, fragmented, and inadequate. This is another structural constraint that we have considered at considerable length in this chapter. The legal avenues are dispersed through multiple legal institutions and procedures. As discussed earlier in this chapter, in the criminal prosecution, the State assumes the role of the prosecutor, and the outcome is punitive measures and not systemic change. SRHC is primarily considered a civil or private litigation. In civil procedures, the onus of producing evidence is on the litigants and primarily on the plaintiff (petitioner). In health care violations, there is a serious power asymmetry between the parties as the respondent (e.g. a hospital or a medical doctor) comparatively enjoys greater power visa-vis an individual citizen. Aggrieved citizen finds himself/herself at odds with a powerful medical fraternity while pursuing medical negligence complaints. The medical profession is known to exert enormous influence through various associations against any regulatory architecture as now it is know that the regulatory bodies such as MCI, CDSCO, ICMR are mired in deep ‘nexus’, ‘collusion’, ‘partisanship’ and ‘inefficiency’ (Parliament of India—Rajya Sabha 2012, 2016b). Healthcare institutions and the statutory or quasi-judicial regulators often are known to be very inefficient and disinterested in the issues of the poor. A third structural constraint relates to the institutional complexities of litigating a matter in courts. Compared to other court processes in civil and criminal matters, health care litigations exhibit further complexities due to technicality of the subject matter, plurality of actors, multi-stage process of the litigations and the hierarchies of institutions involved. In the civil-political rights, the relationship between the State and the citizens is direct and rights of citizens, classified as negative rights, restrain the State from encroaching upon the liberties and fundamental freedoms of citizens. However, in matters of healthcare, which is a social right and classified as a positive right, it is the interventionist dimension of the State which is at play. Unlike a civil-political right, health care is not a matter between citizens and State alone. The chain of health justice seeking process involves a plethora of actors such as police, hospitals (institutions for hospital records), prosecution solicitors (lawyers), lawyers and legal assistance for drafting and representation, consumer redressal fora and commissions, doctors and health bureaucrats (designated as ‘appropriate authority’) and so on. The issue of medical opinion and documentary evidence are crucial in matters such as proving failures of sterilisations. In obtaining a medical opinion or in procuring medical records from private hospitals, patients face enormous hostility. The institutional complexities of actors and procedures render the quest for health

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justice as a tedious, unpredictable, frustrating, and often in the end, unrewarding process. Soft power of class camaraderie cuts across legal and medical professions and various institutional actors that a litigant encounter in the health justice seeking process. The professional class of doctors, judges and other social elites tend to be sympathetic and protective each other based on their social class status. The claims of rights against violations are pursued at various levels of the hierarchically ordered judicial-legal institutions, that in themselves mirror the societal hierarchy of the actors and their class status. Even the judicial institutions, that hold the key to restore the power balance between citizens, State and the health care system, carry the elitist character of its historical capitalist-bourgeoisie moorings, as the historical trajectory of these institutions traced by Tigar and Levy (2005) indicate. Thus, for a health justice seeker, making headway through the class-caste-, and patriarchal mindsets in the legal institutions and their mediaries, appears to be the fourth structural constraint that impedes the transformation of health care jurisprudence into health justice. Health care litigations, in themselves, reflect these complexities of actors, institutions and processes. Health justice, therefore, is an outcome that emerges out of such a complex and contested process.

4.3.1 Actors and Institutional Relationships in Social Right to Health Care In the traditional framework, the relationship between citizens and State in a liberal democracy was explained in terms of social contract between the principal and agent. However, such a framework does not take into account the complexities of societal structures that influence the behaviour of the State, the vulnerability and inequality among citizens, the constitutional obligations of the State, and the accountability of the State to its citizens, all of which go beyond the principal-agent social contract paradigm. The social citizenship depicted through SRHC is a triangular relationship between the State, healthcare providers and citizens. Gauri and Brinks (2008:10) depicts these institutional relationships in SRHC through the duties and obligations of various actors, and liberties that arise for the citizens. It involves the interface of three sets of actors, viz. State, healthcare providers and citizens (clients or patients, in the context of seeking healthcare). The relationship between State and citizens is described in terms of the duty of the welfare-state to provision or finance health care. The relationship between a second set of actors, viz. the State and health care providers is defined as regulation. The relationship between a third set of actors, viz. health care providers and citizens are depicted as private law relationship. This framework

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presents a model to analyse the scope and limits of health care jurisprudence through the differentiated exchange of power between and amongst various actors.26 The health care providers form a key constituent in this triangular relationship as regardless of the model of providing health care, it is dependent on this professional group and the institutional arrangements that are organised around them. They are organised under multiple professional associations in terms of their skills, specialisations or within their geo-political identities. They offer their professional service both in public and private health care institutions. Though there are diverse health care professionals, it is the medical doctors who form the most important group of professionals for the dispensation of health care provisioning. As there is no singular or all encompassing medical regulatory authority in India, the varied components of their functioning are administered by diverse authorities scattered under various ministries. The multiple aspects that come under public scrutiny and regulation include licensing, maintaining quality and standard of care, managing relationship with the State and other professional associations, sanctioning of members, and civil-criminal liability of medical practitioners (Ayres and Braithwaite 1991; Healy and Braithwaite 2006; Makai and Braithwaite 1992). However, from the SRHC perspective, the relationship of health care professionals with patients—referred to as doctor patient relationship— is of seminal importance and is a much-neglected arena considered for regulation. The litigations examined in this book, point primarily to the concerns that relate to protection of patient rights and addressing negligence in the private-commercial medical sector in the overarching unregulated policy atmosphere where the issue of medical negligence does not get adequately addressed (Perappadan 2016a; 2016b).27 This doctor—patient relationship is significantly influenced by private-commerical actors such as pharmaceutical and diagnostic companies who are known to exert power and influence over policy makers and health care professionals. They heavily invest in engaging courts for injunctions, writ petitions, appeals, interlocutory applications to challenge and thwart civil society efforts or to oppose orders of authorities

26 Not all the litigations taken up by the courts in matters related to health care can be explained by the triangular relationship. For example: Courts have taken up issues of strikes by medical doctors, the Courts have intervened as in the much-debated ongoing litigation on Madhya Pradesh Professional Education Entrance Test (known as Vyapam scam). These are strictly professional institutional matters or are private litigations. In a social liberal democratic republic, the State has a greater say in these. And when the State has not exercised its due diligence courts have intervened. Public servants claiming compensation for health care expenditure and enjoy better social security in their relationship to the State as an employee rather than a citizen. State behaves like a private employer. A citizen, to whom the State is obliged to provide social care, enjoys fewer social rights though defined by agent-principal relationship or in a welfare State, a provider and client relationship. 27 The resistance of the medical profession against any regulation and to undo the already existing regulatory policies is well recorded. The Indian Medical Association resisted against getting doctors under CPA from 1986–1996; The doctors also protested the Clinical Establishment Act. Post 2010, when the enforcement of PCPNDT regulations have grown to be stringent such as suspension of doctors and suspension of the licences, the Indian Radiological and Imaging Association (IRIA) have gone on an indefinite strike demanding the amendment to this Act. The Indian Medical Association and other doctors have also been demanding the amendment to the PCPNDT Act.

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such as NPPA. In summary, the health care providers are a signficant yet powerful constituent actors in actualising health justice. The relationship between the State and citizens is established through the constitutional framework of the welfare-state and in health care it manifests as health care provisioning or resource allocation/financing. The relationship between the State and health care providers is termed as regulation. The State is vested with power to make policies so that health care provisioning is distributed equitably and constitutionally obligated to protect citizens. State also is an active player in the production of human resources, primarily through providing and regulating medical education. In recent years, the State being lenient towards private-commercial ventures in health care, the regulatory aspect of this relationship has taken a back seat. The relationship between the healthcare providers and citizens, considered a private law relationship, does not always have a defined and cohesive legal framework to mediate this relationship. It is a contentious domain especially for issues such as patient rights, as on the one hand the State is reluctant to introduce regulatory policy against the powerful actors (viz. private-commerical health care providers) setting the stage for increased citizen vulnerability, whereas the civil society on the other hand is demanding protection of patient rights through greater legalisation. In the face of regulatory policy vacuum, health care jurisprudence evolved through litigations in the context of gross violations, has emerged as the primary avenue laying down the rules of this relationship in India (Pinto 2018). The extent of realisation of SRHC will finally rest on the duties and liberties that extend between healthcare providers and citizens (clients). Among others, these will include patients’ claim for accessing health care, for compensation under law of tort, duty of the health care providers to safeguard confidentiality, obtaining informed consent prior to the treatment, ethical and moral requirements for medical practitioners to treat certain class of patients such as rape victims (Ibid.). Each of the three key actors is constitutive of a plurality of actors such as individuals, institutions, professional associations, government service delivery systems and administrative bureaucracies located at various levels of the central and State administrative jurisdictions. The administrative actors include multiple ministries at the union and state levels, institutions involved in policy making at various levels of governance, the health bureaucracy in the health care system, and the processes of policy making and provisioning. Similarly, the healthcare providers include a range of professionals, professional associations, private hospitals, charitable institutions, and corporate health care institutions, diagnostic entities and so on. The citizens seeking health care exhibit a very complex mix. Citizens who access health care and often seek curative care as patients differ in their social status, class they belong to, and their healthcare needs vary subject to their identities. Those drawn from the higher strata of society such as the political class (legislators), government bureaucrats (the executive) and judges (the judiciary) are entitled to a separate set of privileges and health care arrangements provided by the State. The courts have continually intervened in streamlining the health care access and reimbursement of expenditure to the higher cadre of bureaucrats. In addition, for citizens in organised employment in

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India, access to healthcare is fairly well crafted. For example, the organised industrial workers have ESI hospitals and the armed forces and railways have separate health care facilities. The infringement of entitlements that these classes experience is markedly different from the violations of rights in health care that the vast majority of citizens belonging to informal and unorganised workers experience. These citizens or ‘masses’ as referred in this book, have to depend solely on the public health care services or face the threat of being further impoverished due to health care expenditure. These vulnerable citizens are not a homogenous group either, and their health care needs too vary. Undoubtedly, they are the most powerless actors in the triadic relationship of power as they lack necessary economic-social and political power to negotiate for their social rights. They stand to lose their wellbeing and health status when the public health care system deteriorates or malfunctions. SCI has in its ruling articulated and reinforced the inalienable right to health and health care enshrined in various the International Conventions. To the vulnerable citizens, the language of rights matters the most as a tool to negotiate for their health care (Pinto 2018). Although the language of rights was incorporated in the framework of NRHM with an aim to strengthening the health care provisioning in India, in recent years such a policy aspiration is progressively being shunted out from public discourses (Mo HFW—Govt. of India 2005). Over the years, with the deteriorating situation of healthcare, the violations of their rights are perceived to have increased, a state of affairs which is described in popular media as a state of ‘malady nation’.28

4.3.2 Multi-stage Complex Process of Litigations The in-depth investigation through interviews and discussions with several health activists affiliated to various networks revealed that pursuing a litigation is a multistage and multi-level process that involves a multitude of actors. In addition, the health care litigation appears as an intense socio-political process played out at different levels involving several actors at each stage. Yamin and Gloppen (2011) provide a framework to locate the various stages of litigation in the life cycle of a litigation, i.e. claims formation stage (pre-adjudication), adjudication phase, outcome, and social equity phase. A four-stage process similar to this is also noted by Gauri and Brinks

28 The

Hindu carried six-part coverage on the status of healthcare in India under the title ‘malady nation’ from 8th to 13th August 2016. (Malady Nation: Remedying India’s healthcare colossus, http://www.thehindu.com/sci-tech/health/malady-nation/article15317635.ece1 Accessed 10 July 2017).

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(2008) in the analysis of legalisation process that is also referred to as ‘strategic litigation process/es’.29 In addition to the actors discussed (Vide: Sec. 4.3.1), the importance of the context, mechanisms and the outcomes is important to analyse in order to understand the litigation as a socio-political process, and not merely as an act of litigation occurring in the courts in isolation. The explanatory components of ‘realist evaluation’30 framework—‘mechanism’, ‘context’, ‘outcome pattern’, and ‘contextmechanism-outcome pattern configuration’—proposed by Pawson and Tilley (1997) provide a lens to view this process. This paradigm lends an analytical frame to construe the long-drawn litigation as a dynamic process, subject to be affected by various socio-political factors. We also recognise and acknowledge the influence of several contextual factors and actors over the litigation process, including the judiciary and court institutions, who are ‘embedded in social systems’ and are susceptible to and are conditioned by externalities such as ‘unanticipated events, political change, personnel moves, physical and technological shifts…media coverage, organisational imperatives’. (Pawson and Tilley 2004)31 Table 4.3 provides a synthesis of the stages of the health care litigation process, plurality of actors and mechanisms. In the claims formation stage the civil society organisations and their networks are the key actors and other important actors include the suffering and affected (victims/survivors/relatives), media, the investigating machinery (police). Similarly, in the adjudication stage, the courts and the judiciary are the key actors and other equally important actors include lawyers, the government representation in the court (advocate and solicitor generals, civil society organisations and networks and, media. In the post-adjudication stage or the outcome stage the executive (government) is the prime actor and the other significant actors include civil society and networks and media. The role of the legislature which is the representative of the citizens in taking the issue of health care violations and suffering is very way-ward and ad hoc and not forthcoming except in some instances. During the post-1990s, with the policy incentives provided for commercialisation of health care in India, the private corporations have emerged as key players in healthcare services. Such a phenomenon is reflected in several healthcare litigations. While in many litigations they are respondents, they are also seen to be using court power for their strategic purposes such as to resist any regulatory measure taken by the government, to challenge government directives or as impleaders to influence court 29 The strategic litigation process is a litigation-stage based framework builds on several socio-legal literature analysing strategic litigation processes, the different stages involved in it, and its outcomes and impacts in different stages. It is primarily developed by the theoretical works of (Gloppen 2006, 2008a, 2008b; Galanter 1974; Rosenberg 1991; McCann 1994; Epp 1998; Feeley and Rubin 2000; Hertogh and Halliday 2004; Hirschl 2004) The recent works of Langford (2008), Gauri and Brinks (2008), Yamin and Gloppen (2011), Flood and Gross (2014, 2016) further adapt it for their analysis and consolidated this framework. 30 Though in the original work the framework was named as ‘realistic evaluation’ later, through the usage and references of other researchers the nomenclature came to be known as ‘realist evaluation’ as explained by (Pawson and Tilley 2004). 31 This research has not used the realist evaluation framework for the design of the research but has adapted the evaluation framework for analysis.

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Table 4.3 Stages and actors in health care litigation process

Claims formation stage

Key actors

Context

Mechanisms Outcome patterns

Civil society organizations and networks

Weakened public health care system and intensified systemic violations

Mobilisation Plaint/petition of public opinion through media, evidence and research, formation or synergising coalitions

Eco-system of judicial-legal institutions/courts reciprocity by the State

Court and litigation process, engaging a socially sensitive, affordable and capable legal counsel

Adjudication Courts and judiciary stage

Outcome stage

The Openness by executive/government government to improve system The approach of the judiciary in laying down orders

Social equity Civil Society; litigants; political society (political parties, affiliate organisations)

Political context, willingness of the State to strengthen healthcare system, its resources and capacity

Order/judgment

Pressure on Enforcement/realisation the Redressal of violations healthcare system and enforcement agencies Sustained vigilance and follow up by civil society

Impact on the health care system and its policies

Source Author

processes by pressing themselves to be noted, counted and heard. It is significantly noted in the analysis of these processes that the politics that drives diverse actors to courts in health care matters varies. The consideration and analysis of the underlying politics behind these litigations bring out the contentious and competing dynamics of power, and define and characterise these litigations, not merely as judicial processes but also as socio-political processes. Citizens, for example, are driven to courts as a last resort in seeking health justice even as they claim entitlements and press for policy

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directions as part of their citizenship politics. However, corporations such as pharmaceuticals, private-commercial health care establishments and medical professional associations engage courts to challenge any pro-patient/citizen policy or directive which is perceivably challenges their power, authority or profiteering prospects. With these institutional and competing complexities, SRHC unfolds itself through these healthcare litigations as a cumulative outcome of the balance of power between the key actors, viz. State, professions, and civil society, navigated through a complex juridico-legal eco-system and the fluctuating political-economy contexts determining health policy at the global, national and sub-national (state) levels.

4.4 Health Rights and Epidemics/Pandemics The COVID-19 pandemic, due to its unprecedented scale and unpredictability of its spread and stinge, has thrown new challenges to the already ailing public health care system in India. In addition, it has also laid bare the approach and intentions of the private-commercial establishments in their resistance in complementing the government’s efforts to enhance public health care capacity for patient care. World over, this pandemic has exposed the vulnerabilities of the health care system and the under-preparedness of the health and bureaucratic machinery to face such a challenge. With the onslaught of the pandemic at a very rapid pace and scale, the government in India was dealing with the challenges of containing the spread and to treat the infected. The number of people infected have been surging every day, globally and in India. In India it was at 2,86,836 confirmed cases and 8108 deaths, and the numbers were still mounting (11 June 2020). By late September 2020, the offical extent of infection had crossed 5.5 million with 90,000 reported COVID19 deaths.32 Public health laws are deployed during pandemics with the primary intention of containing the disease or infections. We briefly discuss measures as related to law and public health here in relation to citizens’ rights to access health care. The key measures taken by the Government of India include the following: Invoking Epidemic Diseases Act 1897 The Epidemic Diseases Act, 1897 was enacted in British India for containing epidemics. This Act empowers the government to take necessary containment measures and to prescribe regulations such as inspection of persons and segregation/quarantine. It also makes disobedience of any regulation or order made under this Act a punishable offence. The legislation has provisions to protect persons or officials acting under this Act as no suit or other legal proceeding can be initiated against any person for anything done in good faith (The Wire 2020). Several states passed ‘COVID19 Regulations 2020’ under this Act to enforce related necessary 32 The

former figures were at the time of writing the manuscript, dt.11 June 2020, and the latter figures from the Government of India’s official Arogya Sethu App, reflect the rise in infections and mortality, at the advanced stage of publishing this book, i.e. 23 September 2020.

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actions such as compelling private employers to treat the employees forced to stay at home as ‘on duty’, to stop all construction work immediately, to shut night clubs and weekly bazaars etc. (Mehta et al. 2020). The Indian Government had taken steps earlier in 2017 to enact a comprehensive legislation. It had introduced a bill in 2017 called the ‘Public Health (Prevention, Control, and Management of Epidemics, Bioterrorism and Disasters) Bill’. The said Bill was to repeal the Act but has lapsed (Ibid.) Invoking provisions of Indian Penal Code In the context of epidemics and pandemics, the power of the Indian Penal Code (IPC) 1860 accompanies the Epidemic Diseases Act. Section 188 of IPC imposes punishment for disobeying an order promulgated by a public servant; section 269 and 270 prescribe punishment for negligent and malignant actions which may spread infection of any disease; section 271 prescribes punishment for disobeying quarantine rule (Government of India, n.d.. (b)). National Disaster Management Act The current lockdown has been imposed under the Disaster Management Act, 2005 (DM Act). The Constitution of India is silent on the issue of ‘disaster’. In the posttsunami time, the legal basis for disaster management was established through the DM Act, invoking Entry 23 and Entry 29 in the Concurrent List of the Constitution of India (PRS Legislative Research 2020).33 The legislative intent of the DM Act is to provide for the effective management of disasters. The Act provides for the National Disaster Management Authority (NDMA) to function as nodal body for coordination of disaster management, with the Prime Minister as its Chairperson. The NDMA lays down policies, plans and guidelines for management of disaster under section 6 of the Act (Ibid.). Similarly, State, District and Local level Disaster Management Authorities were established to respond to disasters in their respective geographic jurisdictions. The COVID19 lockdown and several other orders are issued under this Act. The national lockdown announced on March 24, 2020, was imposed under DM Act. The Order dated 24 March 2020 of NDMA was issued under Sec. 6(2)(i) ‘to take measures for ensuring social distancing so as to prevent the spread of COVID 19’. Additional guidelines and orders were issued thereafter by the Ministry of Home Affairs (MHA) which is designated as the ministry having administrative control of disaster management. Starting with 24 March 2020 till 11 June 2020 (72 days of lockdown), MHA issued 100 orders/circulars under the DM Act that covered various issues such as extension of lockdown, stranded migrant labourers and containment zones. In a nutshell, in the context of pandemics, these legislations vest enormous powers with the State and its machinery. However, within the scope of our discourse, the key question that comes up is what about the rights of citizens? Regardless of what 33 Entry 23—‘Social security and social insurance’ and Entry 29—‘Prevention of the extension from

one State to another of infectious or contagious diseases or pests affecting men, animals or plants’.

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the Constitution of India has laid down concerning citizen rights, what unfolded during the lockdown was an unimaginable quantum of suffering which people from the informal and unorganised sector had to experience. Over 100 million of migrant workers were stranded, going hungry and were walking hundreds of kilometres to reach their villages. This resulted in deaths on the way due to accidents and fatigue. Under the powers of lockdown imposed on the entire country, in several places the communities experienced severe police brutality. Media reports highlighted the inaccessible health care to citizens needing regular care such as maternal services, patients needing dialysis, cardiac patients needing care (Sinha 2020).34 The outpatient services were closed both in the public and private-commercial hospitals and the public hospitals were turned into COVID19 care centres. The pandemic exposed the frailty of the public health system and several patients were turned away from hospitals (Joseph 2020). Media also reported on the belligerant stance of privatecommercial hospitals in several cities including Mumbai and Bengaluru that refused to allocate beds for public health care and had to be coerced into compliance through strict warnings and show-cause notices. In India, the lockdown was enforced brutally which brought back memories of the clamping of emergency in India during 1975–77. The brutality of police knew no bounds and the government ignored the lives and reality of people’s suffering— hunger, starvation, living in inhuman conditions, deaths due to non-COVID causes— with an overemphasis on enforcing the lockdown. It reinforces the idea that during pandemics as in emergency, citizen’s rights are suspended and even when rights of millions were violated in accessing food, water and healthcare, they did not have avenues eithe to express their grievances or to find resolutions to their pressing issues, within an overarching goal of containing the coronavirus. Notably, while the government turned a deaf ear to the suffering of millions of migrant and starving workers, it was very quick in notifying The Epidemic Diseases (Amendment) Ordinance, 2020 under the Epidemic Diseases Act 1897 to address violence against doctors. The media gave wide publicity to the sporadic events of attack on doctors and doctors too threatened through their associations to boycott work during the pandemic if they were not protected. The legislations enacted or invoked embolden the hands of authorities with legal powers; however, it does not hold the State to account for the violations of constitutional rights of citizens, and what the State needs to do more fulfil the rights of citizens during pandemics. Citizens in general, and especially those from informalunorganised sectors are divested of all their social and civil rights in practice. Number of violations such as starvation and malnutrition, inaccessible health care, and nonpayment of wages are the continuing pandemics that people face perpetually in their lives. However, during pandemics the consequences are exposed with intensity. For example, migrant workers do not generally have access to the public distribution system in urban areas which results in starvation during pandemics. Similarly, the 34 For vivid details of the headlines that occupied almost every newspaper and online magazines on the travails and suffering of people in India, pl refer to The Hindu, the Times of India, The Indian Express; online portals - the wire.in, scroll.in, The Caravan starting with 25 March 2020.

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health cards or maternal health cards in India are not portable, and the migrant workers therefore cannot access this care in urban centres. The SCI in India responded too late to the migrant crisis, ordering their free transportation to their hometowns. The key lessons from the pandemic strongly indicate that the courts and civil society have an enormous task ahead to strengthen the crumbling public health and health care systems and citizen rights, lest they should be decimated under the pressure of overload during epidemics and pandemics.

4.5 A Brief Synthesis Number of laws and rules, both in the legal as well as in healthcare institutions, do not favour the deprived-vulnerable-unequal citizens. In addition to the failure of the healthcare system resulting in health care violations citizens have perceived legaljustice institutions as failing citizens causing the perpetuation of the same injustices.35 Occasionally, such protracted frustrations of patients with the health care system in general, spark off confrontations between relatives of patients or survivors and the medical professionals in specific volatile circumstances, resulting occasionally in assaults on health care professionals, both private and public settings. Hospitals also have been ransacked in some instances. Responding to the outcry of medical professional associations demanding a law to protect doctors, several states have taken legal initiatives to address the same. The Delhi government’s health department has issued guidelines to curb assault on medical staff including the provision of a security guard on duty (Perappadan 2016a). Many states such as Maharashtra have succumbed to this pressure and have enacted such laws. Visits to the private as well as public health care institutions in Bengaluru, Pune as well as in Madhya Pradesh, it was observed that doctor’s chambers are attached with a warning to the patients that ‘anyone who ill behaves with doctors is liable for prosecution and imprisonment up to three years.’ These warnings have now replaced the citizen charters of rights displayed in these hospitals earlier. In the circumstances of COVID19 pandemic and the continued assaults on health care professionals, the ministry of home affairs, has brought out an ordinance under the Epidemic Diseases Act 1897, that includes imprisonment and imposition of fine on offenders (The Wire 2020; PRS Legislative 35 In several instances of very gross violations such as the Bhopal Gas Tragedy, the failure of the courts gave them justice even after three decades of the disaster. In 1991 and murder of eight Dalit youth were lynched with axes by upper caste and another youth got killed by police during protests. The Sessions court in 2007 convicted 21 persons to life imprisonment and another 35 others to oneyear rigorous imprisonment. However, in 2014, the High Court quashed the verdict and acquitted all the accused citing lack of evidence. Even after filing appeals in the SCI there is no movement as the public prosecutor is not yet appointed. (Jonathan 2016) In both these cases even after two-and-half decades there is no justice to the victims. In the latter, the perpetrators were let off due to lack of evidence. So also in Narmada Bachao Andolan versus. Union of India, where life and livelihoods of about a million people are affected, the SCI did not take into consideration people’s evidence but went blindly with the affidavits, claims and assurances of the government.

