“Wo bahar casualty mein koi marne ki halat me raha, toh usko form bharna zaroori hai kya?”
– Munna Bhai, M.B.B.S, a popular film from Hindi cinema

Medical Emergencies give people all kinds of anxieties given the toll it takes on families mentally and financially. The procedures to get a treatment, the inaccessibility and unaffordability of quality healthcare makes it hard to change the perception of the service to an accessible one.

Health, Education and Sanitation remain some of the core issues the country faces today and the state has been launching schemes and programmes to tackle the issues. Some saw success and some were in vain. The recent Right to Healthcare Act, 2023 as passed by the Rajasthan’s legislature is a unique and first of its kind in the country with respect to its aims of making health services accessible and affordable to everyone in the state. The act, which is yet to be signed by the governor, has also attracted huge protests by mostly private doctors in the state with many medical establishments being closed due to protests. This article will discuss the workings of the act, and the reasons for the protests by the doctors and way forward-out of this conflict between health professionals and the government.

The Rajasthan Right to Healthcare Bill, 2022 was released for comments in March 2022 and was tabled in the legislative assembly in October 2022. However, it was sent to a select committee which again presented an amended bill to the legislature. The amended bill was passed by the legislature and now awaits the governor’s assent.

What does the Act do?

Section 3 of the act provides the rights of residents of Rajasthan.

The features of the act can be divided into three wings.

1. Emergency Treatment
2. Free OPD and Health Care services from any health care establishment.
3. Reimbursement for Emergency

Emergency Treatment

Section 3(C ) of the act states that every resident of Rajasthan has right to get treatment or care in case of accidental emergency, emergency due to snake bite/animal bite and any other emergency decided by State Health Authority under prescribed emergency circumstances, without prepayment of requisite fee or charges including prompt and necessary emergency medical treatment and critical care, emergency obstetric treatment and care, by any Public Health Institution i.e., government run, or Health Care Establishment- both private and public or, designated health care centres- institutions that will be notified in the further rules. In case of a medico legal case, the act states that no person shall be denied treatment merely on the grounds of receiving police clearance or report.

Simply put, a person has a right to get emergency treatment for accident emergency or snake/animal bite from a government hospital or a private hospital or any other establishment as notified by the government. The government will have power to notify other emergencies apart from the ones mentioned in the act.

Free OPD and Health Care Services at health establishments

Section 3(d) of the Act states that any resident has the right to get healthcare services at a public health institution, health care establishment and designated health care centres in the prescribed manner and subject to be terms and conditions specified in the rules.

Healthcare services include “testing, treatment, care, procedures and any other service or intervention towards a preventative, promotive, therapeutic, diagnostic, nursing, rehabilitative, palliative, convalescent, research and/or other health related purpose or combinations thereof, including reproductive health care and emergency medical treatment, in any system of medicines, and also included any of these as a result of participation in a medical research program.”[1]

Simply put, this section gives right to people to get free healthcare at virtually every and any institution in the state. However, the specifics including any upper limits, if any, , would be later specified in rules by the government.

Reimbursement for Emergency

This act does not nationalise or take control of private hospitals. It merely places onus on hospitals and health establishments to provide care for which the government would later reimburse them.

A proviso to Section 3(c) states that if after proper emergency care, stabilisation and transfer of patient, if patient does not pay requisite charges, healthcare provider shall be entitled to receive requisite fee and charges or proper reimbursement from State Government in prescribed manner as the case may be.

Miscellaneous

The act establishes State and District Health Authorities for the effective implementation of the act. However, it is noteworthy that before the bill was referred to select committee, there was adequate representation of public health workers (civil society) in the authorities which is now absent. The current structure of Health authority (state and district) consists of people from the Indian Medical Association apart from the government representatives and nominees.

These are the primary and the most important provisions of the law. Other rights granted to residents include right to be treated with dignity, right to privacy, right to the presence of female person, during physical examination of a female patients by a male practitioner etc.

As already stated above, healthcare includes Palliative Care. Palliative care is specialized medical care for people living with a serious illness, such as cancer or heart failure. If the rules accommodate some amount of palliative care within the accessible free service, it will be of a great significance since studies reveal that more than a million people would be in need of palliative care as the cancer patients are set to grow, in the country. [2] The free access to reproductive care, also included in healthcare will give more freedom for women to access hospital without having to worry about an out-of-pocket expenditure. Given that one-third of the girls get married before 18 years, and 6.3% of girls in the age group of 15 to 19 years are already mothers or are pregnant in the state of Rajasthan, investment in sexual and reproductive health is crucial for the State.[3]

Why are the doctors protesting?

