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Vandana Das Bill— Will Tharoor bat for the Patients too?

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The Kerala Government recently enacted an amendment to the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act that prohibits violence against healthcare service persons and seeks to prevent damage and loss to property in health care service institutions.

Patients

Now, Shashi Tharoor, Member of Parliament from Thiruvananthapuram, is moving a similar legislation as private members’ Bill in Parliament, nicknamed Vandana Das Bill.

These legislation are unnecessary and in certain respects negate equality before law, enshrined in the Constitution.

It is notable that the Centre had proposed a similar legislation in 2019. However, after obtaining public opinion, the Ministry of Health and Family Welfare decided to dump the legislation. The Home Ministry, during inter-ministerial consultations over it, had stated that there cannot be a separate legislation to protect members of a particular profession, according to news reports in 2022.

Dismissing the need for a separate law to check violence against members of a specific profession, the Home Ministry said there should be no specific law for a particular profession, and the Indian Penal Code and Criminal Procedure Code were sufficient to deal with it.

It noted that over the time, members of other fraternity like lawyers and police might also demand for an exclusive law to safeguard their interests.

Though the Ministry did not say so, other groups such as journalists too could make such demands.

On a higher pedestal:
The enacted and proposed legislation place health service persons on a distinct legal position higher than the ordinary citizens. This is similar to prescriptions in Manusmriti that granted Brahmins elevated legal status. Indian Constitution does not recognise such treatment. In normal jurisprudence, a crime committed under emotional stress attracts lower punishment than a pre-meditated crime.

The parent Kerala Act was enacted back in 2012, following protests by doctors. The present amendment was to enhance period of imprisonment and fine and include more categories of health care personnel under the protection of the law. They included security personnel who, in many cases, are outsourced by the hospitals. There is also the provision that the offender shall pay the health care service institution twice the amount of purchase price of medical equipment damaged and loss caused to the property as compensation. It is not clear why the health care service institution should get such a compensation which is not available to other institutions. Even if old or non-working equipment is damaged, it may be possible to recover such damages and this could lead to misuse of the legislation.

It is notable that the Kerala Amendment (enacted as an Ordinance with Bill to replace it before the Kerala Assembly now) was brought against the background of tragic murder of a young doctor Vandana Das at Kottarakkara Taluk Hospital by a patient, brought in by the police. The motive was not clear and it was suspected that the assailant was mentally unstable or addicted. The only thing was that the crime took place in a hospital.

Dr. Tharoor also cites this incident in his statement of objects and reasons for his Bill. The narrative is bogus. Dr. Tharoor is just cashing in on the protests by doctors and public sympathy for the family of the deceased. The incident took place basically because the police, security staff or others failed or did not care to restrain the attacker who was using just scissors for the attack. It was not related to an issue over treatment.

Enforcement is the key
Legislators often propose special legislation and enhanced punishment, for crimes that attract public protests or concern, to deflect attention from failures on the enforcement front. Though the Kerala Act was in force since 2012, it is said that hardly any successful prosecution had taken place so far, and the cases of violence against health personnel are on the increase.  So, the political ploy to neutralise public concerns is to bring new legislation or increase of the quantum of punishments. Examples to this are the Goonda Act and modification of the law and quantum of punishment for sexual violence against women. However, goondaism or violence against women has not come down.

Exploitation of patients
Violence against hospital staff have increased against the background of increasing exploitation of patients by hospitals. If indeed special legislation is needed for healthcare personnel, what the government and Dr. Tharoor should answer is why similar special legislation is not being proposed for protection of patients also. Recently, the High Court had ordered arraignment of several doctors after the court found evidence that a patient was left to his death by the doctors for harvesting of his organs.  

It is not easy for patients or their relatives to bring doctors to book in such cases or medical negligence. In this case, it became possible because a doctor came forward to exposes that and several other cases. The number of cases he is citing is not small.

A patient in ICU or in the operation theatre is highly vulnerable. Enhanced punishments had been specified for sexual crimes by those in authority. Is not similar provisions needed in the case of doctors and nurses too for wilful negligence or trafficking in human organs, stem cells or embryos?

Link to original Act: https://www.indiacode.nic.in/handle/123456789/12382?view_type=browse&sam_handle=123456789/2516

One India goes for a toss

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Montage from twitter.

ONE INDIA—we hear about that often during these Covid-19 times. But the disease is proving that we are far from achieving unity. Look at the following reports.