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Research 2020). However, measures to uphold patient rights or to safeguard citizen interest in hospitals are hard to come by. The prevailing procedures for grievance redressal require the suffering patients and the aggrieved to marshal their resources to navigate through the complex hierarchies and bureaucracies of the judicial institutions. The MCI and its state units, purported to regulate medical professionals, are intrinsically hostile to patients and are designed to protect the erring profession. Besides, some parts of the procedural jurisprudence laid down by the SCI itself, has augmented the impunity of the medical profession as seen in the requirement of an expert medical opinion for criminal prosecution of medical doctors. The current institutional framework for health care justice weighs heavily against the health care seeking citizens, especially those from lower and even middle socio-economic classes. It imposes undue burden on them after having suffered, also to pursue the justice which is uncertain and unpredictable. More importantly, the navigation of the maze of adjudicatory institutions is mediated through the legal profession whose accessibility and affordability are a primary challenge for patients in realizing health justice. The lack of regulation and redressal mechanisms have left patients completely helpless against small, medium, and corporate hospitals. The absence of a policy and legal framework is the key challenge that patients face in seeking a substantive health justice, which needs to be adequately addressed for making health justice an attainable goal for citizens. Most of the available redressals are individual-centred in character and scope, besides such practice of seeking health justice being adversarial. The contestation based on the evidence and power of the particular institution, a patient is expected to muster resources to move up the appellate institutions, up to the SCI as the final resort. The derailment of health justice is inbuilt in the prevalent procedural mechanism itself. With the lack of a cohesive legal framework, the uncertainty is quite acute and inevitably gives rise to disparate and ad hoc jurisprudence. A regulatory vacuum, frustration of civil society and state of conflict can jeopardise parliamentary democracy itself in the long run (Shah 2002:25). The health care jurisprudence analysed in chapter three and the justice system analysis in chapter four exhibit a paradoxical and contradictory picture. This is the challenge of SRHC. Therefore, SRHC cannot be deciphered only through a doctrinal framework of jurisprudence. It calls for a deeper power and actor analysis from an interdisciplinary perspective. This is discussed in chapter five through the concepts of health justice triad and the analysis of the limits to jurisprudence.

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Chapter 5

Health Justice and the Dialectics of Power: State, Medical Profession and Civil Society

Abstract Quest for health justice is markedly different from other civil and criminal justice processes. Unlike criminal jurisprudence, it is not a matter between citizens and State alone, or, unlike the civil jurisprudence, it is not solely a matter between citizens and health care providers either. This chapter, through an interdisciplinary lens and the concepts of power, class and citizenship, critically examines whether healthcare jurisprudence, mediated through courts, translates itself into health justice, both in its restorative and distributive dimensions. Building on the analysis of health care jurisprudence, health justice is posited as substantive justice and is the cumulative outcome in the balance and exchange of power between key actors in the health justice triad, viz. the State, medical professions and civil society. Perspectives and concepts adopted from law, public health, sociology and political science, help unpack the complex layers of the exchange and networking of power in this triadic relationship of these actors, and various other actors within each one of them. They provide perspectives to examine the possibility and the limits of transformation of healthcare jurisprudence into the realisation of health justice for the aggrieved and vulnerable citizens. It is further analysed through the consideration of limits to jurisprudence. The discussion on dialectics of healthcare jurisprudence summarises the contestations in the health justice triad in relation to social citizenship, State accountability and civil society demand for the fundamental right to health care.

On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one person one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one person one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up (Ambedkar 1994).

V. R. Krishna Iyer, J., a well-recognised authority on municipal law and constitutional jurisprudence and former SCI judge had noted: ‘no court in the world – not the House of Lords, nor the US Supreme Court put together – has such vast jurisdiction, © Springer Nature Singapore Pte Ltd. 2021 E. P. Pinto, Health Justice in India, https://doi.org/10.1007/978-981-15-8143-4_5

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wide powers and final authority as the Indian Supreme Court’ (Iyer 1987:38 cited in Shankar xiv). In contemporary times, in addition to its Constitutional governance and policy making, vested under the power of judicial review, SCI continues to wield enormous executive power. In some instances, such a power is exercised even in the case of a single litigation. Demolition of apartments in Maradu Municipality in the Ernakulam district of Kerala for the violation of coastal regulation zone rules (2019–20), removal of the dark fibre films on the car glass panes across India (2012), removal of the barriers for women’s entry into Sabarimala temple (2019), closure and shifting out of polluting industries, ordering of CNG in vehicles to reduce pollution, among others, manifest the unparalleled power of SCI, exercised in contemporary times (Mehta 2009). Given such an invincible position of power and as the custodian of the Constitution embedding social justice, the logical corollary to the body of health care jurisprudence should have been realisation of incontrovertible health justice to citizens. Health justice, as posited in this book, is defined as having two-fold systemic attributes relating to health care and justice. The former refers to a robust public health care system, refurbished through health care jurisprudence plugging systemic gaps on the one hand; regulation and socialised private-commercial health care system where patient’s rights are respected through rational and ethical care, provided as part of the ‘duty of care’ jurisprudence laid down for hospitals and medical profession, on the other. The justice system connotes accessible procedural justice mechanisms for grievance redressal of aggrieved citizens seeking health care. Medical injury or morbidity acquired due to medical negligence or irrational care is also a legal injury that necessitates legal remedy. Both together, are conceived to fortify social citizenship through a consolidated SRHC bolstered by the power of health care jurisprudence. Health care jurisprudence, as the body of legal and rational principles laid down by the SCI, operate as the standing law and policy under Articles 141 and 142 of the Constitution of India in the matters of SRHC. In this book we set forth such a jurisprudence as the fulcrum of SRHC, recalibrating the balance of power of citizens or civil society vis-à-vis the State and medical-health care professions that form the other two actors in the health justice triad, besides the State. Having located health justice in the arena of citizenship and prompted by an overarching health care jurisprudence and the claim to social citizenship through SRHC, now we are driven by the key question – has health care jurisprudence laid down through the constitutional power of the SCI, been translated into health justice in India? If yes, to what extent and in what manner? If no, what are the impediments to such a rendition? This research does not seek positivist answers to these questions and acknowledges that such answers are not straightforward. This chapter discusses these questions through an assessment of the character of health care jurisprudence through contemporary narratives of select health rights litigations. Such a jurisprudence and the final systemic realisation of health justice is then discussed through an institutional perspective as the cumulative outcome of the exchange of power between the three key actors, i.e. State, medical and legal professions, and civil society.

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They form the health justice triad and as organisations and institutional actors they are constitutive of diverse competing and contesting interests, placed in mutually thwarting, impeding, or incentivising relationships in varied socio-political circumstances. The chapter ends with a discussion on limits to jurisprudence from an institutional and power perspective. Dialectics of such exchange of power between mutually competing actors and its implications to the systemic manifestation of jurisprudence summarises this chapter in the last section.

5.1 Character of Health Care Jurisprudence A few select cases of contemporary relevance are briefly discussed below focusing on the component of translation of health care jurisprudence into health justice. A litigation attains a life of its own for a period ranging between five and thirty years. It is hardly possible to reproduce the narratives of long court battles of every case or the exhaustive multiple narratives of a single case. The examples discussed below are illustrative and not exhaustive. Case 1: An Employee with Disability in the Public Sector (1971–1996) The case of Regional Director, E.S.I Corpn. v Francis De Costa And Another,1 the case had come to the Supreme Court after 20 years of the incident. On June 26, 1971, the employee met with an accident, hit by the company lorry, leaving him permanently disabled and incapacitated. The regional director of Employees Social Insurance (ESI) Corporation denied any benefits as the accident occurred on a public road. In the claim before the Employees’ Insurance Court under Sect. 75 of the Employees’ State Insurance Act, 1948, the court held that it was an ‘employment injury’ since the injury occurred while on his way to work. On appeal by the ESI, the single judge bench confirmed the findings of the Employees Insurance Court. On the special leave appeal by the ESI, the SCI interpreted the same facts in the light of the Constitutional framework of economic and social justice. The judgment was delivered on May 05, 1992, almost after 21 years after the incident. By this time SCI had gone through almost a decade of transformation in social rights jurisprudence. Justice K. Ramaswamy, who enjoyed a long tenure, formed the link between the period of social rights jurisprudence which marked the period of SCI in the 1980s, and the 1990s. In this case he applied social justice interpretation and ruled that the employee was entitled to ESI benefits, however Justice Jeevan Reddy took a literal and stricter interpretation and disagreed saying the accident had not occurred ‘during the course of employment’. It was then referred to a larger bench. Another bench after 4 years decided the case on 11 Sept 1996, and finally upheld the appeal and said that the employee was not entitled for disability benefits.2 The total course of litigation took 25 years! 1 Regional 2 Ibid..

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Case 2: A Retired IAS Officers’ Fight Against Medical Negligence (1987–2016) In the health care legal battles, this earliest case is hailed as the longest medical negligence case in the history of post-independence India. P. C. Singhi, a retired IAS officer of Rajasthan Cadre had filed criminal and civil petitions in courts and professional misconduct complaint on the alleged medical negligence in the Maharashtra Medical Council against a celebrity and Padma Bhushan awardee oncologist of Mumbai.3 His wife Leela Singhi, a cancer patient, was admitted under Dr. Desai who was a consulting surgeon in Bombay Hospital in 1987. Against the prevailing opinion of the doctors in the USA where she was treated earlier, Dr. Desai, who was earlier the director of Tata Memorial Cancer Hospital, had ordered surgery on her while admitting her under him in the hospital. The surgery, however, was done by his assistant under his supervision and instructions, while he himself did not attend to the patient, though utmost care was required in this case. Due to the surgery, the patient acquired excruciating pain which persisted till her death, 14 months later (Jesani et al. 2004). His conviction in the magistrate court on criminal negligence was upheld by the Bombay HC and was later reversed by the SCI on September 13, 2013.4 Maharashtra Medical Council found him guilty of professional misconduct, which on appeal was confirmed by the MCI, however he was only warned and no disciplinary action was taken against him. In the civil suit for damages, Bombay HC ordered compensation for medical negligence and breach of contract on September 02, 2011. The compensation awarded was about Rs. 15 lakhs for the costs of medical care with interest and Rs 1 lakh as costs of litigation (Johari 2014). Dr. Desai appealed against this and in 2017 SCI quashed this order on the ground of the ‘non-existence of doctor-patient relationship’, a defence he had put up since he did not personally operate on the patient, but had asked his junior to do who was working under his supervision. It was for this very reason, the medical council had found him guilty of professional misconduct and medical negligence. He had admitted Mrs. Singhi as his patient, and under his supervision and instructions his junior doctor had conducted the surgery. In this case, SCI overlooked the evidence of the magistrate court and HC which established the doctor-patient relationship and its own jurisprudence of civil liability for the ‘lack of due care’ established in several litigations.5 The petitioner had incurred over 20 lakh rupees expenditure in the process though assisted by several pro-bono lawyers and civil society leaders, and the petitioner spent 30 years of his precious life battling in the courts. In 2016, the SCI which had pronounced in 2013 (in criminal appeal) that the doctor was ‘contractually bound’ but his ‘negligence amounts to actionable wrong in tort, it does not transcend into the criminal liability’, 3 Padam Chandra Singhi & Ors v Dr PB Desai & Ors. Suit No. 1101 of 1989. Mumbai: Bombay High Court (2011). 4 The State of Maharashtra v Dr Praful B. Desai. April 1, 2003. Cri. L.J. 2033; Dr PB Desai v State of Maharashtra, Criminal Revision Application No. 166 of 2012, High Court of Bombay, order dated October 15, 2012; Dr PB Desai v State of Maharashtra, Criminal Appeal No. 1432 of 2013 (arising out of SLP (Cri.) No. 9568 of 2012, Supreme Court of India, order dated September 13, 2013. 5 Interview with petitioner, Mr. P. C. Singhi, Mumbai, dt. 18 November 2017.

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however, in 2016 quashed the Bombay HC order of awarding compensation to the plaintiff, thus bringing a disquieting closure to a court battle of three decades, the longest medical negligence related litigation known in the post-independence period in India (Deshpande 2016). Case 3: Reproductive Health—Continued Violation of Bodily Integrity in the Public Health Care System (2004–2017) Ramakant Rai and Health Watch UP and Bihar v. Union of India6 was a PIL filed in 2006 by covil sociey organisations, observing the pathetic conditions of crowding women in classrooms and under trees for sterilisation. Several such women incurred infections and morbidity with no after care and sterilisation failures in many women invariably leading to spousal conflicts and marital violence. A detailed quality of care protocol was laid down as policy for conducting sterilisations, which included, for example, that each sterilisation should be conducted at 20-minute intervals, only in the health centres and during the day time. In this case, the states took over two years to file affidavits. The states were initially given two months to file affidavits and each time, on one or the other flimsy ground, additional time was asked, and the court granted it. However, that the State cared a little for these orders was highlighted through mass sterilisations conducted in a school building in Araria district of Bihar in 2012, which was highlighted in the media. In a clear violation of SCI orders in the previous case, women were herded in a hall of a primary school at night where the sterilization camp was held and were made to lie on the floor after sterilisation for a whole night unattended by anybody as the doctors and the district camp team left the venue after meeting their targets. Incidentally, the screams of women at night alerted the people around who in turn alerted the police leading to unearthing the business of organising such camps. One of the women, who was sterilised was three months pregnant.7 The final orders in this petition came in 2017 which directed disbanding of camp method for sterilisations and stipulated it be provided only as part of routine health care services. However, several reports from civil society testified to its continued practice. Even as this petition was in progress, 13 women died after undergoing mishandled sterilization operations performed in Pendari, Bilaspur District, Chhattisgarh in November 2014. Another 70 women were hospitalized in critical condition, 20 of whom were put on mechanical ventilation. The surgeon had conducted 83 tubectomies in six hours, in violation of a maximum stipulated 30 such operations in a day. The government enquiry committee, three separate fact-finding teams and a judicial commission all concluded that the doctor operating on the women had violated all government norms and guidelines for providing sterilisation services and did not take the necessary precautions against infections. The state constituted commission

6 Ramakant

Rai and Health Watch UP & Bihar v. Union of India W.P ( C) No 209 of 2003.

7 Devika Biswas v. Union of India & Ors., Supreme Court W.P. (C) 95/2012; Petitioner-health rights

activist, Interview, Delhi, dt.23 May 2015.

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made no attempt to reach out to the affected people or visit their villages. An advertisement in the papers asked people to file affidavits regarding the case. Husbands who had just lost their wives, and women who had just come out of the hospital, all were expected to travel to Bilaspur several kilometres away, draw up the affidavits, make five copies each and submit them to the commission, all at their own cost. The probes found that number of operations exceeded government guidelines, the place of the operations was not properly sterilised, equipment used were of low quality, and most importantly that medicines given for post-operation care were spurious. The Anita Jha Commission constituted by the government found that the surgeon neither sterilised instruments nor used had-gloves during the operations. The substandard medicines alleged to be the compounding factor in these deaths were supplied by Mahawar Pharma. The judicial commission appointed to inquire into the matter, however, exonerated the surgeon and others after taking two and a half years for the investigation. On February 15, 2017 the Bilaspur HC ordered that all charges be dropped against the main accused in the sterilisation deaths case – the operating doctor, Dr RK Gupta – on a technical ground that the investigators had failed to take permission from the state government to prosecute the doctor who was a government employee at the time of the incident (Ghose 2017). This points out to the fact that ‘generating’ evidence against the State, who is the biggest violator of its own programmes and SC guidelines besides being the biggest litigator, is a challenging task to the citizens. The State also enjoys a great amount of impunity for its unaccountability. What starkly stands out in cases such as this, that issues such as these that concern the lives of the marginalised, do not appear to be the priority for the judiciary. The State too uses judicial procedures as stop-gap arrangements to wriggle out of the situation and as tactics of delay, as seen in the case of sterilisation deaths in Chhattisgarh. Case 4: A Doctor Fights for His Deceased Wife’s Dignity (1998–2017) Dr. Kunal Saha’s wife Anuradha, a child psychologist was treated for skin rashes and she died on May 28, 1998. Doctors at Advanced Medicare and Research Institute Limited (AMRI), allegedly had given her steroids 20 times more than the maximum permissible dosage which led to her death. The couple was based in the USA, and the plaintiff, himself a medical doctor and researcher, took the route of litigations to take on medical negligence.8 Through 19 long years of court battle, the criminal, civil suits and professional misconduct complaint reached the SCI. NCDRC had awarded a compensation of 5 crores which was challenged by the respondents in the SCI. SCI upheld the compensation amount and awarded additional interest which amounted to 11 crores. A complaint on professional misconduct was confirmed by the MCI. However, the West Bengal Medical Council refused to cancel the license of the accused doctors saying the doctors did no wrong. The petition to enforce MCI’s order on professional misconduct in the SCI, however, was dismissed by the SCI.9

8 The

Hindu Oct.25, 2013, testimony by Dr. Kunal Saha in CNN IBN talk show on Oct 25, 2013.. The Telegraph, Saturday, 14 January 2017, p.1.

9 R.Balaji,

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Notably, though a legal provision for criminal prosecution of a doctor causing death of a patient through reckless treatment (manslaughter) exists in the Indian Penal Code (IPC) Sect. 304A for almost 150 years, not a single registered, allopathic doctor had ever been convicted under this law in the history of Indian medico-legal jurisprudence, until 1998. Stationed in the USA, the petitioner, a medical doctor himself, could mobilse resources and expert medical opinion from world renowned pharmacologists on the use of ‘Depomedrol’ and relentlessly continued the court battle in India. In this case two doctors were convicted for criminal negligence,— claimed to be for the first time that the Sect. 304A applied to medical doctors-, compensation was ordered under civil liability and professional misconduct was confirmed (however license to practice was not suspended). The select illustrations from contemporary narratives in India, in the light of preceding discussion in this book, lead us to a few poignant observations in relation to SRHC. While the legal perspectives of courts and jurisprudence have shaped the discussions, we draw some empirical insights based on in-depth discussions with petitioners and lawyers deeply involved in these litigations, and a few judges, on the jurisprudential processes to do a critical analysis of health justice. One, the public health care system has shrunk substantially in its scope and reach; however, being the only source of health care provision for the underprivileged, violations of SRHC continue unabatedly. Such violations have grown both in scale and degree over the years. Two, despite the jurisprudence laid down in a series of cases, courts overwhelmingly continue to treat public health services not as citizen entitlements, but as beneficial acts of the State. Such a paternalistic position has been legally buttressed by at least some parts of the technical-legal approach in jurisprudence that upholds State services as free and hence cannot be technically treated as ‘consumer service’ in the court of law. In such litigations of violations where State is both the alleged violator as well as the respondent in the court of law, despite having robust evidence for such violations, the claims for health justice are derailed through the maze of juridicolegal procedures, anomalies in the jurisprudence itself, and the inherent institutional resistance in the State machinery. Three, the private-commercial health care sector, which accounts for over 78 percent health care provisioning in terms of out of pocket expenditure for health care, is an arena where medical malpractice, unethical and irrational practices, and gross medical negligence are increasingly reported. Being private institutions, they are outside the public law jurisdiction, and without a regulatory framework, it becomes virtually impossible to get justice for patients in the court of law. Four, the jurisprudence laid down by various courts (read as benches) is not harmonised in the court/s as a legal institution. It is profusely marked by subjectivity, incoherency, and individualized imprint of judges. Besides, it reveals gaps that exist in the jurisprudence process itself. Benches of equal strength in the same judicial institution lay down two contradictory and divergent principles in a similar matter. Matters not being further decided by a larger bench to give it a finality, travesty of justice looms large over future litigations, expanding further, the scope for judicial subjectivity.

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These observations drawn from illustrations of contemporary narratives in SRHC resonate with the experiences of citizens despite a promising health care jurisprudence as synthesised in this research. Despite a series of litigations, setting right health system mechanisms to provide health care as a right, seems to have made little progress in India. The character of the body of knowledge laid down as health care jurisprudence does offer some cues to the challenges that are integral to transforming such a jurisprudence into health justice. Subjective—Individualistic Jurisprudence The contradictory orders, as illustrated in the matter of termination of pregnancy in the matter of rape of minors, adhocism and inconsistencies in the process of litigations (such as posting of matters, adjournments, prioritising of cases or abrupt dismissals and closure) and judgments, within the same court, or across the hierarchy of the litigation process, innately echo an individualistic and very subjective imprint of the judges. One litigant-petitioner who fought the court battle on medical negligence almost for three decades, narrated that in the HC of Bombay, a single judge initially heard and admitted that there was medical negligence and later during the course of the case, acquitted the respondent doctor.10 On a review, a divisional bench confirmed medical negligence. Parallelly, MCI had held the doctor guilty of medical negligence earlier and hence the doctor-patient relationship was established in the same case. When the respondent doctor appealed against the HC verdict, SCI dismissed the petition for compensation on the grounds that there was no doctor-patient relationship between the respondent doctor and the deceased wife of the original petitioner (Case 2). It is also seen in some instances that the same litigation acquires an altogether different trajectory depending on the interest of the judges.11 Some petitionerrespondents narrate that there is a marked gap between sympathy or outbursts of judges displayed in open court in some matters, and orders that are issued which are sometimes found to be vague. Petitioners tend to suspect some foul play as a reason for such a turnaround within a few days, or during the course of adjudication.12 In an interview with a retired HC judge, a member of the ethics committee in the National Law University of Hyderabad, this matter was discussed in depth as to why in cases having similar facts and circumstances, at times, contradictory or dissimilar 10 Petitioner,

Interview, Mumbai, dt.24 August 2016, see Case 2, above. seen in CHARM v. State of Bihar, the petition dealt with accountability of health ministry, implementation of the project, spending of NRHM and budget, status of PHCs under different benches. However, finally it was disposed off by another judge after five years without any substantial effect.. 12 Respondent petitioners P8 & P9, from Bihar and Karnataka, respectively, often alluded to how the judge was agitated in the courts. The latter gave an instance of the case where the private NGO approached the court against the government of Karnataka’s move to take back the PHCs lent to this NGO as a PPP model. The judge questioned the NGO that it was not their fundamental right to run the PHCs and the government was all in its powers to take back the PHCs. However, at the next hearing and when the order came, the judge had changed his tone and the order too was more of asking the government to negotiate with the NGO, rather than endorsing the government notification of taking back the 27 PHCs.. 11 As

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judicial outcomes are seen even when there is a substantial jurisprudence laid down as the cases of maternal deaths. He affirmed that benches are constituted of individual personalities of judges and these benches constitute courts. Consequently, the jurisprudence and interpretation significantly reflect the approach and perspectives of individual judges rather than the perspective of the overarching institution of the court. On further probing, he also candidly admitted that the court does not function as one cohesive institution.13 The judges, by virtue of their legal discipline are comfortable with adversarial litigations in most of the fields of litigation. Social rights are intersectoral and multidisciplinary matters. The facts and circumstances infringing these rights are complex and most importantly they affect many citizens drawn from the disadvantaged citizenry, hence they are of public interest. Judges interviewed admitted that the orientation to social rights jurisprudence is minimal in judicial academies. Petitioners and lawyers opined that the PILs invariably take an adversarial form in the courts when the State takes a very defensive stand on the matter. Unless the State cooperates in these cases in the original spirit of social action litigations which intended systemic reforms, the outcomes can be hollow. The judiciary often allows such a conduct of the State. Reductionist Jurisprudence The character of reductionism in jurisprudence is construed in two ways. One, matters of social rights which are systemic in nature and have implications to the life of the underprivileged in general. In these cases, during the course of the adjudication, judges only deal with some select prayers and lose sight of the larger purpose of PILs.14 Unlike the individual writ or litigation, in a PIL, the prayers include those that are oriented to policy or systemic reform. For example, in drug pricing case,15 there were several prayers towards making access to medicines as a part of SRHC. However, through the frequently changing chain of benches that this petition traversed in SCI, the judiciary focused only on drug pricing issue, which too was finally not resolved. There are a few exceptions such as the right to food case16 in India which looked at all the policies and implementation frameworks of food and nutrition intersecting food distribution system, ICDS centres, midday meals in schools etc. Two, when individual cases come such as maternal death or rape, the judiciary loses sight of its systemic context behind such a case. Interviews with litigants and opinions of experts poignantly point to this obsession of the judiciary of simplifying and individualizing issues of justice in health care by reducing the entire complex petition to simplistic prayers and then focussing on a few of them. Such a simplistic 13 Interview

with the retired HC judge (HC of Madras and Hyderabad), Pune, 14 January 2017. Interview, Patna, dt.28 May 2015; An advocate-respondent shared how it is important to keep litigations very simple and prayers very distinct and clear to get orders from the courts. The moment the petition is long and complex, the judiciary tends to disregard it. 15 AIDAN v. Union of India WP (C)423/2003. 16 PUCL v. Union of India WP (C) 196 of 2001. 14 Advocate,

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approach, ignores and undermines health rights violations that are inherent in a malfunctioning system resulting in deaths and suffering. Courts invariably have considered them as disparate and individual episodes without trying to see them as stemming from a class-caste-patriarchy based societal structures.17 Veena Das (1996) while referring to the issues of mass rapes in conflict situations, questions judicial silence and their focus only on individual cases of rape while letting pass the bigger perpetrators of violence. Rape is an illustration of a patriarchal systemic malaise which the judiciary loses sight of. In addition, the rules of the courts have only favoured individualised justice and have demanded the stringency of evidence, giving benefit of doubt to the accused. The State is the prosecutor in crimes and the evidence provided by the prosecution is shoddy and leads to the miscarriage of justice for women survivors. Negative and Regressive Jurisprudence The power of precedent inherent in the SCI orders—and HC judgments applicable to their respective jurisdictions—forms the basis of authority invested in jurisprudence. Positive judgments founded on this power lay down new laws and legal precedents. The domains of health care analysed earlier portrayed that progress of the jurisprudence is not uniform across domains and is not consistent in different sub-themes within a single domain itself. Further, the dismissals and adverse judgments are a setback to civil society and litigants in the usage of courts for social rights and a regression for social rights itself. Negative judgments are said to generate regressive policies in the country and impede civil society in further accessing courts in such matters. Consequently, this creates a setback to SRHC. The judgment, in Javed v. State of Haryana, for example, endorsed the government notification on not having more than two children as an eligibility criterion to contest Gram Panchayat (GP) elections as not violative of fundamental rights of citizens. It virtually closed the door for challenging the twochild norm-based population policy any further (Pinto 2016). Similarly, the petition on rotavirus and combination of vaccines was dismissed in the Delhi HC, this reduced the possibility of challenging vaccine related policies. The jurisprudence in Jacob Mathew v. State of Punjab made medical opinion mandatory for criminal prosecution of doctors and is said to hinder litigations in matters of gross medical negligence. Such judgments have made it quite difficult for patients to prosecute doctors and hospitals even in cases of criminal negligence. In several issues related to the rights of citizens, occasionally SCI orders cause temporary setbacks on health care matters. SCI order on HIV positive persons as not having the right to marry caused a flutter for some time. It was reversed by the SCI later. The judgments of the SCI on upholding the constitutionality of IPC 377 (issue of criminalising homosexuality) was debated widely and temporarily created 17 Various PILs include the mention of gross numbers which corroborates the systemic failure—e.g.