The law does not have any laid out clear mechanism on how the government is going to reimburse the hospitals for the emergency care. The government says that all that procedures will be worked out in the rules that would be notified later. However, to put an obligation in the law made by the legislature is different from the obligation in a document (Rules) crafted by the executive. The volatile nature of the rules and the non-existence of any skeletal level mechanism has provoked the health professionals.

Secondly, the free access to health care under Section 3(d) of the act does not have any provisions for reimbursements from the government like the emergency care does. This has been understood (received) as a no-assurance measure and became one of the reasons for the protest.

Is the law still among the best despite Doctors’ concerns?

This law, like many or most laws, is not perfect and has its own limitations. The rights are expressly given to residents. Resident, according to the definitions, mean an ordinary resident of Rajasthan. It is not clear if the Aadhar card will be the basis or if there is any other criteria for the determination of the resident status. If such stringent determinants are followed, then migrant workers who might go to the state or people in emergency situations might not be able to get required care. The bill, before it was sent to the select committee, included all persons to be eligible for emergency care under Section 3( C) and for all residents, free access to health care. This distinction was done away with in the final act, making way for exclusion.

Additionally, the state health authorities lack representation of citizens groups or civil society or any such public health worker who would have been a point of contact for the ordinary people. A statutory presence of such representation would have aided monitoring and implementation and advice, to the government with respect to different aspects of public health.

Way forward

The Rajasthan government has announced that there is no question of taking the law back and doctors have stopped providing medical services, leading to a crunch of medical professionals. The way out of this conflict is an initiation of dialogue, which is the obvious recourse. Additionally, the government also should initiate the process of drafting the rules while actively consulting with the medical associations and alleviating their fears. Every effort should be made to make this law a productive and effective one.

The law’s implementation would be just another stale bureaucratic framework if public health workers and the active citizenry is not involved in the state and district health authorities. Ample steps must be taken to make sure that such gaps in representation are filled. Nonetheless, the law is a remarkable legislation whose legacy will depend on how accommodative and inclusive the rules will be.

(The author is a legal researcher with the organisation)

The post Rajasthan’s Health Law: An ongoing saga of promises and protests appeared first on SabrangIndia.

The second surge or wave of the Covid-19 crisis has been described in turn as a storm or even a tsunami. If the international news media is replete with accounts of the failure of governance by the Centre, regional news outlets have been graphically reporting the fallout of the devastation and tragedy on the ground, in India’s cities, villages and districts.

There is no sign of the crisis abating, instead it only seems to be worsening by the day. Experts say the peak is yet to come and scientific advisors to the government are already predicting a third wave.

What is killing Indians?

In India, people are dying not only from Covid-19 but from the lack of access to basic healthcare, hospital beds, oxygen and medical drugs. Availability across regions and communities of equitable health care has not been a priority of Indian governments, who have over the decades spent less on investment in preventive health, primary health centres, inoculation, food security and hygiene and sanitation; instead of rapidly privatising a sphere that requires to be available for one and all.

Is public health a priority in India?

Oxfam’s Reducing Inequality Index 2020, a report released some months ago showcases the Indian government’s attitude to the health of its people. Globally the report found that only 26 of the 158 countries surveyed were spending the required 15 % of their budgets on health.

India is ranked by Oxfam at number 129 in the index. Its health budget is the fourth lowest in the world. Ethiopia fares better! In India, just half of its population have access to even the most essential health services, and more than 70% of health spending is being met by people themselves, one of the highest levels in the world. Most workers earn less than half of the minimum wage; 71% do not have any written job contract and 54% do not get paid leave. Only about 10% of the workforce in India is formal, with safe working conditions and social security.  This was the 2020 report before the second surge of the pandemic had wrecked even more human devastation that is currently being witnessed.

Even the World Bank put India at 113th lowest among 206 countries for which data was available. In 2017 India spent as low as 3.4 per cent of its annual budget on health. The situation is no better in 2021 even as the Economic Survey makes a strong plea for increased government spending on health linking it to alleviation of poverty, higher nutrition and food security and the aspect of democratic rights and access to all.

The dire situation that the Indian people face today, where the basic health infrastructure has collapsed, raises questions of democratic governance, accountability and transparency. The situation raises questions on the obligations of the elected representatives who formed the government, on ensuring public health facilities for its people.

Is our Vaccine Policy flawed?

The immediate priority apart from saving lives through available monitoring, oxygenated beds and drugs, is inoculation or vaccination of the most Indians.

Many high courts are already closely monitoring the situation in their jurisdictions and the Supreme Court has also taken suo motu cognisance of the matter, questioning the Centre on its vaccine policy. As India is already staring at vaccine shortages, the States and the Centre have been at loggerheads, with the States blaming the Central government for scarcity and unplanned strategy.

A robust legal framework is imperative while handling a medical emergency, which in India, leads to the invocation of the Epidemic Diseases Act of 1897. This act gives the Central and State Governments overarching powers, but lacks management systems required for such unprecedented situations.

