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As per news reports, the union government has filed a Presidential Reference in relation to the 2G judgment. In this judgment the Supreme Court had cancelled 122 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction. It also held that use of first cum first serve policy (FCFS) to allocate natural resources was unconstitutional. It had held that natural resources should be allocated through auctions. As per the news report, the Presidential Reference seeks clarity on whether the Supreme Court could interfere with policy decisions. This issue has been discussed in a number of cases. For instance, the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain[1] held that Courts cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy. It further held that Courts cannot act as advisors to the executive on policy matters which the executive is entitled to formulate. It stated that the Court could review whether the policy violates fundamental rights, or is opposed to a Constitutional or any statutory provision, or is manifestly arbitrary. It further stated that legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. In Suresh Seth vs. Commissioner, Indore Municipal Corporation[2] a three judge bench of the Court observed that, “this Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power or authority to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.” In the present case it may be argued that whereas the Court was empowered to declare a policy such as FCFS as unconstitutional, it did not have the jurisdiction to direct auctioning of spectrum and other natural resources. The Presidential Reference may conclusively determine the Court’s jurisdiction in this regard. However, it has been urged by a few experts that this Presidential Reference amounts to an appeal against the decision of the Court. They have argued that this could be done only through a Review Petition (which has already been admitted by the Court). The advisory jurisdiction of the Court invoked through Presidential References, is governed by Article 143 of the Constitution. Under Article 143 of the Constitution of India, the President is empowered to refer to the Supreme Court any matter of law or fact. The opinion of the Court may be sought in relation to issues that have arisen or are likely to arise. A Presidential Reference may be made in matters that are of public importance and where it is expedient to obtain the opinion of the Supreme Court. The Court may refuse to answer all or any of the queries raised in the Reference. A Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court. In the Gujarat Election Case[3] the Supreme Court took note of Presidential References that were appellate in nature. Thus, a Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court. Against judgments of the Court the mechanisms of review is the only option. This position was also argued by Senior Advocate Fali S. Nariman in the Cauvery Water Case[4], where the Court refused to give an opinion. Whether the Court had the authority to determine a policy, such as FCFS, as unconstitutional is not disputed. However, there are conflicting judgments on the extent to which a Court can interfere with the executive domain. It would be interesting to see whether the Court would give its opinion on this issue. In the event it does, it may bring higher level of clarity to the relationship between the executive and the judiciary.
[1] AIR 2007 SC 1640
[2] AIR2006SC767
[3] (2002) 8 SCC 237
[4] (1993) Supp 1 SCC 96(II)
Recently, the Standing Committee on Health and Family Welfare submitted its report to the Parliament on the National Commission for Human Resource for Health Bill, 2011. The objective of the Bill is to “ensure adequate availability of human resources in the health sector in all states”. It seeks to set up the National Commission for Human Resources for Health (NCHRH), National Board for Health Education (NBHE), and the National Evaluation and Assessment Council (NEAC) in order to determine and regulate standards of health education in the country. It separates regulation of the education sector from that of professions such as law, medicine and nursing, and establishes professional councils at the national and state levels to regulate the professions. See here for PRS Bill Summary. The Standing Committee recommended that this Bill be withdrawn and a revised Bill be introduced in Parliament after consulting stakeholders. It felt that concerns of the professional councils such as the Medical Council of India and the Dental Council of India were not adequately addressed. Also, it noted that the powers and functions of the NCHRH and the National Commission on Higher Education and Research (to be established under the Higher Education and Research Bill, 2011 to regulate the higher education sector in the country) were overlapping in many areas. Finally, it also expressed concern