The apex court said Parliament must enact a law to regulate postings, transfers and disciplinary action against bureaucrats
The Supreme Court on Thursday, while suggesting fixed tenure for bureaucrats to insulate them from political interference and frequent transfers said these officers should not act on verbal orders given by political bosses.
Suggesting sweeping reforms in the functioning of bureaucracy, a bench headed by Justice KS Radhakrishnan said Parliament must enact a law to regulate postings, transfers and disciplinary action against bureaucrats.
Holding that much of the deterioration in bureaucracy is because of political interference, it said that civil servants should not act on verbal orders given by political executives and all actions must be taken by them on the basis of written communication.
The bench also comprising Justice PC Ghose said giving a fixed minimum tenure to a civil servant will not only promote professionalism and efficiency, but also good governance.
It asked the Centre and all State governments along with Union Territories to issue directions within three months for providing fixed tenure to civil servants.
The bench also said Civil Services Board should be constituted at the Centre and State-levels.
The verdict, which is on the line of apex court’s earlier order on police reforms for giving fixed tenure to senior police officers in Prakash Singh case, will go a long way in giving freedom and independence to the functioning of bureaucracy.
The judgement comes close on the heels of controversies surrounding Ashok Khemka, IAS officer of Haryana cadre over DLF—Robert Vadra land deal, and Durga Sakhti Nagpal, UP cadre IAS officer, who was targeted by the State government for alleged misconduct.
The apex court passed the verdict on a public interest litigation (PIL) filed by 83 retired bureaucrats including former Cabinet Secretary TSR Subramanian seeking its directions for insulating bureaucracy from political interference.
The petitioners also include former Indian Ambassador to the US Abid Hussain, former Chief Election Commissioner N Gopalaswami, former Election Commissioner TS Krishna Murthy, former IPS officer Ved Prakash Marwah, and former CBI directors Joginder Singh and DR Kaarthikeyan.
“This is a landmark judgement. Public servants are not private servants,” said Subramanian.
“Today faith in our Constitution has been reaffirmed...our faith in the strength of democracy has been reaffirmed because the highest court of the land has recognised the problems,” he said, adding “malgovernance affected people and quality of administration”.
Krishna Murthy lauded the verdict, saying “Good governance is critical to good quality democracy.
“Most of us have seen in our career how most of the transfers, promotions, postings and foreign assignments, all of them are decided on whimsical basis very often,” he said.
Singh said, “I am happy over this judgement but having said that I am aware that similar judgement was passed by the Supreme Court on September 20, 2006 on fixed tenure of police officers but all states are dilly-dallying.”
The PIL had alleged that at present, the system of transfers, postings, promotions, disciplinary action and other personnel matters pertaining to the members of civil services are ad-hoc and non-transparent.
“There is an urgent need to make the civil servants accountable, sensitive and responsive. If this is achieved, there will be across-the-spectrum benefits...
“Transfers are often used as instruments of reward and punishment, with officials being frequently transferred on the whims and caprices as well as the personal needs of local politicians and other vested interests. Officers, especially those in the All India Services serving in state governments, have no stability or security of tenure,” it had said.
The PIL had also said the civil servants at all levels should be given a minimum three-year fixed tenure on each post to foster functional freedom and independence.
Any premature transfer should specifically be authorised by the ‘civil service board/commission’ on specific circumstances to be brought out in writing, it had said.
At least four high-powered panels made recommendations for freeing the bureaucracy from political interference but the government had not taken any concrete step for implementation of the reforms suggested by them, it had said.
“Change of government invariably leads to new rounds of transfers as the incoming group of political leaders seeks to reward supporters and put its “own” staff in key positions.
“Moreover, the ‘transfer industry’ is backed by entrenched and powerful vested interests as frequent transfers generate huge amounts of black money for corrupt officials and politicians...,” it had said.
The PIL had said that there should be an independent, high-powered and statutory ‘civil services board’ in each state which should process proposals of postings and transfers.
Increasing the smoking age to 21 would help prevent another generation in the New York city from the ill health and shorter life expectancy that comes with smoking
The New York City has voted to increase the legal age to 21 for buying tobacco, including cigarettes and e-cigarettes, making it the first major city in the US to institute a minimum smoking age above 19 years.
