The Medical Council of India (MCI) has seen a few major controversies over the past decade. In the latest incident, MCI President, Dr. Ketan Desai was arrested by the CBI on charges of accepting a bribe for granting recognition to Gyan Sagar Medical College in Punjab. Following this incident, the central government promulgated an ordinance dissolving the MCI and replacing it with a centrally nominated seven member board. The ordinance requires MCI to be re-constituted within one year of its dissolution in accordance with the provisions of the original Act. Background The Medical Council of India was first established in 1934 under the Indian Medical Council Act, 1933. This Act was repealed and replaced with a new Act in 1956. Under the 1956 Act, the objectives of MCI include:
Over the years, several committees, the most recent being the National Knowledge Commission (NKC) and the Yashpal Committee, have commented on the need for reforms in medical regulation in the country. The Ministry of Health and Family Welfare (MoH&FW) has recently released a draft of the National Council for Human Resources in Health (NCHRH) Bill for public feedback. (See http://mohfw.nic.in/nchrc-health.htm) Key issues in Medical Regulation Oversight Currently, separate regulatory bodies oversee the different healthcare disciplines. These include the Medical Council of India, the Indian Nursing Council, the Dental Council of India, the Rehabilitation Council of India and the Pharmacy Council of India. Each Council regulates both education and professional practice within its domain. The draft NCHRH Bill proposes to create an overarching body to subsume these councils into a single structure. This new body, christened the National Council for Human Resources in Health (NCHRH) is expected to encourage cross connectivity across these different health-care disciplines. Role of Councils Both the NKC and the Yashpal Committee make a case for separating regulation of medical education from that of profession. It is recommended that the current councils be divested of their education responsibilities and that these work solely towards regulation of professionals – prescribing a code of ethics, ensuring compliance, and facilitating continued medical education. In addition, it has been recommended that a national exit level examination be conducted. This exit examination should then serve the purpose of ‘occupational licensing’, unlike the prevalent registration system that automatically grants practice rights to graduating professionals. In effect, it is envisaged that the system be reconfigured on the lines of the Institute of Chartered Accountants, wherein the council restricts itself to regulating the profession, but has an indirect say in education through its requirements on the exit examination. A common national examination is also expected to ensure uniformity in quality across the country. Both committees also recommend enlisting independent accrediting agencies for periodically evaluating medical colleges on pre-defined criteria and making this information available to the public (including students). This is expected to bring more transparency into the system. Supervision of education – HRD vs. H&FW The Ministry of Human Resources and Development (MHRD) is proposing a National Council for Higher Education and Research (NCHER) to regulate all university education. However, MoH&FW is of the opinion that Medical Education is a specialized field and needs focused attention, and hence should be regulated separately. However, it is worth noting that both the NKC and the Yashpal Committee recommend transferring education overseeing responsibilities to the NCHER. Internationally, different models exist across countries. In the US, the Higher Education Act, 1965 had transferred all education responsibilities to the Department of Education. In the UK, both medical education and profession continue to be regulated by the General Medical Council (the MCI counterpart), which is different from the regulator for Higher Education. Composition of Councils In 2007-08, MCI, when fully constituted, was a 129 member body. The Ministry in its draft NCHRH Bill makes a case for reducing this size. The argument advanced is that such a large size makes the council unwieldy in character and hence constrains reform. In 2007-08, 71% of the members in the committee were elected. These represented universities and doctors registered across the country. However, the Standing Committee on H&FW report (2006) points out that delays in conducting elections usually leads to several vacancies in this category, thereby reducing the actual percentage of elected members. MCI’s 2007-08 annual report mentions that at the time of publishing the report, 29 seats (32% of elected category) were vacant due to ‘various reasons like expiry of term, non-election of a member, non-existence of medical faculty of certain Universities’. In November 2001, the Delhi High Court set aside the election of Dr. Ketan Desai as President of the MCI, stating that he had been elected under a ‘flawed constitution’. The central government had failed to ensure timely conduct of elections to the MCI. As a result, a number of seats were lying vacant. The Court ordered that the MCI be reconstituted at the earliest and appointed an administrator to oversee the functioning of the MCI until this was done. Several countries like the UK are amending their laws to make council membership more broad-based by including ‘lay-members’/ non-doctors. The General Medical Council in the UK was recently reconstituted and it now comprises of 24 members - 12 ‘lay’ and 12 medical members. (See http://www.gmc-uk.org/about/council.asp) Way ahead According to latest news reports, the MoH&FW is currently revising the draft Bill. Let's wait and see how the actual legislation shapes up. Watch this space for further updates!
