IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 8853/2008 LAXMI MANDAL Petitioner Through; Mr. Cohn Gonsalves, Sr. Advocate with Mr. Divya Jyoti Jaipuriar and Mr. Tariq Adeeb, Advocates versus DEEN DAYAL HARINAGAR HOSPITAL & ORS. Respondents Through: Mr. A.S. Chandhiok, ASG with Mr. Baldev Malik and Mr. Harsh Surana, Advocates for R-2 & 4 Mr. Anuj Aggarwal with Mr. Mridul Chakravarty, Advocates for R-3 Mr. Manjit Singh with Mr. Yashpal Rangi, Advocates for R-6 to 8 Ms. Zubeda Begum with Ms. Sana Ansari, Advocates for GNCTD along with Dr. S. Brinda (DFW), Dr. Kirti Bhushan, OSD, Dr. Ashok Kumar, MSMH, DHS, Dr. Monica Rana, SPV(DSHM) and Mr. Nutan Mundeja, SPO (DSHM) from Health Deptt. Mr. R.N. Mangla Addl. Director, DWCD with Mrs.Savita, Dy. Director, Mrs. Deepti Jain CDPO, Nizamuddin and Mrs. Gurmeet, Supervisor, Nizamuddin. Ms. Sonia Mathur with Mr. Sumit Kumar Singh, Mr. Sushil Kumar Dubey and Mr! Rajat Soni along with Mr. Subhash Chander, Asstt. Comm. F&S Deptt. .^.P.(C) 1D700/2009 JAITUN Petitioner Through: Mr. Colin Gonsalves, Sr. Advocate with Mr. Divya Jyoti Jaipuriar and Mr. Tariq Adeeb, Advocates versus MATERNITYHOME MCD , JANGPURA & ORS Respondents Through: Mr. A.S. Chandhiok, ASG with Mr. Baldev Malik and Mr. Harsh Surana, Advocates for UOI Ms. Zubeda Begum with Ms. Sana Ansari, Advocates for R-3 & 6 along with Dr. S. Brinda \N.P.(C) Nos. 8853 of2008&10700 of2009 page1of51 M Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified (DFW), Dr. Kirti Bhushan, OSD, Dr. Ashok Kumar, MSMH, DHS, Dr. Monica Rana, SPV (DSHM) and Mr. Nutan Mundeja, SPO (DSHM) from Health Deptt. Mr. R.N. Mangla Addl. Director, DWCD with Mrs.Savita, Dy. Director, Mrs. Deepti Jain CDPO, Nizamuddin and Mrs. Gurmeet, Supervisor, Nizamuddin. Ms. Maninder Acharya with Mr. Apurva Kothari, Advocates for MCD CORAM: JUSTICE S.MURALIDHAR 1. Whether reporters of local paper may be allowed to see the order? 2. To be referred to the reporter or not? y 3. Whether the order should be referred in the digest?^ JUDGMENT 04.06.2010 Introduction 1. These two petitions highlight the deficiencies in the implementation of a cluster of schemes, funded by the Government of India, which are meant to reduce infant and maternal mortality. The issues common to both petitions concern the systemic failure resulting in denial of benefits to two mothers below the poverty line (BPL) during their pregnancy and immediately thereafter, under the Janani Suraksha Yojana ('JSY'), the Integrated Child Development Scheme (TCDS'), the National Maternity Benefit Scheme ('NMBS'), the Antyodaya Anna Yojana ('AAY') and the National Family Benefit Scheme ('NFBS'). Although the interrelatedness of these schemes was recognised by the Supreme Court way back in an order dated 28"^ November 2001 in Writ Petition No. 196 of 2001 {People's Unionfor Civil Liberties v. Union ofIndia) (hereafter the 'PUCL Case'), and W.P.IC) Nos. 8853 of2008 & 10700 of2009 page 2 of 51 thereafter periodically orders by way of mandamus have been issued to the Union of India and the individual states, much remains to be done on the ground, as these two cases reveal. 2. Although the chief protagonists in the two petitions are the two mothers and their babies, the petitions highlight the gaps in implementation that affect a large number of similarly placed women and children elsewhere in the country. The petitions reveal the unsatisfactory state of implementation ofthe schemes in the two 'high performing states' of Haryana and the National Capital Territory of Delhi (NCT of Delhi). These petitions are essentially about the protection and enforcement ofthe basic, fundamental and human right to life under Article 21 of the Constitution. These petitions focus on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right which calls for immediate protection and enforcement in the context ofthe poor is the right to food. A briefsynopsis ofthe Schemes The JSY I I 3. Before discussing the facts of the two cases, it is necessary to have a brief overview of the prevalent Schemes, both centrally and state I ' sponsored, for reducing infant and maternal mortality, which in terms ofmany documented studies is acknowledged as being high in India. W.P.