For this reason, the Disaster Management Act, 2005 was enacted to provide an exhaustive administrative design to tackle such a crisis. Further, the National Disaster Management Authority (NDMA) under the DM Act is the nodal central body for coordinating management, chaired by the Prime Minister. NDMA lays down policies, plans and guidelines to manage a disaster and all states, UTs are supposed to work in coordination with the centre. In the true sprit of federalism, this cooperation is key to deal with significant aspects like availability of food, vaccines, medicines, etc.

But instead of this cooperation, the central government has been and is abdicating its responsibility and leaving the States to buy their own vaccines at a price to be determined by the manufacturers and fixed by the companies. The concurrent list that lays down sectors which are supposed to be a “shared” responsibility between the states and the central government, covers “interstate infectious or contagious diseases affecting men, animals or plants” (Entry 29). But the centre, which is mandated to help the states out under entry 29, is acting in complete contravention of the Constitution by not overlooking into the strategy of preventing this interstate disease (Covid-19).

Instead of assisting the states, procuring the vaccines centrally and distributing these equitably for free, the Modi government is delaying its response. More and more lives are being lost every day. Under the Universal Immunisation Program (UIP) introduced by the centre some 70 years ago, vaccines have always been centrally procured and distributed free of charge. But for no apparent reason, this program has not been adopted exclusively for this pandemic. This breakaway from a democratic practice has infused all actions of the present regime in its second term at the Centre.

It has become imperative to examine how the Constitution obligates the State to secure good public health for its citizens and to ensure their right to health. It is also extremely significant to understand how the government of India has failed to negotiate better prices for the vaccines, place a better and more optimised order.

Right to health and the Constitution

The Indian Constitution formulated by a formidable collective of Indians – aware of the vast social, economic and political inequities that stalked the land – makes several references to the obligation and duty of providing a robust public expenditure on the Indian state.

The Right to life under Article 21 has also been interpreted to include right to health. The Right to Life, a crucial fundamental right, is understood through a rich and expansive vision by the Indian judiciary to mean the Right to a dignified and healthy life.

In addition, under Part IV of the Constitution, there are the Directive Principles of State Policy (DPSP). The DPSP with references to public health include Article 39 (E) directs the State to secure the health of workers; Article 42 directs the State to ensure just and humane conditions of work and maternity relief; Article 47 casts a duty upon the State to raise the nutrition levels and standard of living of people and to improve public health.

Article 47 expressly states:

“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 medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

While DPSPs are not justiciable (enforceable in a court of law), the Supreme Court has repeatedly interpreted in several seminal judgements that they are equally binding upon the State and also that they are supplementary to fundamental rights.

Further, there is also obligation upon local governments such as the Panchayats (in rural areas) and Municipalities (in urban areas) under Article 243G to strengthen public health.

The obligation on state governments comes from the Seventh Schedule of the Constitution since “public health and sanitation; hospitals and dispensaries” fall under the State subject making it a constitutional directive upon the state governments to enact public health related legislations and formulate such policies.

This still makes the Right to health, a judicially interpreted right and not yet an absolute fundamental with clear statutory obligations. This means that presently, there is no direct obligation on the state to take active steps to ensure that access to equitious public health is ensured. Just as the Right to Education was inserted into the Fundamental Rights Chapter of the Constitution through the 86th amendment (inserting Article 21A), the Right to Health may well need to be get constitutional and statutory inclusion.[1]

Should Indians not be demanding that the Right to Public Health and fair access be made into an inclusive fundamental right?

Right to health: Interpretation

Since the Right to Health has not been expressly mentioned as a fundamental right in the Constitution, the Supreme Court has interpreted it to be a part of Article 21, one of the widest scoped Articles in the Constitution.

In Bandhua Mukti Morcha v Union of India & Ors (1997) 10 SCC 549, the Supreme Court, interpreted the Right to Health to be an intrinsic part of the Right to Life under Article 21. In several judgments that followed too this principle has been reiterated, making the State’s mandate stronger and more compulsive.

The State’s responsibility towards health has been present even before the Bandhua Mukti judgment. In 1988, the Supreme Court had held that in a welfare state, it is the obligation of the government to provide medical attention to each and every citizen (Rakesh Chandra Narayan vs State of Bihar 1989 AIR 348).

In State of Punjab and Ors vs Mohinder Singh Chawla (1996) 113 PLR 499, the apex court reaffirmed that the right to health is fundamental to the right to life under Article 21 and should be put on record that the government has a constitutional obligation to provide health services. In the same year, the supreme court, in Kirloskar Brothers Ltd. vs. Employees State Insurance corporation, 1996 (2) SCC 682, held that preservation of human life is of paramount importance and that Article 21 imposes an obligation on the State to safeguard the right to life of every person. 

