📰 Should healthcare be a fundamental right?
Across India, public health services have been understaffed and under-resourced
•India has never spent more than 2% of its GDP on healthcare. And healthcare facilities across the country straddle different levels of efficiency and sufficiency. The impact of COVID-19 has shaken even States like Kerala and Tamil Nadu that traditionally did well in the area of healthcare. In a discussion moderated by Ramya Kannan, public health experts Abhay Shukla and T. Sundararaman discuss whether healthcare for all can be a fundamental right. Edited excerpts:
The COVID-19 epidemic has been unprecedented in its impact on society. While we can argue that no country in the world can actually be fully prepared to handle an emergency, do you think the time is ripe to push the agenda of healthcare as a fundamental right for all citizens ?
•Abhay Shukla: I would say that one of the most positive impacts of this otherwise very damaging epidemic has been that it has opened the eyes of people to the importance of universal and robust public health services and the need for everybody to be covered by quality healthcare, or for health services to be accessible to everyone. And this epidemic, because it has been concentrated in large cities and has also affected the middle class, has become a matter of high priority.
•So, this is a ripe time to actually take forward the agenda of right to healthcare and because the right to healthcare, if it is to be real, it always has to be universal. In that sense, right to healthcare is very much on the agenda and I think we all need to push for that.
•T. Sundararaman: Yeah, so, in some sense, this notion of right as different from a commodity that can be purchased on the market must be made. In classical economic terms, this is a public good, it is a good with a very high degree of externality. So perhaps you can get away politically by not providing healthcare for a lot of our population. Or if you believe the theory that it is enough to provide them a minimalist healthcare, the rest is left to the markets. But here, you actually have paid a huge price for doing so. Everybody has, but the poor have paid the most. Because, at some point, there is a huge amount of the cost of this whole pandemic, total lack of preparedness for it and that it can strike everybody. And it doesn’t affect only health, but all sectors of the economy.
•The idea was that if we give immunisation and some antenatal care, that’s enough, but that’s not the case. We need very good disease surveillance, we need an integrated primary care system that can deliver in the field. We need tertiary care with the most sophisticated of ventilators. And we need surge capacity, meaning we need an excess redundant capacity that can take care of any health emergency that happens.
During the pandemic, there has been a great deal of imagination in dispensing healthcare and stretching the limits to cover as many people as possible, more than before. Does this give you hope that India can deliver quality healthcare for all? And what range would be sufficient as a percentage of GDP?
•Abhay Shukla: So, if we see the situation today across the country, despite the fact that public health services [have been] historically understaffed, under-resourced, [and don’t have] sufficient number of doctors and other resources, they have really stretched themselves to meet the challenge of the COVID-19 epidemic. And I would say reasonably creditably. And in States such as Kerala of course, public health services have done a remarkable job of containing the spread of the epidemic, especially through their primary healthcare activities.
•So, what we are seeing is that until now in the public imagination, at least the middle-class imagination, the model of healthcare has been [of] large private hospitals. And generally, public health services, especially primary healthcare, have been kind of invisible and mostly neglected.
•But now, we are seeing with the COVID-19 epidemic a completely different kind of situation coming forth. And, the public imagination is also beginning to change.
•So, this is leading to, or it can lead to, a change in people’s perception and it can lead to a rejuvenation of public health services, because political will flows from the public. And, if the public takes a greater interest, then obviously, governments also have to respond.
•If this trend continues even after the epidemic has died down, then there’s no reason why we cannot achieve access to quality healthcare for everyone in the coming 5-10 years in most States across the country. And, as for a budget, around 3-4% of the GDP for public healthcare, and publicly organised healthcare, would be a good starting point for putting in place at least a basic kind of universal healthcare (UHC) system.
•T. Sundararaman: So, I think the pandemic is still, in India, in an early stage, and it will play out. I am concerned about the way our country handled the economic crisis. In the West, for example, lockdown means a huge burden on the state because you have complete social security commitments, unemployment benefits to give, but over here, there is a lot of relief being distributed, but it is just not the same. On the other hand, much of the burden is shifted to the poor.
•Similarly, in healthcare, there are States whose main approach has been to re-purpose existing hospitals providing comprehensive, tertiary, secondary healthcare for COVID-19. And the patients that are therefore pushed out because of this, have to either seek care in the unaffordable private sector. And, I don’t think our democracy has yet reached that stage of maturity or robustness where we are able to say “Oh, you need to build new hospitals, you need to create extra beds,” like China, or Spain did. You just can’t use the public system as residual care. But in India, we need to be much more articulate about human rights and the fundamental issue, or else this burden will get unfairly pushed on to people. The ₹15,000 crore allotment for the health sector that was sanctioned, along with the first lockdown, is a welcome step. My only point is that much more was needed in the routine annual budget of this year, and over the past four years.