(C)Nos. 8853 of2008 & 10700 of2009 page 3 of51 4. The JSY is a safe motherhood intervention scheme under the National Rural Health Mission ('NRHM') implemented with the objective of reducing maternal and neo-natal mortality by promoting institutional delivery among the poor pregnant women. This was launched on 12"" April 2005. It is a 100% centrally sponsored scheme and integrates cash schemes with delivery and post-delivery care. The JSY identifies the Accredited Social Health Activist ('ASHA') as an effective link between the Government and the poor pregnant women. She usually works under an Auxilliary Nurse Midwife (ANM) and their work is expected to be supervised by a Medical Officer ('MO'). 5. Under the JSY the role of the ASHA or any other link health worker associated with JSY would be to: 1. Identify pregnant woman as a beneficiary of the scheme and report or facilitate registration for ANC. This should be done at least 20-24 weeks before the expected date of delivery. 2. Assist the pregnant woman to obtain necessary certifications wherever necessary, within 2-4 weeks of registration. 3. Provide and / or help the women in receiving at least three ANC checloips including TT injections, IFA tablets, 4. Identify a functional Government health centre or an accredited private health institution for referral and delivery, immediately on registration 5. Counsel for institutional delivery, 6. Escort the beneficiary women to the pre-determined health center and stay with her till the woman is discharged, 7. Arrange to immunize the newborn till the age of 14 weeks, \N.P.{C) Nos. 8853 of2008 & 10700 of2009 page 4 of51 5? 8. Inform about the birth or death of the child or mother to the ANM/MO, 9. Post natal visit within 7 days of delivery to track mother's health after delivery and facilitate in obtaining care, wherever necessary, 10. Counsel for initiation of breastfeeding to the newborn within one-hour of delivery and its continuance till 3-6 months and promote family planning. 11. A micro birth plan must mandatorily be prepared by the ASHA or equivalent health activist 6. A child under the JSY is entitled to: 1. Emergency care of sick children including Integrated Management ofNeonatal and Childhood Illness (IMNCI) 2. Care of routine childhood illness 3. Essential Newborn Care 4. Promotion of exclusive breastfeeding for 6 months. 5. Full immunization of all infants and children against vaccine preventable diseases as per guidelines of GOI 6. Vitamin A prophylaxis to the children as per guidelines 7. Prevention and control of childhood diseases like malnutrition, infections, etc. 7. One feature of the JSY is that only a woman, more than 19 years of age who is BPL can be a beneficiary in High Performing States ('HPS'). In case a poor woman does not have a BPL card then the beneficiary can access the benefit upon certification by Gram Panchayat or Pradhan provided the delivery takes place in a government institution. Cash assistance in HPS is limited to two live births. The disbursement is made at the time of delivery. Cash assistance of Rs. 700 in case of rural and of Rs. 600 in case of urban is W.P.{C) Nos. 8853 of2008 & 10700 of2009 page 5 of51 given for institutional delivery and of Rs. 500 is given for home delivery. In rural areas, cash assistance for referral transport to go to the nearest health centre for delivery is provided. The JSY identifies only 10 states as low performing states ('LPS') and the remaining as high performing states ('HPS'). What is to be borne is mind however is that the cash incentive is but one component of the JSY. 8. The NCT of Delhi and Haryana have not been named as LPS. Nevertheless, the figures of utilisation of the funds allocated under the JSY for 2006-07, as well as the percentage of home deliveries as recorded by the Supreme Court in order dated 20^'^ November 2007 have a different story to tell. The percentage of home delivery figures in Haryana for 2006-07 was 61%. This means that the institutional delivery was as low as 39%. The utilization of the funds allocated by the JSY for Haryana also showed a low utilization percentage of 11.2%. The NMBS 9. The National Maternity Benefit Scheme ('NMBS') basically talks of providing cash assistance of Rs.500 to pregnant women. In order to clear the confusion that the cash assistance under the NMBS is independent of the cash assistance under the JSY, the Supreme Court on 20'*^ November 2007 passed an order in the PUCL Case directing that all the State governments and Union Territories (UTs) shall continue to implement the NMBS and ensure that "all BPL pregnant women get cash assistance 8-12 weeks prior to the delivery." It was W.P.