Dear Friends,While preparing a draft ‘Right to Food Act’ for the Right to Food Campaign, I came across a copy of the Government of India Working Draft, Version January 2009 of the National Health Bill, 2009. As I was alarmed by the contents of this draft, I thought perhaps I might share with you my principal concerns for your consideration. You know that 70% of the Indian populations live at or below the poverty line in terms of food intake. The Arjun Singh Committee found 60% of the population living below Rs. 20/- per day. Looking at poverty from any angle it is obvious that even with a very stingy poverty line India has 70% of the population living with hunger.With my limited experience doing health right cases in courts, the principal problem appears to be that the poor are charged certain amounts for basic health care services. The World Bank sponsored user fee system has become widespread and has resulted in the denial of health care services to millions. Though on paper there appears to be some sort of right for those below the poverty line to get health services free; in practice this right has been obliterated and even in public hospitals persons with BPL cards are forced to buy medicines and pay for their treatment. I would have thought that the National Health Bill, 2009 would have addressed that issue squarely. What I found was, quite to the contrary, that the Bill legitimizes a system where the poor do not get health services free (except for a very targeted section of the population) and the poor are required to pay user fees provided they are “affordable”. I would like you to take a closer look at the Bill as it is currently drafted. Take a look at section 3 (c) and (d) which provides for free and universal access to health care services only for the vulnerable and marginalized persons today. While the beginning part of 3 (c) starts well, the proviso makes it the “immediate duty” to provide free and universal health care services only for the “vulnerable and marginalized people”. Having participated in the debates on targeting in the Public Distribution System, I was aghast that such language would be used in the draft Bill. On the Right to Food, the PDS covers 37% of the population as BPL and is much wider than vulnerable and marginalized groups. The phrase “vulnerable and marginalized groups” has come to mean primitive tribes, women headed households and so on. The vulnerable and marginalized groups get what is known as the AAY card and are supposed to be the poorest of the poor coming to about 10% of the entire population or approximately the lower one third of the BPL list. In the RTF Act that we are drafting, the consensus throughout the country is that even this 36% is no longer acceptable given that 70% of the population consumes less than 2400 calories per person per day, and therefore the RTF Campaign has asked for universalization with exclusions. What is excluded is a creamy layer of government servants, landlords with tractors and so on. It is hoped that such a formulation will bring the Right to Food to 70% of the population. The RTF Act you must know covers only a small part of the Right to Food and therefore we have now titled our draft “The Food Entitlements Bill, 2009”. Besides PDS, it also covers ICDS and various other schemes. One would have thought that a National Health Bill, 2009 would begin first of all, by recognizing the awesome levels of poverty in India. In that sense it appears as if a fundamental discussion which should have preceded the beginning of the drafting process, appears not to have been undertaken. I say this because the Bill is very thoughtful and generous in its scope as well as meticulously detailed in its drafting; but it lacks a heart. The core of the Bill is not only weak but also anti-poor. Now look at section 3 closely. It is possible for to argue that vulnerable and marginalized groups means everybody under the sun particularly having reference to section 2(qq). Looking at the section one could argue that all women, children, adolescents, older people etc. etc. come within the purview of the definition of vulnerable groups. If that is the intention then a vast majority of the population will be covered. Then say so. Draft the bill explicitly covering the vast part of the population. A substantial right given to a substantial section of the population which will go contrary to existing practices must be stated explicitly and cannot come in by way of a definition clause. But one cannot really get away from the long history of the use of this term in India. In the Right to Food Campaign we have had our share of the debate with certain persons preferring to focus on the vulnerable and the marginalized groups while the majority view in the RTF Campaign is to universalize as much as possible the right to food given the widespread nature of poverty and hunger. Therefore try as we may to pretend that the phrase will actually cover the majority of the poor in India, the reality will be that the immediate duty of the state will only be to provide free and universal health care to those whom the state has defined as being vulnerable and marginalized. This is a well settled list that crops up time and again in the Right to Food debates and it will be difficult to extricate ourselves from this list.I thought it would be most obvious that the 70% of the population who consume less food than required by the poverty