Are You Framing National Health Policy Or Not: SC Asks Centre [Read Judgment]
The court observed that treating a national programme as a public health issue has to stop and somebody must take ownership of the Population Control and Family Planning programme.
On a public interest litigation filed by prominent health right activist Devika Biswas, the Supreme Court has issued certain directions to the Centre and states in the matter of implementation of sterilisation programme across the country.
Coming down heavily on the Union of India for ‘passing the buck’ on states, the court observed that treating a national programme as a public health issue has to stop and somebody must take ownership of the Population Control and Family Planning programme.
Taking note of the fact that India does not yet have a national health policy in place, the Bench comprising Justice Madan B Lokur and Justice Uday Umesh Lalit also directed the Centre to take a decision on or before 31 December, 2016, on whether it would like to frame a National Health Policy or not.
Disposing of the PIL, the court issued following supplementary directives:
- The state-wise, district-wise or region-wise panel of doctors, approved for carrying out the sterilisation procedure, must be accessible through the website of the Ministry of Health and Family Welfare of the Government of India as well the corresponding Ministry or Department of each state government and each union territory. The list should contain all necessary particulars of each doctor and not merely the name and designation. This exercise should be completed on or before 31 December, 2016, and thereafter the list will be updated every quarter i.e. by 31 March, 30 June, 30 September and 31 December of every year.
- The contents of the checklist prepared pursuant to the directions given in Ramakant Rai (I) should be explained to the proposed patient in a language that he or she understands and the proposed patient should also be explained the impact and consequences of the sterilisation procedure. This can be achieved by (a) ensuring that the checklist is in the local language of the state; (b) it should contain a certificate duly signed by the doctor concerned that the proposed patient has been explained the contents of the checklist and has understood its contents as well as the impact and consequences of the sterilisation procedure; (c) in addition to the certificate given by the doctor, the checklist must also contain a certificate given by a trained counselor (who may or may not be an ASHA worker) to the same effect as the certificate given by the doctor. This will ensure that the proposed patient has given an informed consent for undergoing the sterilisation procedure and not an incentivised consent. Sufficient breathing time of about an hour or so should be given to a proposed patient so that in the event he or she has a second thought, time is available for a change of mind. The checklist prepared pursuant to the direction given in Ramakant Rai (I) with the aforesaid modifications should be prepared in the local or regional language on or before 31 December, 2016.
- The Quality Assurance Committee (QAC) as well as the District Quality Assurance Committee (DQAC) have been set up in every state and district in terms of the directions given in Ramakant Rai (I). However, it is only the designation of its members that has been made available. The details and necessary particulars of each member of the QAC and DQAC should be accessible from the website of the Ministry of Health and Family Welfare of the Government of India as well the corresponding Ministry or Department of each state government and each union territory on or before 31 December, 2016, and thereafter, updated every quarter.
- In addition to the six monthly reports required to be published by the QAC containing of the number of persons sterilised as well as the number of deaths or complications arising out of the sterilisation procedure, as already directed in Ramakant Rai (I), the QAC must publish an annual report (on the website of the Ministry of Health and Family Welfare of the Government of India as well the corresponding Ministry or Department of each State Government and each Union Territory) containing not only the statistical information as earlier directed, but also non-statistical information in the form of a report card indicating the meetings held, decisions taken, work done and the achievements of the year etc. This will have a significant monitoring and supervisory impact on the sterilisation programme and will also ensure the active involvement of all the members of the QAC and the DQAC. The first such annual report covering the calendar year 2016 should be published on the websites mentioned above on or before 31 March, 2017.
- As many as 363 deaths took place due to sterilisation procedures during 2010-2013. This is a high figure. During this period, more than Rs 50 crore has been disbursed towards compensation in cases of death. Apart from steps taken by Bihar and Chhattisgarh during the pendency of the writ petition to mitigate the sufferings of the patients, we have not been told of any death audit conducted by any state government or union territory in respect of any patient, nor have we been informed of any steps taken against any doctor or anybody else involved in the sterilisation procedure that has resulted in the death of a patient or any failure or any other complication connected with it. There is a need for transparency coupled with accountability and the death of a patient should not be treated as a one-off aberration. Therefore, it is directed that the annual report prepared by the QAC must indicate the details of all inquiries held and remedial steps taken.
- With regard to the implementation of the Family Planning Indemnity Scheme (FPIS), there does not seem to be any definitive information with regard to the number of claims filed, the claims accepted and in which category (death, failure, complication etc.), claims pending (and since when) and claims rejected and the reasons for rejection. The QAC is directed to include this information in the annual report and the Ministry of Health and Family Welfare of the Government of India as well as the state governments should make this information accessible on the website, including the quantum of compensation paid under each category and to the number of persons. We have mentioned above that the learned Solicitor General had assured us on 20 March, 2015, that full details of the funds utilised under the FPIS would be furnished but that information has not been given as yet, necessitating the direction that we have passed. In addition to the direction relating to the FPIS, the Ministry of Health and Family Welfare should conduct an audit to ensure that the funds given by the Government of India have been utilised for the purpose for which they were given for the period from 2013-14 onwards.