Two years later, in State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors, (1998) 4 SCC 117, the court highlighted how Public Health is the State’s primary duty. “To secure protection of one’s life is one of the foremost obligations of the State, it is not merely a right enshrined under Article 21 but an obligation cast on the State to provide this both under Article 21 and under Article 47 of the Constitution. The obligation includes improvement of public health as its primary duty.”

In September 2019, the 15th Finance Commission had recommended that the Right to Health be declared a fundamental right. It also put forward a recommendation to shift the subject of health from the State List to the Concurrent List putting an obligation also on the central government to provide accessible health care for all.

India’s commitment to public health

Between 2009 and 2019, India invested less than 2% of its GDP on public health and this percentage has only dipped with a meagre 1.1% allocated for spending on health in 2019-20. This, despite the National Health Policy 2017 expressing the need for –at least– 2.5% of GDP to be spent on health by 2025. Internationally, the gold standard for spending on public health is much higher, at 15 per cent.

The inadequacy and poor quality of infrastructure, and lack of spending on public health have been exposed thoroughly in the current crisis that is facing the country. A weakened public health infrastructure has unravelled and it has become abundantly clear that at such times of unprecedented crisis, the private sector cannot be depended upon. Providing affordable and accessible health care ought to be the mandate of any government but that is certainly not the case in India. This not only amounts to violation of Right to Life and consequently Right to Health but is violation of the constitutional mandates cast upon the State,

India ranks 184 out of 191 countries in public spending on health, according to the WHO. The Economic Survey stated that India has one-of-the highest level of Out-Of-Pocket Expenditures (OOPE) contributing directly to the high incidence of catastrophic expenditures and poverty. It suggested that if public spending on health goes up to 2.5-3% of GDP, then OOPE can decrease from 65% to 30%.

The Survey observes that the health of a nation depends critically on its citizens having access to an equitable, affordable and accountable healthcare system. It further stated that much of health care in India is provided by private sector and added that for enabling India to respond to pandemics, the health infrastructure must incorporate flexibility as events requiring healthcare attention may not repeat in identical fashion in future.

An example of higher public spending on health having positive impact on State’s ability to tackle a crisis like Covid, is seen in Sri Lanka. In Sri Lanka, 43% of a person’s health expenditure comes from government spending, while rest is OOPE. This is also reflected in the country’s Human Development Index score of 0.757, significantly above the South Asian average of 0.607. Sri Lanka follows a universally accessible and free public healthcare system, which contributes to it having resilient and well-equipped healthcare systems.

International mandates

The Preamble to the Constitution of the World Health Organization, (WHO) as adopted by the International Health Conference defines “health” as a state of complete physical, mental and social wellbeing and not merely the absence of disease. The Constitution itself enjoins the State to have a responsibility for the health of their peoples, which can be fulfilled only by the provision of adequate health and social measures.

The Universal Declaration of Human Rights, to which India is signatory, states under Article 25:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, Motherhood, old age or other lack of livelihood in circumstances beyond his control. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock shall enjoy the same social protection.”

The United Nations Commission on Human Rights includes in its Charter of Human Rights:

“Everyone, without distinction as to economic and social conditions, has the right to the preservation of his health through the highest standards of food, clothing, housing and medical care which the resources of the State and community can provide. The responsibility of the State and community for the health and safety of its people can be fulfilled only by provision of adequate health and social measures.”

Further, the International Covenant on Economic, Social and Cultural Rights under Article 12 provides for the “the enjoyment of the highest attainable standard of physical and mental health” and envisions that to achieve this, the State has to take steps for the prevention, treatment and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness, among other things.

There are clearly enough obligations on the Indian State to ensure that in such times of crisis, the country’s health system is able to take care of them, that deaths are not caused owing to paucity of access to a hospital bed or oxygen, all considered medical facilities. Despite having a year to be well prepared for second surge/wave the Covid-19 pandemic – given the examples from all countries of the world – the Indian government and many state governments’ have together displayed an utter lack of governance, planning and complacency. This is evidenced from how administrations have grappled to find enough oxygenated beds for those in desperate need. The high costs paid by the health of doctors and nurses and other frontline workers is still to unravel.

For the human rights movement in India, this pandemic should serve as a lesson to add one more crucial demand and slogan to an ever-increasing list/charter. From all governments, past and present, the Indian people and the human rights movement need to demand the build-up of a strong health infrastructure in consonance with the growing population of the country. The failure to do so will make us vulnerable once again in the future.

(This comprehensive legal resource has been researched and compiled by a collective effort of the CJP Legal Research Team)

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The post Is the right to health a forgotten constitutional mandate? appeared first on SabrangIndia.