29 maternal deaths in the district of Barwani (Madhya Pradesh), 23 deaths in sterilisation camp in Chhattisgarh (2014), deaths of about 8000 odd people in clinical trials during (2005–15), about 40,000 avoidable maternal deaths annually and 10,000 odd hysterectomies..

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a furore in the civil society. This was later reversed by a constitutional bench in a curative petition in the SCI. Contested Jurisprudence The contested nature of judicial space exhibits and unfolds itself in different ways such as its relationship with the different class of litigants, the nature of judgements, and the priority it assigns to the issues of social justice and social rights. The courts are contested spaces. The violators in social rights are powerful actors such as the State, corporate hospitals, doctors and their associations, and pharmaceutical companies. Such actors too use courts to scuttle the processes of SRHC. The pharma industry, for instance, employs several legal firms that access courts to seek injunctions on government orders or policies such as banning the 344 FDCs. Courts too have indiscriminately used their power of injunction and stayed such government move on technical grounds at the intervention of the pharma giants, disregarding the substantial jurisprudence laid down by the SCI on right to health care and affordable medicines.18 Several pharma companies used the power of injunction of HCs to stay the NPPA orders on drug pricing. In tobacco related matters, for example, there were about 58 anti-tobacco regulation litigations that were filed by various companies.19 Similarly, institutions and private-commercial hospitals are seen to use the power of writ to stay bureaucratic orders which go against the interest of hospitals.20 The State too uses litigations as an excuse to halt any policy initiative or relief for the victims. In the cases of clinical trials and silicosis, during the pendency of the cases, the governments did not take any action by way of relief considering the matter to be sub-judice. The courts passing orders without any thought for enforcement of strengthening the system and passing orders without assessing its impact on the health system is stated to be problematic (Langford 2008). An assessment of the nature of orders obtained through this contested process and their impact on social rights much depends on the issue that is contested and the impact of such an order on social rights. The injunctions sought by pharma companies on the order banning FDCs through vexatious litigations, for example, scuttles 18 Pfizer Limited and Ors v. Union of India and Ors, WP (c) 2212/2016, Delhi High Court Order dt. 01 December 2016. 19 Consortium for Tobacco Free Kids (CTFK) uses legal strategy as an important public health measure to counter the tobacco industry’s clout by using law for regulating them. In India, in the regulatory measures on pictorial warnings and 85—25 space on the cover, the tobacco industry has filed over 53 writ petitions in various high courts of India. The SCI has recently directed all these writ petitions to be heard in the High Court of Karnataka in Bengaluru. (Discussion with Nandini, CTFK, New Delhi on 7 September 2016; Discussion with Dr.Upendra Bhojani, petitioner in Institute of Public Health v. Government of Karnataka, on the issue of Karnataka HC’s stake in adjudicating tobacco cases, dt. 28 September 2016 and 15 April 2017). 20 This is the case of Geetha and Mahesh, Bagalkot district, Karnataka, agricultural labourer family who got their first child after several years of treatment. The child died due to lack of care in the private hospital. Under Karnataka Private Hospitals Management Act (KPME), a penalty was imposed on the hospital, over which the doctor brought an injunction from the Dharwad bench of the Karnataka HC. The aggrieved parents could not further fight the litigation due to lack of resources.

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the availability of life-saving medicines for people. However, in some litigations on contemporary issues, such as claims for patents, maintaining the status quo or dismissal of the petition impacts social rights positively as discussed in Novartis (Gleevec) case. The contrary would mean a regression in access to healthcare. In the discontinuation of vaccine production by the government of India, the writ petition prayed for restoring status quo ante, i.e. the production of vaccines by the public sector. Hence, it is argued that understanding the contentious nature and an assessment of the health systems and its various policies is an important factor in jurisprudence (Yamin and Gloppen 2011: 335–6). Ambivalent, Incoherent and Ad-hoc Jurisprudence Of the ten health care domains that are examined (Vide. Chap. 3), except for emergency care and health care of social elites, the jurisprudence laid down in all other domains appears to be inconsistent, patchy, and incoherent. The litigations in the themes of drugs and medicines and the ensuing jurisprudence, for example, have seen a roller-coaster journey for almost four decades in SCI and HCs. The Gleevec Patent case against Novartis upheld the constitutionality of Sect. 3(d) of the Indian Patent Act 1970. However, other litigations on irrational and hazardous medicines had only symbolic value of initiating a legal discourse. The drug pricing case (2003–2017) put the government on back-foot while it was promoting a pharma-friendly policy. However, the government increasingly promoting commercialisation in health care has been steadily toeing the line of the pharmaceutical industry and has shown least interest in favouring people friendly policies in medicines. The central government was even mulling of dismantling the institutions such as NPPA that implements the DPCO which makes medicines affordable to people (Srinivasan 2016). In several litigations of utmost implications to people’s life and livelihood, such as mega projects and dam constructions, the Apex Court cited that it does not want to interfere with the State’s policy. However, such a line of thought was not consistently followed in several litigations such as environmental litigations. Jurisprudence that plays out in India on social rights, often, is not very straightforward or direct. It can be best described as symbolic, inconsistent, uncertain, and multi-layered (Coomans and Universiteit Maastricht 2006). The body of knowledge emerging from the litigation process, known as ratio decidendi (in Latin, the ground or reason of decision) vested with the power based on the doctrine of precedent, forms the core of jurisprudence. The accumulated court knowledge is deemed to help future litigations to arrive at a quicker resolution of the problem along with contributing to the growing jurisprudence. However, Indian court jurisprudence provides slightly a different picture as discussed in this section. The orders of the apex courts and other judicial bodies, even when they are in favour citizens, do not reveal the challenges entailed in accessing these institutions, drivers of these petitions, contexts, manoeuvring that is involved in court processes, relevance of outcomes vis-a-vis the prayers in the petition, and a realistic translation of the orders into realisation of fulfilment of rights of citizens. Such a paradox between the presumed unbounded power of jurisprudence in theory and its finiteness in realisation can be better understood in the limits to jurisprudence itself.

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We examine this through the health justice triad in the next section, employing both power and institutional perspectives, followed by a discussion on the limits to health care jurisprudence.

5.2 Health Justice Triad and Power At the heart of litigations lies the deployment of judicial power for redressal or the claim for reinforcing rights, especially when other institutional measures such as grievance redressal mechanisms either have failed or are non-existent. The process of interpreting the Constitution in the case of interpreting fundamental freedoms and liberties results in health care jurisprudence, an outcome which is an instrument of power. These lay down policies and principles, and in some occasions prescriptive mechanisms, deemed to affect the behaviour of the health system and health care providers. At a macro level, they are intended to affect not only individuals by way of redressals to their grievances, but citizens in general in terms of health justice. In the case of clinical trials in India,21 the SCI ordered institutionalising ethics committees through registering them and video recording of consent of patients agreeing to be part of clinical trials. The citizens of the entire country stand to benefit from such a policy prescription. Power is central to analyse health justice in its relationship to citizenship, the policies of the State and the mediation of courts. An aggrieved citizen or civil society leader in public interest of health justice intends to leverage this power for the realisation of health justice. However, this quest for health justice is pursued through the complex, tedious, protracted, indefinite, uncertain, obscure, and mystifying processes of the maze of judicial institutions. The outcome could often be very unpredictable. Even the successful outcomes of a painstakingly long litigation process often face an unpredictable and uncertain future regarding their implementation. The perceptions of petitioners, a systemic analysis of the orders and the assessment of the character of jurisprudence point to severe constraints for the realization of jurisprudence into systemic impacts, seen in terms of both the restorative and distributive justice measures. The analytical considerations on ‘limits to jurisprudence’ lend some clarity to such phenomena. We use the inter-disciplinary lens of political concepts of power and institutional perspectives borrowed from sociology of organisations for the analysis. We will decode the limits to jurisprudence through the relative and graded exchange of power between key actors, viz. State, professions, and civil society, considered ‘health justice triad’ in this book. Each of them is assessed through the perspective of an organisation. Health care itself is a complex bundle of various interrelated and complementary services, obtained through numerous inter-dependent health care professionals. Unlike other goods and services, they cannot be directly consumed, and hence are invariably routed through the expertise of medical professionals, even when the State 21 Swasthya

Adhikar Manch vs. State of Madhya Pradesh.

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provides it. Such inevitability of the medical profession (here, medical doctors’ power of prescription) has prompted Ivan Illich to refer to them as ‘instrumental consumers’ those who mediate the consumption of medicines and health services as goods and services. Hence, SRHC is a claim for the equilibrium of power between State, medical/health care professions and citizens. Health justice seeking process involves the interface of plurality of actors such as the State, medical and legal professions, and civil society alliances. For obtaining redressal, posited as one of the key components of health justice, citizens depend on the legal profession (both Bar and the Bench) and on doctors for medical opinion, implying the involvement of the triad of actors, viz. State, professionals and civil society. Hence the bundle of these three key actors and the exchange of power between them form a ‘health justice triad’ to offer deeper insights into health justice. Drawing from such institutional analysis, in the latter part of the discussion, we shall discuss limitations in the domain of SRHC from the perspective of institutional failure. Keeping the institutional perspectives in mind, we define health justice, from the citizenship perspective as, Reordering the relationship of citizens seeking health care vis-a-vis the State, health care system (including medical profession) and justice system (including legal profession), aimed at realising substantive equality and dignity for all citizens, and the social right to health care, through institutional and systemic mechanisms protected through the Constitutional framework.

The literature on institutionalism shows a diversity of theoretical constructs such as rational choice, and historical and sociological institutionalism. Institutionalism emphasises the critical role institutions play, various functions and tasks they perform through actors and mechanisms impacting and shaping the society, offers explanation for institutional stability and institutional change (Kapur and Mehta 2007; Thelen 1999). The paradigm of institutionalism has drawn much attention after the 1980s. However, it draws insights from various disciplines, political and sociological theories developed in the last two centuries. Institutions can be treated as variables to offer explanations to the phenomena. On the other hand, institutions can be treated as objects of explanation itself focussing on the actors to explain the institutions (Kapur and Mehta 2007). Institutional perspectives dwell on the historically and empirically informed analysis of the reality (institutions) rather than the logical philosophy and rationalising alone. Institutional theories dwell on the aspects of social structures of organisations and processes by which structures, including schemes, rules, norms, and routines, become established as authoritative guidelines for social behaviour (Barkanov 2016). Drawing insights from this basic and select discussion on institutionalism and sociology of organisations in the analysis, we construe key actors in health care jurisprudence, viz. the State, professions, and civil society, as institutions/organisations. Health care jurisprudence is an outcome of protracted negotiations with various juridico-legal institutions which are hierarchically organised. State is the largest litigator and its organisation is constructed as being constitutive of three equals

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but mutually restricting institutions, i.e. the legislature, executive and the judiciary. Society and democratic functioning are carried out through roles, functions, and tasks of a diverse range of institutions that include administrative machinery, prosecution and investigation agencies, regulatory authorities, judicial institutions, commissions of inquiry, etc. In such an institutional arrangement, health justice, the substantive outcome of SRHC and health care jurisprudence, appears to be the cumulative outcome of the competing actors, exchange of power between and amongst them, and the institutional processes. Sociological and political concepts from the theories of Max Weber, Karl Marx, and Antonio Gramsci offer insights for a cogent and cohesive analysis of the nature and functioning of these actors in the health justice triad. The scope of Weber’s sociological work cuts across various disciplines such as religion, economics, politics, law, and art. Weber articulated bureaucracy, power, authority, control and dependency, roles and rules, stability, and legitimacy, among others, as the key defining features of organisations. Describing organisations as ‘involuntary associations’ he conceived power as inherent in the structure of the organisation providing it stability and legitimacy. He distinguished authority from power and qualified it as rational-legal (based on rules), traditional or charismatic. Charismatic authority is explained as inherently transient, and as it becomes routinized, the traditional or rational-legal forms of authority take its place. With routinization, social relations and interactions become increasingly regular, predictable, and impersonal. He identified church and the State as the dominant institutions in the nineteenth century. In contrast to Karl Marx, in discussing the State and bureaucracy, Weber theorizes the political realm (such as the State) as autonomous from economics and ideas. The macro sociological theory of institutions that posit institutions as independent and non-epiphenomenal variables are traced back to Weber (Salomon 1935; Donaldson n.d.; Lammers and Garcia 2017). Weberian insights on organisational sociology provide a theoretical backdrop to conceive the key actors of health justice as organisation/institutions. Marxian perspective of power renders an analysis of the power structures of society based on the concept of class. The production and reproduction of societal structures happen through the reproduction of class. Class relates to the ordering of relations within a State founded on economic relations of production (economic resources). He explains through his dialectic materialism the exploitation and alienation of masses and posits power struggle between the classes as the means to change societal structures (Wielenga 1991). Kothari (2002) has lucidly applied the concept of class to explain Indian society and its politics. He refers to ‘classes’ as applied to the ruling classes and ‘masses’ to refer to the working classes. In this analysis we refer to the class character of actors (State, judiciary, and professions) to mean dominant powers determining health care jurisprudence and health justice. In a Gramscian sense they belong to the ruling or political class. Similarly, the under-privileged and the marginalised are referred to as ‘the masses’ in a Marxian sense. The Gramscian perspectives of ‘hegemony’ and ‘power’ complement the Weberian views of hierarchies and authority and the Marxian concept of class in positioning the third key actor in health justice, viz. civil society. Gramsci’s political theory of

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State and civil society was formulated in the backdrop of repressive totalitarian regimes. His political theory conceptualised civil society as the contested space of hegemony and counter-hegemony, simultaneously. The theory of civil society, propounded by Antonio Gramsci on counter-hegemony in his Prison Diaries (Notes) locates civil society between the State with its laws and capacity, and the economy (Katz 2007; Gramsci 2006) He posited liberal State as the domain of the bourgeoisie to maintain their hegemony through the rules of the game which they establish and maintain through the manufactured consent of the civil society. As a critique, he envisaged civil society also as the counter-hegemonic space whose role is to change the ‘forma mentis’, the orderliness of the ruling classes (Buttigieg 1995). Subordination is not maintained due to the coercive power of the State alone, but also due to the (manufactured) consent that hegemonies create which makes the civil society collude with the political society to keep certain hegemonies aloft and control the State. Gramsci includes civil society as a network of a wide range of non-coercive institutions–structures and outdoor activities to the State, the market, trade unions, schools, professional, educational, and cultural associations, parties, and churches. This is where, in dialectics, the hegemonic social order is maintained, but also operates as the space of social creativity, where a new social order can emerge. Considering professional behaviours and the ordering of relations within professions in relation to power and authority, we can conceive professions as social organisations (Fligstein 2008). Since the 1950s, sociological theorizing of professions has laid the path for conceptual approach to professions, and the medical profession is often proposed as an illustration. Parsons (1951) viewed professions as central to the smooth functioning and stability of modern societies. Various functionalist and power perspectives have elucidated on the behaviour of professions as social organisations (Mannion et al. 2019). Authority, hierarchy and the circulation of power within the professions provides this research a historical as well as organisational analysis to unpack influence, authority and power that the legal and medical professions exert on the other two institutions—State and civil society—, and between themselves (Weber 1978). Three key actors of the health justice triad – State, professions, and civil society – in themselves are constitutive of plurality of actors, both individuals and organisations. We apply the basic feature of institutions drawn from institutional perspectives to these actors in a liberal (loose) sense, i.e. they often compete with each other, set bounds on other institutions, structure incentives for actors within society, provide mechanisms for coordination which either enable or impede each other (Kapur and Mehta 2007). These along with the theoretical concepts briefly discussed above will form the lens through which we now attempt to decipher the contours of graded and relative exchange of power between these key actors in the ‘health justice triad’.

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5.2.1 The Actors in the Health Justice Triad The analysis of health justice seeking process, viz. the litigation process, demonstrates the dialectics of power between three key actors, viz. the State (as represented by the judiciary, the arm of the State apparatus), the legal and medical professions, and the civil society/citizens. The petitioners are often civil society actors/citizens, and the respondents are the State and its instrumentalities especially in public interest litigations and medical professionals or health care institutions in private litigations. Both the petitioners and respondents are represented in the court by their legal counsels. Often, the medical profession is the invisible party implied as integral to and responsible for the violations of healthcare rights that citizen’s experience. The analysis of the determinants, character, and limits of such an interface, portends the complexity involved in the process of health care jurisprudence and health justice. The exchange of power unfolding during the process of health care jurisprudence between the key actors, viz. the State, citizens and the two key professions (legal and medical), in themselves being a plurality of competing institutions, explains the complexity involved in the health justice process. The character of exchange between the three, and within each of the constitutive institutions, depict tensions, ambiguities, contradictions, and paradoxes in the complexity of their relationships. Figure 5.1 depicts this triadic relationship. State is a political as well as a legal entity and an autonomous organisation. As a political entity it is vested with power and authority to implement the Constitution. As a legal entity, it can sue and can be sued and hence, is the largest litigator and an inevitable party to most of the health care litigations, barring the civil litigations which

State -Judiciary

Medical & Legal Professions

Civil Society

Fig. 5.1 Health Justice Triad Legend: The width (thickness) denotes the intensity of the power and influence exerted The direction—denotes the direction of power (power over) or influence. Source Author

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are purely of a private nature. State consists of a myriad of institutions that include states (territorial jurisdictions/provinces), subordinate executive and administrative institutions, body of elected representatives, governance institutions including gram panchayats, ombudsman bodies and accountability institutions. Judiciary, on the other hand, is an arm of the State and is the custodian of the Constitution. While being the organ of the State, it is vested with the responsibility and power to safeguard the balance of power between other organs of the State too. Paradoxically, however, the judiciary is appointed by the executive and its survival as an institution is contingent on the executive and the legislature. Professionally, judiciary – represented as the bench in litigations—, is the intrinsic part of the elite legal profession, wherein the bench and the bar relationships are closely interwoven in the functioning of the juridico-legal institutions. The Courts themselves are institutions that can sue and be sued. Functionalist perspectives attribute to the medical profession an important benign social role by virtue of their esoteric knowledge and expertise that is used for the benefit of society. Contrary to the claims of ‘altruism’ by the medical profession or such a perception by others, the ‘power’ perspective focuses on the privileged position of the medical profession in the society. Their high ethical standards to justify selfregulation and institutionalised protection from competitive forces is argued to be emanating from their self-interest and the motif to engage in self-serving behaviour (Mannion et al. 2019). The elite medical profession—which includes individual medical practitioners, medical associations, and a large network of varied health care related institutions—is at the centre of all health care litigations. Various medical and health care professionals also play the role of health and medical bureaucrats in the vast health care service delivery of the State, while some of them also exercise quasijudicial functions in the professional self-regulatory bodies such as medical councils. In medico-legal cases that include the instances of sexual assault and rape, domestic violence, medical termination of pregnancy (in the instances of pregnancy of minors and rape survivors) and, forensic cases the profession operates like forensic experts whose medical opinion forms the basis of the judicial interpretation. Misplaced or manipulated expert opinion can lead to the derailment of justice for the concerned citizens.22 In the triad of actors, citizens belonging to the ‘masses’ as differentiated from the ‘classes’ represent those belonging to underprivileged sections such as the unorganised sector and working classes. They form the weakest entities wielding the least power vis-a-vis State and elite professions. Citizens as patients or health seekers are the most vulnerable and are positioned in a relative disadvantage in negotiations both as poor by class and vulnerable in power against the health care providers or justice negotiators. Though as individuals they are weak, their power is reinforced through civil society coalitions and networks. We consider civil society too as an organisation 22 In a unique case that this research chanced upon, an accused was jailed for several years on charges

of murder in a squabble between the two of them. The other party died in the hospital, allegedly due to the murderous assault of the accused. However, it was later proved that the person died due to medical negligence and not receiving timely and adequate care.

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in this research. Civil society is stirred into action through several leaders at diverse levels in civil society formations, and we refer to them as ‘organic intellectuals’ in Gramscian terms who mobilise civil society as a countervailing power against the hegemonic political society. Health care litigations also unfold the character of organic intellectuals in manifold ways. They are part of progressive civil society organisations such as rights based non-profit organisations, trade unions and mass movements, who envision litigations as part of the anti-hegemonic struggle. Civil society coalitions who relentlessly fight the court battles challenging the violations typify Gramscian ‘civil society’ waging a counter-hegemonic struggle against the oppressive State and its hegemonic institutions. The account of violations of health rights and dignity of vulnerable citizens along with the barriers they encounter in finding redressals, reflects the collusions of civil society members and political society that Gramsci speaks of. The corporate nexus of medical professions, and anti-people policies reflect the collusion of the elite professions with the political society. The judiciary as an arm of the State reflects the hegemonies of the State itself. The character of litigations, especially those in the post-2000, in a similar way anecdotally symbolize the fragmented civil society as demonstrated by the ad hoc nature of litigations that are disengaged from the civil society struggles and a patchy jurisprudence that developed appearing to be inconsequential without a serious follow up by the civil society. Each of these actors in their relationship of exchange of power is discussed below.

5.2.2 State, Judiciary and Class State is not a monolithic structure but reflects a multi-faced reality in its making and functioning. It operates through a wide and diverse range of public institutions which include executives, legislatures, courts, police, regulatory authorities, bureaucracies, commissions of inquiry, independent statutory bodies, and so on. Health care litigations reveal a three-fold profile of the State. One, State as a political entity defined in Article 12 of the Constitution, which within the framework of the Constitution bears the character of the welfare-state. It is this part of the State that is the respondent when civil society sues it for breaching its contract with the citizens. How the State positions itself in the court reveals its character. As respondent in PILs, the State also is the executive, vested with the duty to implement the orders and give expression to the jurisprudence laid down. Laws, rules, and regulations are fundamental to such a functioning of the State. In modern jurisprudence, rule of law, is pointed out to be the core feature of a democratic nation-state and an essential feature in the balance of power between the constituent institutions (Mahajan 1987). The second but interrelated aspect of this profile is that the State is the litigator and prosecutor, as is seen in health care litigations of criminal nature (medico-legal cases, issues of prisoners, psycho-social disabilities, etc.). However, it is an executive wing of the State, viz. MoHFW, for example, which is the party to litigations in courts.

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The State as party to the litigations is officially represented by the attorney general, solicitor general or additional solicitor generals (in the SCI). In HCs, the State is represented through advocate general or additional advocate generals. Similarly, in criminal investigations, the public prosecutors represent the State on behalf of victims or survivors in trial courts. It is the approach and position taken by the State and the nature of their representation is of utmost importance for these petitions. Such a position is informed by the prevailing policy direction of the government and the predominant character and orientation of the State in each socio-political context. As the narratives of petitioners and advocates indicated, even in matters of public interest concerning social rights of citizens, the State invariably takes an ‘adversarial’ and hostile position with the intent of defeating the PIL. The courts thus became the contested spaces where the interest and rights of the marginalized face the risk of being defeated. Petitioners had to work hard to mobilise evidence and media to build up a favourable environment. In addition, in almost all the cases, the litigations on the interests of the poor, was hardly a priority for the State and the judiciary. The third facet of citizens’ experience of the State experience in their encounter with the judiciary is of a powerful arm [of the State]. As the organ of the political State, judiciary (and judicial institutions) mirrors the State for citizens in this interface, apparently on a level playing ground through the litigations, where the citizens represented through the petitions enjoy a hypothetical equality with the respondent, viz. the State. Democratic State is about governance and interface of mutually influencing institutions (Kapur and Mehta 2007). Courts play a critical role in streamlining governance in a democratic liberal State, where the rule of law is deemed to be the guiding principle. As a nation, India ranks low in the rule of law index describing allegiance to transparency and accountability in governance. The effective rule of law presumes transparency and accountability of the government and its institutions, reduction in corruption and protects people from injustices and underpins human development, accountable governance, and respect for fundamental rights (World Justice Project 2015). India ranks 59 among 102 countries assessed with 0.51 score, whereas some South Asian countries such as Nepal and Bangladesh rank higher than India (World Justice Project 2015).23 Health care litigations and jurisprudence analysed in the research point to two key elements which are of relevance concerning the character of the State. One, the predominant character of the State which has an overwhelming influence in determining the character of the jurisprudence itself in social rights. Two, judiciary (and court institutions), as organ of the State apparatus and as an institution mirror such a character. Concerning the former, the domain of health care amply reflects this in various policy related violations. On the one hand, State has actively pursued policies of 23 Even among the lower middle-income countries group in which India is classified India ranks much lower than other countries such as Georgia and Philippines. The Rule of Law index assesses a country on 9 key criteria or factors each of which is based on certain sets of sub-factors—Constraints on Government Powers, absence of Corruption, open Government, fundamental Rights, order and Security regulatory Enforcement, civil Justice, criminal Justice and informal justice.