Karnataka Closes Kerala Border, 7 Die Due to Delayed Medical Assistance
Telegana Stops Issuing Passes to Migrant Workers and Others Returning from Maharastra, Gujarat and Andhra Pradesh.
Karnataka Bans Entry of People from Gujarat, Maharastra and Tamil Nadu till May 31
Kerala Stops Malayalees Returning From Other States at Border
1000 Buses from Rajastran Dispatched from Alwar Stopped at UP Bharatpur Border by UP Cops
40 Haryana Buses from Gurgaon with Stranded Migrants Were Sent Back by UP Police

Indian States were stopping their own people from entering the State on the ground that they were coming from Covid-hit red zone, not to speak of people from neighbouring States. The BJP Government in UP not only refused entry for buses from Congress-ruled Rajasthan but also from BJP-ruled Haryana. So, the migrant drama played out in UP was more than a Congress-BJP tussle.

Centre fails to lead
The Central Government did not intervene or coordinate movement of people wanting to return home for nearly two months now. All it did finally was to send some trains here and there without waiting for clearance from the States.  However, this did not address even part of the problem. In fact, the States were acting as if they were different countries and returning workers were refugees coming to their States. This happened because the Centre did not take overall responsibility for Covid-19 control.

The Union Government, however, tried to achieve a form of paramountancy by dictating orders to the State governments on lock down. But, it failed to address critical issues like financing the fight against the disease and addressing inter-State issues such as that of the migrants, and even inter-State movement of patients. Much of the resources for the fight in terms of equipment, personnel et cetera had to be mobilised by the States. The Central agencies other than the ICMR played hardly any part.

Soon, the Centre lost the plot. By the end of the first phase, Prime Minister Narendra Modi, who announced the lock down without consulting anyone, started consulting the Chief Ministers. By the time, he announced the fourth phase; the Centre had to concede more freedoms to the States.  This was despite the fact that the lock down measures hardly attracted any Opposition from the States.  The States were allowed additional borrowing from the market and they went into a ‘self-reliant’ mode as if they had embraced the Atma Nirbhar slogan of the Prime Minister.  The borders were made as impermeable as possible, often citing order of the Union Home Ministry.

The Kerala Example
Kerala had done well in containing the disease, but miscalculated on what the lock down will or will not achieve elsewhere in the country.  Its achievements were largely the result of early detection, isolation, contact tracing and better care. It also looked after the migrant workers. The lock down at the national level made it easy for it to enforce social distancing and adopt precautionary measures including closure of places of worship and other establishments.

In its bid to keep its record intact, it delayed steps to facilitate return of Malayalees outside the State and abroad. This was despite some States like UP bringing back students from Kota in Rajasthan. In fact, Kerala could have asked the Centre to facilitate return of Keralites to the State and migrants to their respective States, after the first phase.

Despite claims to the contrary, it was also not well-prepared for a large influx of Malayalees from outside. This caused crowding and other issues at the border check posts. The migrant workers became restless as their return was being delayed, often because other States were also trying to keep matters pending.  Hence, Kerala too had at least isolated cases of migrants trying to reach their homes on trucks and cycles. Even now, the mess is far from over. The State did not operate a single bus or Sramik train for Keralites from Bangalore, Hyderabad or Chennai till now. Keralites had to arrange their own vehicles for their return to their homes at high costs. Sramik trains from Delhi and other places are yet to reach Kerala.

There is still no national plan as to how to deal with Covid-19 other than extending lock downs. Full mobility may not be restored at least until July. Kerala has a total lock down on Sundays, the scientific reasoning of which is unclear other than delaying the infections by a day or two.  Lower business hours and total closures on Sundays could only increase the crowd. We still have no trajectory either at the national or State levels as to what is to be achieved even by July.

Information Commission orders release of video footage of polling in Kerala

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The Election Commission of India and its electoral officers have been forgoing openness and transparency in the electoral process, thus undermining democratic elections in Kerala and probably elsewhere in the country. A recent order of the State Information Commission may help to restore at least some degree of transparency.

Access to Webcasting to candidates, agents and public during the Lok Sabha polls last year had resulted in detection of several cases of impersonation and bogus voting. However, when repoll were held, the Chief Electoral Officer (CEO) of Kerala restricted viewing of Webcasts to ‘election machinery’ citing a letter from the Election Commission issued in 2015. This impeded concurrent social auditing of the election process.

The letter said that the Commission had decided that henceforth, webcasting in polling stations will be restricted to viewing only by the election machinery in keeping with the spirit of Rule 93(1) of the Conduct of Election Rules, 1961.[ The rule actually deals with production and inspection of election papers. It specifies that used ballot papers, counterfoils et cetera and sealed control units of EVMs should not be opened or allowed to be inspected by any person or authority except under orders of a competent court. This a clause aimed at maintaining the secrecy of balloting. There is no reference to Webcasting or video footage in this clause. How the Commission could take a decision to deny real time access to web footage under this clause and how it could be in the spirit of the Rule is anybody’s guess.