Shortly after national lockdown was declared on March 24, in light of Covid-19 being declared a pandemic, the Supreme Court had issued certain directions keeping in mind the risk faced by inmates of prisons all across the country. High Powered Committees were directed to be instituted at state level which could decide on categories of prisoners who can be released on emergency parole, convicted of less serious offences, prisoners prone to contracting the disease due to co-morbidities of old age and so on. Such committees were constituted and prisoners were in fact released to ease the burden of over-crowded prisons where it would be impossible to implement social distancing norms.

The right to health of prisoners was clearly given primacy by the judiciary in times of a pandemic which is a laudable move. But what happens to this Right to Health of prison inmates when there is no pandemic?

The recent case of political prisoner Varavara Rao, aged 79, who is an under trial in a case for allegedly instigating caste-based violence in Bhima Koregaon, Pune, has brought this discourse to the fore. Usually, rights of prisoners neither become a part of daily discourse or news channel debates, nor do they find a place in dinner table conversations. Let us explore how the prisons in Maharashtra treat prisoners who fall ill during their prison stay.

The case for Varavara Rao

On July 13, Rao was urgently shifted to JJ Hospital from Taloja Jail as his condition began worsening. According to his family Rao had been incoherent and too weak to even sustain a phone call the last time they spoke. This had alarmed them to the extent that they urgently called a video press conference on Sunday and appealed once again that he be rushed to a proper hospital and given urgent medical care he needed. 

The family states that they were not even informed that Rao had been shifted to JJ hospital and only came to know from a senior leader who had been appealing to Maharashtra government to intervene before Rao’s health took a turn for the worse. The family is apprehensive that Rao may once again be given basic treatment and then sent back to jail soon. They recall that he had been admitted at the same hospital on May 28 evening but was hurriedly discharged on June 1 and sent back to jail with a ‘comment’ that “his health is steady and all vitals normal”, despite that not being true.

Keeping in view Rao’s fragile health and advanced age that puts him, and others still in jail, at great risk which is increased due to the Covid-19 pandemic.

His bail plea is up for hearing on July 17 before the Bombay High Court.

Case in point: Maharashtra

The Maharashtra prison Manual Chapter 4 deals with provisions related to “Prison hospital” and is called the ‘the Maharashtra Prisons (Prison Hospital) Rules, 1970’. There are ample provisions in these rules to ensure that prisons are liveable and conducive to a healthy human living. The truth however, is that prison conditions in the country remain deplorable to a large extent.

A Medical Officer who is supposed to be stationed at the prison has numerous duties, such as checking quality of drinking water, checking whether cells are fit for occupation by prisoners, visit prison cells daily to check on inmates, supervise work of Junior medical officers and so on.

There is also provision related to the diet of prisoners whereby under Section 1 Rule 3(24) the Medical Officer is required to sign orders for extra diet and other articles required for sick prisoners whether in or out of the hospital and recommend a change in diet if needed for a sick prisoner. The Medical Officer is also supposed to keep in check the sanitary conditions of prisons which tend to have an effect on the health of prisoners in general.

Further, under Section 1 Rule 3(34) a Medical officer has the power to decide whether a prisoner may be released on medical grounds if the prisoner’s condition justifies immediate release on medical grounds. Under Section 1 Rule 3(11) the Medical officer is bound to transfer urgent cases requiring immediate surgical or other treatment which cannot be given in the prison hospital to a Civil Hospital.

The non-statutory rules which come under Section 2 make provisions for even weak, convalescent and old prisoners. The Rule 5 of Section 2 states that prisoners who have attained old age and are weak should be kept separate from other prisoners, should be allowed a different diet and other suitable arrangements are to be made for them. When a prisoner is admitted to a prison hospital, his expenses are incurred by the state and if he is shifted to Civil Hospital, the same applies.

Thus, these rules for ensuring that the health of prisoners is maintained look good on paper but do not find absolute strict implementation on the ground.

Model Prison Manual, 2016

This Manual released by the Ministry of Home Affairs enumerates rights of prisoners which includes health under ‘right to basic minimum needs’ which states that prisoners have “Right to fulfillment of basic minimum needs such as adequate diet, health, medical care and treatment, access to clean and adequate drinking water, access to clean and hygienic conditions of living accommodation, sanitation and personal hygiene, adequate clothing, bedding and other equipment.” Under the heading of “housing”, the manual states that “All accommodation provided for use of prisoners, particularly for sleeping, will meet basic requirements of healthy living.”

Under section 4.07.4, it puts the onus of medical care and health of prisoners on the medical personnel within prisons. It states that the medical personnel must “ensure the maintenance of minimum standards of hygienic conditions in the prison premises”. Medical care includes preventive care, curative care as well as general care with respect to admission in prison hospital. In Chapter VII titled “Medical Care”, the manual gives detailed guidelines on management of prison hospitals and what speciality of doctors should be available in such hospitals.

