People'S Union for Civil Liberties v. Union of India and Ors.

Judgment

CIVIL ORIGINAL JURISDICTION: I.A. Nos. 34, 35, 37, 40, E 49, 54, 58, 59, 60, 61, 62 & 77. In Writ Petition (Civil) No. 196 of2001. (Under Article 32 of The Constitution oflndia) With Suo Moto Contempt Petition (C) No. 128 of2007 in W.P. (C)No.196of2001. IN RE: Chief Seery. State ofBihar & 4 Ors. Mohan Parasaran, A.S.G., Jayshree Anand, AAG., Colin Gonsalves, G T.S. Doabia, Jaideep Gupta, Anil Diwan, Vipin M. Benjamin, Jai Singh, Jyoti Mendiratta, J.S. Attri, Vivek Singh Attri, D.S. Mahra, Suslnna Suri, B.K. Sood, R.C. Kathia, Kh. Nobin Singh, Tarun Jamwal, Dr. Kailash Chand, Venkateshwara Rao, Anumolu, Ravindra Keshvrao Adsure, 314 . A Gautam Godara, K.K. Mahalik, Sunita Sharma, Jana Kalyan Das, Hemantika Wahi, Shivangi, B.V. Balram Das, Indra Sawhney, Anmeshwar Gupta, Naveen Kumar Singh, Shashwat Gupta, Riku Sarma (For Corporate Loaw Group), Rachana Srivastava, S.V. Deshpande, Manoj Saxena, Rajnish Kr. Singh, Rahul Shukla, T.V. George, Kamini Jaiswal, B Ranjan Mukherjee, S.C. Ghosh, V.G. Pragasam, S. Joseph Aristotle, Prabu Ramasubramanian, Jatinder Kumar Bhatia, Ravi Prakash Mehrotra, Gopal Singh, B.S. Banthia, Tara Chandra Sharma, Neelam Sharma, B.B. Singh, Kumar Rajesh Singh, Anil Shrivastav, Ritu Raj, Gopal Prasad, Prakash Shrivastava, Ramesh Babu M.R, D. Bharathi Reddy, Amit Kr.

C Chawla, Sanjay R Hedge, U. Hazarika, Satya Mitra, Sumita Hazarika, RK. Maheshwari, A. Subhahini, Uday B. Dube, Kuldip Singh, Prashant Kumar, Vishwajit Singh, Anis Suhrawardy, AshokBhan, S.W.A. Qadri Jubair Ahmed Khan, K. V. Mohan, Manish Sharma, Suparna Srivastava, Nidhi Minocha, Rajesh Srivastava, Anuvrat Sharma, K.N. · D Madhusoodhaiian, R Sathish, RC. Kaushik, Pradeep~sra, G. Prakash, Malvika Trivedi, Anil Kumar Jha, Gopal Singh, Sibo Shankar Mishra, A. Mariarputham and Aruna Mathur (for Arputham Aruna & Co.) for the Appearing parties. · The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.

1By this order two !As. No.37 of 2004 and No.54 of2005 stand disposed of. IA No.37 of2004 is an applicaticJn by the Union oflndia for permission to modify the National Maternity Benefit Scheme (in short 'NMBS') and to introduce a new scheme called the Janani Suraksha Yojana (in short 'JSY'). IA No.54 of 2005 is an application by the petitioner questioning legality of the discontinuation of the benefit under the NMBS due to introduction of JSY. By order dated 27.4.2004 this Court directed as follows: "No Scheme ... in particular ..•. National Maternity Benefit Scheme shall be discontinued or restricted in any way without prior approval of the Court." · 2. Again by order dated 9.5.2005 this Court directed as follows: "By LA 37, pennission is sought to modify The National Maternity Benefit Scheme (NMBC) and to introduce a new scheme namely A Janani Suraksha Yojana (JSY).

Whereas in IA 54, the prayer is that the Scheme should not be modified by reducing, abridging or qualifying in any way the social assistance entitlements created under the original scheme ofNMBS for expecting BPL mothers, including rash entitlement ofRs.500/- provided therein. We have B requested learned Additional Solicitor General to place on record further material in the form of affidavit to effectively implement the new Scheme sought to be introduced. The further material shall include the approximate distance of Public Health Centre from the residential complexes and the facility of transportation etc. The C Commissioner shall also examine the matter in depth and file a report. The response to the application may be filed within eight weeks. Meanwhile, the existing National Maternity Benefit Scheme will continue."