Even if the decision is valid, it did not cover requests for footage under the RTI Act. However, when Advocate D. B. Binu sought the CCTV/Webcasting footage from polling booths that recorded polling percentage of more than 90%, the State Public Information Officer (SPIO) in the Office of the CEO did not release the information. He initially said that a clarification was being sought from the Commission in view of the restriction imposed by the Commission on public access. Later, he claimed that “the final list of polling booths where webcasting was done was being finalised” (sic). He added that no separate details in the manner of polling booths where 90 % and above polling was recorded was kept in that office. The appellate authority dismissed first appeal saying that the Office was awaiting clarification/permission from Election Commission of India on providing such video footage to the public.

This was when there was no provision under RTI Act giving power to the SPIO to get clarification/permission from the Commission. Moreover, the Handbook for Returning Officers had provision that copy of the video footage should be made available on payment of Rs. 50 (fees as per Right to Information Rules, 2012). Hence, the clarification sought was clearly a delaying tactics by SPIO and a clear violation of RTI Act.

The State Information Commission, in a recent order, has now directed the footage to the released. Allowing an appeal from Mr. Binu, Chief Information Commissioner Vinson M. Paul noted that the contention of the Respondent’s office that it was awaiting clarification from the Election Commission of India was not tenable under the RTI Act. Information sought tinder the Act can be denied only under Section 8 or 9 of the Act. Similarly, the argument that the Respondent office did not maintain details of polling booths, which recorded more than 90% polling, was not valid as the CEO’s office is the repository of all such information.

In response to another RTI application from the writer of this blog, the SPIO is maintaining that the reasons for malfunctioning of the electronic voting machines are not available in the CEO’s Office. As many as 434 balloting units, 391 control units and 1041 VVPATs were replaced in Kerala during Lok Sabha polls. The number of BUs and CUs replaced during the by-polls were 15 each. As many as 56 VVPATs were also replaced.

About a month after the by-elections to the Assembly in September/October 2019, the SPIO maintained that the returning officers were yet to finalise data on the polls except in the case of Pala constituency. Though the data were later released on first appeal, it was provided only in PDF format though the request was for data in excel or similar format that could be easily used for calculations.

If what the SPIO said was true, how the returning officers declared the by-poll results and Election Commission notified the winners without finalising the data?

The appeal before the State Information Commission in this case is pending.

Copy of reply from State Public Information Officer, CEO’s Office, on RTI request for election data
Reply from State Public Information Officer, CEO’s Office, on RTI request for election data- Page 2

Performance of Members of Parliament 2014 – 2019

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P. K. Biju meeting voters

Did you know that CPI (M) member P. K. Biju (Alathur) was among the top ten performers of the outgoing Lok Sabha in terms of participation in debates, but the topper beats him by a score more than six times higher?

Congress member K. V. Thomas, who did not get a seat this time, and actor Innocent (CPI-M independent), who is contesting again from Chalakudy, were the poorest performers among members who served the full term from Kerala.

Topper Bhairon Prasad Mishra (BJP) from Uttar Pradesh attended all sittings of the House and participated in 2095 debates.  You may even wonder whether the Sabha had so many debates, considering the poor participation by many of our elected representatives. The average participation was about 67 debates nationally and 142.5 for members from Kerala.

Biju participated in 326 debates followed by RSP’s N. K. Premachandran (300) and Independent Joice George (290).  On the other hand, Thomas and Innocent participated only in 42 debates each. P. K. Kunhalikutty (Muslim League) has the lowest score of nine from Kerala. It may be noted here that he was in the House only for about two years, having been elected in a by-election from Malappuram in April 2017. If we extrapolate his performance for five years, it is still the lowest from Kerala.

The outgoing Lok Sabaha has as many as 32 members who did not participate in any of the debates. They included post graduates and doctorate degree holders. They also included former Chief Ministers Shibu Soren (Jharkhand) and Kamal Nath (Madhya Pradesh) besides actor Shatrughan Sinha.

The oldest member in Lok Sabha, L. K. Advani of BJP, participated in only one debate in  a span of five years. So was the youngest member Pravin Kumar Nishad of Samajwadi Party from Uttar Pradesh who incidentally is a professional graduate.

Supriya Sule of Nationalist Congress Party from Maharastra topped in terms of the questions she had asked the government in the House.  She had asked as many as 1181 questions during the five-year term.  Nishikant Dubey of BJP from Jharkhand presented the highest number of private members’ bills in the House— 48 against average of 2.3 bills nationally.

The following MPs had 100 per cent attendance in the House, besides Bhairon Prasad Mishra.

