PHGN

Vidya Krishnan (Vidya Krishnan is a Delhi-based journalist with expertise in coverage of social and developmental issues in India)

The Supreme Court's recent verdict that a woman in an illicit relationship with a married man cannot be punished for adultery despite being an abettor has triggered a fresh debate over inherent gender bias in the law on the controversial subject in India.

The law in question -- Section 497 of the Indian Penal Code – was drafted a century ago and has since been challenged and debated on various platforms. One of the reasons India's adultery law does not bring women into the purview could be the social standing of women in the 19th century India- when the British drafted this law.

As the law stands in India, only men can criminally tried and be punished for adultery. Besides being unfair to men but refusing to bring women into the purview, the section looks at a married woman as her husband's “property” and hence is invariably perceived as the victim and hence is above punishment. The current law states expressly state that a married woman cannot be punished even as an abettor in a case of adultery. Whether the woman is a victim of adultery or is herself an adulteress, she is completely free of being penalised for her misdemeanour.

The case

This strong gender bias in the Indian adultery law has come under criticism from all quarters in a case from Andhra Pradesh. A woman had filed a complaint against her husband and his girlfriend of having an extra-marital affair. The complainant alleged cruelty ever since their marriage in February 2007, maintaining that her husband had been in the adulterous relationship since the start of their marriage.

Acting on the complaint, an offense of adultery, under Section 497 of the IPC, was registered against the husband but his girlfriend- the adulteress- in this case, walked away scott free as the court quashed the complaint, noting that, “the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offense.”

With the Apex court upholding this controversial legal stricture, the judgement rendered by a Bench of Justices Aftab Alam and RM Lodha, is being seen as an missed opportunity to address a grey area and fix the inherent flaw in the section by acquitting the woman accused in the case, maintain experts. “Even in the Indian Penal Code, this matter has not be comprehensively addressed and covered. This particular case came under the Hindu marriage Act, similarly the family law governing marriages in minority communities like Zorabian law or Muslim law are different. In other countries there is no clear demarcation and regardless of caste or gender the person is treated equally on a case to case basis. The apex Court could have read the law differently and set a precedent keeping the changing social fibre in mind. However, we will require the Parliament to draft a section to address the matter,” said Madhur Dhingra, Senior Advocate, Delhi High Court.

The Malimath Committee on Criminal Justice Reforms had recommended that the inherent flaw in the law-- which treated men and women unequally- should be addressed by removing the gender biases which were introduced centuries back keeping the then social fabric in mind. “With changing times and in the interest of the doctrine of equality,

Using the benefit of this exception under law, the accused woman approached the apex court after the Andhra Pradesh HC dismissed her petition and directed her to be prosecuted for the crime.
Realising the prevailing confusion which possibly could have led the High Court to order so, the apex Bench said, “The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband.”
Even the language of Section 497 is worded in like manner, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man….” Justice Alam, who wrote the judgment for the Bench said, “In terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery.”
Giving effect to this reasoning, it went on to quash the case against the petitioner woman by saying, “The mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

Vidya Krishnan (Vidya Krishnan is a Delhi-based journalist with expertise in coverage of social and developmental issues in India)

Since its birth as an independent nation 64 years ago, India has, on paper, supported the cause of 'health-for-all'. The concept of Universal Health Coverage (UHC) – where the government will finance a public health system where all Indians, irrespective of their paying capacity, will receive equal quality of care- is an ambitious undertaking- one that will require immense political backing and complete overhauling of the current health system.

For this purpose, 15 experts from various fields like health economics, public health, medicine and social activists have out together a 326-page report- detailing the reforms required to change a capitalistic, market-dominated health sector into something on the lines of United Kingdom's National Health Service (NHS) scheme.

In a nutshell, the Committee has recommended that the Central government should guarantee a range of essential health care services, called National Health Package (NHP) to every Indian citizen. These healthcare services, covered under UHC, will be made available through the public sector and contracted-in private facilities, adds the report. While the devil is in details, the vision has set the stage for a welcome debate towards a robust health policy. 

Show me the money

The most radical recommendation- which has been at the heart of a heated debate between bureaucrats in the Planning Commission (where the report was tabled last month), private players and experts when they met last fortnight is the financing aspect.