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privatisation and commercialisation, and on the other, it has overlooked malgovernance, malpractice, irrationality and violation of ethics in core areas such as medical education, private health care provisioning, clinical research and provisioning essential drugs-medicines (Baru 2005; Qadeer et al. 2001, 2011b; Qadeer and Council for Social Development-India 2015). The withdrawal of the State from its provisioning and financing as well as regulatory functions in health care, as reflected in the budgetary allocations and expenditure, has adversely impacted the SRHC of citizens (National Health Systems Resource Centre 2016). In a sense, it is the failure of democracy itself operating through multiple democratic public institutions (Kapur and Mehta 2007). Kothari (2002:68–90) locates these institutional failures in the changing nature of the State, the betrayal of the masses (the poor), the capture of the State by the social-political elites, and all together represents a State which has failed the masses. The elitist and class character of the State and its ever-changing shades under its allegiance to the neo-liberal economic framework has often been at loggerheads with the vision of social citizenship, including the realisation of SRHC. Such a shift in the character of the State is experienced by vulnerable sections in the multiple and multifarious violations of right to health care on account of the policies that adversely affect them. Such violations that are seen as derailment of justice in health care, ranging from the lack of services, rude behaviour, lack of health personnel, dysfunctionality of the health centres, and corruption in the public health service system to the unethical and irrational care, negligence and exorbitant expenditure for medical care in private health care institutions. The abdication of its welfarist role by the State is found to be the root cause that necessitated litigations in India. Concerning the latter, it is apt to note that in India, the politics that shapes these institutions and the laws of governance are characterised by structural factors, inter alia, of caste, class, and patriarchy. As an institution, through its multiplicity of institutions, policies and programmes, the Indian State depicts a patriarchal, bourgeoisie and capitalist class bias. State being the respondent and executive is mandated to implement the orders laid down in jurisprudence. However, analysis indicates the gaping hole in implementation of the jurisprudence that is laid down. There have been commentaries on such a dominant class character of the State and the interest such a State intends to safeguard (Shah 2002b). The weakened public health care system, non-enforcement of the protocols laid down as seen in reproductive health litigations, complicity of the State in violations such as clinical trials and taking on an adversarial and hostile position in PILs causing delay and derailment of litigations, significantly display the disinterestedness of the State in the affairs of the marginalised. Several existing laws and institutional mechanisms carry gender-biased prejudices such as two-finger test to validate penetration in the case of a rape survivor in which the State took a conservative stand in favour of the continuation of two-finger test for a long time. Some laws and jurisprudence laid down having a potential for reform (for example, CEA 2010, PCPNDT Act 1994) have not been enforced. The position of the State on IPC 377 on criminalising homosexuality case also reflected State hostility towards the issue of homo-sexuality for over a long time. The litigation process and interviews, vouched for the disinterestedness, shoddy implementation,

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and resistance to policy feedback on the part of the State. This poignantly illustrates that the State does not easily accommodate the interests of the poor. In recent times, the manner in which the State treated citizens from the unorganised and informal sectors, inducing a migrant crisis and unleashing police brutality, during the COVID19 lockdown, vividly demonstrates this callousness and lethargy of the State towards the masses. The judiciary’s prolonged silence in the face of violations of the fundamental rights of citizens too reinforces the image that it toes the line of the executive and in that sense, mirrors an apathetic State towards the plight of the marginalised. (Vide: Sec. 4.4)

5.2.3 Judiciary—A Reflection of the State Judiciary is precariously located in the political architecture of a liberal democratic State. As the arm (organ) of the State, it is a powerful institution to counterbalance the power of the legislature and the executive, the other two organs of democracy. It functions as the adjudicator between the largest litigator (i.e. State) and other parties (primarily citizens, civil society organisations and other institutions). The State represented through its administrative units is also the primary respondent before the constitutional judiciary in litigations on the violations of civil-political and social rights. Judiciary, on the other hand, is appointed by the executive and despite being vested with the power of judicial review, historically known to face the tension of guarding its turf against the executive and the legislature. As part of the legal profession, which is governed primarily by the professional code of conduct as enshrined in the Advocates Act 1961 and Bar Council Rules passed by the parliament. The judicial system itself is a hierarchical system of graded distribution of power through its large network of institutions. The SCI and HCs also are the courts of appeal in their respective jurisdictions and they symbolize judicial institutions vested with extraordinary power. In addition to being the final court of appeal, SCI also operates as the Constitutional Court to deliberate upon Constitutional matters. In public imagination, however, it is the higher judiciary and especially the SCI, that represents the stature and invincible power of the judicial institutions The SCI is noted to be the most powerful court in the world, wielding immense power (Kirpal et al. 2000). At the heart of the judiciary or courts is the issue of contestations, compelling arguments, competing claims and conflicts. Judicial space consists of hierarchically ordered institutions with its graded vertical power distribution from the Apex court to the lowest court. There are several other quasi-judicial institutions and tribunals which share partial judicial power. Medical Councils, consumer fora/commissions, statutory bodies such as district registration committees under CEA 2010 or KPME 2007, as quasi-judicial institutions, form an important component of this judicial legal institution which is purported to act as the self-regulatory body of the medical profession.

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Judicial-legal space being a contested space, how do the judiciary, charged with the mandate to enforce constitution and fundamental rights of citizens, present itself when civil society challenges the State for dereliction of its duty? How does a ‘legally injured citizen’ or aggrieved person in relation to SRHC, perceive the court through the legal processes? We consider these questions here. Judiciary as an Elite Social Class Gadbois (2011), in the only biographical essay written on Indian Judiciary of the SCI as a cohort that covers the first four decades post-independence, refers to judges as ‘India’s Judicial Elite’. Recent literature, however, further paints a confused picture of the judiciary. Shankar (2009: xii) notes that ‘scholarly studies, newspaper reports, and the court’s own judgments give us contradictory images of a judge in India’s Supreme Court: activist, political, confrontational, policy maker, ineffective, corrupt, apolitical, and impartial’. This research to some extent confirms such a fragmented perception of the judiciary. In a few cases, some respondents (petitioners and lawyers) cherished positive images of the court as a powerful institution. However, invariably all had reservations regarding their stance and disposition towards the poor and attributed to the elitist and class character of judges. The ambiguous, paradoxical, and multifaced characterisation of the Indian judiciary makes it difficult to categorise them in any rational model. Overwhelming majority of the petitioners, and especially those who fought long years of court battle in the issues of medical negligence perceived the judiciary to be corrupt, elitist, and far removed from the suffering citizens. The historical analysis of court institutions affirms the bourgeoisie class moorings of judiciary beginning with the thirteenth century. Work of Beumanoir, a legal expert, points to this time as one that saw rise in legal professionals. Consequently, lawmaking, representation and interpretation became the job of a new profession – lawyers and jurists. The important idea of’representation’ by a lawyer instead of the parties to the dispute themselves originated during this era, when law making moved from being a popular activity to the domain of expertise. ‘Law becomes the creature of the economically powerful, elaborated by a class hired by them and working for their interest’ (Tigar and Levy 2005: 53). Hence, it is fairly evident that law and the legal institutions, primarily the courts, have emerged as part of the rise of a capitalist class in modern Europe. Jurisprudence, historically bore the class character, as the courts primarily were defending the rights of the dominant class of citizens against the monarchy, whereas access to courts for commoners and ordinary citizens was extremely limited. Forming a continuum with the colonial judicial history, the Indian judiciary not only inherited an Anglo-Saxons jurisprudence and a commonwealth legal tradition, but also the legacy of an elitist image of judiciary. The Indian judiciary, especially those who occupy the chambers of the SCI and HCs, have continued to display the colonial elitist image. The analysis of socio-demographic profile of judges up to 1985, points to the social roots of such elite legacy wherein almost 40 percent belonged to family of judges and lawyers and about 80 percent belonged to landowner/zamindars/businessmen (Gadbois 2011: 341–51). He describes an ‘archetypal judge’ of the SCI judge as follows:

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He was son of a lawyer, often born into a family where the practice of law had been a tradition for generations. He was a Hindu and, more likely than not, a Brahmin. He was born in urban area into a wealthy or upper middle-class family…It was his seniority that raised him to the recruitment plateau, but to get to the SCI, he usually needed to be from a particular high court or geographic region…. He may have met the usual criteria of merit – integrity, professional competence, incorruptibility, and neutrality towards litigants –but was not selected for that reason. His religion, seniority, state and region of origin, among other considerations, were more weighty than merit as traditionally defined (Ibid. 376–7).

In addition, caste configuration of the judiciary indicates that about 92 percent judges belonged to the upper/forward castes. Even in the late 1980s, there were only a few hand-picked judges from scheduled castes (SC) and none from the scheduled tribes (ST) even in the HCs. (The Hindustan Times n.d.) By economic categories 96 percent of the higher judiciary belonged to the wealthy (62%) and upper middle class (34%) of the Indian society. An overwhelming majority, 82.8 percent, belonged Hindu religion. Belonging to a forward caste or a wealthy class meant additional privileges and advantages such as English education and higher positions in the professions and a seamless socialisation of being an elite judiciary (Gadbois 2011: 341–51). Such a background of the higher judiciary that is far removed from the plight of the suffering masses provides an inkling into certain judgments concerning the demolitions of slums or their pejorative remarks on PILs on issues of the marginalised. However, as occupying the key position of policy and law making, to effect a jurisprudence that is meaningful to the vast majority in the society, the judiciary adjudicating SRHC litigations require an orientation to these issues. Consultations held with retired HC judges indicated that such opportunities were quite limited within the judicial profession. Emphasis in judicial academies was on drafting judgments and the key domains that they are oriented to include taxation, private civil litigations, and criminal jurisprudence. Two of the respondents involved with the judicial academies categorically stated that ‘judges were not oriented to human rights or social rights in their career’.24 Recently, attempts have been made to introduce some orientation on social realities and issues. The senior bureaucrat who retired as the union health secretary was closely involved with the judicial academy for facilitating orientation sessions for judges. He described how extreme caution had to be used while dealing with judges, even in phrasing the session titles. Lest the judges take offence and perceive it as challenging them, phrases such as ‘gender training or gender sensitisation’ could not be used while dealing with issues of population control and women’s rights. The syllabus was populated with words such as ‘seminar’, ‘conference’ and the like.25 Though there are no directives or written accounts of such a disposition while dealing with judges, much of it happens as a response to the soft power of the judiciary that surrounds the eco-system of judicial-legal spaces. 24 Interview with a retired HC judge of Karnataka (who had also practiced as a lawyer for several years before being elevated as a judge), Bangalore, dt. 13 December 2014; Interview, retd. HC judge of Madras and Andhra HC, Yashada – Pune, 13 January 2017.. 25 Interview with retired senior bureaucrat, Delhi, dt.23 February 2015.

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Hischl (2000:1063 cited in Gauri 2008:3) argues that courts generally represent conservative elite interests and while exercising their power of judicial interpretation they will generally hold on to neo-liberal conception of rights reflecting antiunionism, formal equality (vis-a-vis substantive equality), minimal state policies etc. Several judgments laid down by judicial elites are marked by lack of sensitivity to the issues of the masses. In number of instances when the rights of masses are involved, jurisprudence has failed to uphold the human rights;26 PILs, especially in matters of demolitions have been dismissed; judiciary has dissuaded the poor from filing writ petitions saying it is wasting of court’s precious time, while it has entertained vexatious and frivolous litigations from pharma and tobacco companies (Srinivasan 2018);27 and the judiciary did precious little to safeguard the public health care system and restore its accountability.28 Some petitioners who critically looked at court processes have been surprised by the behaviour and tone of judiciary during the litigation process in matters concerning the issues of the poor. However, in matters that concern the urban and upper classes such as banning polluting vehicles, enforcing the use of CNGs, cricket reforms (BCCI case), the court not only has taken over the policy function but also has conducted itself as the administrator performing a stringent role of monitoring. Such enthusiasm hardly comes forth in SHRC litigations. In the litigations analysed in Chapter three, barring the litigations by government employees of higher ranks (social elites), other litigations on SRHC represent the issues of the poor and the marginalised. Judiciary’s differential disposition to these two issues is a compelling commentary on its societal leanings. The petitioners have found that only a few select judges engaged themselves with the litigations on maternal health care and ART provision for people living with HIV/AIDS. When they did engage with such issues the litigations acquired vitality and a buzz in the media as well. Such moments were experienced in litigations around drug pricing, maternal health, right to food case, tobacco, and mental healthcare. Nonetheless, only in select cases do we find a substantial jurisprudence laid down or applied (for example Laxmi Mandal v. NCT of Delhi, Clinical Trial case). In other cases, apart from the fleeting moments of hope, the initial enthusiasm of the judiciary seems to gradually fizzle out. In most of the cases, however, such moments of excitement too were rare which this research attributes to the disinterestedness of judiciary towards such issues. The litigations on sterilisations (Devika Biswas vs. Union of India) was a contempt petition and represented an issue of gross violations of women’s bodily integrity. It was filed based on the previous order of SCI in a similar matter 26 Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664; BALCO Employees Union v. Union of India (2002) 2 SCC 333; Bhopal Gas Tragedy (Bhopal Gas Pidith v. Union carbide). 27 For instance, in one case a woman representative of fisherfolk association living in pavements, was imposed a penalty of one lakh rupees by a bench in the Bombay High Court when approached to save their homes from encroachment from a road which was being made. 28 Karuna Trust v. State of Karnataka on taking back the PHCs by the Govt of Karnataka under the Arogya Bandhu Scheme and Karnataka Janaarogya Chaluvali impleaded in the case. The court agreed to the Private Public Partnerships (PPP) and refused the demand of the Ministry of Health and Family Welfare to take back its own PHCs.

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(Ramakant Rai v. Union of India). Many states did not even file affidavits on the status of the implementation of the previous orders in the previous case, even after repeated reminders, which unduly delayed the case. The affidavits that were finally submitted were found to be blatantly false and misleading. However, despite being a contempt petition, judges chose to ignore the prayers on action on filing false affidavits and compensation for failed sterilisations29 (Pinto 2016). Contrastingly, while dealing with the health care issues of the social elites (government employees of higher rank), this research finds that judges displayed an unparelled resoluteness and determination in applying the constitutional principles to uphold the rights of the elite petitioners. There are only two domains of health care where unambiguous jurisprudence is laid down. One, health care of higher ranked government officers which includes judiciary (social elites). Litigations analysed point to consistent application of jurisprudence, favouring the social elites in matters of medical reimbursements even in violation of the laid down policy and protocols. In a petition, for example, lower judiciary in Tamilnadu petitioned in the HC of Madras against the limitations entailed on social insurance coverage on par with the government officers of similar rank. The court deemed it to be discrimination and prayers were instantly granted by the higher judiciary of the Madras HC. The second is the domain of emergency health care.30 The Paschim Banga Case was regarding the serious injuries sustained by an agricultural labourer after falling off a train. He was refused treatment in six successive government hospitals due to non-availability beds. Series of orders for bridging systemic gaps were issued along with the declaration of emergency care as the fundamental right. This order in effect did not bring any change in the health care system either in West Bengal or in other parts of the country. However, years later, it benefited the upper middle classes in a petition – based on Paschim Banga jurisprudence—concerning highway accidents resulting in a ‘good Samaritan law’ aimed at bystander protection in saving the lives of accident victims (Pinto 2017). Petitioners have observed that the demeanour of judges in admitting petitions, time devoted, priority to issues in matters concerning social elites is markedly different from that of issues of the masses.31 The character of the bench, the attitude of judges, 29 However, the judge Madan Lokur decided to go by the state affidavits filed by the five states. The petitioner perceived him to be not doing anything to antagonise the government. The judgment, which was issued on 14th September 2016, he called for complete halt on the sterilisation camps as methods of population control and called for the strengthening of the primary health centres for the availability of such services. (Devika Biswas v. Union of India, final order dt.14 Sept. 2016). 30 Paschim Banga Khet Mazdoor Samity & Ors v State of West Bengal & Anor. (1996) AIR SC 2426/ (1996) 4 SCC 37. 31 Some of the petitioners and experts interviewed referred to how the middle class of the residential welfare associations have often gone to the court against slum dwellers asking them to be vacated; in several PILs concerning closure of industries or mega projects the concerns of the workers or displaced have not taken into consideration by the courts. Both doctors accused of medical negligence or violations of CEA or the pharmaceutical companies have routinely used the procedure of appeal or writ petition seeking injunction to delay and impede the process of litigations. On the other hand, despite having evidence in PILs, petitioners find it an arduous task to convince the judiciary on the issue of health injustice experienced by citizens and expedite justice through the

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their disposition to PILs and issues of the poor are pivotal to the outcome of a litigation. Legal literature analysing models of judgments acknowledges in the ‘attitudinal model’, the personalities and predispositions of judges impacting judgements, the others being legal and strategic models (Shankar 2009). There is also an acknowledgement that those who can mobilise the courts benefit by it, hence the underprivileged can only hope to be an indirect beneficiary (Gauri and Brinks 2008). In several Latin American countries where access to courts is made relatively easy, the upper-class individuals bring litigations for expensive treatment and medication, and these have disrupted budgets and priorities in the health care system (Roseman and Gloppen 2011). Conformist—Patriarchal Mindset The biographical sketches of judges illustrate that the majority of the judges play safe within the normative framework of the court as an institution while adhering to the rules of institution, exercising their authority and playing their roles as judicial officers (Gadbois 2011). It is also noted that judges are not known to adopt positions that are likely to arouse strong opposition from important political actors (Gauri and Brinks 2008). The SRHC and other litigations around fundamental rights came up only in the late 1970s when a few individual judges were ready to question the hitherto unquestioningly accepted Anglo-Saxon legal procedures (for example, locus standi of the petitioner) that limited citizens’ access to courts on matters of public interest or on issues affecting the masses. In the time analysis of health care litigations, the research finds very few cases on health care issues till early 1980s. (Vide: Fig. 3.4) This can be attributed to the conformist mindset of the judiciary which hesitates to question the status quo. Legal and social science scholarship has acknowledged that the social structures do influence judicial profession, judicial discourses comprising judicial grammar and judicial semantics (Tigar and Levy 2005). Shankar (2009) in reference to antiterror laws and social rights argues that it is possible to view judicial behaviour as ‘embedded negotiators’ and their behaviour is driven by the desire of gaining legitimacy and avoiding confrontation or conflict with the executive. There is a lack of legal scholarship on their personalities and personal perspectives impacting jurisprudence. This research does not claim to have exhaustive analysis on this issue, either. However, the analysis based on the anecdotal evidence points to such an elitist disposition, together with the conservative-patriarchal mindset of judiciary, having a bearing both on their approach to the litigations as well as the jurisprudence. Among the litigations analysed, the sexual violence cases demonstrated how the judiciary conceded to the presentations of medical professionals (forensic experts) defending ‘penetration’ and ‘two-finger test’ as the core of the evidence. Over six decades in the post-independence era, the judiciary admitted the arguments such as ‘habituation to sexual intercourse’ and allowed the character assassination of the rape survivor in the court of law in the cross-examination of the litigations. This is overwhelmingly seen in several petitions on the issues of reproductive and maternal health services..

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victim in order to establish the mens rea (guilt) beyond reasonable doubt, a criminal jurisprudence principle. The judiciary was a mute witness to this court drama to safeguard the objectivity of justice and to mete out justice without any prejudice. This portrays a strong patriarchal construct of women’s sexuality and body in the court (Das 1996). Feminist discourse has exposed the over-anxiety of judiciary regarding the rape law being misused against innocent men, and the protectionist mindset of the judiciary towards the women of moral character and being dismissive of women of ‘loose character’ while interpreting the law. Several petitions and orders that are reported, especially around the issues of sexuality and women’s rights, dowry cases, marital rape, have the imprint of such a patriarchal and protectionist mindset and not a liberal jurisprudence.32 Such an approach is not directed by a sense of justice to the survivor (Baxi 2008). Professional Camaraderie and Soft Pedalling Indian judiciary has often projected themselves to be intolerant of corruption and have shown extreme involvement in administering issues such as environmental matters. It is a puzzle why they did not show the same earnestness when they had the opportunity to rectify the public health care system which included cases of corruption against MCI, and medical malpractice. Contrary to what one would expect, the judiciary has not been significantly forthcoming on these issues barring some sporadic outbursts or overtures.33 Justice Lodha, who headed the Committee set up to clean up the corrupt BCCI, also headed another one to clean up the MCI. However, he hardly gave any attention to the issue of corruption in MCI. Such soft-pedalling of the crimes and corruption of healthcare professionals have come before courts in several 32 Arnesh Kumar v State of Bihar & Anr Criminal Appeal No. 1277 Of 2014 @Special Leave Petition (Crl.) No.9127 of 2013), decided on 2 July, 2014: Some of the legal principles or jurisprudence that judiciary employ do not find any sound philosophical or legal grounding, and could be inferred as being informed by their own caste-class prejudices and socialization processes. For example, in the recent judgment, the power of arrest of husband and in-laws in case of complaints of dowry harassment has been now curtailed, which can now be done only with the authorisation by the magistrate; Nikhil Datar v. Union of India: Similarly, there seems to be undue anxiety in the judiciary in repealing the marital rape exception clause under IPC 375 based on the submissions of the State to safeguard family. While this upholds the liberty of the man and in-laws, it seriously jeopardises a legal protection which women enjoyed for a decade and half. The change of 498A IPC came about after fierce historical struggles by women’s movements in India and the judiciary reversed it in their orders. Similar unpredictable and ad hoc jurisprudence is employed in the issue of abortion. A petition for legally increasing the permissible period of pregnancy from 20 weeks to 24 weeks has been pending the SCI since 2011. However, ad hoc judgments by HCs refusing MTP even to survivors of rape, the admitting contentious petitions by disability groups against abortion have led to confusion in the jurisprudential thinking, which often now tend to end up targeting and victimisation of women. 33 The scams and corruption of the medical profession and its apex body MCI in matters of sanctioning medical colleges, conducting entrance examinations (as in the case of Madhya Pradesh), turning blind eye to clinical trials and medical malpractices of its own members was no less than that was alleged of the BCCI, a privately registered sports body. However, the SCI took extreme interest in the latter even to the point of taking over the administration with the explanation that ‘cricket is a game of the masses’ and did precious little to redeem the health care system and the medical profession..

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cases of medical malpractice and medical negligence. The narratives of petitioners have alluded to an uncanny professional collegiality and camaraderie between the two. In judicial spaces, there is an overextended support in defence of the medical profession and a resistance to move beyond a mere lip service. Some key judgements have articulated the duties of the medical profession and declared ‘code of medical ethics’ as the standing law;34 indirectly articulated patient rights in terms of duties of doctors;35 and, laid down ‘saving life’ as the uncontested duty of the ‘medical profession’. However, we have hardly any known case where such a duty is enforced on medical professionals. In contrast, in defending the rights of the medical profession, the judiciary has been forthright, unambiguous, and unequivocal. The courts have unequivocally articulated the right of medical professionals against subjecting them to criminal prosecution. In the Jacob Mathew case, the jurisprudence made medical opinion mandatory in gross criminal negligence cases, to pursue criminal prosecution against a medical professional. This has emerged as the impermeable legal barrier created by the judiciary to demand accountability from the medical profession. The sanctity bestowed on the medical opinion, has therefore become a major stumbling block for a patient or survivor to complain against injustice, leave alone getting substantive justice, even at the lowest level of justice institutions such as consumer forum. In the constitutional courts, given this overwhelmingly lenient and professional camaraderie, the compelling and convincing argument that is required for the admission of any petition is a strong barrier that the petitioners struggle to scale. According to some lawyers consulted, it is this mind-set that decides the fate of the case, either at the stage of admission or later. In an interview with a woman lawyer of Delhi HC who was pursuing civil and criminal litigations against a corporate hospital on the medical negligence leading to her father’s death, she recounted her hardships she had to undergo even in getting a FIR registered against the negligent doctors despite being a lawyer in the HC of Delhi. The deceased himself was a retired judge. Even after obtaining a medical opinion from a medical board constituted for the purpose, the police refused to file the FIR. In a petition in Delhi HC seeking direction to the police to file a FIR, the judge himself was resistant to entertain the case and he dismissed it. The respondent discovered that a close relative of the judge was also a medical doctor in the same accused hospital.36 Gadbois (2011) notes that most of the judges during the tenure of Justice P. N. Bhagwati himself were not sharing his view on the liberal interpretation of the fundamental rights and social justice. Biographical writings of a few judges testify that only a few judges with empathy to the issues of the underprivileged and social justice value framework made a historic difference to jurisprudence (Krishnaswamy 2015; Ramaswamy 2008). V. R. Krishna Iyer and P. N. Bhagwati, JJ. played a historic role 34 Pandit

Paramanand Katara v. State of West Bengal. Kohli v. Dr. Prabha Manchanda and Anr. 36 Interview, Experience woman lawyer and petitioner in her own father’s death in a Corporate Hospital due to medical negligence, Delhi HC Chamber, Delhi, 12 March 2015. 35 Samira

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in the SCI. Their pre-SCI trajectory corroborates their perspectives and commitment to social justice that they demonstrated in legal aid, justice for the poor and a creative application of Constitutional jurisprudence to the issues of liberty of the poor. The autobiography of Justice K. Ramaswamy (2008:88) also lends credence to the view that there were a few judges committed to social justice. Krishnaswamy (2015) recalls the thanksgiving speech of justice Iyer when the latter was first elevated to the HC of Kerala on 2nd July 1968, where he laid out his philosophy of the judiciary and courts: [T]he social goals enshrined in Rights Chapter and the Directive Principles of State Policy broadly and vaguely project our current legal philosophy. The judicial organ being part of the State, shares the national objective and perspective of political and economic democracy, and spells out from the Articles of the Constitution and the corpus juries of India, the legal framework of a secular society with egalitarian urges, thus departing from the old order and conservative common law concepts [….] The judges and the courts are, in a sense, themselves on trial. The forensic institutions and the legal system themselves need a new orientation, a modern grammar and vocabulary and simple techniques of social engineering, if they are not to be accused of exotic, expensive obsolescent and tardy features.