•And I am worried that, as July approaches, it might slowly spread into the hinterland. This is the way the Spanish Flu started in India. It started as an all-Bombay problem from the ships. It was in Bombay for a long time, then spread slowly through the country, and then you had all places affected.
•I hope that at some point the government does get into strengthening the public services because the private institutes are not even offering care, many of them are preferring to stay shut till the worst of the pandemic is over.
Both of you seem to have experience with drafting universal healthcare policies. Professor Sundaram and Dr. Shukla, I believe you worked on the draft proposal of healthcare for all for the government. And Dr. Shukla, you’ve done some work on this in Maharashtra. Can elaborate on what constitutes a universal healthcare policy?
•T. Sundararaman: I think there are three big issues that in our last effort held us back. And I think we need to have a closure on all these three issues before we can actually go ahead. On the first, I think it is an easy one, that the right to health and the right to healthcare are different things. The right to healthcare is enforceable in a certain way, but in this context, the right to healthcare is something that should be done immediately.
•In doing so, there is one fundamental issue. Healthcare is a State subject. Should we make it a Central subject, because then the Central money will flow? But even the response to this pandemic shows that actually that doesn’t work.
•Well, for many of these decisions the States have to take, and they need a high degree of cooperation. So, whereas the Centre and the States must have an agreement on the funding, a lot of it will need to remain a State subject. Definitely, one of the problems is inherently constitutional — but it should not lead to over-centralisation. And the third issue is of course, the most fundamental one. You have to put your money where your mouth is, you have to actually get the resources that are required for it and that requires a transfer of resources. Again, a transfer of resources without populist shaming or saying that you are giving subsidies. We have to recognise that if you want a metric of equal health quality, you need to invest more on the healthcare of the poor, the middle class, the upper class, the ruling privileged persons will have to pay a price.
•Abhay Shukla: About the issue of universal healthcare, we need a system for universal healthcare, which is a complement to the right to healthcare kind of scenario. A group of public health experts and health activists in Maharashtra has over the last three years, developed a framework that... could be achieved in the next five years, and in a very realistic kind of scenario. So, this is not a pipe dream, it is something which is possible provided that there is political will for it.
•But to develop this kind of a system, there are a few constraints which we need to overcome. Right now, we have a fragmented health system. We have one health system for the poor, another for the middle class and another for the rich and the super rich. What we need to do is to move from this fractured system towards a single healthcare system for everyone.
•So, even after the epidemic has receded, the idea that the government can regulate private hospitals, harness them in public interest will remain, and I think that opportunity, which is being opened up in the period of the COVID-19, should not be lost. It has to continue till we reach a system of universal healthcare, which involves regulated private providers.
Prof. Sundararaman, can you weigh in on the private healthcare angle? Clearly, the private healthcare sector, which was all powerful, has sort of stepped back to play a supportive role in COVID-19. Does this mean the role of the private healthcare sector in India may actually change in future?
•T. Sundararaman: Even the Prime Minister’s health insurance scheme [allowing people to access insurance cover for treatment in private hospitals] has been such a failure today. It is only the high-charging patients without insurance cover that are using the private sector.
•Today, it is the public system, with all its problems, that has risen to the occasion. So, in this sense, even the ‘worst public health States’ have stood by the people. But it doesn’t mean that the private sector has no role. We need for the private sector, a much clearer regulatory regime and ways of contracting that are useful and it is most important that they supplement, not substitute, the strengths of the state.
The Election Commission could consider the measures that South Korea took to prepare a foolproof plan
•As Maharashtra struggled to tackle the COVID-19 pandemic, its people were staring at a unique problem. The deadlock between the Governor of Maharashtra and Chief Minister Uddhav Thackeray looked like it would continue for long and cost Mr. Thackeray the post of Chief Minister. But thanks to the intervention of the Prime Minister and the prompt action of the Election Commission of India (EC), the impending constitutional crisis has blown over in Maharashtra.
Averting a political crisis
•Mr. Thackeray, who took oath as Chief Minister on November 28, 2019, has to become a member of the legislature within six months, which ends on May 27. This would not have been a problem for him had the elections, scheduled to be held on March 26, not been postponed indefinitely due to the pandemic, by the EC, which used its powers under Article 324 of the Constitution, along with Section 153 of the Representation of the People Act, 1951. A double application of Article 164 (4) to extend this period for another six months was out of the question as the Supreme Court, in S.R. Chaudhuri v. State of Punjab and Ors (August 17, 2001), had declared that it would tantamount to a subversion of the principle of representative government.