line would have a right to free and universal access to health care services. This should be at the heart of the National Health Bill, 2009. Section 9 deals with the meaning of the word ‘accessible’ and section 9 (b) (iii) defines ‘accessibility’ as ‘economic access or affordability’. ‘Affordable’ is defined in section 2 (a). The structure that emerges is free service for the vulnerable and marginalized and affordable services for the rest of the poor. This is exactly the ideology of the “user fee” system pushed by the World Bank in India. This is the same thinking behind the water privatization attempt of the World Bank in Delhi. Everyone must pay what is affordable including the poor who are below the poverty line. Now if one looks at section 14(iv) one finds reference for the first time to the non-payment of fees or charges but only in the context of emergency treatment and care. Intriguingly the most critical phrase “free and universal access to health care services” set out in section 3(c) is nowhere defined in the Bill. If a patient is sent out to buy drugs is that ok? If she is denied a bed in a hospital or has to pay for food while she undergoes treatment is that fine? One would have thought that this is the section which needs the most careful elaboration since the user fee system has spread so widely that virtually nothing remains of the public health care system and it is rotting from within. Almost every person including those from the vulnerable and marginalized groups have had this experience of having to buy medicines from the chemists after being examined in a public hospital. Now look at section 3(c) once again. Government of India could close down their public health care system and that would be compatible with the provisions of this draft Bill because it nowhere requires the strengthening of the public health care system in India. A vulnerable person could be referred to a private hospital with the government undertaking to pay the expenses and that would be perfectly compatible with the provisions of this Bill. And don’t be mislead by the language of section 4(a) because that only ensures that whatever facilities, drugs etc. that exist are distributed equally. It does not guarantee the creation of additional facilities or quantities of drugs. Chapter VIII is supposed to be financial memorandum but in the January 09 version it is blank. It is important to take a close look at this financial memorandum because that will tell the whole story. My guess is that the Govt. of India has no intention of providing free and universal health care services to the poor in India and intends to continue on its path of privatization and this National Health Bill, 2009 will provide the camouflage under which government will decimate the public health care system.Finally please take a look at the experiences of civil society groups working on food and education. In the Right to Food Campaign we saw a horrible draft circulated from government side and it was only when a hue and cry was raised by movement organizations that a collective and democratic process of peoples organizations drafting their own Bill, began. Similarly the Right to Education Act, 2009 is a terrible piece of legislation and you can get a detailed critique of that in the latest issue of Combat Law. The National Health Bill, 2009 follows in the same trend. It has, as I mentioned earlier exquisite detailing and this will no doubt please many. But at its core it fails to guarantee genuine free health care for the people of India. The framework is entirely that of globalization where the state is not seeing as being necessary for providing health care services and is relegated to a subordinate role of “regulating” the private sector which is expected to provide the bulk of the services. The poor will go to the private sector and hopefully may get subsidized services because huge funds of the state will be channeled to the private sector in terms of subsidies. Public sector funding will suffer. Public institutions already in a deplorable state will decline further. This is what the bill seeks to legitimize. In fact in the preamble itself while it is stated that “there is need to have an overarching legal framework and a common set of standards, norms and values to facilitate the Governments’ stewardship of private health sector as a partner, there is not a word about the need to strengthen the public health system. Similarly Chapter II which deals with the obligations of the government there is not a word about strengthening of the public health care system. Similarly in Section 6 which deals of the specific obligations of the Central Government and the State Government again there is no mention of the strengthening of the public hospitals, the CHC’s and the PHC’s. This core of the public health care system is not mentioned in the Bill at all! What is equally worrying is that JSA is mentioned in the covering note to the Bill and “that It was then examined by an especially constituted Task Force comprising eminent lawyers, public health experts, medical professionals and public administrators from across the country. It was also presented before some select groups of experts from diverse fields. The feedback was used to continually revise and improve upon the original draft”. This gives the impression that health organizations and experts throughout the country have backed this Bill!
Colin Gonsalves
