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    With the death of a pregnant woman after failure of State Machinery, petition filed for failure of implementation of the National Food Security Act, 2013 and violation of Right to Health.

    Trinath Swain and family members
    Image used for representational purposes only.
    Date : 07/11/2017

    Trinath Swain Vrs. Union of India & Others W.P. (C) No. 15159 of 2016, In the High Court of Orissa, Cuttack

    Synopsis: – That the petitioner in the present writ application seeks to highlight the failure of state agencies in the proper implementation of necessary provisions of the National Food Security Act, 2013 and deficiencies in the implementation of schemes, meant to reduce infant mortality and maternal mortality funded by the Government of India implemented through Government of Odisha. The issues concern is the systemic failure, which has resulted in denial of benefits to Sanjukta Swain, during her pregnancy, under the Janani Suraksha Yojana (JSY), the Mamata Schemes and the ICDS initiative no support has been provided to her, which she is legally entitled to get the benefits. Although the interrelatedness of these schemes was recognized by the Supreme Court way back in an order dated 28th November 2001 in Writ Petition No. 196 of 2001 (People’s Union for Civil Liberties v. Union of India, (hereafter the PUCL Case) and thereafter periodically orders by way of mandamus have been issued to the Union of India and the individual states, much remains to be done on the ground, as the case of Sanjukta Swain reveals. Sanjukta Swain’s death fits into the internationally accepted definition of maternal death in terms of the period of death and the cause of death. Sanjukta Swain died in a private nursing Home namely Mahasakti Nursing Home at Madhyakhanda in the district of Nayagarh, after delivery a female baby.
    Facts:-
    That in the present case, Wife of the Petitioner, Late Sanjukta Swain was the victim of negligence and insensitivity shown by the entire system starting from the Community-Health Centre to the unavailability of ambulatory services and medicinal services since the date of pregnancy resulting in her death. The petitioner has filed this petition to ensure implementation of government schemes, to improve the conditions in Government aided Hospitals and to obtain justice for Sanjukta Swain’s family in the way of compensation and financial assistance.
    That the facts leading to the present case are that the victim was pregnant lady registered with the ICDS Centre of Nayagarh in the district of Nayagarh under Integrated Mother and Child Development Scheme on 05.9.2015, her last monthly period was 20.06.2015 and her expected date of delivery was 27.03.2016.
    That the deceased Sanjukta Swain, wife of Trinanth Swain of Kalikaprasad village under Banai Block, belongs to BPL family and she has a nine years daughter and seven years son. This was her third pregnancy. Sanju experienced labour pain on 27.03.2016 and rushed to CHC Gania by 102 Ambulance, where doctor instead of admitting her kept her waiting from morning 8 am to till evening 8.30 pm. As her condition was serious and she suffered obstructed labor then with hurry up from CHC point to shifted private nursing home named Maha Shakti Clinic, Madhykhand which is 4km distance from Gania CHC. There Mr. Ratnakar Moharana, doctor of CHC, Gania treated her and demanded Rs.12,000 for delivery charges. Trinatha Swain has a very poor family and was not able to pay more, he was only able to pay Rs 5000. Thereafter the doctor conducted caesarian and a girl child was born. After that, her condition worsened and she bled profusely then within few hours she succumbed and died.