•Consequently, the Chief Minister was left to take the nomination route. In pursuance of this, the Cabinet, headed by Deputy Chief Minister Ajit Pawar, submitted a proposal to the Governor to nominate Mr. Thackeray to the Legislative Council. Article 171(3)(e) coupled with Article 171(5) empowers the Governor to nominate an individual with “special knowledge or practical experience”. The Governor, however, put the proposal in limbo for over a fortnight.
•Given this situation, political analysts speculated whether Mr. Thackeray would knock on the door of the Supreme Court or follow the route Lalu Prasad took in Bihar in 1997 after being forced to resign following conviction in a criminal case. Instead of seeing the end of his political career, he brought his wife Rabri Devi to replace him as Chief Minister. Analysts wondered if Mr. Thackeray would similarly hand over the reins of power to his son, an MLA.
•However, better sense prevailed and the political leadership managed to avert a major crisis. The Prime Minister’s intervention and the EC’s prompt action averted the political impasse — polls to nine legislative council seats in Maharashtra will now be held on May 21.
•By deciding to hold elections during a pandemic, the EC has taken up a big responsibility. Though only the 288 members of the Vidhan Sabha will be voting in this election, the EC will have to ensure strict implementation of the Health Ministry’s guidelines. Knowing the EC’s capabilities and years of experience, this will be a cakewalk. South Korea just conducted its national election with 44 million voters in the midst of the pandemic. It is a good source of inspiration for the EC.
•But a bigger cause for concern for the EC are the upcoming Assembly elections for Bihar (which must be concluded by November 29, 2020), West Bengal (May 30, 2021), Assam (May 31, 2021), Kerala (June 1, 2021), Tamil Nadu (May 24, 2021) and Puducherry (June 8, 2021). Unlike the Rajya Sabha/Legislative Council elections which can be postponed indefinitely, the EC can postpone elections to the Lok Sabha and State Legislative Assemblies for a period of only six months, the constitutionally defined limit between two sessions of the House/Assembly (Article 85(1) and Article 174(1) of the Constitution, respectively).
•For a further period of extension, the ball is in the executive’s court, which will be faced with two possibilities. The first is proviso to Article 172(1) whereby during a state of Emergency, an election can be postponed for one year in addition to a period of six months after Emergency is lifted. The rider, however, is that a state of Emergency can be declared only if there is a threat to the security and sovereignty of the nation, not if there is an epidemic or a pandemic. The second option is to declare President’s rule in the State, enabled by Article 356(1) of the Constitution. But its limits have been repeatedly defined by the Supreme Court.
Lessons from South Korea
•Some experts say that the COVID-19 pandemic could last for two years. Deferring elections for such a long time would be against the spirit of democracy and federalism, which are the basic components of the Constitution. As a result, holding elections seems to be the only way out. It is noteworthy that India will not be the only country to hold elections during this pandemic. According to the International Institute for Democracy and Electoral Assistance, nine countries have already held national elections and referendums during this public health crisis. Among them is South Korea, which, under strict guidelines, managed to pull off a near-perfect national election recording the highest voter turnout of 66.2% in 28 years.
•The EC could take into account the measures that South Korea took to prepare a foolproof plan. South Korea disinfected polling centres, and mandated that voters practise physical distancing, wear gloves and masks and use hand sanitiser. Voters had their temperatures checked on arrival at the booths. Those who had a temperature above 99.5 degrees Fahrenheit were sent to booths in secluded areas. The interests of infected voters and the interests of those suspected of having the virus were not ignored: COVID-19-positive voters were allowed to mail their ballots, while self-quarantined voters were allowed to vote after 6 p.m.
•Unarguably, the population of States like Bihar (9.9 crore) is huge compared to South Korea’s population (5.16 crore). The EC could adopt targeted measures for older voters who are more vulnerable to COVID-19. Options like proxy voting under a well-established legal framework, postal voting, and mobile ballot boxes can be explored. The EC has a difficult task of sticking to its goal of ‘No Voter Left Behind’ while also ensuring that the elections do not turn into a public health nightmare.
•The COVID-19 pandemic is a big threat to the established world order. It is quickly transforming fragile and vulnerable democracies into autocracies in the name of public safety. How India, a large and well-established democracy, responds to this crisis is the biggest challenge before it.
