THE MALLYA EXTRADITION- EASIER SAID THAN DONE.

    [ This piece was published in The New Indian Express on 20.12.2017, with some minor changes, under the heading BRINGING BACK MALLYA NOT EASY. ]                   

    T he government has pulled out all the stops to extradite Mr. Mallya from the UK but it would be well advised not to put its prestige on the line. It’s unlikely to happen, primarily because of the dismal state of our criminal justice system and our poor human rights track record. The developed world sets great store by both these factors and the past history of our extradition requests clearly show that they are not applauding us for either.

    India has extradition treaties with 38 countries and since 2002 only 61 accused have been extradited to this country. Currently, 121 extradition requests are pending with 24 countries. We signed a treaty with the UK in 1993 but till now only one person has actually been extradited, and that too because he consented to it! Ominously for the govt., the latest rejection was in October this year: one Sanjeev Chawla, a UK based bookie, was given the reprieve even though the judge found prima facie evidence against him for match fixing in 2000. The reasons cited for refusing the request were our poor human rights record: abysmal conditions in Tihar jail, overcrowding, lack of medical provisions, risk of being tortured, violence from other inmates and prison staff which, the judge noted, “is endemic in Tihar.” And it’s not only the UK. In February 2016 a Canadian court rejected the extradition of Surjit Badesha and one Mrs. Malik wanted for an honour killing in Punjab in view of the “appalling human rights record of Indian prisons.”  And therein lies the rub.

    Statistics prove that these judges were right. With more than 450,000 persons in jail( most of whom are undertrials and shouldn’t be there in the first place), our prisons are horribly overcrowded: Tihar has three times the population it was designed for. Corruption and violence are rampant. Quoting NHRC figures, the Asian Centre for Human Rights has revealed that between 2001 and 2010 there were 14231 custodial deaths in India- 1504 in police custody, 12727 in judicial custody. 99.99% of the deaths took place within 48 hours of the person being taken into custody. This is damning enough, but what the international tribunals will find even more inexplicable is the govt’s refusal to do anything about it. India signed UNCAT ( United Nations Convention Against Torture) in 1997 but we have not yet ratified it. We are only one of 7 countries not to have done so, and they are not elevating company: Sudan, Gambia, Comoros, Brunei, Bahamas, Angola. Unlike other countries, we have also failed to enact an anti- torture law: the draft Bill has been pending in the Lok Sabha since 2010. The recent murder of a woman inmate by warders in Arthur Road jail in Mumbai does not help our cause.

   We have not improved our credibility with the developed world by failing to adopt or implement the Standard Minimum Rules ( for prisoners), also known as the Nelson Mandela Rules, adopted by the UN unanimously in 2015. This signals a disregard for prisoner welfare and rights.

    The British court will also note our pathetic conviction rate- 45%- which will raise doubts about the genuineness of the charges made in most of the cases, including, naturally, Mallya’s. The independence of India’s investigating agencies will come under close scrutiny, with the Supreme Court itself labelling the CBI a “ caged parrot.” Ironically, the CBI is the investigating agency in Mallya’s case! The manner in which only opponents of the ruling regime are being prosecuted will lend credence to Mallya’s defence that he is a “political victim”. The clogged judicial system is another major area of concern: as on October 2017 there were almost 40 million pending cases, of which 1.62 million and 743000 cases had been pending for more than five and ten years, respectively, with the various High Courts. These figures raise serious questions about our judicial system’s ability to provide justice in time. Taken together, all these dysfunctionalities feed into a perception that human rights cannot be assured in the country. Even the 2017 report of Human Rights Watch notes that India “has serious human rights concerns.”

   Certain recent events in the Supreme Court will further erode the perceived image of our higher judiciary- charges by senior lawyers against the Chief Justice himself concerning his integrity, inaction on the suicide note of the Arunachal Chief Minister in which he had accused senior judges of bribery, corruption charges against a retired judge of the Odisha High Court. In fact, according to a press report on the 13^th. October 2017, Mallya’s lawyers have already seized on this- his defence has already brought to the Magistrate’s notice a research article by a scholar in Portsmouth Law University about corruption in the Supreme Court. It does not help matters that the Court is locked in a bitter battle of attrition with the Central Govt. over appointments and “judicial overreach,” or when its coherence is suspect when it appears to be internally divided, with judges overruling each other on important matters.

