A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament. The case importantly pertains to the judiciary’s interpretation of existing law concerning itself. The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws. This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same. In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments. In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges. It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament. This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India. The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself. Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution. Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant. In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions. The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”. An indication of the Supreme Court's attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture. The CJI unambiguously stated that: "...In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance..."
Recently, the Standing Committee on Health and Family Welfare submitted its report to the Parliament on the National Commission for Human Resource for Health Bill, 2011. The objective of the Bill is to “ensure adequate availability of human resources in the health sector in all states”. It seeks to set up the National Commission for Human Resources for Health (NCHRH), National Board for Health Education (NBHE), and the National Evaluation and Assessment Council (NEAC) in order to determine and regulate standards of health education in the country. It separates regulation of the education sector from that of professions such as law, medicine and nursing, and establishes professional councils at the national and state levels to regulate the professions. See here for PRS Bill Summary. The Standing Committee recommended that this Bill be withdrawn and a revised Bill be introduced in Parliament after consulting stakeholders. It felt that concerns of the professional councils such as the Medical Council of India and the Dental Council of India were not adequately addressed. Also, it noted that the powers and functions of the NCHRH and the National Commission on Higher Education and Research (to be established under the Higher Education and Research Bill, 2011 to regulate the higher education sector in the country) were overlapping in many areas. Finally, it also expressed concern over the acute shortage of qualified health workers in the country as well as variations among states and rural and urban areas. As per the 2001 Census, the estimated density of all health workers (qualified and unqualified) is about 20% less than the World Health Organisation’s norm of 2.5 health workers per 1000 population. See here for PRS Standing Committee Summary. Shortfall of health workers in rural areas Public health care in rural areas is provided through a multi-tier network. At the lowest level, there are sub health-centres for every population of 5,000 in the plains and 3,000 in hilly areas. The next level consists of Primary Health Centres (PHCs) for every population of 30,000 in the plains and 20,000 in the hills. Generally, each PHC caters to a cluster of Gram Panchayats. PHCs are required to have one medical officer and 14 other staff, including one Auxiliary Nurse Midwife (ANM). There are Community Health Centres (CHCs) for every population of 1,20,000 in the plains and 80,000 in hilly areas. These sub health centres, PHCs and CHCs are linked to district hospitals. As on March 2011, there are 14,8124 sub health centres, 23,887 PHCs and 4809 CHCs in the country.[i] Sub-Health Centres and Primary Health Centres
Table 1: State-wise comparison of vacancy in PHCs