The New York City Council adopted the ‘Tobacco 21’ Bill 35 to 10 to raise the legal age to buy tobacco, including cigarettes, electronic cigarettes, cigars and cigarillos to 21 from 18 in an effort to “save lives”.
The new law would come into effect six months after its signing by the Mayor.
“This is literally legislation that will save lives,” Council speaker Christine Quinn said.
New York City Mayor Michael Bloomberg welcomed the move saying increasing the smoking age to 21 would help “prevent another generation from the ill health and shorter life expectancy that comes with smoking.
“Between 2001 and 2011, New York city cut the proportion of public high school students who smoke by more than half. However, the decline in youth smoking in our city has stalled,” he said.
Indian healthcare system is plagued with numerous problems and too many laws. The solution is to ensure that regulation is streamlined and proper viz. Clinical Establishment Act
It is said that "health is wealth"; but in India, health is getting increasingly unaffordable. Is there some solution to making health more accessible and affordable not only to the middle class but also the masses? Before we look at the possible solution, we need to understand a few facts and problems.
Statistical background (Source - National Health Profile 2010-11)
# The doctor population in India is 1:1,500 when compared to an estimated 1:1,000 in China and 1:350 in the United States (USA). In urban India, the ratio is estimated at around 1:500 while rural India it is at around 1:2,500
# There are about 9.2 lakh allopathic doctors in India and surprisingly about 7.5 lakh doctors practicing 'alternate' medicine (i.e. AYUSH, comprising of Ayurveda, Yoga, Unani, Siddha and Homeopathy), primarily in the rural sector
# There are about 500 AYUSH colleges with 30,000 doctors graduating annually
# There are 355 MCI-recognised (Medical Council of India) medical colleges in India, with a total annual intake of about 40,000 doctors for an MBBS degree. Roughly half the colleges are in the private sector, which has seen a growth of 900% between 1970 and 2004. About 22,000 dentists graduate every year.
# There are also over 2,000 nursing institutes registered with Indian Nursing Council, with over 80,000 nurses graduating every year
# The Pharmacy Council of India has approved over 600 colleges, with about 36,000 students graduating in pharmacy, every year
# India has about 12,760 allopathic government hospitals, with a bed capacity of 5.76 lakh (Source - Ministry of Statistics and Programme Implementation, 2010). However, India has less than 1 bed per 1,000 population compared to a ratio of 3 for China and 3.1 for USA
# There are 23,887 primary health care centres in India
Prime problems faced by India's healthcare system
In April 2010, the President of MCI and his two associates were arrested by the Central Bureau of Investigation (CBI) while accepting a bribe of Rs2 crore to grant license to a medical college in Punjab. MCI's main duty also includes registration of doctors and maintaining the Indian Medical Register.
But there is no comprehensive 'Hospitals registry' established in India, containing data of detailed healthcare facilities. And surprisingly, no standard or norms exist for clinical processes that need to be followed by the hospitals across India.
A typical hospital needs to comply with several acts such as law related to governing the commissioning of hospital, law governing storage/ sale of drugs and safe medication. For example, all allied acts (like Biomedical Waste Management Rules or BNHA etc) could have been merged with only one regulatory Act. Consider the following which comes under different ministries:
# The Quality Council of India (and its NAHB) is under Ministry of Commerce and Industry.
# The IPHS and Clinical Establishment Act comes under Ministry of Health and Family Welfare.
# The Medical Insurance (IRDA) is under Ministry of Finance.
# BIS (Bureau of Indian Standards) and Consumer Protection Act are under Ministry of Consumer Affairs, Food and Public Distribution.
# Medical Council of India is another governing body.
This confusion could have been eliminated by bringing all medical industry related matters under one central government regulatory authority, but this effort has been stalled by possible vested interests.
Introduced in the Rajya Sabha in December 2011, the NCHRH (The National Commission for Human Resources for Health) Bill, aimed at regulating professional councils such as Medical Council of India, Dental Council of India, Pharmacy Council of India and Indian Nursing Council and provide for mechanism for the regulation of standards of health education throughout the country to ensure adequate availability of human resources in all the states.
