📰 Launch a national tribal health mission
It can be the path to a peaceful health revolution for the 11 crore tribal people in India
•For the first time since independence, a tribal President has become a reality in India. This is a very positive signal given to the tribal people by the Narendra Modi government. On this International Day of the World’s Indigenous Peoples, let us explore how this symbolic gesture can be turned into a health revolution for the tribal people of India.
•Few people are aware that nearly 11 crore tribal people (enumerated as Scheduled Tribes (ST) in the Census of India (2011) live in India. They constitute 8.6% of India’s population, the second largest number of tribal people in any country in the world. The Prime Minister and the national leadership of the Bharatiya Janata Party are aware of this fact, which is one of the reasons why they have chosen a tribal woman for the highest position in the country.
•A study published in The Lancet, titled ‘Indigenous and Tribal Peoples’ Health’ (2016), found that India held the inglorious distinction of having the second highest infant mortality rate for the tribal people, next only to Pakistan. This is not an honourable position.
Findings
•On this day, in 2018, the first national report on the state of India’s tribal people’s health was submitted to the Government of India by the Expert Committee on Tribal Health. The 13-member committee was jointly appointed by the Ministry of Health and Family Welfare and the Ministry of Tribal Affairs, Government of India. I was the Chairman of this committee, with the Additional Secretary and Mission Director of the National Health Mission as the Member Secretary. It took five years of enormous work for the committee to dig out evidence and construct a national picture. The picture was both pathetic and promising. These were some of the few major findings.
•Firstly, tribal people are concentrated in 809 blocks in India. Such areas are designated as the Scheduled Areas. However, the more unexpected finding was that half of India’s tribal population, nearly five and a half crore, live outside the Scheduled Areas, as a scattered and marginalised minority. They are the most powerless.
•Second, the health status of tribal people has certainly improved during the last 25 years as seen in the decline in the under-five child mortality rate from 135 in 1988 in the National Family Health Survey (NFHS)-1 to 57 in 2014 (NFHS-4). However, the percentage of excess of under-five morality among STs compared to others has widened.
•Third, child malnutrition is 50% higher in tribal children: 42% compared to 28% in others.
•Fourth, malaria and tuberculosis are three to 11 times more common among the tribal people. Though the tribal people constitute only 8.6% of the national population, half of the total malaria deaths in India occur among them.
•Fifth, while malnutrition, malaria and mortality continue to plague tribal people, gradually, the more difficult to treat non-communicable diseases such as hypertension and diabetes, and worse, mental health problems such as depression and addiction leading to cancer and suicide, are increasing. These threaten the health and survival of tribal adults.
•Sixth, tribal people heavily depend on government-run public health care institutions, such as primary health centres and hospitals, but there is a 27% to 40% deficit in the number of such facilities, and 33% to 84% deficit in medical doctors in tribal areas. Government health care for the tribal people is starved of funds as well as of human resource. We found them demoralised and inefficient.
•Seventh, there is hardly any participation of the tribal people – locally or at the State or national level – in designing, planning or delivering health care to them.
•The official policy of allocating and spending an additional financial outlay, called Tribal Sub-Plan (TSP), equal to the percentage of the ST population in the State, has been completely flouted by all States. As estimated for 2015-16, annually ₹15,000 crore should be additionally spent on tribal health. No accounts or accountability exist on this. No one knows how much was spent or not spent.
•These issues have persisted as there is no separate data on tribal people’s health, or healthcare or on the money spent.
A road map
•The committee was also asked by the Government of India to prepare a road map for the future, which it did. This road map includes a large number of recommendations, but the three most important broad recommendations are the following. Firstly, launch a National Tribal Health Action Plan with a goal to bring the status of health and healthcare at par with the respective State averages in the next 10 years. Second, the committee suggested nearly 80 measures to address the 10 priority health problems, the health care gap, the human resource gap and the governance problems. Third, the committee suggested allocation of additional money so that the per capita government health expenditure on tribal people becomes equal to the stated goal of the National Health Policy (2017), i.e. 2.5% of the per capita GDP.