Justice Krishna Iyer was clear of the purpose of law as serving humanity. In the same acceptance speech, he incisively stated as follows: I shall endeavour, in a humble measure, to be a judicial activist and treat my career ahead as a fresh call to service in the cause of the rule of law, which not merely keeps the executive in leash, but insists upon the basic and equal right of If law runs counter to life, you had better change the law, not challenge it. If the Constitution hampers progress, you must amend it, not defy it nor deny it…. [I] once again pledge to keep faith with the great traditions of this Court and to serve the community, in my new capacity, in the cause of a just order…. (Ibid.)

The health care and justice institutions both reflect and portray such class character of the State signified by the alienation of masses. The narratives of the petitioners, for example, in the case of P. C. Singhi v. Dr. P. D. Desai, a litigator in the longest medical negligence case in India (1988–2017) substantially illustrates how the courts vested with the responsibility of safeguarding democracy either are apathetic to the alienation that the deprived—unequal-vulnerable citizen face both from the justice as well as healthcare institutions. It can be underlined that judiciary presents a bewildering image of the State to a citizen approaching the courts as an aggrieved patient or a survivor. Such an image is multi-faceted yet much leaning on the side of the elite, generally conformist to social norms of patriarchy, class and by extension to caste, and always far removed from the realities of the under-privileged.

5.2.4 Professional Organisations, Power and Health Care The second cohort of key actors, i.e. the legal and medical professions, represent a consolidation of professional power. Their authority is based on the power of knowledge and profession-based competencies. Both professions enjoy superiority due to

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their professional knowledge and competence in the disciplines of law and medicine, respectively. In addition, power of these professions is consolidated through powerful institutions (courts and hospitals) which are hierarchically organised exerting enormous influence in society. The allopathic medical profession rose to power and prominence in the twentieth century backed by the growth of science and technology as an industry. On the other hand, legal profession, historically the oldest organised profession, has its origins in the rise of the bourgeoisie-capitalist mercantile class (Tigar and Levy 2005). The power of these professions has evolved and consolidated in tandem with the rise of the political structures of nation-state in the West. Owing to an extreme and perpetual dependency that citizens experience as clients or patients vis-à-vis professions, the realisation of health justice and the very process of SRHC itself is dependent on these professions. To understand the implications to health justice, in this section we briefly refer to the legal profession and discuss the power of the medical profession in detail.

5.2.4.1

Legal Profession

Legal profession is heavily invested in the multiple functions of the State. Judiciary, the powerful arm of the State is also an integral part of the legal profession. Their reciprocal relationship is popularly known as the bench and the bar. Very prominent legal experts from the legal profession also represent the State as its highest legal officers before the judiciary as solicitor general, advocate general and additional officers in the respective offices. They also represent the State in the International Criminal Court (ICC), International Court of Justice (ICJ) and tribunals as was displayed in the case which India filed against Pakistan in ICJ in May 2017.37 The legal profession exhibits a strong continuum of power between the professions and the State, thus connoting the machinations of a ‘political society’ alluded to by Gramsci. Though the legal profession operates within its own professional regulatory code, thus exercising professional power over its members, the judiciary leans on the legal and Constitutional expertise of the legal professionals for adjudicating several issues. In several cases analysed such as environmental health, maternal and reproductive health services related deaths and psychosocial disabilities, courts have appointed lawyers as ‘amicus curiae’, and in certain instances judge-led committees are appointed with the support of other legal officers. In PILs on civil rights related matters, the SCI and HCs depended largely on the reports and opinion of the legal services authority (e.g. NALSA) constituted under the National Legal Services Authority Act 1987. It played a pivotal role in the 1980s in exposing civil rights violations which included violations of providing medical care in prisons and police 37 India

had filed a case against the execution of Kulbhushan Jadhav, the naval officer who was arrested by Pakistan and sentenced to death. India challenged Jadhav’s sentence in May 2017, basing its arguments around what it says were violations of the Vienna Convention on foreign relations..

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custodies. The power and influence of the legal officers and legal professionals vary across the judicial hierarchy from the apex court to the lowest jurisdictional courts. Those located in SCI and HCs enjoy comparatively a higher social and legal status. The limits to jurisprudence and the power of the judiciary stems from the contentious and ambiguous role of the legal profession in the realisation of SRHC. Judiciary is an integral part of the legal profession and the litigations point to the contentious positions taken by the legal professionals in several matters of SRHC that are brought before the court. Most often, the alleged violators of the rights of citizens are powerful corporations, corporate hospitals or doctors who need legal representation. Illustrious legal luminaries have represented corporations and pharmaceutical companies in patent cases, litigations challenging the orders of authorities, impleading in PILs as seen in the drug pricing and the like. The DPCO Para 19 case is a typical example for the former where the NPPA notifications under the para 19 of DPCO to bring essential medicines under price control were challenged by several pharmaceutical companies in Mumbai and Delhi HCs alleging infringement of their fundamental right to trade and commerce under the Article 19 of the Constitution of India. The corporations spend enormous amount of money for legal matters. Their overpowering presence aided by legal luminaries representing their brief, is said to exert a substantial influence on the judiciary. This is an acknowledged fact world over (Roseman and Gloppen 2011:253). Citizens, on the other hand, are dependent on members of the legal profession for representing them before the judiciary. Availability of a pro-bono lawyer for representing the aggrieved patient or public spirited citizens in judicial spaces, especially the constitutional courts, has been singled out by petitioners as the most crucial factor in battling through the litigation process in courts which extends over several years and decades in some instances. Because of the absence of a composite legal framework such as a regulatory authority at the state or national levels, a litigation of medical negligence, for example, is filed in multiple institutions. (Vide: Chap. Four) In addition to the technical nature of evidence and the subject matter, the issues need to be referred to higher courts for direction and resolution, which necessitates several legal representations at multiple levels of the judicial hierarchy. The doctors or the hospitals who are the defendants/respondents/accused have the wherewithal to engage lawyers of great reputation. They too have their professional associations to offer technical support. Few studies conducted show that even at the district level, the medical associations unitedly fight the case to protect doctors’ interests and offer legal help (Institute of Public Health 2012). However, such a solidarity and social support is not available for an aggrieved patient to pursue processes of health justice. In addition, an aggrieved citizen or even a civil society organisation supporting litigations, is solely dependent on the services of a pro bono counsel. It is practically impossible for a poor person to reach the SCI or HCs by oneself. The aggrieved patient experiences vulnerability at all stages of the litigation process, beginning with the admission of the brief itself, and such persons are soleley dependent on the expertise of lawyers to interface with the courts and to decifer the court briefs. However, the lawyers having technical knowledge and perspectives of issues surrounding SRHC, who can authoritatively represent the case, are very few. A

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woman lawyer, experienced in litigating reproductive and maternal health care issues, noted that subject of health and health care such as abortion, maternal death, and medical negligence, itself as very technical. Not many lawyers have the necessary public health or health rights knowledge expertise in these matters. The issues of health and health care are not part of legal training nor are they so many so that lawyers can learn them during their practice. Besides, lawyers willing to engage with patient’s issues and offer them legal support also are few, all of which confound the vulnerability and helplessness of a suffering-aggrieved patient.38

5.2.4.2

Medical Profession

Power, authority, and occupational control lie at the core of this transformation of a low-grade occupation in the eighteenth century into a bureaucratic and corporate regime in the late twentieth and the early twenty-first centuries. The twentieth century marked the transition and transformation of allopathic medicine from being a fragmented set of healing practices into a complex system of hospitals, clinics, insurance companies, corporations, and corporate business entities. Such growth of health and medical care into a myriad of fragmented organisations is intricately bound to the rise of the medical profession into a sovereign profession wielding enormous social, economic, and political power. Foucault (2010, 2014) attributed the power of medical profession to the privileged knowledge and control exercised over human bodies through the ‘medical gaze’. However, Star (1982) adds the dimension of economic and political power to the professional authority. He argues that such transformation cannot be alluded to the advancement of science and satisfaction of human needs alone. He notes that ‘the history of medicine has been written as an epic of progress, but it is also a tale of social and economic conflict over the emergence of new hierarchies of power and authority, new markets, and new conditions of belief and experience’ (Ibid.:4) The medical profession poignantly illustrates how it has been able ‘to turn its authority into social privilege, economic power, and political influence’ (Star 1982:5). Authority and power of the organisation of allopathic medicine and that of the medical profession are central to the dominance of the predominant global health care system available for citizens. The consolidation of health care as an economic power through marketisation and corporatisation of allopathic medical care has further added to such power dimension of medicine. Under the influence of neo-liberal politics and economics, shift of health care from being a ‘public good’ to ‘private good’ is the significant feature of consolidation of organisational and professional power of allopathic health care in the latter part of twentieth century (Baer 1982; Navarro 1976, 1986). The power and authority of the medical profession is manifested in an institutionalised form in health care systems arranged in terms of the specialty of services as primary, secondary, and tertiary super specialty care. The social science studies also acknowledge medical specialty, level of training, length of clinical experience, 38 Interview

with a female lawyer, Mumbai, dt.27 November 2014.

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and geographical location, physician’s age, sex, race, ethnicity, and personality as factors that are relevant to the status and authority exercised by the medical professions (McKinlay, Potter, and Feldman 1996). Primary health care, arguably the most cost-effective and efficient comprehensive health care by design, has the closest possibility of providing SRHC (World Health Organisation and UNICEF 1978). However, politically it has been increasingly relegated to a low status thus privileging tertiary and super specialty care in India where medical professional knowledge hegemony is co-located with maximum profiteering, professional malpractice and irrational care. Besides allopathic medical doctors, there are several allied health care professionals such as nurses, auxiliary nurses, mid-wives, diagnostic professionals who are placed relatively low in the exercise of their professional expertise compared to doctors. To reduce the complexity of discussions, we have not considered other allied health care professions here. As critical health care force in the health services system, their issues are of stellar importance to the discourse on SRHC of citizens and would need a separate in-depth discussion. The medical profession has organised itself into various professional associations such as the Indian Medical association (IMA), Indian Radiological and Imaging Association (IRIA), the Federation of Obstetric and Gynaecological Societies of India (FOGSI), Private Hospitals and Nursing Homes’ Association (PHANA), various Resident Doctors’ Associations (RDA) at the national and state levels. IMA, the largest professional assoication of allopathic medical professionals, has units even at the district level in India. Countering, resisting, and neutralizing any form of regulatory measures of the State has been the hallmark of these medical professional associations in India. It has done so through numerous medical professional associations and have based their resistance on the arguments of ‘selfregulation’ of the medical profession and the moral arguments of ‘medical care as service to the society’.39 In the 1980s when the consumer movement was growing in India, the medical profession resisted vehemently the proposal of bringing the medical profession under the Consumer Protection Act 1986. The resistance and counter-offensive of medical profession has spread to every other regulatory move or policy measures40 or disciplinary steps taken within institutions against erring doctors (Staff Reporter 2017).41 Such resistance permeates through the private as well as public health care system. The courts have occasionally played a balancing act, as was seen in the judgement of bringing the medical profession under the CPA through the V.P. Shanta v. IMA 39 Vouching for self-regulation through its professional code of ethics, the medical profession opposed legislations such as Consumer Protection Act 1986, Clinical Establishment Act 2010 and PCPNDT Act 1994, amendments to the Karnataka Private Medical Establishments Act 2007 (in 2017) and the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017. 40 IMA and IRIA have protested against the Clinical Establishment Act and consistently have been demanding amendment to PCPNDT Act, for example. 41 The Resident Doctor’s Association (RDA) of AIIMS (Delhi) went on strike against the suspension of five doctors who allegedly caused the death of a nurse due to medical negligence. The order of suspension was revoked due to the pressure of RDA.IMA supported the strike..

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litigation in the SCI by defining health care as ‘service’. Notably, the possibility of transforming health care jurisprudence concerning matters of medical negligence is minimised through the counter-manding jurisprudence of courts and the resistance of professional medical associations. SCI laid down several conditionalities in defining medical care as ‘service’ which included payment that establishes doctor-patient relationship and excluding State health care services, apparently deemed to be free. However, in recent years, increasingly people are forced to go to the already unregulated private-commercial health care institutions. To prove medical negligence in these health care institutions is going to be extremely difficult as the prerequisite of medical opinion is becoming an unofficial norm even in consumer redressal forums. The medical profession and the health care institutions form important axes for accessing health care and establishing SRHC. Health care jurisprudence analysis acknowledges that such instrumentality of the medical profession is not limited to accessing health care alone but extends to the very realization of health justice and social citizenship as part of realizing SRHC. The violations of health rights of patients though are embedded in systemic failures, they are so much interwoven with the medical malpractices such as corruption, irrationality, violations of ethical protocols, fleecing of patients for commercial profiteering targets of corporate health care institutions, kickbacks and cut practices, nexus with the pharmaceuticals and so on (Gadre and Shukla 2016). The realization of SRHC is limited to the possibility of unentangling the power medical profession and the invincible mechanism it has developed to establish its legitimacy, resist regulation and accountability, consolidate its medical hegemony through the maze of profiteering health care institutions in the society. The health care litigations and the violations that are analysed point to the decline of the core ethos of the profession, viz. alleviation of suffering and upholding patient’s wellbeing. Noble goals of medicine pronounced in Hippocratic Oath, point to the profound moral-ethical foundations of commitment to mitigate suffering, uphold primacy of life and recognition of corresponding obligation of the health care provider (World Medical Association n.d.). As an autonomous profession, it foregrounds the professional power of self-regulation to restrain the State from any regulatory proposition. The health care litigations, therefore, represent the demand for both the accountability of the healthcare profession as well as compelling the State to enforce the Constitutional obligation of the State to uphold SRHC of citizens through the mediation of judicial power. However, the prospects of converting several progressive judgments into effective health care entitlements also scuttled by the organised resistance of the medical profession. This is discussed in the following section. Medical Profession, Nexus and Institutional Failures Until the 8th August 2019, the Medical Council of India (MCI), represented the singular self-regulatory body of medical profession recognised by law. It was a Constitutionally instituted medical ombudsman body for the regulation of the conduct of medical profession in India, which included, among others, regulation of medical education and professional conduct. It is governed by the Code of Medical Ethics under Sects. 20A and 33 of the Indian Medical Council Act 1956. The failure of

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the ombudsman institution and the failure of self-regulation by the medical profession unfolded itself through various scams followed by litigations and suspension.42 The 59th Parliamentary Committee Report on the functioning of CDSCO indicts the medical profession along with the government officers for their collusion with the pharmaceutical companies. The 92nd Parliamentary Committee Report has suggested scrapping MCI itself on account of corruption, and to reconstitute the same for reforming its governance (Rajya Sabha 2016).43 In the summer session of the parliament in 2019, the MCI was dissolved through an Act of the parliament, i.e. the National Medical Commission Act 2019 and proposed to administer and regulate medical profession in India through National Medical Advisory Council and four autonomous boards. The extent of corruption and nefarious nexus and collusion including criminalisation are illustrated in the VYAPAM scam44 explains the consolidation of power of the medical profession through collusion with criminal and unethical elements of society. Such nexus extends to pharmaceutical industries, private-corporate health care business establishments, medical education establishments, middlemen and contractors, the legal profession and judiciary, the investigative agencies (police and investigating officers) and above the pro-business political class. The tendency towards the criminal nexus has been referred to as ‘medical mafia’ (Baru and Diwate 2015). Depicting a ‘siege mentality’,45 an over-defensive profession has engaged in an irrational offensive on whistle-blowers and stifling ethical-rational voices of introspection within the profession.46 Ethical corrosion, moral decline and institutional failure of the medical profession have seriously jeopardised SRHC, and the possibility of health justice being a reality to citizens in India. Due to the siege mentality that the medical profession exhibits, it is an uphill task to bring it to negotiating space and above all, to translate the 42 The extent of Criminalisation in the medical profession can be gauged by the fact that even as the writ petition was heard by the HC of Indore on the medical education examination scam, it led to the mysterious murders of over 50 witnesses. Thereafter the case was transferred to the SCI. 43 The litigations the professional examination by MPPEB for conducting entrance examinations for professional courses including the medical and dental courses (Vyapam Scam and DEMAT) in Madhya Pradesh. It was suspended and was placed under the administration of a Board of Governors in 2010 by SCI (Rajya Sabha 2016:4). In 2016, in the backdrop of various scams, SCI placed it under the oversight committee headed by justice Lodha. On July 18, 2017, the central government formed a board to replace the Lodha Committee.. 44 The scam refers to the multi-million corruption scam related to the entrance exams to various medical courses in Madhya Pradesh. When the HC admitted the petition on this, over 50 witnesses named in the chargesheet including journalists were murdered during the pendency of the petition.. 45 Interview with surgeon in ethics movement, Delhi, dt.03 June 2015. The experiences of being excluded and systematically ousted from various committees that he was part of in the private hospital, a systematic maligning within the profession and refusal by practitioners to refer patients were narrated in an interview with a practising surgeon who is also part of the ethics movement in India.. 46 Maharashtra Medical Association served a show-case notice to Dr. Arun Gadre, for example, for tarnishing the image of the medical profession through the book ‘Dissenting Diagnosis’. (Personal Correspondence with co-author, dt.14 November 2016.

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positive and progressive jurisprudence into systemic reform. It calls for a serious introspection by the medical fraternity on the core of the medical vocation and its current aberrations to salvage its own image. Recently, a few individual voices within the profession have begun to call out corrupt practices by the medical fraternity. They have also organised themselves as an association in the name of Alliance of Doctors for Ethical Health Care. Some progressive judgments and affirmation by various parliamentary bodies provide a symbolic yet an important moral imperative for the medical profession for serious introspection and resurrection of the ethos of the profession (Gadre and Shukla 2016).47 Professional Camaraderie The professional authority, status and reciprocation of power are key to the functioning of both these professions and they find a professional camaraderie between them. Dr. Louis M. Orr, the president of the American Medical Association, alludes to reciprocation of power between these two elite professions: Although our two professions are structurally dissimilar, there is a likeness in their goals. Physicians cure illness prevent pain and heal wounds, all of which are steps toward our ultimate objective of the best possible physical health. Lawyers, on the other hand, cure ailments of society and prevent the social pain of crime by the administration of justice and the application of the laws. The impartial administering of justice, which has been called the “vitamins of society”, helps improve the social and moral health of the community. Thus the professions are allied in the purpose of preserving the physical and civic health of our nation. (Orr 1959:1030)

Another key to the consolidation of professional authority in both these elite professions is the power of uncontested ‘discretion’, ‘interpretation’ and ‘opinion’. The judiciary particularly is conferred with undefined, infinite, and indiscriminate power of interpreting the Constitutional principles and its application to facts and existing laws described as the power of ‘judicial review’. The power of judiciary’s discretion operates even at the time of admission of the petition. As a one-woman lawyer narrated, the very admission itself lies at the benevolent mercies of judges. A PIL against maternal deaths filed in the Patna HC (Bihar). The woman lawyer who argued for its admission shared the delicate balance that the lawyer must strike, keeping in mind the sensitivity of the situation: Knowing their patriarchal mindset, I did not use any word or argument which will antagonise them. I try to appeal to their emotions describing women’s plight. It is very important to get the petition admitted.48

Similarly, the medical profession too is vested with enormous power of medical opinion and interpretation in diagnosis and treatment. In addition, the judiciary has reinforced the power of medical opinion through some of its judgements in India such as Jacob Mathew v. State of Punjab where a medical opinion by a medical professional 47 Particularly refer to the Emergency medical care jurisprudence section in this dissertation, Chapter

Three. 48 Interview with a female lawyer, Mumbai, dt.27 November 2014.

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is made mandatory for prosecuting them for criminal medical negligence. The effect of such reciprocation and reinforcement of professional authority by the two elite professions has significant implications to the enjoyment of SRHC by citizens. Judiciary’s role in allowing the decadence of the medical profession through acts of commission and omission call for a special attention. The role of courts in reinforcement and reproduction of medical professional power (for instance, the power of medical opinion) on the one hand, and a judicial silence on duties of medical professionals, lack of indictment on their dereliction of duties, has lent legitimacy and exoneration to medical malpractices. Overlooking their ethical and professional deviations has also buttressed its impunity from any professional or regulatory accountability. The import of such jurisprudence is that the medical profession has emerged as a crucial barrier for the translation of judgements into a systemic realization of SRHC. The long-drawn resistance to change and a combined counter-offensive by the medical profession, has thwarted any process that could have been effective in reforming either the medical profession or the health care system, or both. The medical profession is endowed with judicial power, besides their medical power. Such power conferred on medical professionals can be described in Foucauldian terms as ‘doctor-magistrate’ (Foucault 2010). Judges, besides depending on the medical professionals for medical treatment, also rely on their medical opinion as forensic experts which determines the jurisprudence to be laid down or applied.49 In the case of gross criminal negligence, the SCI has made medical opinion very sacrosanct, on which the health justice to the aggrieved hinges on. The continuum of such judicial and medical professional power is manifested in the public health care system. Medical professionals exercise their quasi-judicial power as gazetted officers for certifying documents and eligibility for social security schemes such as pensions (for example, old age, widow, disability pensions). They also determine disability. Their medical opinion and testimony, especially in cases of rape and abortions (above 20 weeks of pregnancy) become crucial for survivors of sexual violence or patients. In the district hospitals which are now affiliated to the district medical colleges, the district surgeon also functions as administrator of the hospital, thus exercising his executive and bureaucratic power. Consequently, citizens find themselves in a continuous state of dependency. Star (1982:11) notes that compared to professional competence, it is the psychological and emotional dependency that ‘help strengthen the hand of professional authority apart from its claims to superior competence’. Citizens physically and emotionally suffering and aggrieved in seeking health care and those seeking health justice, find themselves in a perpetual condition of dependency vis-a-vis the two elite professions that in turn exacerbates their vulnerability in the matters of health justice.

49 In

medico-legal cases such as accidents, murders, unnatural deaths, suicides, sexual assaults and rape, the order solely depends on the medical opinion provided.

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5.2.5 Civil Society Civil society is a significant constituent of the democratic polity and is a key actor in the health care litigations and in health justice. The success of litigations and transformation potential into health justice can be attributed to civil society’s strategic approach to engaging judicial power. This research affirms the absolute and critical role of civil society in social justice litigations of public interest through all the four stages of a litigation process, viz. claims formation, adjudication, outcome, and impact stages. Institutional perspectives can further unpack the nature of civil society, the solidarity and fragmentation within, the factors that sustain or diffuse civil society’s engagement with courts. The focus here is to understand factors and processes of civil society that enable or limit the transformation of health care jurisprudence into health justice.

5.2.5.1

Civil Society Coalitions and Litigations

Gramscian theory explains the civil society networks as the source of power to challenge the hegemonic and anti-people power of the State and ruling classes. It is composed of several networks and coalitions drawn from the varied streams of society. Civil society leaders in the form of charismatic personalities command great authority in the formation and nurturing of civil society coalitions or networks. Gramsci referred to such personalities as ‘organic intellectuals’. This research has located the health justice process in the ferment of social movements in India, in the 1970s and 1980s. The engagement of social movements with the courts during this period laid the foundations for access to justice and personhood jurisprudence. Civil society in India, for example, was a vigilant collective, constitutive of plurality of actors in these decades. Movement for civil rights and liberties encapsulates the solidarity for anti-hegemonic struggle. The radical social movements conceived their struggle as counter-hegemonic struggles, fighting both hegemonic State and repression (Balagopal 1994; Shah 2002b). Youth in radical social movements challenging State apathy and atrocities were mercilessly killed in staged encounters or detained indefinitely or the courts sentenced them to death. The civil rights movements such as Andhra Pradesh Civil Liberties Committee in 1973 and various units of People’s Union for Civil Liberties in late 1970s has its origins in the process of challenging such repression in courts (Kannabiran 1996). The civil rights movement, workers’ movement, environmental movement contributed immensely to lay the foundation for the health rights jurisprudence. (Vide. Chap. 3) Health care jurisprudence is advanced on these fundamental jurisprudential principles. Engage courts was part the counter-hegemonic ideology of these social movements. The focus on citizenship resounds in these social formations as Kothari (2002) refers to such a civil society as a space for mass politics and direct action with a potential to restore sovereignty to citizens (masses) and transform the State. The earliest

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health care litigations by civil society coalitions reflect the spirit of solidarity of civil society and its power to challenge the hegemonies of the State. Civil society coalitions represented in petitions on drugs and medicines, and reproductive health, being represented by broad based organisations bore an imprint of this solidarity. The plurality of petitioners in these petitions included trade unions, workers’ associations, worker solidarity organisations, individual human rights and civil rights leaders, civil rights associations, progressive non-profit organisations (NPOs) and academia. They were competently supported by progressive individuals from media, legal and medical professions. In some petitions of public interest, individuals represented themselves technically as petitioners but were doing so as representatives of the organisation or coalitions.50 The civil society resistance to the authoritarian and top-down policy designs is noted in the issue of anti-fertility hazardous technologies such as Net-en, DepoProvera and Quinacrine that were introduced in public health programmes, often secretively. In the issue of hazardous contraceptives, women’s groups, health groups and human rights groups collectively opposed such a unilateral and unethical move by the government (Sama 2003:5). A broad solidarity between progressive individuals and organisations, progressive party affiliated organisations such as All India Democratic Women’s Association (AIDWA), progressive public health academic centres such as Centre for Social Medicine and Community Health (CSMCH), progressive women’s rights groups such as Saheli are seen in rallying around the issue of hazardous technologies subsequently followed by litigations in SCI. The petitions on reproductive technologies display the intersections between liberties, viz. civil liberties, autonomy and bodily violations, and the right to health care. The civil society was engaged in the decision making on litigation, formulation of prayers, disseminating the court proceedings to people and collectively to take strategic action. A collective solidarity of civil society was also in the first health care litigation in India on hazardous drugs filed by a lawyer with expertise on industrial law.51 In this case in an unprecedented move, the SCI ordered public hearings which were held in five locations in India for a public opinion on the issue. Though the power of the industry was seen at play in stage-managing public hearings by bringing their own people including hooligans and influencing officials to restrain suitable information from the civil society actors, this case ‘introduced health activists and civil society to the legal dimension of healthcare and was instrumental mobilising a health rights discourse in India in the civil society’.52 In turn it raised the ‘political consciousness’ in the civil society on the hegemonies exerted by the pharmaceutical corporations and the State authorities. In the 1980s and the early 1990s, healthcare litigations served the purpose of imbuing the civil society coalitions with the politics of public health and health care, thus broadening their perspectives on SRHC. This was very 50 For example, in Ramakant Rai v. Union of India it was the coalition of Health Watch UP which he represented. Similarly, Devika Biswas v. Union of India, the petitioner represented Health Watch Bihar; Sandesh Bansal vs. State of Maharashtra represented Jan Adhikar Manch. 51 Vincent Panikulangara vs. Union of India 1987 AIR 1990, 1987 SCR (2) 468 [WP No. 3492/1983]. 52 Interview, Senior Public Health Expert, Delhi, dt.10 October 2015.