Unfortunately, the Parliamentary Standing Committee on Health and Family Welfare submitted its report to Rajya Sabha recommending strengthening councils like the MCI and DCI with sufficient safeguards instead of creating an over-arching regulatory body. The committee also agreed with the viewpoint of the states that the composition of the Commission gives no representation to them.
# 'Capitation fees' has made it difficult for genuine students to pursue the medical profession and could also be a cause for 'medical inflation'
# There is a shortage of teaching staff in government hospitals due to a pay differential compared to private institutes
# There is no common nationwide entrance exam like JEE or CAT, for admission into MBBS
# Referrals or commissions between doctors and pharmaceutical companies or hospitals needs to be regulated
# Lack of sanitation and proper hygiene is one of the root causes for illnesses to spread and the healthcare system is unaffordable for many
Is there a solution?
In spite of NCHRH being stalled, there is still a glimmer of hope. The Clinical Establishments (Registration and Regulation) Act, 2010 (the Act) has been enacted by the Central Government to provide for registration and regulation of all clinical establishments in the country establishments from the public and private sectors, of all recognised systems of medicine including single doctor clinics (the only exception will be establishments run by the Armed forces), with a view to prescribing the minimum standards of facilities and services provided by them.
The Act has taken effect in some states namely, Arunachal Pradesh, Himachal Pradesh, Mizoram, Sikkim, and all Union Territories since 1st March, 2012. The states of Uttar Pradesh, Rajasthan, Bihar and Jharkhand have adopted the Act and are in the process of drafting/ finalising the state rules. The respective state councils would need to compile the data and send monthly updates to the National Register.
A National Council is formed under the Act, and has had three meetings so far. The National Council needs to be congratulated for discussing the right issues, though it is a little disappointing to note that its core responsibilities have not yet been fulfilled in the mandated time-bound manner.
As per Section 5 of the the Act, within two years of implementation of the Act, the esteemed National Council was to compile and publish a national register of all the clinical establishments in our country. Data from only three states has been listed on its website. It has been two years and the National Council must take urgent steps to speed up the process with the other states.
As per Sections 5 and 7 of the the Act, within two years of implementation of the Act, the National Council was to form minimum set of standards to ensure proper healthcare across India. Guidelines for only a few procedures have been posted on the website, and for others, as per the last minutes of meeting, a timeline of six months has been granted.
Unfortunately, there is no provision for accountability to ensure timely implementation.
The National Council under the Act should speed up the preparation of standard charges, at least for the 42 standard medical procedures, as discussed in their meetings dated 31 October 2012 and 23 June 2013. If this can be speeded up, it could easily be the most important contribution towards the health and wellbeing of millions of Indians, especially the uninsured. This can effectively address the discrepancy in rates charged to insured patients versus the non-insured.
Does the esteemed National Council have the mandate to register clinical establishments only if they adhere to points from Code of Ethics Regulations Act 2002 like prominent display of rate charts and disallowing (or regulating) referrals or commissions? If compliance of the above can be made mandatory in the registration process, it would help the consumers tremendously.
Disappointingly, a section of medical professionals has opposed such measures on the ground that it would unleash an 'Inspector Raj'. Indian Medical Association (IMA), says, "Provisions in the Clinical Establishment Act will increase the establishment cost of medical establishments and consequently the cost of treatment. According to the new Act, doctors will have to take a no-objection certificate from all neighbours living near the clinic. Also, doctors will have to issue a daily prescription audit, which is almost impossible. If a doctor does not register or fails to show necessary papers, he will be fined Rs5 lakh".
Actually, as per section 40 of the Act, the first fine is Rs10,000, the second fine is upto Rs50,000 and only the third fine is Rs5 lakh.
The National Council must undertake serious steps to educate the medical fraternity that the Act will go a long way in streamlining the healthcare sector and benefit not only the consumers but also the doctors.
(Gaurang Damani is an engineer and an eminent social and legal activist. He is also the founder of 'Karmayogi Pratisthan', an NGO that builds awareness and empowers people about how to deal with everyday problems. He is also the publisher of a website called DieHardIndian, an exhaustive repository of information for the Indian citizen.