    There is also the question of whether Mallya’s failure to repay loans justifies criminal prosecution or is a matter for civil action. We do have a propensity to arrest people at the drop of a hat, whether it is for someone’s foot accidentally touching a woman on a plane or a cartoonist lampooning someone in power. All these factors will coalesce into a powerful defence for Mallya, and his lawyers have already started using them. A lot of our dirty linen shall get washed in public but the outcome is still not certain as most of the cards are stacked against India. It is difficult for a civilised society to extradite a man to a country with a dysfunctional legal system, a thoroughly compromised police and a strident media which appears to be the final arbiter of guilt and innocence.

THE GUJARAT ELECTIONS : PAPPU PASS HO GAYA !

    At times there's more glory in defeat than in victory, and the results of the Gujarat elections demonstrate this. Congress may have lost, the BJP will form the government for the sixth successive time, but the real winner is Rahul Gandhi. He fought an honourable battle, which is something of a rarity in these devalued times, against a party which has made the gutter its own, and a media vying with each other in singing hosannas to the presiding deity. His was an impossible task, taking on the most efficient and unscrupulous election machine the country has ever seen, a Prime Minister who appears to have cast a spell over most Indians, a partisan Election Commission and unlimited money power. And this with a non-existent Congress apparatus, a party which had been out of power for 22 years!

   Rahul Gandhi went to Gujarat as an underdog- the much reviled and lampooned poodle ranged against the powerful mastiff, scorned and reviled daily by the apopleptic  sycophants of TIMES NOW, REPUBLIC and  NEWS-X type of venom spouts. Not only did he lead from the front, it was almost a single-handed battle as very few other national level leaders of the Congress were around- whether by design or default, one will never know. For a person whose public speaking skills are limited, as is his knowledge of Hindi, he addressed more than 150 rallies over six weeks and by the end had matured into an accomplished word spinner. The style, manner and substance of his public interactions could not have been more different from that of Mr. Modi.

   Whereas the Prime Minister was his usual haughty, distant, table-thumping, talking-down self Mr. Gandhi came across as much more informal, relaxed, accessible, exuding an almost school-boy kind of openness and honesty. Where Mr. Modi came across as contrived and scripted, the Congress  (then) Vice-President appeared to be much more spontaneous and natural. The former did not mingle with the crowds, no doubt befitting his SPG endowed aura, but the latter( also an SPG protectee) had no hesitation in doing so at every opportunity, even stopping at the odd wayside tea stall to have a cup and a gossip session with the locals. This contrast in demeanour and attitude could not have gone unnoticed by the people and the results show this.

   The contrast between the two in the content and substance of their electioneering was even more stark. Mr. Modi stuck to his time tested formula of Hindutva, the Muslim card and the Pakistan bogey, playing the cliched poor chai wallah victim and personal attacks on the Gandhis- starting from Jawaharlal Nehru to Rahul ( he has not yet picked on Mr. Vadra's children but that is only a matter of time). The common thread uniting these sub-texts was a liberal dose of falsehood and innuendo. Development, economics and welfare were almost totally absent from his discourses- again, something that the electorate did not fail to notice. He stopped at nothing- he questioned Mr. Gandhi's temple visits, his religion, and his pedigree; he dug out the four year old chai-walla jibe of Mani Shankar Aiyer, spicing it with the latest " neech" appellation to further buttress his humble credentials as against Rahul Gandhi's privileged upbringing, forgetting that after 12 years as Chief Minister and 3 years as Prime Minister this plaint is wearing rather thin; setting the bar of decency at its lowest mark, he went on to accuse a former Prime Minister, a former Vice President and a former Army Chief ( among a dozen or so of India's most distinguished diplomats and journalists) of conspiring to remove him; he even hinted that Mr. Aiyar had issued a " supari" in Pakistan to get rid of him. As usual, he did all this with his customary mastery and the virtuoso performances must have got him the votes, but all this rabble rousing is becoming predictable; he needs to write a new script.