Under various sub-headings, the manual deals with the duties of the Chief Medical Officer which includes daily visits to prisons, attending to special needs of aged prisoners, treatment of drug addicts, control of diets and so on.

Prisoners’ Right to health in courts of law

The Gujarat High Court in Rasikbhai Ramsun Rana vs. State of Gujarat (1997 Cr LR (Guj) 442) the petitioners convicted in the Central Prison, Vadodara suffering from serious ailments were deprived of proper and immediate medical treatment for want of jail escorts required to carry them to hospital and negligent officers were personally held liable by the court as well as I.G. Prison and Addl. Chief Secretary. In 2005, in a suo moto writ petition the Gujarat High Court issued directions to the state government to ensure that all Central and District jails should be equipped with ICCU, pathology lab, expert doctors, sufficient staff including nurses and latest instruments for medical treatment. The Delhi High Court, in Sanjay V. State, (CRL.A.600 of 2000) s directed the prison authorities of Tihar Jail to offer meditational therapy and counselling to convicts.

The Supreme Court in its landmark judgment of Parmanand Katara Vs Union of India (1989 AIR 2039) ruled that the state has an obligation to preserve life whether he is an innocent person or a criminal liable to punishment under the law, thus laying a robust precedent for prisoners’ rights in India, especially the very fundamental right to health included under Article 21 of the Indian Constitution.

In 2016, the Supreme Court passed another one of its landmark judgements on legal and constitutional rights of prisoners in India especially the under-trial prisoners in Re-Inhuman Conditions in 1382 Prisons (AIR 2016 SC 993). The petition was filed to address the status of prison reforms in India and to issue directions and the court directions led to the formulation of New Model Prison Manual, 2016 by the Ministry of Home Affairs.

International standards on prisoners’ Right to Health

Many international documents upheld and released by international organizations that deal with human rights have, by and large, equated lack of adequate medical treatment to torture. The UN Human Rights Committee has stated specifically that the right to health of prisoners could be engaged under the right to humane treatment in the Covenant on Civil and Political Rights. The United Nations Human Rights Commission adopted the basic Principles for Treatment of Prisoners in 1990 in which it is stated that “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation”.

The European Committee for the Prevention of Torture has taken to the view that ‘‘An inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman and degrading treatment’’. The Inter-American Court of Human Rights has in many cases held deficient or inadequate and unresponsive medical attention as cruel, inhuman or degrading treatment.

The World Health Organization has released an information Sheet titled “Mental health and Prisons” which recommends for policy matters that National mental health policies and/or plans should encompass the mental health needs of the prison population; and specific to prisons, it recommends that prisoners should have the same access to psychotropic medication and psychosocial support for the treatment of mental disorders as people in the general community.

The First United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted that ‘Standard Minimum Rules for the Treatment of Prisoners’ in 1955 which stated, among other things, that “at every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry”. It also states that a qualified mental health officer should be available to every prisoner and that the medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures.

It further makes it binding on the medical officer to inspect quality of food, hygiene conditions, sanitation and such other factors that may affect the health of the prisoners.

The UN Human Rights Committee has stated that under the Covenant on Civil and Political Rights stated that in order to be compliant with obligations under the right to life, health care must be available to diagnose and treat prisoners when they are ill or otherwise in need of attention, as anything less than this does not constitute a ‘‘properly functioning medical service’’ within the terms of Article 6(1) of the covenant.

Prisons in India: A status check

A research paper published in the 2017, Winter Issue of the Indian Law Institute law Review Vol.II, presented some prison data related to prison reforms. It observed reforms in Tihar Jail, Delhi and the Prison Department of the State of Andhra Pradesh. It stated that Tihar jail has to its credit several innovative reformative schemes such as Prisoner’s participation in various sports, provision of education for prisoners, legal aid, yoga, lok adalats and so on.

The official website of the Andhra Pradesh Prison Department states that many facilities like Television, Radio, Newspapers and indoor games are provided in all the prisons of the State. Further, Septic toilets and bathrooms are provided in the ratio of 1:06 and 1:10 respectively in all prisons. Apart from these facilities, degrees and certificate courses are provided through correspondence from universities at government cost. Also, there are no restrictions on writing and receiving letters by prisoners.

Dr. Kafeel Khan who is lodged in Mathur prison since January 2020 for a speech where he allegedly criticised the government during the anti-Citizenship Amendment Act (CAA) protests wrote a letter in which he described the deplorable state he was living in. Relaying the dangerous prison conditions, Dr. Khan wrote, “With just one attached toilet, 125-150 inmates, the smell of their sweat and urine mixed with unbearable heat due to electricity cuts makes life hell over here: A living hell indeed. I try to read but cannot focus due to suffocation. It sometimes feels that I might fall due to dizziness caused by that suffocation. So, I keep on drinking water.”