- The quantum of compensation fixed under the Family Planning Indemnity Scheme (FPIS) deserves to be increased substantially and the burden, thereof, must be equally shared by the Government of India and the state government. Chhattisgarh has shown the way in this regard and it would be appropriate if others follow the lead. Every death or failure or complication related to the sterilisation procedure is a set-back not only to the patient and his or her family, but also in the implementation of the national campaign. We decline to fix the quantum of compensation but would suggest, following the example of Chhattisgarh, that the amount should be doubled and shared equally.
- The Union of India is directed to persuade the state governments to halt the system of holding sterilisation camps as has been done by, at least, four states across the country. In any event, the Union of India should adhere to its view that sterilisation camps will be stopped within three years. In our opinion, this will necessitate simultaneous strengthening of the Primary Health Care centres across the country both in terms of infrastructure and otherwise so that health care is made available to all persons. The significance of having well equipped Primary Health Centres across the country certainly cannot be over-emphasised. Therefore, we direct the Union of India to pay attention to this as well, since it is absolutely important that all citizens of our country have access to primary health care.
- The Union of India should make efforts to ensure that sterilisation camps are discontinued as early as possible but in any case within the time frame already fixed and adverted to above. The Union of India and the State Governments must simultaneously ensure that Primary Health Centres are strengthened
- Although the Union of India has stated that no targets have been fixed for the implementation of the sterilisation programme, it appears that there is an informal system of fixing targets. We leave it to the good sense of the each state government and union territory to ensure that such targets are not fixed so that health workers and others do not compel persons to undergo what would amount to a forced or non-consensual sterilization merely to achieve the target.
- The decisions taken in the high-level meetings held on 15 May, 2015, and 17 November, 2015, as well as the National Summit on Family Planning held on 5-6 April, 2016, should be scrupulously implemented by the Ministry of Health and Family Welfare of the Government of India. The said ministry should also ensure effective implementation of the decisions taken keeping in mind that the sterilisation programme is a part of a national campaign.
- The Union of India is directed to ensure strict adherence to the guidelines and standard operating procedures in the various manuals issued by it. The sterilisation programme is not only a public health issue but a national campaign for Population Control and Family Planning. The Union of India has overarching responsibility for the success of the campaign and it cannot shift the burden of implementation entirely on the State Governments and Union Territories on the ground that it is only a public health issue. As the Justice Sarkaria Commission puts it, “Population Control and Family Planning is a matter of national importance and of common concern of the Union and the States.”
- We are pained to note the extremely casual manner in which some of the States have responded to this public interest petition. What stands out is the response of Madhya Pradesh, Maharashtra, Rajasthan and Kerala in respect of which allegations were made concerning mismanagement in at least one sterilisation camp. None of these states have given any acceptable response to the allegations and we have no option but to assume that the camps that have been referred to in the writ petition were mismanaged, as alleged by Devika Biswas. However, the matter should not end here. We direct the Registry of this court to transmit a copy of this judgment to the Registrar General of the High Court in Madhya Pradesh, Maharashtra, Rajasthan and Kerala for being placed before the Chief Justice of the High Court. We request the Chief Justice to initiate a suo moto public interest petition to consider the allegations made by Devika Biswas in respect of the sterilisation camp(s) held in these states (the allegations not having been specifically denied) and any other similar laxity or unfortunate mishap that might be brought to the notice of the Court and pass appropriate orders thereon. We also direct the Registry of this Court to transmit a copy of this judgment to the Registrar General of the Patna High Court for being placed before the Chief Justice of the High Court. We request the Chief Justice to ensure speedy completion of the investigations and proceedings relating to the mishap on 7 January, 2012, in the sterilisation camp in Kaparfora Government Middle School, Kursakanta, Araria district, as well as the mishap in Chhapra in Saran district that led to cancellation of the accreditation of Gunjan Maternity and Surgical Clinic on 24 March, 2012.
- Chhattisgarh is directed to implement the recommendations given in the Anita Jha report at the earliest and with all sincerity.
We have already expressed our sadness at the fact that the National Health Policy has not yet been finalised despite the passage of more than one and a half years. We direct the Union of India to take a decision on or before 31 December, 2016, on whether it would like to frame a National Health Policy or not. In case the Union of India thinks it worthwhile to have a National Health Policy, it should take steps to announce it at the earliest and keep issues of gender equity in mind as well.
Read the Judgment here.