    Grounds: –
    That due to the failure of the implementation and available services at each level Sanjuka Swain could not get benefits that are guaranteed under various schemes and delayed treatment deteriorated the health condition resulting in her death. That as per the schemes implemented by the state opposite parties was not given to her at its required time period and has been deprived of.
    That, the petitioners’ submits that being a poor man ANC services have not been provided to Sanjukta Swain nor has she received the essential pre-natal entitlements under the National Maternity Benefit Scheme (NMBS) or services and post-delivery cash incentives under the JSY for institutional deliveries and the JSSK.
    That maternal death can be defined as per the International Classification of Diseases (ICD) defines a maternal death as the death of a woman while pregnant or within 42 days of the end of the pregnancy, irrespective of the site of pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes (ICD 9th revision).
    That as far as death of wife of the petitioner Sanjukta Swain, is concerned the petitioner brings to the notice of the negligence action of the state agencies in implementation of schemes and programs that reduce maternal and infant deaths and the unsatisfactory state of implementation of the schemes for women during pregnancy and during child’s birth, which led to her death. This petition is essentially about the protection and enforcement of the basic, fundamental and human right to life under Article 21 of the Constitution of India. This petition focus on two inalienable survival rights that form part of the right to life, the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right which calls for immediate protection and enforcement in the context of the poor is the right to food.
    There is a system in place that is designed to provide adequate care for pregnant women in each of these villages, and yet they are not properly administered. This is a direct violation of multiple international agreements that India is a party to establish a right to survive pregnancy and childbirth. The government of India has created multiple schemes to provide services that guarantee a pregnant woman for that right. In this particular instances, there was a breakdown in the referral mechanisms which prevented antenatal care from being distributed, prevented the doctor from being able to understand his patient’s condition when she arrived, and a failure of CHC, that could treat her in time. All of these resulted in a failure to avert a preventable maternal mortality, a violation of her right to survive during pregnancy and child’s birth.
    The events of this case also constitute violence of multiple rights provided by the constitution, including the fundamental right to health, and guaranteed access to medical services regardless of status. Sanjukta Swain especially, and the state failed to hold its employees accountable, she did not receive the care she needed to remain healthy during her pregnancy.
    There is fear that other women similarly situated may face the same fate if the state does not address these egregious violations. The lack of oversight and accountability has created an environment rampant with failures that have finally resulted in maternal death. The CHC, ambulance services and DHH, Nayagarh all failed in their inability to respond quickly with services that could have saved this woman’s life. Finally, but far from least importantly, if the ANM has regularly visited each pregnant women at the time of 3rd trim star, Doctor has also prompt action taken in that period, it could have prevented the death of this woman. The need for corrective action in this district is blatantly obvious, and needs to be taken immediately. CHC, Banai also need a systematic review and corrective action to be taken promptly.
    That under constitution there exists some guarantees and guidelines to which India is also a signatory, the right to survive pregnancy and childbirth is a basic human right. Under international law, India has a duty to ensure that women and infants do not experience death or morbidity from wholly preventable causes. This duty arises from multiple international conventions to which India is a party, and which establish the right to health, the right to reproductive autonomy, and the right to be free from degrading treatment. Relevant conventions include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the convention on the elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Right of the Child (CRC).
    That Article 21 of the Constitution of India guarantees the right to life and personal liberty. The Hon’ble Supreme Court has interpreted Article 21 to include numerous fundamental rights already protected under international law, including a fundamental right to health (both physical and mental), the right to live with dignity and the right to be free from torture and cruel, inhuman, or degrading treatment. Article 14, 15 and 38 of the Constitution of India provide additional guarantees. Article 14 guarantees equality before the law, and the Hon’ble Supreme Court has described gender equality as one of the “most precious Fundamental Rights guaranteed by the Constitution of India.” Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. While the burdens of pregnancy and childbirth are inequitably borne by women, the ability to reproduce should not increase women’s chances of death, disability, or illness. Finally, Article 38 guarantees access to medical services regardless of status.
    Prayer:- Under the facts and circumstances it is therefore humbly prayed that this Hon’ble court may graciously be pleased to admit the writ application, issue notice to the Opposing Parties to show cause as to why the reliefs prayed for shall not be granted in favour of the petitioner and if the Opposite parties failed to show cause or showed insufficient causes, the Hon’ble court may further be pleased to issue direction to the Opposite Parties, to pass an order to reimburse petitioner for the expenditures incurred and provide a compensation of Rs. 10 lakh for mental and physical trauma and further be pleased to pass an order for Sukanti family to receive her financial entitlement under the National Maternity Benefit Scheme(NMBS) and to pass an order to pay Sukanti Swain’s family Rs. 20,0000 under NFBS.
    And may further pleased to pass such other order/orders, direction/directions may deem fit and proper in the interest of justice.

    Precedents sighted: – That the present case also relates to the order passed in the following cases: in Francis Caralie Mullin v. Union Territory of Delhi & Others, [1981 SCR (2) 6], the Supreme Court held that the right to live with dignity and protection against torture and cruel, inhuman or degrading treatment is implicit in Article 21 of the Constitution of India.
    In Pt. Parmannand katara v. Union of India & Ors., [1989 SCR (3) 997], the Supreme Court held that the Article 21 of the Constitution casts the obligation on the state to preserve life.
    In Consumer Education and Research Centre v. Union of India, [1995 SCC (3) 43], the Supreme Court held that article 21 of the Constitution of India includes a fundamental right to health and that this right is a ‘most imperative constitutional goal.’
    In Paschim Bangal Khet Mazdoor Samity v. State of West Bengal, [1996 SCC(4) 37], the Supreme Court affirmed that providing “adequate medical facilities for the people is an essential part” of the government’s obligation to “safeguard the right to life of every person.”
    In PUCL v. Union of India, [1996SCC}, the Supreme Court held that all pregnant women should be paid Rs. 500 under NMBS at 8-12 weeks prior to delivery for their first two births, irrespective of the place of delivery and age.
    In Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. [W.P.(c) No. 8853/2008], the Delhi High Court held that an inalienable component of the right to life is “the right to health, which would include the right to access government health facilities and receive a minimum standard of care. In particularly this would include the enforcement of the reproductive rights of the mother.”
    In Sandesh Babsal v. Union of India & Ors., [W.P.(C) No. 9061/2008], the Indore High court concluded that timely health care is of the essence for pregnant women to protect their fundamental rights to health and life as guaranteed under Article 21 of the Constitution of India.
    Fact finding conclusions:- That a team comprising a health activist and social workers have conducted a fact-finding on the issue of death of the Sanjukta Swain, which clearly reveals that due to non-implementation of IPHS guidelines, non-implementation of NHM guidelines and non-available of services at the district headquarter hospital and due to medical negligence the patient died, for which the stage authorities are solely responsible and are liable to be prosecuted as per law, as they have violated their code of conduct. It is also observed that even after death of the patient; the medical authorities did not provide the transportation facility, while they are duty bound to provide the transport facility at her doorstep. Such callous activity of the Opp. Parties is not at all acceptable in a democratic country and such inhumane action violates the fundamental rights and constitutional rights of the people

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