Dr. K. Srinath Reddy, chair of the High Level Expert Group (HLEG) which drafted the report maintains that it is possible for India, even within the financial resources available to it, to devise an effective architecture where disease burden does not push families into poverty. For this, the report recommends a tax-based finance system; which essentially means that the proposed increased in public health expenditure- of 2.5% of the Gross Domestic Product (GDP) from the current 1.2%- will be financed from taxes. “International experiences- especially in Low and Middle Income Countries- show that universal health coverage has been successful only when the Centre guarantees funds instead of relying on insurance,” said Dr Reddy who is also the President of Public Health Foundation of India (PHFI), which provided logistical support to the team in putting together the report on UHC.

This very contentious recommendation is backed by international experience in other countries attempting to achieve universal coverage. “This report suggests funding from general government revenues combined with non-contributory basis for entitlement. In other words, many countries have taken the route of linking the entitlement benefits under such a program with a contribution people make. The international experience also shows that, in countries where most of the population is not included in the formal sector of the economy, it is very difficult to get major improvements in coverage or really make progress towards universality. This idea is safe from the general revenues that everyone contributes and is the more appropriate approach for this country in this context,” said Dr Joe Kutzin, Senior Resident Adviser for the World Health Organization's Regional Office for Europe.
Another strong argument is against levying user charges and reducing out-of-pocket expenses on drugs to nil. Abolishing use fee, according to the report, is the only way to reduce health inequalities. Further, the experts have tied up the benefits of doing away with user fees as 'political' issue.  The report states that, "as a practical and political issue, increasing official user fees would be politically and practically difficult to justify. The benefits of such an effort are unlikely to be worth the financial, administrative and political costs. Therefore, user fees would not be desirable for the vision." 

Lastly, free drugs, zero out-of-pocket expenses, are currently the every Indian's dream. According to the latest National Sample Survey Organization (NSSO) 84% Indians depend on neighbourhood, private chemists for drugs while the state-government stock supplies only 16% patients, through government hospitals. The panel has proposed price controls and regulation on essential, lifesaving drugs and investing in the Public Sector Units (PSUs) to strengthen production of low cost, generic drugs.

Scaling up infrastructure

The idea is to improve upon the already existing health reforms like National Rural Health Mission (NRHM)¹, Rashtriya Swathya Bima Yojana (RSBY)² and Janani Suraksha Yojana (JSY)³ with the objective to improve health indicators in the states. The report has suggested setting up on special health cadres, better human resource recruitment and training and developing a National Health information technology network along with several new departments to regulate and implement the proposed reform.

Most importantly, within this scheme of things, the private sectors' role will be, ‘'clearly defined and closely regulated’. This has quite a few private players and bureaucrats worried. Present at the meeting in Planning Commission were Fortis' Chairman Harpal Singh and Medanta's Dr Naresh Trehan. Both argued that the private hospitals should be roped in to bring about reforms as most of the talent currently was with the private sector. “I am certainly glad that spending is increasing but taking out the inefficiencies in the system will not be easy when it comes to implementing the report. The government should look at the option of collaborating with the private sector for the bets public service,” said Dr Trehan.

The transformation from currently fragmented market dominated by private players to a public health system where private players are strictly regulated will not be easy, to put it mildly. The political resistant, private lobbying and most of all inefficiencies within the bureaucracies are all huge challenges lying ahead.  Without political commitment and ownership (much like NRHM or Savra Sikhsha Abhiyaan⁵) Universal Health Coverage will not become a reality for India.

Whether the recommendations  are accepted wholly or partially, one thing that is for certain is that the report, its' bold vision and grand reforms have made the time ripe for a healthy public debate, which hopefully, will push the topic of 'health' on to the election agenda.

1. Launched in 2002, NRHM is a rural health initiative focussing on primary healthcare in poor and populous Indian states, aiming to improve hygiene and sanitation by integrating health programs.
2. RBSY was launched in 2008 and is literally the “National Health Insurance Scheme” which provides cover for the Indian poor through cashless insurance for hospitalization in private and government hospitals.
3. In 2005, with the goal of reducing the numbers of maternal and neonatal deaths, the Government of India launched Janani Suraksha Yojana (JSY), a conditional cash transfer scheme, to incentivise women to give birth in a health facility.
4. Both are large multi-speciality private hospitals. 
5. Sarva Siksha Abhiyan is the Indian governments' flagship programme for achievement of Universalization of Elementary Education, guaranteeing free and compulsory education for children between ages 6-14.