The Transgender Persons (Protection of Rights) Bill, 2016 has been listed for passage during the ongoing Winter Session of Parliament. This Bill was introduced in the Monsoon Session last year and referred to the Standing Committee on Social Justice and Empowerment, which tabled its report earlier this year. The Bill seeks to recognise transgender persons, and confer anti-discriminatory rights and entitlements related to education, employment, health, and welfare measures. This post explains key provisions of the Bill and certain issues for consideration.
Self-identification and obtaining a Certificate of Identity
The Bill provides for ‘self-perceived gender identity’ i.e. persons can determine their gender on their own. This is in line with a Supreme Court judgement (2014) which held that the self determination of one’s gender is part of the fundamental right to dignity, freedom and personal autonomy guaranteed under the Constitution.[1]
Along with the provision on ‘self-perceived gender identity’, the Bill also provides for a screening process to obtain a Certificate of Identity. This Certificate will certify the person as ‘transgender’. An application for obtaining such a Certificate will be referred to a District Screening Committee which will comprise five members including a medical officer, psychologist or psychiatrist, and a representative of the transgender community.
The Bill therefore allows individuals to self-identify their gender, but at the same time they must also undergo the screening process to get certified, and as a result be identified as a ‘transgender’. In this context, it is unclear how these two provisions of self-perceived gender identity and an external screening process will reconcile with each other. The Standing Committee has also upheld both these processes of self-identification and the external screening process to get certified. In addition, the Committee recommended that the Bill should provide for a mechanism for appeal against the decisions of the District Screening Committee.
Since, the Bill provides certain entitlements to transgender persons for their inclusion and participation in society, it can be argued that there must be an objective criteria to verify the eligibility of these applicants for them to receive benefits targeted for transgender persons.
Status of transgender persons under existing laws
Currently, several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 (NREGA) and Hindu Succession Act, 1956. Now, the Bill seeks to recognise a third gender i.e. ‘transgender’. However, the Bill does not clarify how transgender persons will be treated under certain existing laws.
For example, under NREGA, priority is given to women workers (at least one-third of the beneficiaries are to be women) if they have registered and requested for work under the Act. Similarly, under the Hindu Adoptions and Maintenance Act, 1956, there are different eligibility criteria for males and females to adopt a girl child. In this context, the applicability of such laws to a ‘transgender’ person is not stated in the Bill. The Standing Committee has recommended recognising transgender persons’ right to marriage, partnership, divorce and adoption, as governed by their personal laws or other relevant legislation.
In addition, the penalties for similar offences may also vary because of the application of different laws based on gender identity. For example, under the IPC, sexual offences related to women attract a maximum penalty of life imprisonment, which is higher than that specified for sexual abuse against a transgender person under the Bill (up to two years).[2]
Who is a transgender person?
As per international standards, ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth.[3], [4] For example, a person born as a man may identify with the opposite gender, i.e., as a woman.[5] In addition to this sense of mismatch, the definition provided under the Bill also lists further criteria to be defined as a transgender person. These additional criteria include being (i) ‘neither wholly male nor female’, or (ii) ‘a combination of male or female’, or (iii) ‘neither male nor female’.
The Supreme Court, the Expert Committee of the Ministry of Social Justice and Welfare, and the recent Standing Committee report all define ‘transgender persons’ based on the mismatch only.1,[5],[6] Therefore, the definition provided under the Bill does not clarify if simply proving a mismatch is enough (as is the norm internationally) or whether the additional listed criteria ought to be fulfilled as well.
Offences and penalties
The Bill specifies certain offences which include: (i) compelling transgender persons to beg or do forced or bonded labour, and (ii) physical, sexual, verbal, emotional or economic abuse. These offences will attract imprisonment between six months and two years, in addition to a fine.
The Standing Committee recommended graded punishment for different offences, and suggested that those involving physical and sexual assault should attract higher punishment. It further stated that the Bill must also specifically recognise and provide appropriate penalties for violence faced by transgender persons from officials in educational institutions, healthcare institutions, police stations, etc.
————————————————————–
[1]. National Legal Services Authority vs. Union of India [(2014) 5 SCC 438]; Article 21, Constitution of India.
[2]. Sections 354, 354A, 354B, 375, Indian Penal Code, 1860.
[3]. Guidelines related to Transgender persons, American Psychological Association, https://www.apa.org/practice/guidelines/transgender.pdf.
[4]. Standards of Care, 7th Version, The World Professional Association for Transgender Health, https://s3.amazonaws.com/amo_hub_content/Association140/files/Standards%20of%20Care%20V7%20-%202011%20WPATH%20(2)(1).pdf.
[5]. Report of the Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Empowerment, January 27, 2014, http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.
[6]. Report no.43, The Transgender Persons (Protection of Rights) Bill, 2016, Standing Committee on Social Justice and Empowerment, July 21, 2017, http://164.100.47.193/lsscommittee/Social%20Justice%20&%20Empowerment/16_Social_Justice_