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evident in the mid-1980s when the women’s movements opposed the introduction of the trials of injectable contraceptives. Such opposition initially arose on the grounds of violation of women’s bodies and autonomy, and not necessarily on health grounds. A few women leaders brought a large coalition together to build up a politics around the issue and health expertise came from the public health experts. In such a coalition, academicians, public health experts, health rights activists, party affiliated women leaders, women’s organisations and autonomous women’s groups came together.53 Litigations were proposed and conceived as a part of the strategy for the political struggle and in turn to intensify the solidarity of civil society. The narratives of the respondents recounted how the court issues were discussed with communities and how the communities especially those of women participated in the ongoing discourses, public demonstrations and public statements.54 An intense engagement of civil society coalitions and several action strategies through the course of litigations continued in the 1990s and early years in the third millennium.55

5.2.5.2

Litigation as a Counter-Hegemonic Strategy

The health care litigations expose the violations and indignities that the vulnerable and underprivileged suffer in the hands of the medical profession, health care institutions (both private and public), health bureaucracies and state institutions. In varied ways, they expose the power-nexus, class and patriarchal mindsets and the unaccountability of the political and ruling class in the court of law. Petitions on drugs and medicines and clinical trials for example, expose the nexus between the elites in the healthcare system, the bureaucrats and the pharmaceutical companies; medical negligence petitions challenge the power and impunity of the medical profession, their collusion with the commercial interests and the profiteering motif of the private-commercial health care institutions; reproductive rights litigations challenge the patriarchal mindsets that undermine women’s autonomy over their bodies; petitions on psychosocial disabilities and HIV challenge the entrenched systemic prejudice and stigma; and emergency medical care litigations expose the apathy of the hospitals to the suffering patients, even at the expense of losing lives in emergency and critical situations. In engaging judiciary and court power, civil society foregrounded litigations as part of the struggle for health justice. The coalitions envisioned it as part of their politics to challenge the anti-people policies of the State and the elite. On the one hand, health care domain provided a stage for unfolding the hegemonies that were entwined with health care. Citizens experienced the anti-people policies and hegemonic State in health care policies, behaviour of the medical profession, the exploitation of the health care institutions and unavailability of health care in public institutions. On the other hand, it also provided the platform for civil society composed of diverse 53 Scholar

in Sociology of Feminist Movements, Telephonic Interview, dt.21 July 2016. Senior woman health activist, Delhi, dt. 55 Right to Food Case, drug pricing litigation, sterilization issues etc. 54 Interview,

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coalitions and interests, to forge a formidable solidarity to challenge such violations. The narratives of petitioners described at length their frustrations over long periods of time spent behind courts and the bureaucratic processes of courts. Yet, seeing it as part of the larger democratic politics, many leaders and institutions continued to engage with judicial institutions. Role of Organic Intellectuals The role of organic intellectuals in the form of human rights activists and individuals from the middle class inspired by progressive ideologies comes forth prominently in the health care litigations. Gramsci, in his Prison Diaries acknowledges the role of such organic intellectuals in building a counter hegemonic order with political conscientisation (Buttigieg 1995). The progressive civil society leaders who took leadership and played historic roles in civil society for the processes of health justice were middle class academics and activists carrying an ideological leaning for the liberation of the masses. They see themselves as allies in the struggle for health justice. The challenge they face, however, is to become and sustain themselves as organic intellectuals that include tasks of catalysing and articulating the experiences of people, voice their experiences and knowledge, echo their wisdom, and present them in places where they are not heard or acknowledged. Even in the coalitions of women’s movements, progressive party affiliated organisations and health movements, it is a group of key leaders, with a larger political vision, who took lead to coordinate with the health care activists on troubling issues. This research finds the synergy and solidarity between such key leaders drawn from a wide range of ideological positions in confronting the hegemonic machinations of the elite, as very crucial to the realisation of health justice. Civil rights jurisprudence laid down in health care through the rights of prisoners that have strengthened citizenship can be attributed to the synergy and reciprocity of organic intellectuals across the societal spectra. Such synergy can also be seen in the interface of judges who played a historic role in SCI responding to the vibrant civil society movements such as workers’ movement and civil liberties. The biographical narratives of charismatic judiciary indicate to such motivation coming from the ideological positions and passion for social justice (Gadbois 2011; Krishnaswamy 2015). Unlike some other pan-Indian social movements led by a few charismatic leaders such as Jayaprakash Narayan, Vinoba Bhave or Medha Patkar, one does not see a consolidated social movement for justice in health (Shah 2002a; Kothari 2002). As the process of this research also confirms, movement for health has emerged as a consolidation of vast number of micro-struggles led by strong but relatively less known individuals inspired by several charismatic leaders in the country, all avowed votaries to the principles of the Constitution of India and the fundamental right to health, as can be seen in the social formation of People’s Health Movement (Jan Swasthy Abhiyan) in India. Several individuals at the community level, social action groups and rights based organisations, some sections of trade unions, researchers, writers and promiment personalities have contributed to building such a momentum.

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Kothari (2002) notes that in India, thousands of micro struggles and direct politics of masses have emerged in place of party politics and trade unions who have become orthodox in their politics and their strategies. It has given rise to a ‘whole new class of people known as activists, essentially drawn from the conscious and enlightened and troubled streams of middle class, engaged on a wide range of activities from Sarvodaya style ‘constructive work’ and NGO type development projects to more struggle-oriented political work, but essentially settling in the latter mode of intervention’ (Ibid.:84). As indicated by the profile of petitioners or those who worked as the backbone of the litigations, most of the progressive human rights activists hailed from a vast spectrum of organisations, other than trade unions or left leaning social formations. Most of them were supported by progressive development and human rights-oriented organisations or ideologically oriented networks and civil society coalitions. Though clubbed under the nomenclature of NGOs, these organisations provide institutional wherewithal, incubating space and necessary resources for the organic intellectuals to spearhead the movement for health justice. The solidarity of medical professionals committed to the reform of their own medical profession, revival of ethics and rational practice of medicine, have added further edge in synergising efforts to firm up the idea of right to health care in India. Some such medical practitioners, for example, challenged the unethical practices in medical councils and practice of medicine even using court power to challenge malpractices such as medical council elections conducted as sham. Research and publications through associations they formed and discourses through coalitions such as medico friend circle,56 contributed to the key strategies to challenge medical hegemonies (Jesani et al. 2004). Similarly, litigations reveal that in varied geographical and societal contexts, local social formations were active in identifying violations of health rights as part of their larger vision of equality and social justice. Such micro struggles have contributed to building the momentum for health justice and sustaining it.57 Post-1995, referred to as the neo-liberal era in literature, we observe a gradual change in the ethos of civil society itself. While some coalitions have continued the spirit of solidarity, an overall change in civil society’s approach to litigations notably indicates to the transition in the civil society solidarity. Gramsci interestingly noted civil society as a contested space. In Prison Diaries, he notes that it is through civil society’s collusion with the political class and the manufactured consent that the old hegemonic order is maintained. We do not refer here to any active collusion of civil society with the ruling classes. However, we note the phenomenon of civil

56 Medico friend circle (MFC) is a five-decade old alliance of health professionals, with its members deeply engaged in the health rights processes. The group discusses and debates the policy issues concerning health and allied matters in India. 57 The Jagruth Adivasi Dalit Saghatan in Madhya Pradesh is the force behind Dhunabai vs. State of Madhya Pradesh; Health Watch UP and Bihar have led sterilization related litigations; All India Drug Action Network, a coalition for access to mediciens, has led drug pricing related litigations; Karnataka Janaarogya Chaluvali has raised issues related to malpractice in private health care hospitals and unwarranted hysterectomies etc.

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society space getting populated by professional and funded NGOs and INGOs, and the gradual fizzling out of ideology-based solidarity coalitions.

5.2.5.3

Neo-Liberal Era and Fragmentation of Civil Society

Signing of WTO related agreement in the mid-1990s marks the official recognition of neo-liberal economic regime in India’s politics with grave consequences to the SRHC in India (Baru 2001, 2005; Baru et al. 2010; Qadeer et al. 2001; Qadeer 2011b). The upsurge of litigations on multiple health rights domains seems to indicate increased systemic violations of health rights taking place in concurrence with the weakening public health care system. (Vide. Fig. 3.4) There is a marked shift in the locus of discourse and arbitration of citizens’ health rights during this period. This shift marks the axis of discourse from civil society coalitions (as was seen in the 1980s and the early 1990s) to donor funded professional NGOs in the mid-1990s and after. Kothari (2002) also notes that the counter-hegemonic forces in this era as failed by the traditional institutional channels such as political parties and trade unions which have been found wanting in their leadership, co-opted and corrupted. A trend of NGOisation and professionalisation of civil society struggle – that can be described as ‘fragmentation of civil society’ – is observed concurrently with the emergence of INGOs in this field. Besides establishing dominance in public health discourses, these INGOs also occupy such civic spaces that partially dislodge the civil society coalitions. Cumulatively, it has affected the way civil society approaches litigations and courts, and has contributed to the fragmentation of solidarity in civil society.58 Professionalisation, NGOisation and Depoliticisation The civil society in the late 1990s is characterised by the depletion of coalitions on the one hand and emergence of various expertise and theme-based NGOs as the locus and experts/professionals as vantage points in thematic health rights issues. HIV/AIDS and reproductive health litigations and the rise of litigations in this domain, draws a clear link between the international discourses such as ICPD 1994 and UNAIDS, and litigations. Several international organisations have expressly supported funding for thematic litigations as their expressed strategy which corresponds to a surge of indiscriminate litigations filed in this field.59 Comparative research in social rights jurisprudence observe that transnational NGOs who take 58 A senior professor in the Centre for Social Medicine and Community Health (CSMCH) attributed this, among other reasons, primarily to the splintering of the civil society coalitions over these two decades.; Academician, Interview, Delhi, dt.26 July 2016. 59 Several funding organisations fund the HIV/AIDS litigations globally – UNAIDS (United Nations Programme on HIV/AIDS), Global Fund to Fight HIV/AIDS. The Ford Foundation and Open Society Foundations have law and using litigations as strategy. Among those who support reproductive health rights litigations are MacArthur Foundation and European Union Project. In India, the EU Project supports litigations in reproductive and maternal health projects through HRLN and Prayas under which lawyers are hired as consultants in 10 states and in each of the States a nodal person to coordinate with civil society is appointed. Though both HRLN and Prayas were not

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litigation route are not necessarily the ‘purveyors’ of the cause or that transnational donors providing funding for litigation ‘does not mean that they provide the impetus to litigate’ (Roseman and Gloppen 2011:252–53). However, the expressed interest of some transnational NGOs does indicate how they drive litigations, the domains as their strategy. In India, legal organisations were part of such a strategy both in reproductive health and HIV/AIDS thematic domains. Centre for Reproductive Rights (CRR), for example, vouches for the support for the legal work in about 50 countries including India.60 Centre for Reproductive Rights (n.d.) has its pronounced statement affirming this: Our ground breaking cases before national courts, United Nations committees, and regional human rights bodies have expanded access to reproductive healthcare, including birth control, safe abortion, prenatal and obstetric care, and unbiased information. We influence the law outside the courtroom as well, documenting abuses, working with policymakers to promote progressive measures, and fostering legal scholarship and teaching on reproductive health and human rights. We are legal innovators seeking to fundamentally transform the landscape of reproductive health and rights worldwide and have already strengthened laws and policies in more than 50 countries.

Steep decline in HIV/AIDS related litigations after 2010 and an increased focus on reproductive and maternal health litigations also points to the weight of funding that influenced litigations. Professional organisations cast in a welfarist framework sometimes appear to thwart the struggle for health spearheaded by civil society coalitions. In an instance that was described by a petitioner, a charitable health NGO in Karnataka state, used the power of court to stall the government’s order to return the management of 27 PHCs in Karnataka back to the MoHFW. The NGO was successful in quashing the government notification by approaching the HC of Karnataka.61 Coincidentally, during the pendency of the case, the minister who ordered the notification was also abruptly transferred out of his ministry. The respondent who impleaded as a third party in this case, was driven by the accountability and health rights perspective and was of the view that it is the State that should run PHCs and not NGOs. The latter are not accountable to civil society or to patients. Similarly, the problematic role of NGOs intervening or mediating in public programmes was revealed in another forthcoming in revealing the source of funding, this information is collected through discussions with several people including some of the petitioners who are closely involved in the process. 60 Indian cases showcased by CRR include CHARM vs. State of Bihar (part of this research), Ramakant Rai vs. Union of India (Part of this research inquiry) and others. These were litigated through the Human Rights Law Network, Delhi. In India Lawyers Collective and Human Rights Law Network, human rights, and legal organisations, assisted number of NGOs during this period and HIV/AIDS specific litigations are located in the 1995–2008 period. 61 Specific case that the researcher followed is of an NGO in Bengaluru, a charitable organisation, which has adopted several PHCs in several states with a view to setting up model PHCs. In Karnataka, when the government of Karnataka wanted to take back the 25 PHCs, the NGOs claimed it to be the violation of fundamental right and used the provisions of Article 226 of the Constitution of India to go to the High Court and stay such a process. Karnataka Janaarogya Chaluvali (KJC) impleaded in this case to strengthen the government power to take over PHCs. The convener of KJC was one of the respondents in this research as well.

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case. In Bihar’s Araria district, in the sterilisation related contempt petition, it was recorded that a local NGO with a large clout and influence in connivance with the local politicians, was used by the district health authorities as a conduit to allure women into sterilisation camps, in order to help authorities to meet sterilisation targets. It was made a respondent in the petition at a later stage.62 This local organisation routinely obtained contracts from the district health department to conduct such a task, however, had no accountability to the community and the adversity women suffered after the tubectomy.63 A few litigations do exemplify the enduring civil society coalitions as seen in some issues such as drugs and medicines (2004–2019) and in the issue of Gleevec (Novartis case 2008–12), though in a depleted and residual manner. In general, in recent years a shift is observed in moving from strategic litigations to instrumental litigations, with meeting funding targets as the primary concern rather than it being a civil society strategy to challenge hegemonies of the State aimed at bringing systemic changes.64 Transnational NGOs and Philanthropic Organisations The litigation concerning HPV vaccine administered leading to the deaths of adivasi adolescent girls in Andhra Pradesh, filed in the SCI involving Programme for Appropriate Technology in Health (PATH), an international non-profit organisation, anecdotally points to the growing trend of INGOs and their direct involvement in India’s health care programmes. According to the petition perused and the 72nd Parliamentary Standing Committee Report on Health and Family Welfare, PATH which was funded by Bill and Melinda Gates (BMGF) got in collaboration with Indian Council for Medical Research (ICMR) to administer HPV vaccine, a product of Merck company (Parliament of India 2013). It is alleged that what PATH undertook was similar to a clinical trial, however, was administered as a benevolent service of preventive immunisation to the marginalised community (Dhar 2012).65 The involvement of ICMR, besides facilitating INGO’s easy access to the vulnerable community, provided the much needed legitimacy too as a benevolent provider of preventive health service for a deadly disease such as cancer. This issue came to light only after the deaths of adivasi girls surfaced in the media. Post-2000, the civil society space is populated by transnational actors such as International NGOs (INGOs). Their involvement in direct implementation of programmes 62 Devika

Biswas vs. Union of India. Biswas (Petitioner), Interview, Delhi, 13 February 2015. 64 For example, a public health and a human rights legal organisation are jointly pursuing a European Union project in which filing litigations on health care matters in 10 states is one of the objectives. However, such a process is guarded in secrecy as no responsible person in these organisations was ready to talk about it even after repeated requests. The researcher made repeated attempts for obtaining information however such data was not divulged.. 65 Petitioner (Impleading)—women’s health activist, Interview, Delhi, 03 February 2015. It was a quadrangular relationship between the NGO, philanthropic organisation BMGF, ICMR and vaccine producer company PATH was warned by the Indian government after one of its studies involving an HPV vaccine resulted in the alleged death of seven girls belonging to adivasis in India. 63 Devika

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at the state and even local levels marks a significant and critical part of the phenomena of NGOisation in India.66 The financial dependency of local NGOs on INGOs in these states and the fact that they are compelled to drive the agenda being set by technical organisations with financial resources, creates a disconnect between health rights issues of citizens and the agenda pursued by transnational actors. The civil society space is already under stress due to the vigilance of the governments on organisations involved in citizenship and rights based work. However, the rights discourses are now being replaced by de-politicised NGOs toeing the line of the State.67 The story of Jayambe, a local NGO in the district of Araria (Bihar) involved in sterilisation related issues, is only indicative of such a phenomena. The outsourcing of State run health services such as hospitals and PHCs to welfarist NGOs, a widespread practice that is adopted by several state governments, while helps the government in shirking its Constitutional responsibility, while depoliticising public institutions, simultaneously deprives citizens of their power to demand accountability and their entitlements. The three key actors, thus, appear to be in contesting and competing relationship through reciprocity, collusion or resistance. Of the three, citizens demanding justice along with the civil society, are located in a relatively weaker position, and are compelled to muster its power and resources vis-à-vis two other powerful actors, viz. the State and the professions. Such a competing and mutually subverting phenomena indicate that the judicial act of balancing power aimed at bolstering citizenship and translating health care jurisprudence into health justice, is fraught with insurmountable challenges. The acknowledgment of such challenges couplded with perception of unpredictability of judicial processes, necessitates a discussion on the limits to health care jurisprudence.

5.3 Limits to Health Care Jurisprudence Current legal discourse on justiciability of social rights is contingent on the approach of the State and the mercies of the judiciary. However, the judges themselves are constrained by various socio-political exigencies for their effectiveness and survival (Rosenberg 1991). The preceding discussion on the character of health care jurisprudence alludes to the limits to jurisprudence in any socio-political setting which needs some consideration. Two interrelated questions are considered in section. Can the courts usher in health justice? Can the courts transform their own health care jurisprudence into health justice? International research on social rights has expressly noted the inability of the judiciary to effect sustained and consistent change. Rosenberg’s (1991) well cited 66 Several INGOs and donor organisations such as Bill and Melinda Gates Foundation (BMGF), JHPIEGO (non-profit health organization affiliated with The Johns Hopkins University), USAID have state level offices. They directly deal with local NGOs and they also undertake bilateral agreements with the state governments on their agenda and project goal. 67 In Madhya Pradesh, the state government made a consortium of NGOs to receive funding from the state. The list left out many NGOs working on rights and accountability issues.

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provocative work, The Hollow Hope: Can Courts Bring About Social Change? casts a very pessimistic picture on the ability of courts to bring about and sustain social change. The dominant American academic literature on the issue of social rights and courts, is noted to be very negative and holds reservations on the impacts of courts (Gauri and Brinks 2008:303; Flood and Gross 2016). Yamin and Gloppen note that the assessment of impact is ‘inextricably related to conceptions of judicial power’ (2011: 337). Judicial space itself is a ‘contested space’ and contestations extend not only to what judiciary does in the court precincts but also to judicial impacts of the court orders. The possibility of courts ushering in social rights varies across the political climates and the contexts in which courts are located. In some capitalist countries with a very long history of social welfare such as Canada and Netherlands the judiciary is very conservative to legalise social rights. Even when they do so, it is considered an individual liberty and the programmatic goal of the government (Vlemminx 2006; Wiseman 2006). Only in countries like Argentina, Columbia, and South Africa, struggles for democracy and human rights have reshaped the approach of the judiciary to social rights in general (Uitz and Sajo 2006; Brand 2006). Access to courts has been rendered easy in these countries. South Africa is a special case where the Constitutional Court takes a contextual approach, which is a careful case by case consideration on relative justiciability. Even in these countries, court’s approach has been highly individualized and that courts are willing to do so only on a case-by-case basis and often resort to the arguments of its institutional incapacity and democratic illegitimacy of courts when they are unwilling to grant reliefs (Brand 2006). On the other hand, in countries like Colombia where there is a progressive judiciary backed by a Constitution has been proactive on social rights. The litigation process is said to have led to ‘epidemic of litigations’ (Yamin and Gloppen 2011). Several questions surface concerning judicial limits. How do judges oversee or translate their judgments into actionable system change processes? How do judges manage the executive circumventing judgments? The healthcare system is embedded and governed by rules, bureaucracy, authority, and hierarchy which are not favourable to citizens and such entrenched rules are the root of violations. How does the judiciary change such rules in favour of people as part of changing institutions? How do judiciary enforce changed rules for instituting regulatory structures? Judiciary itself is an institution entrenched in social caste-class-patriarchal stratification, how does it then overcome such limitations? We consider these questions from theoretical and institutional considerations in this discussion on the limits to the power of judicial institutions. Thse considerations raise critical reflections on the legitimacy of courts, their institutional contigency and the limits imposed on them as political organs of the State. These reflections will be contextualised around the empirical evidence of this research specifically referring to SRHC and health justice.

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5.3.1 Theoretical and Institutional Considerations The constitutional limits of courts concerning rights jurisprudence stem from the concept of separation of powers and legitimacy of courts. Rights require making political choices, setting priorities, allocating resources, and rearranging budgets as part of social rights. Coomans and Universiteit Maastricht (2006) opine that the courts face incapacity to make decisions about the implementation of these rights. Courts lack both democratic legitimacy and competency to deal with matters of social rights. The courts’ involvement in policy making on social rights would mean politicisation of courts and Cottrell and Ghai argue that ‘there is always risk that courts may cross the line between indicating failures of policy and priorities and indicating so clearly what those priorities ought to be that they are actually making policy’ (Cited in Coomans 2006:5). This argument proposes that courts are not democratic institutions and therefore lack legitimacy in policy making. In addition, extreme judicial activism, being highly individualistic, entails the risk of undermining popular participation and democratic legitimacy (Yepes and Sajo 2006). Institutional constraints are manifested through judiciary’s acute dependency on other institutional actors for making the jurisprudence actionable. Converting a court ordered remedy depends on ‘the policy area, the nature of the respondent, the nature of the duty sought, and the nature and scope of the relief ordered by the court’ (Rosenberg 1991:19). Courts do not have any mechanism for enforcement. Successful enforcement depends on a willing or compliant bureaucracy that can undertake compliant monitoring and enforcement of the duties imposed by the courts. The ability of the courts to bring about social change is viewed primarily from two theoretical frames. One, constrained court view which maintains that courts cannot produce social change because of various constraints; two, dynamic court view which asserts that courts are effective producers of social change and comparatively more effective than other State institutions. Rosenberg (1991), for example adheres to the former, and builds his arguments on three major constraints courts face. The bounded nature of constitutional rights prevents courts from hearing or effectively acting on significant social reform claims; judiciary lacks the necessary independence from the other branches of the State to produce significant social reform; and, courts lack the tools to readily develop appropriate policies and implement decisions ordering significant social reform (Rosenberg 1991:13–21). There are agreements and disagreements on such ‘counter-intuitive’ views (Delgado 2008; Epstein 1991). However, it points to the contested character of the judicial institutions and their powers. Rosenberg’s work is located in the policy context of the USA, however, resonates well with Indian policy milieu as well. The paradox of the judiciary is said to be that it is powerful and yet is dependent on the executive for implementation of its orders. Courts and judiciary suffer from accountability deficits which undermine their moral right to demand accountability. The legitimacy in calling for accountability of others while exempting themselves from all public scrutiny is debated widely. In India, for example, the power of SCI to appoint its own judiciary through collegium

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was contested as judiciary refusing to be accountable. The National Judicial Appointment Commission Act (NJAC) was passed by the parliament, purportedly to bring more transparency in judicial appointments. It was struck down by SCI under its power of judicial review. However, some judges dissented and disapproved such a majoritarian position of the court (The Hindu 2016). The collegium process of appointing judges was critiqued to be opaque. In a significant and unique case, the Chief Information Commissioner declared courts as public office and Delhi HC upheld such an order. SCI, taking a suo moto cognisance of this matter, appealed against this order in SCI and quashed it subsequently (Bhatia 2019). Notably, courts’ own accountability and efficiency are questioned while over three crore cases are pending in Indian courts, as accountability deficit closely relates to courts’ own inefficient system and machinery for processing cases and transparency in the matter. With the launching of ‘ECourts’ project and a digital portal, the total caseload of the court is now publicly known (Press Information Bureau 2016).68 In addition to the unaccountability of the judiciary, there is too much centralisation of power with SCI which it does not want to part with, that compounds the already lingering inefficiency. Proposal for more benches of SCI in other parts of the country also has not been entertained by SCI. The dual role of the SCI as Constitutional Court and Court of Final Appeal bundled into one has come into question several times. The proposal for the separation of these two functions too has been mooted in the wake of the backlog of cases, the inefficiency of the courts and the ability to deliver. However, SCI has not shown inclination to institute other benches of SCI in the country to make them accessible to citizens and to increase its efficiency. A third set of limits concern the political constraints on judiciary. Rosenberg (1991) had strongly argued that without the support of elite political actors, judicial decisions cannot produce significant social change. On the other hand, if there is elite political support for social change, one would not require the support of courts. The judiciary has de jure authority on pronouncing judgments and for ordering corrective measures. However, they do not have de facto authority over the executive and the bureaucracy to convert them into actionable orders.