📰 India needs to enact a COVID-19 law
Ad hoc and reactive rule-making reveals the lack of co-ordination between the Union and State governments
•The nationwide lockdown has been central to the government’s strategy to combat the COVID-19 pandemic. With businesses closed, supply chains disrupted, timelines extended and contracts terminated, this exercise has caused the organised sector unprecedented economic losses. In the unorganised sector, there has been a complete breakdown with little or no legal recourse for those who are affected. While the lockdown has helped contain community spread of the disease, a legal and legislative audit of this exercise has evaded scrutiny so far. As we are now in the seventh week of the lockdown, it is imperative and timely that we assess its underlying legislative soundness.
Laws governing lockdown
•The lockdown has been carried out by State governments and district authorities on the directions of the Union Ministry of Home Affairs under the Disaster Management Act of 2005, which was intended “to provide for the effective management of disasters and for matters connected therewith or incidental thereto”. Under the Act, the National Disaster Management Authority (NDMA) was set up under the leadership of the Prime Minister, and the National Executive Committee (NEA) was chaired by the Home Secretary. On March 24, 2020, the NDMA and NEA issued orders directing the Union Ministries, State governments and authorities to take effective measures to prevent the spread of COVID-19, and laid out guidelines illustrating which establishments would be closed and which services suspended during the lockdown period.
•Taking a cue from the guidelines, the State governments and authorities exercised powers under the Epidemic Diseases Act of 1897 to issue further directions. For instance, the Health and Family Welfare Department of Tamil Nadu issued a government order on March 23, 2020, to impose social distancing and isolation measures which directed “suspected cases and foreign returnees” to remain “under strict home quarantine” and people “to stay at home and come out only for accessing basic and essential services and strictly follow social distancing norms”. Subsequently, on March 25, the earlier order was extended for a period of 21 days, in accordance with the directions of the NEA. District authorities such as the Commissioner of Police, Greater Chennai, have consequently issued orders to impose Section 144 of the Criminal Procedure Code in public places.
•Cumulatively, these orders constitute the legislative umbrella governing the lockdown that has been in place since March 24. The invoking of the Disaster Management Act has allowed the Union government to communicate seamlessly with the States. However, serious questions remain whether the Act was originally intended to or is sufficiently capable of addressing the threat of a pandemic. Also, the use of the archaic Epidemic Diseases Act reveals the lack of requisite diligence and responsiveness of government authorities in providing novel and innovative policy solutions to address a 21st century problem. Another serious failing is that any violation of the orders passed would be prosecutable under Section 188 of Indian Penal Code, a very ineffective and broad provision dealing with disobedience of an order issued by a public servant.
•In contrast, the U.K. enacted the Coronavirus Act, 2020, which is a comprehensive legislation dealing with all issues connected with COVID-19 including emergency registration of healthcare professionals, temporary closure of educational institutions, audio-visual facilities for criminal proceedings, powers to restrict gatherings, and financial assistance to industry. Similarly, Singapore has passed the Infectious Diseases Regulations, 2020, which provides for issuance of stay orders which can send ‘at-risk individuals’ to a government-specified accommodation facility.
•Both the U.K.’s and Singapore’s laws set out unambiguous conditions and legally binding obligations. As such, under Singaporean law, the violators may be penalised up to $10,000 or face six months imprisonment or both. In contrast, Section 188 of the Indian Penal Code has a fine amount of ₹200 to ₹1,000 or imprisonment of one to six months. Even then, proceedings under Section 188 can only be initiated by private complaint and not through a First Information Report. As such, offences arising out of these guidelines and orders have a weak basis in terms of criminal jurisdiction thereby weakening the objectives of the lockdown.
Union-State co-ordination
•In India, both Houses of Parliament functioned till March 23, 2020, when they were adjourned sine die. There were a number of interventions regarding COVID-19 by Opposition members through the session. However, the Union government showed no inclination towards drafting or enacting a COVID-19-specific legislation that could address all the issues pre-emptively. In fact, there has been little clarity on a road map to economic recovery after the announcement by the Union Finance Minister last month.
•Worryingly, a consolidated, pro-active policy approach is absent. In fact, there has been ad hoc and reactive rule-making, as seen in the way migrant workers have been treated. The flip-flop of orders regarding inter-State movement has left the fate of hundreds of thousands of migrant workers to be handled by district administrations with inadequate resources. This has also exposed the lack of co-ordination between the Union and State governments.
•In past instances, the Union government has not shied away from promulgating ordinances. These circumstances call out for legislative leadership, to assist and empower States to overcome COVID-19 and to revive their economic, education and public health sectors.