•Four years have already passed. The committee presented its report on August 8, 2018, to J.P. Nadda (who was the Health Minister at that time), the Minister of Tribal Affairs, the Secretaries of the two ministries and the Director General of the Indian Council of Medical Research. Mr. Nadda promised that “this historic report will not lie on the shelf. This government will certainly implement it”. The tribal people of India are waiting.
•The Health Minister and the 10 States with a sizable tribal population should take the initiative. The Prime Minister has already signalled his intention by electing a tribal President of India. Let this massive need and the historic opportunity receive an appropriate response. A proposal currently being discussed involves addressing only one disease, the Sickle Cell Disease. Though needed, it will substantially help, at best, five lakh to 10 lakh sickle cell disease patients – merely about 0.5% of the tribal people. The tribal healthcare system is sick, and tribal people need more substantive solutions. We need to move from symbolic gestures to substantive promises, from promises to a comprehensive action plan, and from an action plan to realising the goal of a healthy tribal people.
•If actualised, the Tribal Health Mission can be the path to a peaceful health revolution for the 11 crore tribal people. India needs to demonstrate to them that democracy offers a caring solution to their wounds.
📰 A law, without a flaw
The SC has put unmarried women on an equal footing in availing abortion services
•The most celebrated kind of court judgments are those that eliminate inherent bias vested in a law or rules framed by the government. The Supreme Court’s move last week to set right a rule that was ‘manifestly arbitrary and violative of women’s right to bodily dignity’ fits right into the concept of justice that is free, and without prejudice or favour to any person or group of people. Earlier, the apex court in its wisdom, facilitated the abortion (beyond 20 weeks) of a young unmarried woman whose partner parted ways after realising she was pregnant. Had the Court rested then, it might have meant relief for one woman who had to go all the way to the top court of the land in order to access what seven other categories of women would have been able to do without legal hassles. While the judgment could have been cited in support of other women in a similar situation, the law retained its flaw, and others would still have had to take the long legal route, and wait upon the discretion of individual judges. Utilising the full, expansive reach of its powers, the Supreme Court has decided to correct the anomaly. A Bench comprising Justices D.Y. Chandrachud and J.B. Pardiwala are considering pronouncing a judgment which would make access to medical abortion a level-playing field. The Medical Termination of Pregnancy Act, 1971 and its Rules, 2003, prohibit unmarried women who are between 20 weeks and 24 weeks pregnant to terminate the pregnancy. The Court’s argument pierced at the heart of the iniquity in the law: if a married woman had access to abortion facilities during the same period, then why should an unmarried woman be prevented from using these services? Exhorting the Government to have a ‘forward-looking interpretation of the law’, the Bench pointed out that the rules mentioned ‘partner’ and not husband.
•If the Supreme Court was feted for taking a liberal view of the law, its act of pushing the envelope further to set right existing anomalies in law is to be celebrated in full measure. At a time when the United States’ Supreme Court’s recent ruling overturning Roe vs Wade has drawn that nation back several decades on the abortion question, India’s apex court’s move stands out in sharp contrast. It is the surest example of the Court’s willingness to be modern and progressive, in order to remove antediluvian inconsistencies in existing laws. It is also in the full spirit of Article 14 of the Constitution that guarantees to all persons equality before the law and equal protection of laws. The law cannot cherry-pick beneficiaries, and if there is to be any justice at all, the antiquated principles on which old Acts were built, cannot continue to frustrate young women who claim autonomy of their own body.
The problem of the process being the punishment, which is present in the criminal justice system, can be aggravated
•Outcomes in matters of constitutional law disputes depend on the values that the constitutional court choose to emphasise over those it chooses to discount. The recent decision of the Supreme Court of India in Vijay Madanlal Choudhary vs Union Of India, where it found all the provisions of the Prevention of Money Laundering Act, 2002 as amended from time to time (“PMLA”) as constitutional, is a case where the Supreme Court repeatedly relies on the legislative intent behind the PMLA to fight the menace of money laundering to trump all other considerations — in particular due process.