    In refreshing contrast, and to the pleasant surprise of many, Mr. Gandhi came across as much more would-be statesman like. He publicly announced at the start that he would not repay Mr. Modi in the same demonetised coin, that he respected the office of the Prime Minister and would never use inappropriate words for Mr. Modi, that he would campaign with love in his heart, not hate; that  (unlike the PM's stated view of the Congress) he did not want a BJP mukt  India for a strong Opposition was essential for a functioning democracy. He perhaps overdid the projection of his Hindu credentials, and failed to publicly condemn the horrific murder of a Muslim labourer in Rajasthan to avoid sullying these credentials, and this is something he needs to avoid in future- he should not try to win the Hindu vote by espousing the  BJP's ethos. He would do much better by emulating his great grandfather, Jawaharlal Nehru. who, in the first election campaign after partition in 1951 when the wounds of the religious conflagration were still fresh, had the political courage and vision to proclaim his unambiguous article of faith at the Ramlila grounds in the following words: " If any person raises his hand to strike down another on the ground of religion, I shall fight him till the last breath of my life, both at the head of the government and from outside." It is this kind of leadership we need in these critical times.

   Contrary to the vacuous " Pappu" image of Rahul Gandhi created by the social media trolls, he showed remarkable ability in strategising vital alliances and weaving the noose of failed economic policies and development with which to choke the BJP's narrative of specious claims. He appears to have correctly read the electorate's pulse, a departure from previous elections. He increased his party's seat tally by 19 ( 21, if one includes the two supported Independents), a 30% increase, and vote share by 5%- an astounding feat for a party which has lost just about every election since 2014. To put this in perspective, one should recollect that in the Parliamentary elections of 2014 the BJP had won in 165 constituencies; Rahul Gandhi has brought this down to 99. Let us also not forget that Mr. Amit Shah had arrogantly announced that his party would win 150 seats! He also showed great courage in accepting the Presidentship of his party just two days before counting and declaration of results, signalling that he was not afraid of accepting responsibility if things went horribly wrong for his party. They didn't, and in the process we have a new leader who has been through a trial by fire, has shed his "reluctant politician" image and can perhaps provide the counter balance to a powerful Prime Minister whose militaristic/corporate style needs to be tempered with compassion and tolerance. The BJP may not admit this in public, but Rahul Gandhi has given it plenty to chew over: if he can almost upstage the BJP in the Gir lion's den, he can inflict much more damage in the states going to the polls next year- MP, Rajasthan, Chattisgarh. He has seized the initiative and the BJP will no longer be the sole driver of the electoral agenda.  Pappu pass ho gaya !   

INDIA'S HEALTH SECTOR NEEDS MORE GOVERNMENT, NOT LESS.

    The conventional wisdom is that the less government we have, the better. In fact, that was precisely what Mr. Modi had promised us in 2014 with his rousing " Maximum governance, minimum government." Of course, he confused governance with intrusion into our private lives, but that is the subject of another column some other day. My assertion here is that there is one sector in India to which this policy should not apply- the Health sector. If proof were needed to validate it, it has been provided by two shocking incidents  in just the last month, both in Delhi. The first was the case of the little girl who was treated for dengue in Fortis Hospital, Gurgaon; she could not be saved but her parents were nonetheless presented with a bill for Rs. 16 lakhs: this was after the parents had turned down a preposterous suggestion to do a whole body plasma transfusion at a further cost of Rs. 45 - 50 lakhs ( on a patient who was already 80% brain dead!). An " inquiry" has been ordered ( the classic cover up) but the affair is a good as closed: we shall hear no more about it. The second case occurred on the 30th of November: twins born to a mother in the Max hospital in Shalimar Bagh were declared dead immediately, packed up nicely like an Amazon prime parcel and handed over to the parents. On the way to the cremation ground, one of them was found to be moving-he was alive! ( This baby also died subsequently a week later). The AAP govt. has now cancelled the hospital's licence after an inquiry ( the order will probably be stayed and the matter will  drag on in the courts for years). The callous insensitivity of the medical fraternity was revealed on prime time TV  when the President of the Indian Medical Council put the onus on the patient/ relatives- he advised us that we should not assume death if the patient has a low body temperature or hypothermia! Why should WE assume anything, Doctor Aggarwal ? Isn't it for the people like you and the hospital to do all the assuming, specially when you charge us hundreds of thousands for it ?