(C) Nos. 8853 of2008 & 10700 of2009 page 6 of51 specifically directed that "the amount shall be Rs. 500/- per birth irrespective of number of children and the age of the woman." It was reiterated that "It shall be the duty of all the concerned to ensure that the benefits of the scheme reach the intended beneficiaries. In case it is noticed that there is any diversion of the funds allocated for the scheme, such stringent action as is called for shall be taken against the erring officials responsible for diversion ofthe funds." 10. At this juncture it must be noted that in para 15 of its order dated 20^^ November 2007, the Supreme Court observed as under: "15. At this juncture it would be necessary to take note of certain connected issues which have relevance, it seems from the scheme that irrespective of number of children, the beneficiaries are given the benefit. This in a way goes against the concept of family planning which is intended to curb the population growth. Further the age of the mother is a relevant factor because women below a particular age are prohibited from legally getting married. The Union of India shall consider this aspect while considering the desirability ofthe continuation of the scheme in the present form. After considering the aforesaid aspects and if need be, necessary amendments may be made." 11. It appears that consequent upon the above observation, the Union of India filed an application in the Supreme Court seeking certain modifications to the above order. However, no orders as yet have been passed in that application. The present position therefore is that the above order dated 20^*^ November 2007 of the Supreme Court holds W.P.(C) Nos. 8853 of2008 & 10700 of2009 page 7 of51 the field and is required to be strictly implemented by all the States and UTs. The ICDS 12. The objectives of the Integrated Child Development Services (ICDS) Scheme, which was launched in 1975, are: 1. to improve the nutritional and health status of children in the age-group 0-6 years; 2. to lay the foundation for proper psychological, physical and social development ofthe child; 3. to reduce the incidence of mortality, morbidity, malnutrition and school dropout; 4. to achieve effective co-ordination of policy and implementation amongst the various departments to promote child development; and 5. to enhance the capability of the mother to look after the normal health and nutritional needs of the child through proper nutrition and health education. 13. The package of services provided under the ICDS include: 1. supplementary nutrition, 2. immunization, 3. health check-up, 4. referral services, 5. pre-school non-formal education and 6. nutrition & health education. 14. The working of the ICDS has been examined by the Supreme Court and several orders have been passed by it. Inits order dated 29^^ W.P.(C) Nos. 8853 of2008 & 10700 of2009 page 8 of51 Son April 2004, the Supreme Court noted that the implementation was "dismal" and that "...a lot more deserves to be done in the field to ensure that nutritious food reaches those who are undernourished or malnourished or others covered under the scheme." The Court observed that according to the Government of India norms, an Anganwadi Centre (AWC) will be opened for every 1000 population, and 700 in case of tribal areas. It noted that six lakh AWCs had been opened, and ordered that all of them should be made operational by 30^^ June, 2004. The sanctioned AWCs were to supply nutritious food to the beneficiaries for 300 days in a year under the ICDS scheme. Reports were called from the Chief Secretaries to indicate how many children, adolescent girls, lactating women and pregnant women were provided with nutritious food in the number of days in the year. On 13'^^ December 2006, further directions were issued by the Supreme Court. It was observed that the universalisation of ICDS "involves extending all ICDS services to every child under the age of 6, all pregnant women, lactating mothers and adolescent girls." TheAAY 15. A central feature of the Antyodaya Anna Yojana (AAY) is the provision of rations up to 35 kgs which would include grains and nutritional supplements. In its order dated 28^^ November 2001, the Supreme Court directed the States and the UTs to complete the identification of beneficiaries, issuing of cards and distribution of grain latest by January, 2002. It noted that "some Antyodaya beneficiaries may be unable to lift grain because of penury." In such W.P.IC) Nos. 8853 of2008 & 10700 of2009 page 9 of 51 ll cases the Centre, the State and the UTs were requested "to consider giving the quota free after satisfying itself in this behalf." 