A necessary precondition
•The PMLA is an Act that is meant to deal with prosecution and punishment for the offence of “money laundering”, which an accused commits when he has relation with any process or activity with the “proceeds of crime” and has projected or claimed such proceeds as untainted property. Thus, for the PMLA to come into action, there must have been another crime — independent of the PMLA — from which monies were derived. This other crime, which is a necessary precondition for an offence under the PMLA is described as the predicate offence.
Affecting fair legal process
•The substratum of the challenge before the Court was that when the predicate offences (these can be various offences under regular penal law such as the Indian Penal Code 1860, the Prevention of Corruption Act, etc.) are governed by the regular criminal process, the major deviations from this procedure in the PMLA, which is only a consequential act, are manifestly arbitrary and in any event violative of various fundamental rights, inter alia Articles 14, 20 and 21.
•The major deviations in the PMLA scheme, all of which operate to the detriment of the accused that were challenged were: non-supply of the Enforcement Case Information Report (ECIR) to the accused/arrested person; power to make any person (including existing or future accused) state the truth on oath even though it may amount to self-incrimination (Section 50); if the Public Prosecutor opposes bail, then the court can grant anticipatory/regular bail, only if the court has reason to believe that the accused is not guilty (Section 45); once a person is accused of committing the offence of money laundering, the burden of proving that proceeds of the crime are untainted property shall be on the accused (Section 24); blanket common and non-graded punishment for anyone associated with money laundering (Section 4).
•It is not too difficult to imagine that these deviations from regular criminal law are capable of great mischief, and strike at the very core of what the Constitution envisages: a fair legal process to determine the criminal culpability of a person. A person under arrest, without knowing what is the primary case against him, being made to give self-incriminating statements under oath and then required to prove his own innocence at trial is hardly a criminal procedure that appears either just or fair. All this, when the Act which brings taint to the money, i.e. the original crime, continues to be governed by regular criminal law, where none of these draconian provisions applies.
•And yet, the Supreme Court in finding these provisions as constitutional has repeatedly relied upon the legislative intent of the PMLA, which it describes as “a special mechanism to deal with the scourge of money laundering recognised the world over and with the need to deal with it sternly.” The Court even compared the intensity of money laundering with terrorism, while disagreeing with its earlier judgment, where the Court had made a distinction between the two.
The errors
•This is a fundamental error for multiple reasons. One, legislative intent can be a beginning point of a constitutional analysis, i.e., whether the state has legitimate purpose in making a law. However, faced with a specific fundamental rights challenge to specific provisions of such a law, the use of legislative intent to sanctify the provisions as constitutional means that the Court has also treated legislative intent as the end point of its analysis.
•Second, the overemphasis on the seriousness of money laundering is not borne out by the PMLA itself. The maximum punishment under the PMLA is 10 years imprisonment (Section 4). There are so many offences under regular penal law that are punishable with life imprisonment or even death, where none of these draconian provisions applies. Clearly, if in the eyes of the legislature, money laundering was as serious as these offences, the punishment prescribed would have been as severe. The incongruous situation is that a person who is accused of murdering for money, will have his murder trial (where he is punishable with death) with all the constitutional protections available, while in his trial for the money proceeds from the murder (where he can be imprisoned for maximum 10 years), he will be stripped of these constitutional protections.
•Third, legislative intent is reflected by Parliament as part of its normal law-making power, whereas constitutional due process is incorporated in the Constitution itself and is meant to define the limits of parliamentary law, irrespective of its intent. The net effect of elevating legislative intent to such a high pedestal that it can bulldoze any constitutional argument/reasoning is that due process has been completely compromised in PMLA cases. The problem of the process being the punishment, which is anyway omnipresent in our criminal justice system, is likely to be aggravated in PMLA cases. The likelihood that many would face long incarceration as PMLA accused, even though eventually found innocent has just increased manifold. One can only hope that sometime in the not distant future the Court corrects the error.