Kulamani Samal Odisha Jagatsinghpur Biju Janata Dal Professional Graduate 100%
Ramesh Chander Kaushik Haryana Sonipat Bharatiya
Janata Party 		Professional Graduate 100%
Bhairon Prasad Mishra Uttar Pradesh Banda Bharatiya
Janata Party 		Inter/ Higher Secondary 100%
Gopal Chinayya Shetty Maharashtra Mumbai-North Bharatiya Janata Party Under Matric 100%

Attendance is not marked for Ministers. Niranjan Jyoti from Uttar Pradesh had 100 per cent attendance till she became a Minister in August 2014.

Full set of sortable data at
http://www.keralaassembly.org/lok/sabha/2019/performance_2019.php4

Once in a blue moon

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How many of you know that a blue moon need not necessarily have a blue shine? Beware of any moonshine over this. A blue moon is the full moon that occurs for a second time in a calendar month. This will happen on Wednesday, 31st January 2018. (This year, it is also the supermoon, along with a total lunar eclipse visible in some parts of the world.) As per an old definition blue moon is third full moon of four in a season which also is rare.

The word *blue* has contributed to several phrases. You know what blue film or blue jokes mean; but a blue blooded man is one of noble birth. At Oxford and Cambridge, you get your blue when you represent the University in a sport. That should take the blues away. That will be all the more true if you get a ‘blue ribbon’, a sign of great distinction. For many, distinctions come out of the blue. But a bolt from the blue is something that you cannot easily take.

You know that the blue chips have nothing to do with computers except that they are traded these days using computers. If you knew that much, better be aware that a blue stocking may not be interested in stocks. She is a woman regarded as having superior literary tastes and intellectual interests. She may not like the blue bottle. (The bottle here has nothing to do with liquor; it is a fly.)

We may not find a true blue these days even in the CPI (M) not to speak of the BJP and the Congress. The blue book, we hear of too often during Prime Minister’s visit, need not necessarily deal with VVIP security. It can be any book published by the Government containing a report– a product of white collar workers as contrasted to blue collars.

While some journalists will submit to the blue pencil, others will fight him/her. You had that experience during emergency when some bent backwards to obey him.

A. K. Antony’s criticism is a warning to Congress-led coalition in Kerala

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Defence Minister A. K. Antony has issued a warning to the UDF government in Kerala by expressing his anguish over the situation in Kerala at a function of Indo-Russian firm BrahMos Aerospace in Thiruvananthapuram.  The Defence Minister said that though Chief Minister Oommen Chandy and P. K. Kunhalikutty have been asking for projects for the State, he was not courageous enough to locate any project in Kerala after the UDF government came to power.

Defence Minister A. K. Antony

Defence Minister A. K. Antony in his office in New Delhi

Though Antony did not say it directly, he was warning that the Congress led coalition in the State (UDF) would not be able to retain the seats it had won in the last Lok Saba Elections unless its performance improves. It is significant that his warning comes at a time when Prime Minister Manmohan Singh has reshuffled his Cabinet with a view to the elections due in 2014. As the Number Two in the Union Cabinet, Antony has to see that the Congress performs well in the next elections.

The UDF had won 16 seats in the last Lok Sabha election out of 20. Every school boy knows that the Front would not be able to retain them in the next elections under the present circumstances, not to speak of winning more seats.  When he was the Chief Minister in the State, Mr. Antony had not been able to lead the Front to a victory in the Assembly elections. As Union Minister he wants to be one who has contributed to victory of the Front in the next Lok Sabha elections.  However, he is admitting that he was unable to do anything for the State because of the situation in the State. He was not getting the cooperation he wanted.

It is also notable that Mr. Antony praised the (previous) LDF government in Kerala. He knows only too well that the Congress will have to fall back on the Left too if it did not win enough seats to form a government at the Centre.  So, he is building bridges. It is also a fact the previous government had facilitated establishment of defence projects in the State.

Antony could also be concerned about a number of other issues.  There is growing discord among the ruling Front constituents. They are even making unethical bargains. The front could lose votes if Congress played to their tunes on some of the controversial positions they are taking. There is also considerable discord in the Congress. The proposed reorganisation of KPCC is getting delayed. All this should worry Mr. Antony more than anyone else. So, it is not surprising that he has fired a salvo against the UDF government, though he is unlikely to repeat that as elections come closer.  The crucial point is how far the Congress and UDF constituents in the State would heed his warning and act in larger interests.

Tailpiece:
Above all these, there is a personal factor to Mr. Antony’s criticism. Image-conscious Antony is hurt by the fact that allegations had been raised over the take over the Kerala Hitech Industries by joint venture Brahmos Aerospace and that neither Mr. Chandy nor Kunhalikutty had come to his defence. In fact, the INTUC unit in the company joined hands with the AITUC union which raised the allegations. Mr. Antony would not have voiced his concerns openly but for this factor. His remarks stemmed from personal hurt and diminishing influence in Kerala politics. (Revised and tailpiece added as post script on 17/11/2011).