16. On 2^^ May 2003, the Supreme Court directed the Government of India to place on AAY category the following groups ofpersons: (1) Aged, infirm, disabled, destitute men and women, pregnant and lactating women, destitute women; (2) widows and other single women with no regular support; (3) old persons (aged 60 or above) with no regular support and no assured means of subsistence; (4) households with a disabled adult and assured means of subsistence; (5) households where due to old age, lack of physical or mental fitness, social customs, need to care for a disabled, or other reasons, no adult member is available to engage in gainful employment outside the house; (6) primitive tribes" 17. In its order dated 17'*^ November 2004, the Supreme Court noted m that the AAY was "meant for the poorest of the poor." It went on to observe that: "A person entitled to the benefit under this scheme is issued a red card. The holder of red card entitles him/her to obtain grain and rice fi-om the dealer of Public Distributor System (PDS) at a highly subsidised rate which at present is rupees two per kilogram for wheat and rupees three per kilogram for rice. First of all it is of utmost importance that those who have already been issued red card shall straightway be supplied the rice and grain as per their entitlement. It is also important that those falling under this category should be immediately identified. The special attention is required to be given to Primitive Tribal Groups, which we are told, are in large in Maharashtra, West Bengal, Jharkhand and Madhya Pradesh, which are still be to identified in large numbers, card issued and grains supplied. We direct all the State Governments to W.P.(C) Nos.8853 of 2008 &10700 of 2009 page 10 of 51 ^3, complete the process of identification of persons falling under this scheme and issue them the red card by the end of the year so that immediately thereafter supply of food grains to them may commence." The NRHM 18. The National Rural Health Mission (NRHM) was launched on 12'*^ April 2005, throughout the country, with an objective to reduce the Maternal Mortality Rate, the Infant Mortality Rate and the Total Fertility Rate. The Service Guarantees provided under this scheme, which are to be made available by 2010 (according to the timeline prescribed by the Government) are: • Early registration ofpregnancy before 12'"^ week ofpregnancy • Minimum of 4 antenatal check ups first - when pregnancy is suspected, second - around 26 weeks ofpregnancy, third - around 32 weeks, fourth - around 36 weeks • Associated services like general examination such as weight, BP, anaemia, abdominal examination, height and breast examination, • Injection Tetanus Toxoid, treatment of anaemia, etc. (as per the Guidelines for Antenatal care and Skilled Attendance at Birth by ANMs and LHVs) • Minimum laboratory investigations like haemoglobin, urine albumen and sugar. • Identification of high-risk pregnancies and appropriate and prompt referral • Counselling. • Folic acid supplementation in the first trimester • Iron and Folic Acid supplementation from twelve weeks, • Skilled attendance at home deliveries as and when called for • A minimum of 2 postpartum home visits. First within 48 hours of delivery, second within 7-10 days. • Initiation of early breast-feeding within half hour of birth • Counselling on diet and rest, hygiene, contraception, essential new bom care, infant and young child feeding. (As per Guidelines of GOI on Essential newborn care ) and STI/RTI and mV/AIDS W.P.