3The government set a numerical ceiling of 57.5 lakh beneficiaries D as the annual target for NMBS. However, the number of beneficiaries under JSY in 2006-07 was only 26.2 lakh i.e. 45.5% and in the year 2005-06 this was as low as 5.7 lakh i.e. 10%. While there has been an improvement in the last one year, the coverage under this scheme is still E way below the target number of women to be covered by the NMBS.

4According to the Union oflndia the JSY was introduced to put a premium on the willingness of poor women to go in for institutional delivery instead of home delivery. But it was recognized that in States with lower institutional delivery rates, one of the reasons for low performance F have been lesser availabilities of facilities in the Health Centres, which act as disincentive for the poor illiterate women to seek the services.

5Pursuant to the order of this Court dated 9 .5 .2005 the Commissioner had prepared a report.

6After discussions with the Commissioner appointed by this Court, senior officials, the Central Government took a decision to modify the JSY Scheme to continue benefits ofNMBS and also to improve upon such benefits for non-institutional delivery, where the woman chooses to deliver A her baby at home. In this connection, a letter dated 13. 7.2006 was written to the Commissioner by the Secretary health and Family Welfare under the amended JSY. The Low Performing States and High Performing States were defmed as follows: "4.1 The scheme focuses on the poor pregnant woman with special dispensation for states having low institutional delivery rates namely the States ofUttar Pradesh, Uttaranchal, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Assam, Rajasthan, Orissa and Jammu and Kashmir. While these states have been named as Low Performing States (LPS), the remaining states have been named as High Performing States (HPS)."

7The table below gives details of the numberofbeneficiaries under JSY (all these would have received the Rs.500/- under NMBS irrespective of place of delivery) vis-a-vis the annual targets set by the Government oflndia for NMBS. Percentage of Eligible Beneficiaries Covered Under NMBS State/UT No. of Women No. of Percentage eligible for Beneficiaries of Eligible NMBS in 2006-07 Beneficiaries covered Andhra Pradesh 296033 457000 154.4 Rajasthan 280123 387648 138.4 50494 57798 114.5 Assam 182894 183231 100.2 Orissa 264249 227204 86.0 Madhya Pradesh 472840 401184 84.8 Mizoram 75.2 Chattisgarh 148876 74778 50.2 H Uttaranchal 37117 18614 50.l West Bengal 425520 199000 46.8 Tami!Nadu 301676 136091 45. l Kamataka 289339 81152 28.0 A & N Islands 26.l Kerala 107602 27683 25.7 Bihar 732891 171352 23.4 Puducheny 20.4 Gujarat 212845 42373* 20.0 Punjab 41297 20.0 Maharashtra 529777 97390 18.4 Tripura 20601 15.5 l\fanipur 11112 15.2 Goa 15.1 Lakshadweep 42 12.6 Sikkim Meghalaya 22768 Himachal Pradesh 29222 Uttar Pradesh 1073341 71456 Haryana 92856 D &NHaveli 76 Chandigarh 0 Delhi 42447 20 Arunacha!Pradesh 10399 NR NR Daman&Diu NR NR Jharkhand 208592 NR NR Nagaland 12763 NR NR Total-India 5925554 2618889 44.2

8The scheme as the details above go to show has virtually not taken off in many states. Delhi has given the benefit under the NMBS to only 20 women in 2006-07, while in Chandigarh the number of beneficiaries is 0. In Sikkim, Meghalaya, Himachal Pradesh, Uttar Pradesh, Haryana and Dadar & Nagar Haveli less than even 100/o of the eligible beneficiaries have been covered under the NMBS. Except for the states of Andhra Pradesh, Jammu & Kashmir, Rajasthan, Madhya Pradesh, Assam, Orissa and Mizoram where more than 75% of the eligible beneficiaries seem to have been reached out to, the performance of this scheme has been very poor in all other states. Indicated below are percentage of Home delivery figures State/UT % Home delivery % Home delivery in reported out of JSY the State (NFHS 3) beneficiaries (2006-07) Assam 77 Madhya Pradesh 70 Haryana 61 Rajasthan 13.5 68 Marupur 51 Delhi 39 Meghalaya 41.4 70 Onssa 33.3 61 Chattisgarh 59.2 84 Sikkim 44.8 51 Tarm!Nadu 10 Bihar 75.9 78 Karnataka 37.6 33 Kerala 0 Mizoram 44.1 35 Tripura 60.5 51 Uttar Pradesh 90.2 78 Uttaranchal 96.9 64 Punjab 82.9 47 Maharashtra 86.0 34 Goa 67.9 7

9In the States of Madhya Pradesh, Haryana, Manipur and Delhi there are almost no JSY beneficiaries who had a home delivery. This indicates that in these States the scheme's focus continues to be only on D institutional deliveries and not all deliveries. Even in the States of Assam, Rajasthan, Meghalaya, Orissa and Chhattisgarh the JSY has been disproportionately given to only those who have had institutional deliveries.