|
Doctors at PHCs |
ANM at PHCs and Sub-Centres |
|||||
| State | Sanctioned post | Vacancy | % of vacancy | Sanctioned post | Vacancy | % of vacancy |
| Chhattisgarh | 1482 | 1058 | 71 | 6394 | 964 | 15 |
| West Bengal | 1807 | 801 | 44 | 10,356 | NA | 0 |
| Maharashtra | 3618 | 1326 | 37 | 21,122 | 0 | 0 |
| Uttar Pradesh | 4509 | 1648 | 36 | 25,190 | 2726 | 11 |
| Mizoram | 57 | 20 | 35 | 388 | 0 | 0 |
| Madhya Pradesh | 1238 | 424 | 34 | 11,904 | 0 | 0 |
| Gujarat | 1123 | 345 | 31 | 7248 | 817 | 11 |
| Andaman & Nicobar Isld | 40 | 12 | 30 | 214 | 0 | 0 |
| Odisha | 725 | 200 | 28 | 7442 | 0 | 0 |
| Tamil Nadu | 2326 | 622 | 27 | 9910 | 136 | 1 |
| Himachal Pradesh | 582 | 131 | 22 | 2213 | 528 | 24 |
| Uttarakhand | 299 | 65 | 22 | 2077 | 0 | 0 |
| Manipur | 240 | 48 | 20 | 984 | 323 | 33 |
| Haryana | 651 | 121 | 19 | 5420 | 386 | 7 |
| Sikkim | 48 | 9 | 19 | 219 | 0 | 0 |
| Meghalaya | 127 | 23 | 18 | 667 | 0 | 0 |
| Delhi | 22 | 3 | 14 | 43 | 0 | 0 |
| Goa | 46 | 5 | 11 | 260 | 20 | 8 |
| Karnataka | 2310 | 221 | 10 | 11,180 | 0 | 0 |
| Kerala | 1204 | 82 | 7 | 4232 | 59 | 1 |
| Andhra Pradesh | 2424 | 76 | 3 | 24,523 | 2876 | 12 |
| Rajasthan | 1478 | 6 | 0.4 | 14,348 | 0 | 0 |
| Arunachal Pradesh | NA | NA | NA | NA | NA | 0 |
| Assam | NA | NA | NA | NA | NA | 0 |
| Bihar | 2078 | 0 | NA | NA | NA | 0 |
| Chandigarh | 0 | 0 | NA | 17 | 0 | 0 |
| Dadra & Nagar Haveli | 6 | 0 | NA | 40 | 0 | 0 |
| Daman & Diu | 3 | 0 | NA | 26 | 0 | 0 |
| Jammu & Kashmir | 750 | 0 | NA | 2282 | 0 | 0 |
| Jharkhand | 330 | 0 | NA | 4288 | 0 | 0 |
| Lakshadweep | 4 | 0 | NA | NA | NA | 0 |
| Nagaland | NA | NA | NA | NA | NA | 0 |
| Puducherry | 37 | 0 | NA | 72 | 0 | 0 |
| Punjab | 487 | 0 | NA | 4044 | 0 | 0 |
| Tripura | NA | NA | NA | NA | NA | 0 |
| India | 30,051 | 7,246 | 24 | 1,77,103 | 8,835 | 5 |
| Sources: National Rural Health Mission (available here), PRS.Note: The data for all states is as of March 2011 except for some states where data is as of 2010. For doctors, these states are Bihar, UP, Mizoram and Delhi. For ANMs, these states are Odisha and Uttar Pradesh. | ||||||
Community Health Centres
Table 2: Vacancies in CHCs of medical specialists
| Surgeons | Gynaecologists | Physicians | Paediatricians | |
| State |
% of vacancy |
|||
| Andaman & NicobarIsland | 100 | 100 | 100 | 100 |
| Andhra Pradesh | 74 | 0 | 45 | 3 |
| Arunachal Pradesh | NA | NA | NA | NA |
| Assam | NA | NA | NA | NA |
| Bihar | 41 | 44 | 60 | 38 |
| Chandigarh | 50 | 40 | 50 | 100 |
| Chhattisgarh | 85 | 85 | 90 | 84 |
| Dadra & Nagar Haveli | 0 | 0 | 0 | 0 |
| Daman & Diu | 0 | 100 | 0 | 100 |
| Delhi | 0 | 0 | 0 | 0 |
| Goa | 20 | 20 | 67 | 66 |
| Gujarat | 77 | 73 | 0 | 91 |
| Haryana | 71 | 80 | 94 | 85 |
| Himachal Pradesh | NA | NA | NA | NA |
| Jammu & Kashmir | 34 | 34 | 53 | 63 |
| Jharkhand | 45 | 0 | 81 | 61 |
| Karnataka | 33 | NA | NA | NA |
| Kerala | NA | NA | NA | NA |
| Lakshadweep | 0 | 0 | 100 | 0 |
| Madhya Pradesh | 78 | 69 | 76 | 58 |
| Maharashtra | 21 | 0 | 34 | 0 |
| Manipur | 100 | 94 | 94 | 87 |
| Meghalaya | 50 | NA | 100 | 50 |
| Mizoram | NA | NA | NA | NA |
| Nagaland | NA | NA | NA | NA |
| Odisha | 44 | 45 | 62 | 41 |
| Puducherry | 0 | 0 | 100 | NA |
| Punjab | 16 | 36 | 40 | 48 |
| Rajasthan | 57% | 46 | 49 | 24 |
| Sikkim | NA | NA | NA | NA |
| Tamil Nadu | 0 | 0 | 0 | 0 |
| Tripura | NA | NA | NA | NA |
| Uttar Pradesh | NA | NA | NA | NA |
| Uttarakhand | 69 | 63 | 74 | 40 |
| West Bengal | 0 | 57 | 0 | 78 |
| India | 56 | 47 | 59 | 49 |
| Sources: National Rural Health Mission (available here), PRS. | ||||
[i]. “Rural Healthcare System in India”, National Rural Health Mission (available here).