(C) Nos. 8853 of2008 & 10700 of2009 page 11 of51 • Education, Motivation and counseling to adopt appropriate Family planning methods, • Provision of contraceptives such as condoms, oral pills, emergency contraceptives, lUD insertions (Whereverthe ANM is trained on lUD insertion) ; • Counselling and appropriate referral for safe abortion services (MTP) for those in need. • Appropriate and promptreferral of casesneedingspecialist care • Essential Newborn Care • Promotion of exclusive breast-feeding for 6 months. • Full Immunization of all infants and children against vaccine preventable diseases as per guidelines of GOI • Vitamin A prophylaxis to the children as per guidelines. • Prevention and control of childhood diseases like malnutrition, infections, etc. The essential thrust of the NRHM is of 'convergence' of different schemes. The idea is to put in place a system that facilitates easy accessibility of the public health systems while at the same time making it accountable. The Constitutional right to health and reproductive rights 19- A conspectus of the above orders would show that the Supreme Court has time and again emphasised the importance of the effective implementation of the above schemes meant for the poor. They underscore the interrelatedness ofthe 'right to food' which is what the momPUCL Case was about, and the right to reproductive health ofthe mother and the right to health of the infant child. There could not be a better illustration of the indivisibility of basic human rights as enshrined in the Constitution of India. Pairticularly in the context ofa welfare State, where the central focus ofthese centrally sponsored schemes is the economically and socially disadvantaged sections of society, the above orders of the Supreme Court have to be understood as preserving, protecting and enforcingthe different facets ofthe right to life under Article 21 of the Constitution. As already noted, these W.P.(C) Nos. 8853 of2008 &10700of2009 page 12 of51 Mr petitions focus on two inalienable survival rights that form part of the right to life. One is the right to health, which would include the right to access government (public) health facilities and receive a minimum standard of treatnlent and care. In particular this would include the enforcement of the reproductive rights of the mother and the right to nutrition and medical care of the newly bom child and continuously thereafter till the age of about six years. The other facet is the right to food which is seen as integral to the right to life and right to health. 20. The right to health forming an inalienable component of the right to life under Article 21 of the Constitution has been settled in two important decisions of the Supreme Court: Pt. Parmanand Katara v. Union ofIndia (1989) 4 see 286 and Paschim Banga Khet Majoor Samiti v. State of West Bengal (1996) 4 SCC 37. The orders in the PUCL Case are a continuation of the efforts of the Supreme Court at protecting and enforcing the right to health of the mother and the child and underscoring the interrelatedness of those rights with the right to food. This is consistent with the international human rights law which is briefly discussed hereafter. 21. Article 25 of the Universal Declaration of Human Rights, which is considered as having the force of customary international law, declares: Article 25 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. W.P.(C) Nos. 8853 of2008 & 10700 of2009 page 13 of 51 (2) Motherhood and childhood are entitled to special care and assistance. All children, whether bom in or out of wedlock, shall enjoy the same social protection. 22'. The International Covenant on Economic, Social and Cultural Rights I (ICESCR), which has been ratified by India, spells out in greater detail the various facets ofthe broad right to health. Articles 10 and 12 ofthe ICESCR which are relevant in this context, read as under: Article 10 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent ofthe intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected fi-om economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. Article 12 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment ofthe highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization ofthis right shall include those necessary for: (a) The provision for the reduction ofthe stillbirth-rate and of infant mortality and for the healthy development ofthe child; W.P.(C) Nos.8853 of2008 &10700 of2009 page 14 of 51 (b) The improvement of all aspects ofenvironmental and industrial hygiene; (c) The prevention,treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. 23. The Committee on Economic Social and Cultural Rights has in its General Comment No. 14 of 2000 on the right to health under the ICESCR explained the scope ofthe rights as under: "8. The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. ... 11. The