    These are just cases that found their way to the news: similar stories are playing out in their hundreds everyday, in hospitals and nursing homes all over India. A sting last week by CNN-TV18 exposed how doctors and path labs collude to fleece patients and share the spoils.. Profiting has now degenerated into profiteering. The list of malpractices indulged in by the medical profession is menacingly imposing, and has been revealed by whistleblowers and NGOs such as SATHI ( Support for Advocacy and Training in Health Initiatives): commissions, failure to prescribe generic drugs,  "sink tests" by path labs where all the samples are thrown into the sink without testing and false reports generated, corporate hospitals' unwritten rule that 40% of OPD cases should be converted into admissions, unnecessary and expensive tests. Even diagnoses are deliberately distorted in order to milk a patient for all he is worth: a report by Medi-Angels, a Mumbai medical centre that offers second opinions has reported that 44% of 12500 patients advised surgery for stents, joint replacements, cancer etc. were advised against it by the second consultants. ( Most of us have our own personal horror stories about this.)

    There are reportedly 4.50 million cases of medical negligence in India every year. But the citizen has little recourse to justice, except to go the Consumer Courts which is both expensive and time consuming. Govt. policy, till now, had visualised that the medical profession would regulate itself and had established the Medical Council of India for the purpose by statute. This body, however, like most internal regulatory bodies, has been a spectacular failure; it has become the protector of the practitioners that it was supposed to regulate and monitor. I have googled incessantly to find out how many doctors it has disbarred or deregistered for negligence or malpractices- I have been unable to get any information, because in all probability it hardly ever does so. All it does is lay down ethical guidelines, conveniently forgetting that it has legal obligations to the patients too. In contrast, in the USA about 450-500 doctors lose their licence EVERY YEAR, and in the UK the figure is between 150 and 200 ( incidentally, most of them are of Indian and Pakistan origin !- not an export we should be proud of).

    The medical profession has consistently resisted any attempt by the govt. to discipline them or to cap their exorbitant charges/ fees. But ( after the Kunal Shah case in 2013 where Rs. 13.00 crore was awarded as compensation to a patient) they have been demanding a cap on the compensation award! So far they have manged to get away every time by arm twisting the govt., their strength lying in the fact that the private sector provides 80% of health care in the country. Successive govts, both at the centre and the states, are responsible for this dismal state of affairs: the state spends barely 2% of GDP on health, whereas the WHO recommendation is a minimum 5%: he who pays the piper calls the tune, and that is why doctors and corporate hospitals are humming all the way to the bank. But this has to change. Govts. have to drastically increase outlays of the health sector: the 2.50- 3.00 % promised by the Union Health Minister by 2022 is just not good enough. Self regulation has failed, the cupidity of doctors shows no sign of abating, and corporate hospitals are medical vampires who suck your blood and make you pay for it! This is one sector that requires maximum government. It is high time that the National Clinical Establishments ( Registration and Regulation) Act 2010 and the Clinical Establishment ( Central Govt.) Rules 2012 are implemented and enforced by the Center and all states . Currently only a handful of states and UTs have done so, and that too for mere registration purposes only. If implemented sincerely the Act empowers governments to deregister clinical establishments, entertain complaints, award compensation, initiate criminal cases where needed, cancel licences of  doctors, hospitals and other health related commercial facilities, fix the rates of various medical procedures ( as it already does for CGHS and EGHS members), lay down minimum standards of treatments. The MCI's mandate should be limited to advising on medical education issues, and issuing ethical guidelines ( the only thing it is good at). The health consumer has been betrayed by the medical profession and the govt. must now step up to the plate and do the right thing. It must protect the ordinary citizen and not be seen to be siding with, or succumbing to the blackmail of, these corporate profiteers. As the poet lamented:

" Inquilab-e-aasman se kyon na ho uljhan mujhe,

   Main pukaru dost ko, awaaz de dushman mujhe."    