over the acute shortage of qualified health workers in the country as well as variations among states and rural and urban areas. As per the 2001 Census, the estimated density of all health workers (qualified and unqualified) is about 20% less than the World Health Organisation’s norm of 2.5 health workers per 1000 population. See here for PRS Standing Committee Summary. Shortfall of health workers in rural areas Public health care in rural areas is provided through a multi-tier network. At the lowest level, there are sub health-centres for every population of 5,000 in the plains and 3,000 in hilly areas. The next level consists of Primary Health Centres (PHCs) for every population of 30,000 in the plains and 20,000 in the hills. Generally, each PHC caters to a cluster of Gram Panchayats. PHCs are required to have one medical officer and 14 other staff, including one Auxiliary Nurse Midwife (ANM). There are Community Health Centres (CHCs) for every population of 1,20,000 in the plains and 80,000 in hilly areas. These sub health centres, PHCs and CHCs are linked to district hospitals. As on March 2011, there are 14,8124 sub health centres, 23,887 PHCs and 4809 CHCs in the country.[i] Sub-Health Centres and Primary Health Centres
Table 1: State-wise comparison of vacancy in PHCs
|
Doctors at PHCs |
ANM at PHCs and Sub-Centres |
|||||
| State | Sanctioned post | Vacancy | % of vacancy | Sanctioned post | Vacancy | % of vacancy |
| Chhattisgarh | 1482 | 1058 | 71 | 6394 | 964 | 15 |
| West Bengal | 1807 | 801 | 44 | 10,356 | NA | 0 |
| Maharashtra | 3618 | 1326 | 37 | 21,122 | 0 | 0 |
| Uttar Pradesh | 4509 | 1648 | 36 | 25,190 | 2726 | 11 |
| Mizoram | 57 | 20 | 35 | 388 | 0 | 0 |
| Madhya Pradesh | 1238 | 424 | 34 | 11,904 | 0 | 0 |
| Gujarat | 1123 | 345 | 31 | 7248 | 817 | 11 |
| Andaman & Nicobar Isld | 40 | 12 | 30 | 214 | 0 | 0 |
| Odisha | 725 | 200 | 28 | 7442 | 0 | 0 |
| Tamil Nadu | 2326 | 622 | 27 | 9910 | 136 | 1 |
| Himachal Pradesh | 582 | 131 | 22 | 2213 | 528 | 24 |
| Uttarakhand | 299 | 65 | 22 | 2077 | 0 | 0 |
| Manipur | 240 | 48 | 20 | 984 | 323 | 33 |
| Haryana | 651 | 121 | 19 | 5420 | 386 | 7 |
| Sikkim | 48 | 9 | 19 | 219 | 0 | 0 |
| Meghalaya | 127 | 23 | 18 | 667 | 0 | 0 |
| Delhi | 22 | 3 | 14 | 43 | 0 | 0 |
| Goa | 46 | 5 | 11 | 260 | 20 | 8 |
| Karnataka | 2310 | 221 | 10 | 11,180 | 0 | 0 |
| Kerala | 1204 | 82 | 7 | 4232 | 59 | 1 |
| Andhra Pradesh | 2424 | 76 | 3 | 24,523 | 2876 | 12 |
| Rajasthan | 1478 | 6 | 0.4 | 14,348 | 0 | 0 |
| Arunachal Pradesh | NA | NA | NA | NA | NA | 0 |
| Assam | NA | NA | NA | NA | NA | 0 |
| Bihar | 2078 | 0 | NA | NA | NA | 0 |
| Chandigarh | 0 | 0 | NA | 17 | 0 | 0 |
| Dadra & Nagar Haveli | 6 | 0 | NA | 40 | 0 | 0 |
| Daman & Diu | 3 | 0 | NA | 26 | 0 | 0 |
| Jammu & Kashmir | 750 | 0 | NA | 2282 | 0 | 0 |
| Jharkhand | 330 | 0 | NA | 4288 | 0 | 0 |
| Lakshadweep | 4 | 0 | NA | NA | NA | 0 |
| Nagaland | NA | NA | NA | NA | NA | 0 |
| Puducherry | 37 | 0 | NA | 72 | 0 | 0 |
| Punjab | 487 | 0 | NA | 4044 | 0 | 0 |
| Tripura | NA | NA | NA | NA | NA | 0 |
| India | 30,051 | 7,246 | 24 | 1,77,103 | 8,835 | 5 |
| Sources: National Rural Health Mission (available here), PRS.Note: The data for all states is as of March 2011 except for some states where data is as of 2010. For doctors, these states are Bihar, UP, Mizoram and Delhi. For ANMs, these states are Odisha and Uttar Pradesh. | ||||||
Community Health Centres
Table 2: Vacancies in CHCs of medical specialists
| Surgeons | Gynaecologists | Physicians | Paediatricians | |
| State |
% of vacancy |
|||
| Andaman & NicobarIsland | 100 | 100 | 100 | 100 |
| Andhra Pradesh | 74 | 0 | 45 | 3 |
| Arunachal Pradesh | NA | NA | NA | NA |
| Assam | NA | NA | NA | NA |
| Bihar | 41 | 44 | 60 | 38 |
| Chandigarh | 50 | 40 | 50 | 100 |
| Chhattisgarh | 85 | 85 | 90 | 84 |
| Dadra & Nagar Haveli | 0 | 0 | 0 | 0 |
| Daman & Diu | 0 | 100 | 0 | 100 |
| Delhi | 0 | 0 | 0 | 0 |
| Goa | 20 | 20 | 67 | 66 |
| Gujarat | 77 | 73 | 0 | 91 |
| Haryana | 71 | 80 | 94 | 85 |
| Himachal Pradesh | NA | NA | NA | NA |
| Jammu & Kashmir | 34 | 34 | 53 | 63 |
| Jharkhand | 45 | 0 | 81 | 61 |
| Karnataka | 33 | NA | NA | NA |
| Kerala | NA | NA | NA | NA |
| Lakshadweep | 0 | 0 | 100 | 0 |
| Madhya Pradesh | 78 | 69 | 76 | 58 |
| Maharashtra | 21 | 0 | 34 | 0 |
| Manipur | 100 | 94 | 94 | 87 |
| Meghalaya | 50 | NA | 100 | 50 |
| Mizoram | NA | NA | NA | NA |
| Nagaland | NA | NA | NA | NA |
| Odisha | 44 | 45 | 62 | 41 |
| Puducherry | 0 | 0 | 100 | NA |
| Punjab | 16 | 36 | 40 | 48 |
| Rajasthan | 57% | 46 | 49 | 24 |
| Sikkim | NA | NA | NA | NA |
| Tamil Nadu | 0 | 0 | 0 | 0 |
| Tripura | NA | NA | NA | NA |
| Uttar Pradesh | NA | NA | NA | NA |
| Uttarakhand | 69 | 63 | 74 | 40 |
| West Bengal | 0 | 57 | 0 | 78 |
| India | 56 | 47 | 59 | 49 |
| Sources: National Rural Health Mission (available here), PRS. | ||||
[i]. “Rural Healthcare System in India”, National Rural Health Mission (available here).