5.3.2 Failure of Judicial Institutions in SRHC Functioning of social democracy includes the intersections of various institutions in which the role of the judiciary is like an oversight ombudsman mechanism. From an institutional perspective, the failure of social democracy is construed as decline and failure of these institutions (Mehta and Kapoor 2009). SRHC, and social citizenship 68 There

are about 20 million cases pending in district court alone, of which 10.5 percent cases are pending for over 10 years 18 percent cases between 5 to 10 years, 30 percent cases pending between 2 to 5 years and about 42 percent cases pending below two years. (S. 2015) Supreme Court itself has about 59468 (19 Feb 2016) matters pending and the HCs 41,53,957 (as on 31 Dec 2014).

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is a process that is embedded in the functioning of various intersecting institutions. Bolstering such a process involves affecting institutional changes to change the institutional rules in favour of citizens. Within the democratic structure of separation of powers, the impact of health care jurisprudence would imply the ability of the courts to influence the policy and regulatory processes in these two core institutions in favour of citizens. Failure of Judicial Institutions In the historical power tussle between the executive and judiciary in India, the latter emerged as the ultimate custodian of the Constitution and its interpretation with an understanding that SCI is the highest institution of accountability in India. Such independence, however, has not meant greater scope for dealing with social rights issues. Mehta, notes that ‘most of the institutions of the judiciary remain in a permanent state of crises’ (Kapur and Mehta 2007:160). Though much has been written about the power and reform of the SCI, it is largely limited to a few aspects of the functioning of higher judiciary, and not to the entire spectrum of courts. A lot work needs to be done for reforming the the lower judiciary. The characteristics of other political institutions as inefficient, poorly managed, and corrupt are equally applicable to the courts. In its obsession for upholding its autonomy and supremacy, it is observed that there has been a steady ‘declining quality’ of judges and judicial institutions. The delay, irrationality and inconsistency in judgments, the quality of judgments reflects the lack of institutional reform in the courts that marks the declining quality of the institution. This is attributed not so much to the interference of the executive but to ‘judiciary’s own internal corrosion’ (Mehta 2007:176). Legal ethics, professionalism, legal skills, and educational attainments in the legal fraternity are pointed out be some of the areas where declining quality of judges is observed. A few outspoken judges of SCI have stated publicly that a substantial portion of the judiciary is corrupt and the number of corrupt is higher among the lower judiciary (Roy 2016).69 During the interviews, experts and lawyers expressed agreement that quality of judicial institutions including the Bar Councils and legal education was declining. They indicated the civil justice system in a perpetual state of crisis. As an institution, almost all levels of the judiciary and Bar Councils exhibit what can be described as administered chaos. There is unanimity in the view that the court system is administratively inefficient. Judges are excessively passive in an adversarial legal system; excessive delay too derails justice and there are few alternatives for dispute resolution other than ill-managed court procedures. While the higher judiciary showed some signs of reform in the 1980s, there has been hardly any reform in the lower judiciary. Rotation of judges, cases remaining in the court dockets even long after they cease to have been litigated or lost their relevance, unpredictability of the courts’ dockets, judges reluctance to impose court discipline to build efficiency, lack of any 69 Katiju in the interview to CNN-IBN News said about 40 percent of the higher judiciary and about 80 percent of the lower judiciary is corrupt. He also quoted many CJIs saying this earlier. The SCI also slapped contempt of court case on Justice Katju..

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alternative disputes resolutions have only mounted the backlog of cases in the courts (Kapur and Mehta 2007). The quasi-judicial bodies or independent regulatory authorities or tribunals have the potential of facilitating justice in health care as they are comparatively more accessible to citizens. They can potentially reduce the burden of courts by redressing the grievances of the patients. This needs consideration by the policy makers in India and that will reduce the case load on the courts as well. The functioning of the existing quasi-judicial institutions illustrate that they too are weighed down by the institutional limitations and inefficiency like that of courts. Citizens look up to the NHRC that was constituted as the ombudsperson body under the Protection of Human Rights Act 1993 with great hope in matters of violations of SRHC. It is barred by such limitations that it can take cognizance of the acts of omission and commission, only of those who are defined as ‘public servants. This implies that violations occurring in the private health care sector are barred from its jurisdiction.70 It is also barred by limitation of time to take note of matters beyond the period of one year from the date of occurrence. They do not have jurisdiction in matters where the government appoints any commission of inquiry. Similarly, another important quasijudicial institution, the medical council of India and its state bodies, are authorized to consider disciplinary action only in matters of professional conduct of registered allopathic doctors, but do not have power to receive complaints against hospitals or institutions. The scope of MCI Act includes only the professional conduct of doctors and medical education.71 Baxi (1980) locates SCI in its political environment and treats it as an institution influenced and shaped by its specific historical context. Justice institutions mirror the caste-class-patriarchy based hegemonic society of India as a whole, that is by and large not only prejudiced against but also apathetic to the plight of the poor, Dalits, women, and the suffering of the toiling masses. In the issues of population control litigations that challenged two child norm, or requirement of secondary education as minimum educational qualification for contesting GP elections in Haryana, or in the contempt petition on sterilisation filed in the SCI based on the non-compliance

70 In the western zone national public hearing which was jointly organised by NHRC and JSA in Mumbai at the Tata Institute of Social Sciences, Deonar (Mumbai) on 6 and 7 January 2016. Several cases of negligence and gross violations of the private health care sector were documented as per the previously agreed terms between the two organisations. The cases were documented and were submitted to NHRC well in advance. However, private doctors and their associations had raised serious objections to the notices that were served on them to appear in the public hearing. Buckling under the pressure, the acting chairperson of the NHRC, retired Justice Cyriac Joseph refused to hear them citing limitations put in Sec.12 (a) of the Protection of Human Rights Act 1993 which says the acts of violation. Section 12 (a) (i) and (ii) state that – ‘inquire suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant’. 71 National Medical Commission Act 2019 had now replaced MCI with National Medical Commission. NMCA is enacted with the aim of ushering reforms in the medical education and medical profession.

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by the states on SCI’s orders,72 the SCI was neither moved by the sense of duty on upholding civil and political liberties of citizens, nor was enraged by the executive’s non-compliance with its orders, nor was it moved by the plight of women who were herded into sterilisation camps in Chhattisgarh during the pendency of the petition in the SCI. Mehta (2009:189) poignantly notes that ‘it is difficult to disentangle the weakness of courts as institutions from the pathologies of the larger society they find themselves under’. However, instead of engaging in self-introspection as a legal institution, often the judiciary externalises the cause of its institutional limitations, with consequent negative implications to social rights including SRHC. With the predominant perception of being overburdened with caseload, judiciary tends to axe cases that they are least interested in or or those that are not palatable to their socialised tastes. Several judges, for example, have reservations against PILs, as they were even during Justice Bhagwati’s time (Gadbois 2011). Consequently, adhocism and arbitrariness is displayed by the judiciary in admission of PILs, in hearings and passing final orders. Media abounds in illustrations for adhocism, outbursts and inconsistencies of judiciary (Rajagopal 2016a).73 72 In the follow up interview conducted with the petitioner in Devika Biswas vs. Union of India after a year the petitioner who was very hopeful a year ago did not exude much hope in the case. This petition is based on the SCI orders for the quality of services for the family programme delivered in Ramakant Rai vs. Union of India. During the lifetime of this petition deaths occurred in Chhattisgarh in a sterilisation camp. Affidavits were filed from different states on the non-compliance. Petitioner said, Justice Madan Lokur was not holding the government responsible for anything and was simply going by the affidavits of the State Counsels. The hearing is closed, and the final order/judgment is expected soon. The petitioner was not hopeful to get any extraordinary order. (Petitioner, Interview, Delhi, dt.16 August 2016). 73 For example: a curative bench consisting of four male judges including the CJI (T. S. Thakur) upheld a judgment of 2014 which barred the automatic arrest of men in dowry harassment cases and said that “dowry harassment law has become a ‘menace’ and is used as ‘weapons rather than shields by disgruntled wives”. (Rajagopal 2016b:13) Another bench consisting of Justices Anil R. Dave and Adarsh Kumar Goel directed the Law Commission to file a report on whether it is permissible to stop the filing of ‘routine’ appeals. Their opinion was that routine cases instead of constitutional matters are taking up the time of the court, thus restraining SC from taking matters of national and public interest. Section 498A (dowry harassment) was a hard-fought battle won by women’s movements in India. It presumes the husband and in-laws guilty if the death of the woman occurs within seven years under suspicious circumstances. In this case, instead of addressing the issue of dowry harassment and deaths which is the pressing issue as they have focused on the misuse even as the crime rate against women is on the rise including dowry deaths and harassment of women by husband and her relatives. (Govt of India—Ministry of Home Affairs 2015:81–92) Similarly in another case a woman who had complained of domestic violence under the Protection of Women from Domestic Violence Act, 2005 was fined Rs.1 lakh for the false complaint. (Tilak Marg 2015). The Bombay High Court fined a fisher folk woman president of an association, who approached the court to seek pre-emptive measures from being vacated from her house about which she had the information. Interview with the petitioner (Baroda, 30 May 2015)—petitioner informed that the drug pricing case was deferred final hearing and judgment in place of IPC 377 case as a parting shot by Justice Singhvi, just before his retirement..

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The institutional limitations and failures have a bearing on the considerations of justiciability of health rights, enforceability of health care jurisprudence and transformability of such jurisprudence into systemic measures. The statutory and institutional constraints, however, need an in-depth inquiry to identify areas that require policy reform and those that can be reformed by factoring in efficient functioning in the legal machinery.

5.3.3 Gaps in Addressing State Accountability for SRHC SRHC denotes the right to a functional health care system (UNOHCHR 2002). Some of the celebrated judgments have reinforced it as part of the jurisprudence in India.74 Health care in India is designed to be delivered through a chain of institutions which are hierarchically organised. The jurisdiction of accountability is diffused across several state level authorities, medical education departments, national level union health ministry, etc. Accordingly, violations of health rights and deficiency in health care imply failures of several institutions which are embedded in the larger sociopolitical milieu. Health care institutions too reflect societal inequalities based on caste, class, patriarchal prejudices, and sizeable number of violations can be attributed to such inherent institutional prejudices (Qadeer 2011a). The failure of the parliamentary institutions and a serious disaffection with majoritarian institutions of accountability necessitates the exercise of judicial power almost (Mehta 2007:165). Court interventions have been widely seen as legitimate, or at least tolerated, because the representative institutions are predominantly seen as being immobilized, self-serving, corrupt, and incapable of exercising either their basic policy prerogatives or their powers of enforcement. Even in comparative terms, the exercise of judicial power is increasingly being seen not as a threat to parliamentary democracy, but as a response to its ineffectiveness. The narrative accounts of the respondents vividly depict a lack of due process for redressal of grievances and a lack of accountability by the State authorities to people as well as to the Constitution. A senior retired health bureaucrat seconded the view of institutional failures in India as one of the reasons why access to healthcare is still a distant dream. This was illustrated by the fact that the Clinical Establishment Act 2010, purported to regulate the private sector is a ‘virtual non-starter’ with only ten states and five union territories adopting it.75 The State has not privileged the health care jurisprudence 74 In Laxmi Mandal v. Deen Dayal Harinagar Hospital and Others for instance Justice Muralidharan lays down that right to health or health entitlements include ‘ the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health…’ 2010 SCC Del 2234: (2010) 172 DLT 9, p. 19. 75 Researcher was part of a delegation of Jan Swasthya Abhiyan which met Keshav Desiraju in when he was the chief health secretary in 2013 to expedite the processes of formulating the rules of the CEA, which were central to the regulation of the private-for-profit health care institutions. During his short tenure as health secretary, the newer issues of Clinical Trials, Surrogacy were highly debated in India, including the courts. He was perceived to be a pro-people person and included several

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laid down so far to push for systemic reforms even through legislations such as CEA. It has also not shown seriousness in formulating rules and standards for its prompt implementation. The National Health Bill 2008 which was drafted had the elements of system reform, which the political class completely ignored. This comprehensive Bill eventually lapsed. What is the role of courts in transforming such a State? Jurists have hailed court reforms and court institutions as having played a key role in the processing of social transformation and social justice in India including the declaration of right to health as fundamental right (Kirpal et al. 2000). Most of the petitioners pitched their hopes high on the only remaining remedy as accessing Courts. An overall systemic failure to deliver health care services, absence of corrective and redressal systems has pushed citizens to the courts. Baxi’s (2016:36) comment supplements such a sentiment: What judges at work say and do matters for the nation. They wield enormous powers over citizens and the State. Their judicial interpretation determines the contours of our freedom and the future of human rights as well as powers and structures of governance. They increasingly co-govern the nation, alongside Parliament and the executive…

In matters of SRHC, the courts display variant and ambivalent positions vis-a-vis the deviation of the State from its Constitutional obligations as seen in health care litigations of several domains. Courts have had a little impact on bringing the State back to its central role in upholding SRHC. The higher judiciary has not been forthcoming to fix the failures of various regulatory institutions responsible for safeguarding the health rights of citizens (Parliament of India—Rajya Sabha 2012, 2016).76 The Courts have not deterred the State from retracting from its own commitment and policies such as DPCO, public health care system nor has questioned it for non-compliance with its orders. A proactive interventionist State taking more ownership of the public healthcare sector is argued to be the key for safeguarding SRHC. A retired senior bureaucrat, in the foreword to a recent book Dissenting Diagnosis, argues: [a] reform of the system must come with an overall increase in government investment in health care and medical education, with a reform of the current regulatory mechanisms, including the councils and a much greater public ownership of the sector (Desiraju 2016:x).

The State failures in strengthening public health care system, glossing over the misgivings of the medical profession and ignoring the foundational jurisprudence which has been laid down historically, cumulatively denotes a gross failure of the judicial institutions, as an organ of the State, to fix accountability of other organs of the State. people of JSA in the committees for formulating rules of CEA. Later he was unceremoniously shunted out from the post of health secretary to a different ministry. There was reason to believe that this was done under the influence of pharma and another private lobby. As on 10th February 2020, 11 states and six have adopted the CEA 2010. (www.clinicalestabli shments.nic.in, accessed on 20 February 2020). 76 The regulatory institutions, as clearly noted in the 59th and 92nd parliamentary reports, have continuously abdicated their responsibilities of executing regulatory functions. Besides, the reports allude to their blatant collusion with private bodies who should be the subject of their regulation..

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5.3.4 Deficits in Medical Professional Accountability A well organised, self-regulated and ethically-rationally-functioning medical profession is central to the provision of health care and realising SRHC. Medical profession vouches for self-regulation and in general tends to put up enormous resistance to external regulation and is noted as a world-wide phenomenon (Star 1982). MCI in India is vested with duty and authority for the enforcement of the Medical Code of Ethics which includes regulating the conduct of medical professionals, their qualification and medical education. As a quasi-judicial institution, established under the authority of parliament promulgated legislation, viz. the Indian Medical Council Act, 1956 it is vested with the powers of courts to undertake its ombudsman functions over the medical profession.77 The case of MCI illustrates the failure of the medical profession. Some of the respondents of this research had direct experience of the functioning of three state medical councils, viz. Karnataka, Maharashtra, and Delhi, as complainants. All of them unanimously pointed out to several factors such as the malfunctioning of the state medical councils, elections not being held or manipulated, intimidation of complainants against doctors, manipulation of records of hearings, irregularity in sending notices of hearings to complainants obstructing their attendance, secret hearings with respondent doctors and so on. They also narrated that the council proceedings are overwhelmingly lenient to doctors.78 In one of the well-known cases, P. C. Singhi v.Dr. P. D. Desai, the MCI overturned the exonerating order of the Maharashtra Medical Council(MMC) and held the Padma Bhushan respondent surgeon guilty of medical negligence, recommending the cancellation of his licence. However, MMC which had ordered otherwise, did not act on MCI order. Interviews with two medical doctors who are in the ethics movement narrated the first-hand stories of misadventures of MMC itself. MCI itself is publicly accused of inaction, collusion, and corruption, thus weakening its own moral legitimacy from being an ombudsman over others.79 The medical councils (both at the Centre and in states) are known to be bodies ridden with corruption. In 2005, the MCI board was suspended, and an interim body was formed. Interview with the medical doctor who was the chair of the ethics committee during this period said ‘nothing can save the medical council of India, the entire Act needs to be scrapped and new legislation needs to be enacted’.80 77 The Indian Medical Council Act, 1956, Act No. 102 of 1956 was passed by the parliament on 30th December 1956. It has also seen periodic amendments in 1964, 1993 and 2001.. 78 The lawyer petitioner in a case of Medical negligence in Delhi Medical Council, pointed to a huge manipulation of records, documents of hearings which were not conducted, manipulation of dates, notice to the complainant which reaches on the day or after the hearing etc. There is no recording of the proceedings as it should happen in a transparent quasi-judicial body and the records and copies are not served on the complainant. Number of these procedural manipulations put the patient in jeopardy. (P16_Petitioner-advocate, Interview, Delhi, dt.12 March 2015). 79 In the public hearing mentioned above—organised by NHRC & JSA, presentation was made of several cases presented to MCI but there was neither response nor any action.. 80 Interview with a surgeon-medical ethics expert, Mumbai, 18 November 2015.

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The SCI was again drawn into the mismanagement of examinations to professional courses which included the medical and dental entrance examinations in MP and disappearance of witnesses and the scam. The Parliamentary Standing Committee report filed in 2016 on medical profession and medical education concluded that there was a ‘total system failure’ due to corruption and decay (Rajya Sabha 2016). Nagral (2016) comments: Box 5.1: Case of Maharashtra Medical Council MMC was suspended by the Bombay High Court from 1998 to 2008 for irregularities in elections of its members and maintenance of register. After elections in 2009, as is evident from the review of its website, the MMC has improved its maintenance of register, but there is no improvement in its disciplinary function. On the data, which was based on RTI applications, it was revealed that during the period between 1995 and 2015, the MMC received 1134 complaints, but decided only on 397 (35%), and took no action on the 737 (65%). Since the current Council took over (2010), it received 547 complaints, but acted only on 123 (22%). The nature of the action, however, is not known. (Jesani 2016).

A parliamentary committee has closely studied the failings of the Medical Council of India and has made far-reaching recommendations which, if implemented, may well transform healthcare delivery in India. The underlying disease, however, is not the failures of the MCI but the complete commercialisation of medical education and of healthcare in the era of market triumphalism.

The failure of the medical self-regulatory bodies in India typifies the moral and professional decline in the profession adversely affecting the care of patients. The medical profession and the other medical establishments have not been brought under regulatory regime in India, leaving much to the presumed ‘self-regulation’. What is the reason for the hesitation of ‘the most powerful court in the world’ to regulate the medical profession and contain the self-regulatory bodies? This is a question that needs further in-depth investigation and is not discussed in the current research.

5.4 National Medical Commission Act 2019 and the Hope of Reforms The National Medical Commission Act, 2019 (NMC Act) is claimed by the central government as the biggest reform in the medical profession. The government has also mentioned that it is pro-poor legislation to make medical care more accessible to the people. The NMC Act aims to bring governance reforms in the medical field, addressing the needs of the services, standardise quality in medical education. The Act however has met with severe resistance from the medical community itself which has expressed reservations about the Act.

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The demand for such an Act and to replace the MCI was long pending. MCI itself is accused of corruption, nepotism, collusion, and inefficiency. Some of the key features of reform include the following: • NMC Act 2019 effectively repealed the Indian Medical Council Act 1956, and hence the governance of medical education and medical profession will now be subject to the jurisdiction of this Act. • The governance of medical education and medical profession will be done through four autonomous boards, under the overall supervision of the National Medical Commission (NMC), viz. The Under-Graduate Medical Education Board, the Post-Graduate Medical Education Board, the Medical Assessment and Rating Board, and the Ethics and Medical Registration Board. • The NMC Act has replaced MCI with the NMC. The NMC will consist of ex officio members, nominees of states and union territories, and from amongst persons of ability, integrity and standing. • To bridge the rural-urban divide as well as the shortages in the human resources in health, NMC may propose granting limited licence to practice medicine at mid-level as Community Health Providers subject to adequate qualifications and regulations. • To ensure equity in accessing medical education, the NMC is authorised to determine fees for 50 percent of the seats in private medical colleges and deemed universities. • To bring about a standardisation and uniformity in medical education, the NMC Act 2019 provides for National Exit Test (NEXT) for granting a licence to practise medicine and enrolment in the State Register or the National Register. It shall also be the basis for admission to postgraduate broad-speciality education in medical institutions. The National Eligibility cum Entrance Test (NEET) too aims at bringing uniformity in undergraduate medical entrance exams. The unfolding of this Act into systemic reforms and required mechanisms as purported by this Act is yet to clearly unfold itself. The rules have not been framed yet. Marking a positive development, after almost a year after the promulgation of NMCA, on 24 September 2020, the central government notified the 33 member NMC to come into effect from 25 September 2020. It was governed by the Board of Governors for the preceding four years.81

5.5 A Brief Synthesis—the Social Pathology, Crisis of Citizenship and Health Justice This book, building on the concepts of justice and human rights, firmly places health and health care in the discourse of citizenship and social justice. Drawing from the philosophical and moral argument of health and health care as a public social good, 81 Updated

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this book posited them essentially as ‘non-excludable’, while postulating the role of the liberal welfare-state as central to the equitable distribution of public social goods. The focal ideas of the underlying thesis include social citizenship and SRHC, and the contours of health justice are illustrated through a power discourse depicting the conceptual interface between the State (and its laws), Justice System (and health care jurisprudence), medical and legal professions, and the agency of the civil society (and vulnerable aggrieved citizens). Going beyond a simplistic understanding that depicts justice merely as a transaction between a plaintiff/complainant and respondent facilitated through the mediation of the court, this book, from an interdisciplinary lens, postulates health justice as the outcome of a graded and unequal exchange of power between the three key actors, viz. the State, the medical and legal professions, and civil society, that constitute the ‘health justice triad’. Through a paradigm of health justice triad, the discourse in this book engages the concepts of power, class, and citizenship to develop a power discourse in relation to health justice. The health justice triad exemplifies the triadic relationship of power between the State, professions, and civil society, depicting a graded and unequal exchange of power between them. Taking a bottom-up view of health justice from the perspective of the vulnerable citizen, the discussion points out the relatively weaker position of vulnerable citizens and civil society organisations in that they can exercise vis-à-vis the two other actors, the State and Medical Professionals. While the realisation of health justice through SRHC is dependent on the synergy between the three actors, it is the role of the medical profession that emerges as being of utmost and critical significance for SRHC, requiring a radical reform in the medical profession itself. Translation of health care jurisprudence into health justice has severe setbacks as the country lacks a cohesive legal framework to consolidate the jurisprudence, thus allowing it to remain fragmented, ad hoc, piecemeal, disparate and inchoate as a body of legal principles. Such inherent ambiguity and fragmentation necessarily impedes the realisation of health justice that is limited only to the existing procedural and technical-legal justice mechanisms. We, therefore postulate, that along with the judiciary, civil society too is an equally important actor in ushering in health justice. Health care jurisprudence will be transformative only when the jurisprudential process is synergised with civil society processes and campaigns for health justice. The idea of health justice itself is located in the context of macro socio-politicaleconomic policy context in India. The impact of economic policies on the health care system of the country is seen in the declining health care system governance that is characterised by enfeebled public health care system and a burgeoning privatecommercial sector in health care. As seen during the COVID19 lockdown times, citizenship and SRHC is affected predominantly by the political and economic decisions of the State that do not take into consideration the existence of ‘disadvantaged citizens’ such as the migrant workers, daily wage labourers, women and tribals, and those in informal sector, and how these policy decisions adversely affect their lives. Health care that is not accessible and the related health care expenditure that they incur, is known to drive them further down the abyss of poverty. The plight of such