ALLOW US TO DIE WITH DIGNITY

         [ This article was published in the New Indian Express on 6.12.2017 ]

    Responding to a PIL by the NGO Common Cause in the Supreme Court asking that the right to die with dignity be declared a fundamental right, the Union govt. has opposed the concept of a Living Will. The reason given by the  Additional Solicitor General was that “ it could be enormously misused.” This attitude is extremely regrettable, though not surprising since it is consistent with the government’s backward looking and obscurantist stand on some other progressive and liberal reforms. It had opposed the declaration of sex with a child bride as rape, it still refuses to delegitimize marital rape, and it supports the odious Section 377 of the IPC which criminalises homosexuality. It justifies this antediluvian mind-set by claiming that the peculiarities of the Indian ethos sanctify these practices or beliefs, and that Indian society cannot be trusted not to abuse good laws. This is a strange position to adopt for a country which seeks to be a superpower and leader of nations.

    A Living Will is the ultimate assertion of privacy and the desire for dignity on the part of an individual. It is an “advance medical directive” to a physician or one’s next of kin by a person of sound mind, stating his wishes for end- of- life care, in case he is unable to communicate his decisions at that point in time owing to illness or incapacitation. It specifies the type and extent of medical care he desires and appoints a person( power of attorney) to carry out his wishes or take medical decisions on his behalf. It can state, for example, that no aggressive interventions such as attachments of ventilators, heart-lung machines, intubation, dialysis, tube feeding etc. be made to keep him alive.

    The Living Will is a response to advances in medicine which can keep a person “alive” indefinitely even though he may be in a coma or in a vegetative state, brain dead, with no hope of recovery. This life support comes, however, at great financial and emotional cost to the next of kin, unnecessarily prolongs the suffering of the patient and also blocks scarce health care infrastructure which could be used for someone with a better prospect of recovery. The only gainer is an avaricious hospital system which makes more money by aggressively keeping a patient going even where there is no hope. Can we ever forget the tragic case of Aruna Shaunbag of Mumbai who remained in a coma for 42 years before God mercifully intervened? Even the higher courts did not allow the hospital to withdraw the useless life support systems and denied her the relief and release her tortured body and soul were entitled to.

    The concept of a Living Will was first mooted in the USA in 1969, and has  been accepted by most of the developed world:  USA, Australia, Canada,  UK, Germany, Italy, Netherlands, Switzerland- all have framed legislation to permit it, and some have even devised standardised formats  for it to make them more legally acceptable. Adequate safeguards have been built in to avoid the kind of “misuse” our govt. is apprehensive of. A recent study in the USA revealed that 80-90% of respondents would refuse aggressive medical intervention if they were in an incapacitated state with no hope of recovery. The figure would be higher in India, given the dismal state of our health care; India is one of the worst countries to die in- the Quality of Death Index places us at 67 out of 80 countries.

     In its draft bill- The Medical Treatment of Terminally Ill Patients ( Protection of patients and medical Practitioners) Bill- the govt. expressly forbids recognition of a Living Will by providing that “ every advance medical directive( called living will) or medical power of attorney executed by a person shall be void and of no effect and shall not be binding on any medical practitioner.” Therefore, if a family of an incapacitated patient wishes to refuse life support in deference to the latter’s wishes, it will have to apply to a High Court for permission . Clearly, the govt. is confusing the Living Will with euthanasia, and not recognising that what is involved in a Living Will is not withdrawal of life support when the patient is comatose but an advance  refusal to permit it , a decision made when in full control of one’s senses and faculties. The distinction is critical, because it is the person himself deciding, not someone on his behalf. And the right to privacy and the right to a life with dignity gives him this entitlement.

    The govt’s position is just not right or compassionate. Approaching the courts (as suggested in the draft Bill ) could take months as evidenced in recent cases of abortion of rape induced pregnancies. The apprehended “misuse” of the Living Will is no justification as just about every law in India- dowry, domestic violence, sex selection, Sec. 377- is misused: that can never be a reason for rejecting a progressive legal provision. Not just constitutional, moral and ethical considerations are involved here too. One, if I can legally decide ( in a normal will) what to do with my worldly possessions, why can I not be allowed to decide what to do with a useless body that has become a curse and a source of intense suffering? Two, if the law allows me to tell a doctor to cut me open to remove a tumour or cancer to alleviate my pain, it should also allow me to tell a doctor not to touch me, and to let me die, for precisely the same reason- to end my agony. These are two sides of the coin, and I should be the one to decide which one to flip- not a disinterested government, doctor or judge.

    Medicine or law should not always be active protagonists in the process of dying- there are times when they should be simple bystanders.