10At this juncture, the financial perfonnance needs to be noted.

11The Janani Suraksha Yojana is a centrally-sponsored scheme with the centre providing 100% of the funds. Some States e.g. Andhra Pradesh make their own contribution thereby increasing the amount of cash assistance for institutional deliveries. Tamil Nadu has introduced a separate scheme for providing mothers with Rs.1000/- per month for six months i.e. three months prior to the delivery and three months after. Given below are the details of allocation and utilization of the funds provided by the Central Government.

12Out of the funds provided for JSY for 2006-07, about 71.2% G of the funds allocated have been utilized in the year 2006-07. Utilization of funds allocated by JSY Rs. In Iakhs Name of the Funds released Expenditure % Utilization State/UTs in 2006-07 Reported by States Andaman& 10.00 1.99 19.9 Nicobar Island Andhra Pradesh 4073.20 4550.00 111.7 Arunachal Pradesh 26.20 0.31 Assam 1300.00 1331.32 102.4 Bihar 610.00 190.00 31.1 Chandigarh 5.23 0.00 Chattisgarh 513.00 516.55 100.7 D & N Haveli 9.17 0.73 Daman&Diu 5.23 0.00 Delhi 65.49 0.20 Goa 7.86 3.38 43.0 Gujarat 851.85 185.56 21.8 Haryana 350.00 39.11 11.2 Himachal Pradesh 100.00 20.66 20.7 J & K 138.33 123.84 89.5 Jharkhand 392.89 64.67 16.5 Kamataka 916.00 594.02 64.8 Kerala 511.94 284.45 55.6 l.akshadweep 4.38 0.31 Madhya Pradesh 4261.00 2482.00 58.2 Maharashtra 785.79 209.07 26.6 Manipur 78.57 13.45 17.l Meghalaya 39.29 42.75 108.8 Mizoram 78.57 37.27 47.4 Nagaland 65.49 0.00 Orissa 1600.001571. 3198.2 Pondicheny 19.64 6.10 31.1 Punjab 145.37 56.84 39.l Rajasthan 4085.00 3056.35 74.8 Sikkim 13.10 7.46 56.9 TamilNadu 1827.00 1441.00 78.9 Tripura 117.86 43.70 37.1 Uttar Pradesh 1375.00 436.80 31.8 Uttranchal 79.56 56.06 70.5 West Bengal 1678.99 1233.67 73.5 Total 26141.00 18600.93 71.2

13Looking at the State-wise break-up it is seen that states like Delhi, Nagaland and Arunachal Pradesh, and union territories of Chandigarh and Daman & Diu have not at all utilized the funds allocated to them for the purpose of JSY. Among other states, Manipur, Jharkhand and Haryana utilized less than 20% of the funds released to them. Only G 10 states spent more than 70% of the funds allocated to them under JSY.

14At the time of hearing of the applications, learned counsel for the petitioner and the Union of India highlighted various aspects. Considering the submissions and the material data placed on record we A direct as follows:- (a) The Union oflndia and all the State Governments and the Union Territories shall (i) continue with the NMBS and (ii) ensure that all BPL pregnant women get cash assistance 8- 12 weeks prior to the delivery. (b) The amount shall be Rs.500/- per birth irrespective of number of children and the age of the woman. (c) The Union of India, State Governments and the Union Territories shall file affidavits within 8 weeks from today indicating the total number of births in the State, number of eligible BPL women who have received the benefits, number ofBPL women who had home/non-institutional deliveries and have received the benefit, number ofBPL women who had institutional deliveries and have received the benefit. (d)

The total number of resources allocated and utilized for the period 2000-2006. (e) All concerned Governments are directed to regularly advertise the revised scheme so that the intended beneficiaries can become aware of the scheme. (f) The Central Government shall ensure that the money earmarked for the scheme is not utilized for any other purpose. The mere insistence on utilization certificate may not yield the expected result. (g) 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 of the funds.

15At this juncture it would be necessary to take note of certain connected issues which have relevance. It seems from the scheme that A 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 B considering the desirability of the continuation of the scheme in the present fonn. After considering the aforesaid aspects and if need be, necessary amendments may be made.

16The IAs are accordingly disposed of. S.K.S . Interlocutory Applications disposed of.