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suffering citizens that is brought to public consciousness by the civil society through health care litigations has kept the momentum on the health justice discourse in India. In health care, a suffering citizen is the real protagonist of health justice. The typical suffering vulnerable citizen discussed in this research, is typically a person hailing from rural areas, belongs to the socially, culturally and economically disadvantaged sections of the society, lives in the peripheries of the cities as a migrant labourer or a manual scavenger, is already impoverished, and is absolutely dependent on the health care provided by the State. Often, this vulnerable citizen is typified by poor tribal or a Dalit woman migrant labourer who is anaemic and has a risky pregnancy. She absolutely needs health care but risks life waiting for the public health care and faces imminent risk of becoming poorer in a private nursing home in the vicinity. This vulnerable citizen often ends up selling kidneys to satiate the family’s hunger or is robbed of the same by the pimps and commercial hospital nexus under the pretext of some treatment. Such a suffering citizen experiences triple jeopardy as a person who suffers due to the lack of adequate care or experiencing negligence, legally injured (whose dignity and rights are violated) and as one who is deprived of justice (both access to redressal and outcome). This is a serious crisis of citizenship stemming from the pathologies of power. The overarching ecosystem of exploitation and unaccountability, of both the State and medical profession – the key actors in the health justice triad—, does not affect everyone equally. Citizens belonging to upper or privileged classes have the social capital and resources to access private healthcare and even to engage legal professionals for redressal of medical malpractice or negligence. However, persons belonging to the marginalised communities, aptly referred to as ‘unequal citizens’ or ‘excluded from citizenship’ suffer the most due to the social and disease pathology (Farmer 1999, 2003). Such pathologies of citizenship are inextricably linked to their social exclusion, hostile State policies, marketised health care and powerful elite professions. The institutional failures both in health care and justice system, abdication of responsibilities by the State from the commitment to social justice and distributive justice, and the drive of converting disease into a profiteering business in the private-commercial health care sector, instantly translate into indebtedness and impoverishment, and hence a gross injustice to these unequal citizens. The narratives in this book, of accessing health care system and juridico-legal institutions for healthcare litigations starkly bring out pathologies of citizenship embedded in an inequitable and unjust societal structures. The complexity of attaining health justice is exacerbated due to the changing character and growing ambiguities in the roles that each actor presents. In recent years, the medical profession has aligned itself firmly with the commercial interests in health care. Concurrently, the paternalist welfare-state is on the wane, realigning itself with the market forces, and leaving the citizenry to the mercies of the privatecommercial forces for their health care. The origins of this crisis of citizenship thus can be starkly located in the steady decline of the welfare-state along with its alignment with the market forces and a deep-rooted connivance of the medical profession with such exploitative market forces in health care. The citizenship crisis is exacerbated due to comlicity of critical actors, viz. State and medical profession,

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with the forces and actors that negate social citizenship and SRHC, both which are intrinsic to health justice. In this crisis, the hegemonies of power are safeguarded through a deep collusion between the State, medical profession and the market forces represented by the corporations. Many of the litigations expose the nexus of corporate – pharma industries – and legal/medical professions and such nexus poses itself as the strongest counterforce for the realisation of health justice. Such a nexus, not only subverts the effective implementation of the judicial orders but also engages with and manipulates the same judicial processes to thwart all health justice processes.82 This collusion between the vested interests is firmly acknowledged and affirmed in the 59th Parliamentary Committee report. Often, the judicial spaces too become spectacles to this polarised associations where the vulnerable patients whose rights are violated, are countered by towering personalities that represent the alleged violators who often are powerful business entities closely associated with political elites.83 How do the judiciary respond to this overall skewed atmosphere and balance interests, whereby the powerful try to occupy and tend to influence judicial spaces where justice for the vulnerable needs to be upheld. This needs further in-depth and more robust investigation. Of the two professions, relationship with the medical profession matters the most for citizens. With its self-serving motif, coupled with the moral-ethical decline, its negative role is emerging as a crucial barrier in the advancement of SRHC. Its reform is very critical to the SRHC and the realization of social citizenship. The mere replacing of MCI with the NMC through a new legislation, viz. National Medical Commission Act 2019, is a symbolic act. Just the cosmetic replacement of the corrupt with the unknown, without undertaking a systemic reform that includes the medical profession, it might be a lost opportunity for health justice in India. Health justice is likely to be derailed for vulnerable citizens due to the lack of access to a competent legal professional to navigate through the juridico-legal institutions. The necessity of ‘legal opportunity structures’ for litigations has been documented by Yamin and Gloppen (2011). Often a legal professional, like the medical professional, belonging to an elite profession defined by its class character, is not easily accessible to vulnerable citizens. In relation to the third actor, the crisis of citizenship markedly appears to be deepened on account of the atomisation and fragmentation of the civil society itself, in an era that calls for greater solidarity. In recent years, the civil society alliances in health themselves have seen a decline in their vitality, vibrancy and coalition

82 In

the plethora of 453 petitions filed against the government order on banning 344 FDCs, the pharma giants such as Pfizer, Abbot and others have engaged a plethora of legal luminaries. Kapil Sibal, P. Chidamabram, the erstwhile ministers were leading such high-profile legal teams. 83 In the case of P. C. Singhi (the medical negligence case) Mr. Kapil Sibal represented Mr. Singhi and Abhishek Manu Singhvi the Congress spokesperson represented Dr. P. D. Desai. The petitioner narrated that his counsel personally did not appear during the crucial hearings and the plea for compensation was dismissed.

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power.84 Correspondingly, the litigations too have exhibited a significant change in their character from being counter-hegemonic and strategic tools to mere court briefs of certain professional organisations. The reflection of atomisation of civil society is a phenomenon that is seen world over and surging numbers of individual litigations on SRHC in the post-1990s period filed for personalised needs demonstrate the depletion of the collective power of civil society. Various multi-country studies have found the trends of surging individualized litigations that seem to alter State priorities on health care and its policies. This has grown in tandem with increased access to courts in Latin American countries, where several individual petitions are filed for needs such as seeking medicines and expensive treatments. Such litigations far outnumber the other collective cases brought by civil society organisations that raise issues of structural constraints needing policy response. Though this is not yet a pattern in India, it rings an alarm for civil society actors, on a potential threat of further fragmenting solidarity through individual litigations pursued without a public health and collective social rights vision. Suppression of dissent, repression of organisations raising policy concerns and an overall atmosphere where the market-aligned State unsettles parliamentary and democratic processes, has added further fissures in civil society solidarity. World over and in India, such a political ecosystem creates an atmophere of intimidation and fear, thus polarising the civil society on the one hand and, forcing civil society organisations to toe the government line of thought or face repression, on the other. This has emerged as a major challenge and imminent threat to the civil society solidarity. Health Justice is a vision that needs foregrounding in all the social, political, and economic projects impacting citizens in the twenty-first century. The COVID19 pandemic has exposed the vulnerability of all nations and societies and their health governance systems. Even the avowed capitalist countries such as the USA, the State had to intervene during the pandemic with their economic and political resources, and there was no way the market forces and private institutions could address this pandemic. Health Justice, therefore, is not merely a matter of skills and expertise alone, it is fundamentally a matter of social justice vision and civil and political leadership. The COVID19 pandemic that has brought the world to its knees, has also demonstrated that public health care and health services cannot be matters solely of profit, but they are essentially matters of citizenship, equity, and social justice. The health justice definition that this book proposes (Vide: Chap. 1, Sect. 1.2.5), as ‘reordering the relationship of citizens with the State, health care system and justice system for their substantive equality and dignity’, therefore, appears to be all the more relevant in contemporary times. Towards realising this, therefore, this book calls for a composite legal framework, specialised judicial body for health care litigations, redrawing the constitutional framework of SRHC attuned to contemporary 84 Writer is closely associated with several health coalitions nationally and internationally—JSA— Jan Swasthya Abhiyan (People’s Health Movement), AIDAN- All India Drug Action Network, MFC—the medico friend circle, NAPM—National Alliance of People’s Movements, Right to Food Campaign, NAMHHR—National Alliance for Maternal Health and Human Rights, COPASAH— Community of Practitioners on Accountability and Social Action in Health..

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challenges, a radical reform in the medical profession, and for a functional regulatory and enforcement authority to redress citizens’ grievances and to enforce the jurisprudence laid down by the courts for the advancement of social right to health care.

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Conclusion

Unbundling Health Justice and Architectural Reimagination The domain of social right to health care (SRHC), marked by gross violations of health rights, disintegration of the public health care system and the rise of privatecommercial interest in health care in India, portends a serious crisis of citizenship. A symptomatic analysis of this crisis points to institutional failures as the proximate cause. However, a deeper diagnosis denotes a pathology of the State, of its gradual but steady withdrawal from health care provisioning, abdication of its constitutional governance role that includes regulation, and above all, its radical deviation from its constitutional vision of a welfare-state committed to social justice. What should sound a red alert among citizens is its progressive alignment with the market forces that unabashedly promote commercialisation of healthcare. Health justice aimed at bolstering social citizenship and reconfiguring State accountability, has the potential to be an antidote to such a crisis of citizenship. The prognosis for establishing health justice and for restoring citizenship requires comprehensive and systemic measures that encompass architectural corrections in health care governance. The proposed architectural corrections in health care governance for the realisation of health justice through SRHC in India, include redrawing a series of systemic boundaries and institutional functions in favour of social citizenship. Borrowing the phrase ‘unbundling government’ from the realm of economic governance, I now draw insights from this research as a set of five interlinked proposals for realigning health care governance (Rao and Singh 2007:380). These systemic and institutional insights suggest a comprehensive architectural correction in health care governance towards meeting the ends of substantive health justice. They include (1) redrawing constitutional governance boundaries in health; (2) promulgation of a composite legal framework; (3) constitution of an independent and autonomous of medical regulatory and enforcement authority; (4) a specialised judicial body for health care; and, (5) a radical reform in the medical profession and its governance. Each of these is part of one composite proposal for the architectural reform, and hence needs to be read in conjunction with others.

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Redrawing the Constitutional Governance Boundaries in Health The Constitutional vision of welfare-state in India has incorporated the traditional human rights framework that hinges on the accountability of the State. It presumes an unassailable commitment of the State to this vision. However, the adoption of neoliberal economy in India signalled a corresponding diminution of the welfare-state along with a concurrent rise of the private-corporate entities in health. Both these have influenced marketisation of public social goods and have an unsettling effect on social rights. The domain of health care is a glaring example for the unfolding of this aberration. Private bodies that are now central to health care provisioning enjoy immunity from being accountable either to the State or to citizens, and impunity from any regulatory measure. The exercise of their power and the exertion of their influence has resulted both in policy as well as regulatory capture as indicated by the nexus and collusion that is now being amply evidenced in India. This has been underscored by the SCI, parliament, and civil society.1 In several civil society discourses it is referred to as ‘the big elephant in the room’. The litigation process has exposed the deeper ramifications of these challenges, viz. private capture of policy making in India (Bhardwaj 2015).2 Parliamentary standing committee report has succinctly summarised such phenomena: Medicine deals with human life. Regulators are therefore required to have the professional excellence and moral authority to address complex issues related to content, standards, quality, competencies and skills of medical education and practice. But the MCI, as presently elected, neither represents professional excellence nor its ethos. The current composition of the Council reflects that more than half of the members are either from corporate hospitals or in private practice…. [c]orporate private hospitals which are not only highly commercialised and provide care at exorbitant cost but have also been found to be violating value frameworks. They indulge in unethical practices such as carrying out unnecessary diagnostic tests and surgical procedures in order to extract money from hapless patients and meet revenue targets (as documented by the BMJ, one of the top international medical journals in an article titled “The unethical revenue targets that India’s corporate hospitals set their doctors” dated 3rd September, 2015) and flouting government rules and regulations, especially about treating patients from underprivileged backgrounds (Rajya Sabha 2016: 20–21).

The models of health care, on the basis of financing patterns, are classified to be those which are built on the solidarity principle and are national tax-financed, social health insurance based systems and public-private mix systems which are generally known as mixed health systems (Flood and Gross 2015). India’s health care along with many low- and middle-income countries is characterised as a publicprivate mixed system, where the private is an ever-expansive terrain and currently 1 Please

refer to litigations on clinical trial, unwarranted hysterectomies, vaccine closure, drug pricing and medical negligence (Vide: Chap. Four). 2 NPPA invoking the special powers it had under paragraph 19 brought drugs under price control. On capping pricing. Earlier the pricing authority had brought 108 drugs under price control using the special powers. The move to dismantle DPCO 1995 which was deemed to be pro-people is claimed to be under the pressure of pharma companies. (Bhardwaj, 2015) One of the petitioners, Srinivasan of Locost, a generic drug production company said, “Indian pharma companies and MNC lobbies were behind the formulation of DPCO 2013’. .

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is the dominant partner. Such a model of health care that is pursued in India poses a substantial challenge to social citizenship. Studies corroborate the phenomena of turning disease into a big business in an unregulated and pro-business policy atmosphere which abounds with irrational medical practice (Rai and Kandhari 2015). Increasingly, violations of citizens’ health rights occur within this sector currently occupying a share of almost 78 percent of the health care provisioning (NHSRC 2016). Constitutional governance and health care jurisprudence is faced with the great challenge of balancing citizens’ power vis-à-vis private actors. Unlike public bodies or public corporations (for example, railways), they are not defined either as ‘public servants’ or as ‘State or its instrumentalities’ under the Article 12 of Constitution of India, implying that even ombudsperson bodies such as NHRC are barred from recognizing their violative actions. Legal framework which delineates the patient’s relationship with doctors under private law, consequently, compels citizens to get into an adjudicatory duel through civil law, whose outcomes are subject to a long, arduous, and uncertain process. Notably judicial silence has continued unabated even in the face of ever increasing commercialisation and corporatisation of health care services and the foray of privateprofiteering corporations into health care jurisprudence.3 Judicial activism or adventurism that is seen in the non-policy issues of upper and middle classes such as Dahi Handis4 (Legal Correspondent 2016), sports (Cricket and BCCI), and animal sports (Jallikattu) is hardly visible in the domain of social right to health care (SRHC). The infinite potential of the private-corporate entities for violating health rights at a massive scale as was seen in the Bhopal Gas Disaster, makes it incumbent on courts to expand the boundaries of Constitutional jurisprudence to include them. The SCI which creatively expanded fundamental rights jurisprudence in the 1970s, must now find innovative pathways to include private actors into the scope of fundamental and social rights jurisprudence. The constitutional liability for the violations of fundamental rights needs to be applied to the private corporate players, that includes the private-commercial health care sector, and not only the defined constitutional State. Courts need to rise to the occasion of upholding the human rights principle of nonregression as well, to prevent the State from further regressing from its commitment to social rights mandated by the Constitution. Non-regression is a fundamental human rights principle. In SRHC it implies a non-reversal from a standard of health care

3 In

the Gleevec Patent case, Novartis engaged legal firms to fight the case against patient’s groups and citizens who challenged. Even in the clinical trial case, though the case between the Swasthya Adhikar Manch and the Union of India, several pharma companies used the provision of intervention petition and tried to influence the case. The pharma companies have routinely used litigation to scuttle any pro-citizen process. The use of courts by private hospitals, corporate hospitals and companies is witnessed across the spectrum—from district to the national level. 4 Mrs. Swati Sayaji Patil v State of Maharashtra & Ors on 11 August 2014; CRPIL. 56-14, PIL. 95-13, PILL. 97-14 & NML. 456-14. An order in the height of the Dahi Handis for the human pyramids was ordered to be not more than 20 feet. The heights and the competitions were becoming cause of accidents and cause of concern.

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that it has committed to, i.e. the highest attainable standard of health, and a nonregression from its Constitutional duty of providing accessible and affordable health care. It can be achieved based on the solidarity principle which is underlying the welfare-state implying a progressive taxation and tax-based healthcare system, and not by outsourcing it to market based health care. Accordingly, the minimal architectural corrections required include two key components. One, making SRHC as part of right to life under Article 21 of the Constitution of India with a suitable constitutional amendment and equipping SRHC with the constitutional-legal status, as was done in the case of education through the 86th amendment act in 2002. This will remove the hurdle of non-justiciability that affected the SRHC that has been construed as being part of the DPSP. Secondly, to be able to achieve the first recommendation, it would be appropriate to bring health care under the concurrent list in the Schedule VII of the Constitution of India, as health care has now attained a status of national importance. This will ensure harmonise legislations across state jurisdictions and synchronise the application of central legislations universally to the entire country. Thirdly, as integral to such an amendment, the non-State actors in health care, namely the private/commercial health care sector, that commands a major portion of health care provisioning, needs to be brought under the constitutional governance and be held accountable for the violations of the fundamental right to health care. Two incremental measures would facilitate such a move. One, the privatecommercial institutions someway aligned to and participating in health care services of the State, including the State sponsored health insurance scheme/s, need to be brought under the definition of ‘public bodies’ or ‘State’ under the Article 12 of the Constitution of India to establish their accountability to the Constitutional goals of equity and social justice, and consequently, to the violations of fundamental right to health and health care. The principle of respecting, protecting, and promoting the fundamental SRHC should be equally applicable to them. Two, all corporate and private-commercial health care institutions should be brought under the ambit of RTI, as part of the preceding move or separately, that ensures easy access to medical records, information on standard treatment protocols followed and a compliance with patient rights (for example, informed consent, standard treatment protocols, etc.). Promulgation of a Composite Legal Framework The prevailing legal framework and the plethora of state level laws are piecemeal, incohesive and inconsistent and hence are ill-equipped to adjudicate issues of health rights violations, enforce jurisprudence or to effectively strengthen social citizenship through SRHC. While there is a vacuum of a composite legal framework, pursuing parallel and mutually exclusive litigation processes as is the current practice, is detrimental to the realisation of substantial justice for citizens. In the current juridicolegal institutional framework, the lowest and most accessible courts do not have any role to play in the violations of SRHC. As there are no interim institutional measures, the highest courts of the country are resorted to by citizens for violations emerging from institutional dysfunctionality at all levels of health care governance, from the PHCs to Corporate Hospitals.

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The non-existence of a composite legal framework potentially reverses the gains of social rights in the health care jurisprudence. Multi-country studies concur with such a proposition that ‘a constitutional recognition of the right to healthcare in and of itself does not seem to have the potential to transform a poor health care system’ (Flood and Gross 2015: 466). Therefore, Constitutionalisation of SRHC formally or through health care jurisprudence is deemed to be a good beginning but not a sufficient one. It necessitates an institutional legal framework for its realisation. The lack of such a composite institutional framework and persisting health care as a state subject in India, has resulted in an upsurge of uncoordinated and incoherent laws both on the demands of citizens for specific issues as well as the State promulgating them as part of governance. Such a move has the potential of subverting a substantive part of SRHC by camouflaging them under ineffective legislations. The recent legislation on issues such as HIV/AIDS, disability and mental health care exemplify this as these legislations circumvent the core issues of SRHC of these social groups. The proposal for a comprehensive legal framework that enshrines various aspects of the SRHC and those of marginalised communities will prevent the fragmentation of these rights into sectoral entitlements. If this is done in conjunction with the previous proposal of relocating health care in the concurrent list will enable harmonisation of health care governance across the states in India, centre thus acting as the coordinating point in such a governance. The governance of health care regulation and monitoring can borrow some cues from the decentralised and specialised governance of independent bodies and institution building that has happened in economic governance. Several regulatory authorities such as Insurance Regulatory and Development Authority of India (IRDAI), Telecom Regulatory Authority of India (TRAI), Food Safety and Standards Authority of India (FSSAI) and Central Administrative Tribunal (CAT) established in India suggest that institutional perspectives are followed in several sectors of governance. Similarly, in several matters SCI has shown the possibilities of such unbundling through the specialised delegation to administrative tribunals or special courts such as Lokayukta courts, juvenile courts, labour courts, water disputes tribunals and National Green Tribunal. The next two proposals make a case for such delegated institutional arrangements for a consistent SRHC jurisprudence rather than leaving it for ‘the general judicial morass’ (Rao and Singh 2007: 381). Constituting a Medical Regulatory and Enforcement Authority The architectural corrections and legal framework intended for attaining the goal of social citizenship with an integrated SRHC need regulatory and accountability mechanisms with expansive jurisdiction over the public and private-commercial health care institutions and multiple health care and allied service providers. Health care has now become a subject of national importance both in terms of health care jurisprudence as well as the quantum of financial business that it has already become. Both these make a compelling case for a regulatory authority at the national and state levels for an overall monitoring and enforcement of the legal framework. The National Medical Commission Act 2019 (NMCA) which replaced the Indian Medical Council Act 1956 is enacted to bring reforms in the medical sector.

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However, it lost an opportunity to incorporate the element of regulatory authority into its scope. Such an authority needs to be a multi-disciplinary body with representations of different walks of societal life and needs to be vested with powers to function as grievance redressal authority to effectively redress all grievances of citizens with the health care providers (both public and private) and the issues of medical malpractice and malgovernance by private-commercial health care business entities. The medical malpractice which has become the pivot of profiteering in health cannot be only construed as professional misconduct of an individual medical doctor. It must be part of the medical establishment, and authorities of these healthcare business entities should be held accountable. This issue is beyond the scope of NMAC and hence makes a compelling case for an autonomous regulatory authority. The proposed regulatory institution should also be vested with powers to monitor the orders and judgments of courts, which is an impending gap in the jurisprudence, as pointed out in the research. Such an institution will unburden the courts adjudicating litigations on matters of institutional malfunctioning and systemic gaps. It will also effectively harmonise grievance redressal which is now diffused in several jurisdictions. Specialized Judicial Body for Health Care Litigations Social rights issues including health care are complex and are invariably linked to policies, democratic governance, and citizenship. Healthcare and social rights deal with such matters that need expertise and specialised knowledge to resolve them and the competing claims in various domains of health care that range from health care violations to pharmaceutical policies. Some of them are very technical in nature where the Courts lack expertise. In Martin F. D’Souza5 the SCI admitted its limitations in matters of health care. In healthcare matters, courts are dependent on expert opinions and assistance in the form of fact-finding reports, amicus curiae, commissioners, and the like. On several occasions, as seen in issues such as mental health care and right to food,6 the Courts have been assisted by amicus curiae and sometimes court appointed commissioners who have interfaced between the citizens, other concerned stakeholders and the courts. Illustrations for such an approach are available from other countries as well and generally found to have positive results both for citizens and courts. In some Latin American countries such as Guatemala and Peru, the ombudspersons (tutela) reach out to the citizens and create this interface.7 In Hungary, parliamentary commissioners for civil rights of the ethnic and national minorities’ rights are found to be very useful (Uitz & Sajo 2006). In the right to food case in India, the court appointed commissioners interacted with the citizens to provide ground level data on the follow up of the orders, to file ground reports on implementation and the persisting problems which countered the false affidavit of various state governments. 5 Martin

F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1; (2009) 1 SCC (Cri) 958. Union for Civil Liberties (PUCL) v. Union of India, Supreme Court W.P. (C) 196/2001. 7 Interviews with two public health experts, each from Peru and Guatemala, Delhi, dt. 15 February 2015. 6 People’s

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Over and above calling upon special assistance, institutionalising the same has better outcomes as seen in the case of National Green Tribunal, which adjudicates matters of environmental concern and operates like an overseeing body. Apart from such an arrangement, in line with the tax matters which are seen by specialised courts, SRHC warrants a specialised court within the mainstream HC and SCI court itself with additional expertise of public health care, which can hear PILs and adjudicate appeals concerning whole gamut of SRHC issues. The afore-mentioned proposals are not to be construed as linear, parallel, and isolated resolutions de-linked from the composite architectural corrections that are needed in health governance. More importantly, they are inextricably linked to the radical reforms that are necessary within the governance of the medical profession as well. Overhauling of Medical Professional Governance This research as well as its literature foregrounds the integral role of the medical profession both for SRHC and the realisation of health justice. The analysis of litigations overwhelmingly points to the crucial role of the medical profession in health care provisioning to citizens and its absence as one of the key factors in health rights violations. Major proportion of medical professionals in India now serve private commercial profiteering interests rather than patients. The entrenched nexus with pharmaceutical companies and active role in irrational medical malpractice, as part of the profiteering establishments, for example, is captured by several reports of the parliamentary committees. Besides, the boundaries between the public and private medical professionals have been severely blurred in recent years. Several doctors in public health institutions are parallelly running private-commercial medical establishments (hospitals and diagnostic services) thus abdicating their responsibilities in the public health care system. Public service, for them, is only a springboard to launch and advance their business by harvesting patients accessing public health care. This amounts to a betrayal of the trust of citizens reposed in the medical profession. The complicity of medical professionals in clinical trials, several scams relating to medical education and the like indicate the depth and scale of this malaise. The professional oversight body, MCI itself was embroiled in corruption, was suspended intermittently, and finally had to be dissolved through a parliamentary Act. The medical profession itself has shown signs of great moral and ethical decline, and decadence as an institution. The medical profession should introspect how it can restore the profession to its noble goals rather than externalising the problem, when they face hostility from citizens aggrieved by the misgivings of the medical professionals. The realization of health justice and social citizenship through SRHC will be a predictable ‘miscarriage’ and a non-starter without a radical reform within the medical profession and an overhaul in its governance. The gamut of such reforms need to include, inter alia, medical education, conduct of medical practice, enforcement of medical ethics in clinical practice and research, and restoring the independence of medical professionals from the clutches of private-commercial profiteering health care establishments. The NMCA 2019, which has repealed the Indian Medical

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Council Act 1956 effectively dissolving the Medical Council of India, purports to usher in reforms in its intent. The new Act proposes a national advisory council and four autonomous boards–one each for under-graduate and postgraduate medical education, the Medical Assessment and Rating Board, and the Ethics and Medical Registration Board. The proposed board for ethics and medical registration is of paramount significance. However, its functioning and effectiveness will only be seen in the institutionalisation of its functioning and the political will of the government in reforming the medical profession towards reorienting it to its noble goal in India. It took almost a year for the central government to notify the newly constituted 33 member NMC on 24 September 2020 after the repeal of the MCI through NMCA 2019. Citizens can only wish that this change in regulatory guard usher in reforms in the medical profession and its governance that will have positive impacts on patient rights. Above all, the rot of malgovernance and unaccountability runs deep into the culture and practice of the medical profession, and the ecosystem in which it is located, viz. corruption, privatisation and commercialisation in medical education and medical practice. Health Justice calls for a deeper introspection by the medical fraternity itself towards restoring its image and respectfrom within. Notably, the COVID19 pandemic too has reiterated the need for the political leadership to take health care seriously. Among other things, the pandemic has reinforced the need of a robust public health care system in the country, to make the private-commercial establishments subservient to the goals of public health, and for the need to pursue health as justice rather than it being treated as a political patronage or State benevolence. This book calls for a cohesive political vision, comprehensive systemic measures and architectural reimagination to establish health justice through the Social Right to Health Care in India.

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