“In a jail made for 534 inmates, there are 1,600 people kept with one barrack holding at least 100-125 of us. There are just 4-6 toilets,” Dr. Kafeel Khan wrote in his letter.

Current State

Prison statistics in India are released by the National Crime Records Bureau (NCRB). The latest report is of the year 2018 and it usually presents data on parameters such as occupancy rate, classification as per age, gender, educational qualifications, domicile, nationality, number of deaths, illnesses of prisoners and so on.

As on December 31, 2018, there were 61,621 inmates (13.2%) belonging to the age group above 50 years. In 2018, a total of 1,639 prisoners died of natural death and 149 prisoners died unnatural deaths. The report states that among the 149 un-natural deaths of inmates, 129 inmates have committed suicide, 5 inmates died in accidents, 10 inmates were murdered by inmates and 1 inmate died due to assault by outside elements during 2018. For a total of 57 inmates’ deaths, the cause of the death is yet to be known.

The number of undertrial prisoners has always been high in Indian prisons. NCRB data states that as of 2018 Indian prisons housed 69.4% undertrials out of the total number of prisoners. This marked a 10% increase in the number of under-trials compared to 2016 data.

This data discloses very little about the general health of prisoners. It is very difficult to determine whether these deaths occurred despite the best efforts of the medical personnel in these prisons and no such data can really be collated. While the Model Prison Manual as well as the Maharashtra Prison Manual which was taken as a case study, seem to follow most of the international standards on medical care for prisoners, whether the same is strictly followed and implemented in prisons across the country remains unknown. The impregnable and impenetrable nature of prison management makes it difficult to collect any real time data, apart from some isolated testimonies of prisoners eventually released from these prisons, but no such recent study has been conducted. Maybe, that is the need of the hour, to peep into these tall structures where there is little or no accountability on prison staff for safeguarding the human rights of these prisoners, so that the real picture can come to the fore and implementation of these ideal and model prison manuals can be pushed.

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Accredited Social Health Activists (ASHAs) – considered to be voluntary workers – are paid a honorarium by the government and most make about Rs 1,000 a month–less than the cost of a bottle of single malt or a branded shirt.

Rekha Rewat, an accredited social health activist (ASHA), in Madhya Pradesh. An ASHA serves as a healthcare facilitator, and goes door to door visiting the poorest and most vulnerable sections of the society–nearly 22% or 269 million Indians still live under the poverty line.

Nearly a million workers–forming the frontline of India’s faltering public health system–are inadequately trained and are underpaid, according to an IndiaSpend analysis of health ministry data, imperiling the country’s progress in healthcare efforts.

Accredited Social Health Activists (ASHAs)–considered to be voluntary workers–are paid a honorarium by the government and most make about Rs 1,000 a month–less than the cost of a bottle of single malt or a branded shirt. ASHAs are required to undergo a 23-day training spread across 12 months, but a third of the ASHAs in a block in north Bihar were not trained at induction, and the rest received seven days of training and learnt the rest by reading the manual, according to this 2015 study conducted in 187 villages.

An ASHA serves as a healthcare facilitator, and goes door to door visiting the poorest and most vulnerable sections of the society–nearly 22% or 269 million Indians still live under the poverty line. Her responsibilities are related to reproductive and child health, immunisation, family planning and community health. This includes home visits and counselling of pregnant women, helping with village health plans, providing medical care for minor ailments, such as diarrhoea, fever and first aid for minor injuries.

India accounted for close to a fifth of 303,000 maternal deaths and 26% of the neonatal deaths globally, IndiaSpend reported in September 2016. Only 62% of Indian children between the ages of 12 and 23 months were fully immunised—for BCG, measles, and three doses each for polio and diphtheria and tetanus IndiaSpend reported in March 2017.

More than seven in 10 ASHAs said they need better training

As many as 70-90% ASHAs said they needed better training, monetary support and timely replenishment of the drug kit to perform better. ASHAs also said they received no assistance from the panchayat and limited support from auxiliary nurse midwives and anganwadi workers.

Only 22% of the ASHAs surveyed had some understanding of their role, according to the 2015 study in north Bihar; most ASHAs were involved in maternal and child care but did not work in local health planning or other duties related to health activism.

An ASHA is between 25 and 45 years of age, educated up to grade VIII or higher, and is currently married/divorced/widowed. Typically, one ASHA caters to a population of 1,000 people, but the average has since dropped to one ASHA per 910 population.

An ASHA is selected through a process involving community groups, self-help groups, anganwadi (courtyard shelters), block nodal officers, district nodal officer and gram sabha (village councils).

At least 65% ASHAs were being consulted during illness of a sick child but their effectiveness was lower due to “lack of skills, supplies, or limited support”, according to this 2015 report by the National ASHA Mentoring Group in 16 states.

For instance, ASHAs were able to supply oral rehydration solution from their kit in 27% of diarrhoea cases in Bihar, 37% in Jharkhand, 56% in Rajasthan and 54% in Assam.

ASHAs were found to be satisfactory in 52% cases for temperature measurement, 61% cases for handwashing (before handling patients), 43% cases for weight measurement and 68% cases for skin-to-skin care, according to this 2016 study published in Indian Pediatrics.

“The study demonstrates that the knowledge and skills of ASHAs regarding newborn care is sub-optimal,” the authors said.

‘Saved lives, always on call for emergencies. Earned Rs 1,000-Rs 1,200 a month’

Sandhya Vaidya, 32, became an ASHA in 2010 because she wanted to work outside her home and help other women in her village of Wansadi in Naxal-affected Korpana taluka (administrative block) in Chandrapur district, Maharashtra.

The work was gratifying: Vaidya remembered saving a baby’s life–as she was stuck in half inside the birth canal as her mother had seizures–among her achievements. But the pay was paltry, she told IndiaSpend.

She was paid Rs 2 for each household visited, Rs 3 for each malaria test, Rs 150 for a session to create awareness on mothers’ nutrition needs and Rs 600 for escorting women to the sub-centre for delivery if the woman is from below poverty line. (The rates have been revised since.)

ASHAs, as we said, are considered to be voluntary workers and paid honorariums; for Vaidya, it used to be Rs 1,000-Rs 1,200 per month, given lump sum once every two or three months.

It took two full years before she received the drug kit she was supposed to carry around to the households, she added. The drug kit consisted medicines for simple ailments.

While they were given training every year, Vaidya said, most times they were asked to read from the manual.
 

Sandhya Vaidya, 32, became an accredited social health activist in 2010. She was paid Rs 2 for each household visited, Rs 3 for each malaria test and Rs 600 for escorting women to the sub-centre for delivery if the woman is from below poverty line. In 2015, tired of the low pay, Vaidya applied and was selected for the position of police patil (constable).

Before the launch of the 108 ambulance service that reaches a patient within 20 minutes in urban and 40 minutes in rural area, Vaidya spent her own money to escort mothers to healthcare centres. “I have helped many women during their pregnancies with food, medicines and clothes for their kids for the first month.”

In 2015, tired of the low pay, she applied and was selected for the position of police patil (constable). “I now make Rs 3,000 a month and there isn’t much work. As an ASHA, I had to attend emergency calls at night, and do surveys for pulse polio and elephantiasis where I roamed the whole day to get just Rs 50,” Vaidya said.

There have been frequent agitations by associations of ASHAs demanding minimum wages and asking to be made government employees.

“….the issue of payment of fixed monthly honorarium has been examined on many occasions and it was decided to continue with the existing system,” this 2016 reply to the Lok Sabha by the ministry of women and child development stated.

“The ministry has not only enhanced the rates of certain existing ASHA incentives but has also introduced new incentives including those for routine activities which coupled with other existing routine activities would enable each ASHA to earn at least Rs 1,000 per month subject to her carrying out the routine activities.”

Rural India short of ASHAs by 8.3%, slow training delays certification

There are 873,759 ASHAs working in rural India against the target of 952,533 (91.7%), under the National Rural Health Mission.

High focus states, which have weak public health indicators and weak infrastructure–Bihar, Chhattisgarh, Odisha, Jharkhand, Madhya Pradesh, Rajasthan, Uttar Pradesh and Uttarakhand–had about 90% of the targeted number of ASHAs. While the northeastern states had nearly 99% of the targeted number, in states such as Uttar Pradesh, West Bengal, Karnataka and Kerala, the shortage was over 15%.

Source: National Health Systems Resource Centre
Note: Delhi has selected ASHAs only in certain identified clusters, at the level of 1 for 2,000 population. Chhattisgarh has selected ASHAs at habitation level. Tamil Nadu has selected ASHAs only in tribal areas.

Goa opted out of the ASHA programme.

ASHAs are also an integral part of the National Urban Health Mission launched in 2013–42,769 ASHAs are active in urban areas against the target of 70,721 (60%).

Given urbanisation and the expansion of slums and slum-like areas, the target for ASHAs is likely to increase across all cities and towns, the update said.

The programme to recruit more ASHAs is also stuck at inadequate training: The sluggish pace of training leads to attrition of knowledge and skills, and affects the state’s readiness to register ASHAs for certification, according to this July 2016 update, the latest available, by the National Health Systems Resource Centre, a part of the ministry of health and family welfare.

“The stagnation in training at the ASHA levels implies lack of resources: both financial and human,” the update said.

(Salve is an analyst and Yadavar is principal correspondent with IndiaSpend.)

This story was first published on IndiaSpend.
 

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