How Indian Health and Vehicle Insurance companies and Service Providers cheat their customers.(Part-2)

Insu

Readers for  Part-1, of this article, please refer :  https://sharmajeeblog.wordpress.com/2017/05/21/how-indian-health-and-vehicle-insurance-companies-and-service-providers-cheat-their-customers-part-1/

Part-2:   Modus Operandi and Possible  Solutions

 Insurance company and  SP’s   donot share openly with their clients or put in public domain  on (insurance website, hospital website) their pre negotiated and  agreed terms of services, schedule of  rates of  treatment/ repairs, surgery with their essential components like implants/ spares, duration of stay etc. etc. This facade increases scope of corruption and malpractices.

Insurance company in connivance with SP, keep blind eye on the treatment process, which is essentially their duty and responsibility to check if SP is performing and charging  what is authorized, using implants what insurance is paying for (or substandard one) etc. etc. This can tackled by speaking phone  to insured on be (whenever any pre authorization request is approved), informing him his entitlements details and contact number to reach Insurer in case of any difficulty or query.

Insurance companies are now started asking to  submit proof of purchase and proof of implanting authorised implants used by SPs,  but they are not verifying the same from their clients or   by  conducting surprise checks at SPs premises. Here maximum corruption and malpractices happens.

Insurance companies donot insist  on SP’s, to give a copy of  all communications between them and  SP’s on pre authorization request, authorization letter, schedule and terms of  treatment, repairs, job sheet, investigations, implants (every item of hospitalization bill to both customers for their reference). Many audacious SP’s get the signature of insured  on plain papers and other lots of papers without giving any time to insured to verify,  which they use  in case insured go for litigation.

Both insurance companies and SPs have morale and ethical duty and responsibility to carrying awareness programs for insured  to educate them about their rights and responsibilities as insured (like  demanding  copy of  complete treatment records, bills, proof of implant/ spare implanted), entitlements/ limitations of service  availed, possible methods of frauds / cheating by SP’s  and precautions  compulsorily, transparently.

No claim of SP should be accepted by insurance company,  unless SPs bill is accompanied by a  certificate of  (both) insured certifying  above  list of documents have been  handed over to insured.

Insurance company must  put  burdon of  proof,  in case of billing  disputes on SP, not on poor  insured,  who has no say in whole process and has to run like pendulum between insurance company and  SP, in the event of dispute .

No awareness programs are taken by insurer or SP’s to educate insured on what is not permissible/ payable to trim  their  ingenuine demands

Irony is big Private / Corporate hospitals, vehicle service centres, are encouraging these malpractices. Fact that almost all  private/ corporate hospitals and Vehicle service centres have separate teams/ counters, to deal with insurance clients confirms that it’s a big business  deal for them. I will not be exaggerating if I say many SPs  today, are surviving on insurance clients chiefly. If any accident emergency patient / vehicle is rushed in hospital/ authorized service centre, than  they are more interested to know if customer  has  Insurance (than  his medical Emergency)  or not. Rest of  things are decided  after ascertaining   this moot question.

Corporate/ private  hospitals or company service centres (SPs), own rates of services are exorbitant but  in the greed of customer base they agree on lower  negotiated rates of  insurance company and become a panel SP.  Insured also approach them as their infrastructure   attracts them and  than exploitation starts.

Lets see how this dirty game happens by two examples:

Example 1: 

Let’s assume,  Pre negotiated agreed  package rate for  hip replacement is Rs XXXX   [while hospital’s own tariff may be (XXXX ) x 2].  This package  rate includes stipulated duration of stay in single occupancy ward, nursing and OT charges, doctors visit fee during  hospitalization, surgeon fee, medical investigations required for surgery, anesthesia fee, cost of implant, OT Medicines and consumables, Post operative medicines  and all other relevant charges. (Hospital hide this fact and extorts money from patients for half of the these heads saying these are not included in insurance package).

Here they also play foul,  when  an accident patient reaches hospital in emergency, SP  will say single occupancy ward is not available,  so they will admit him in deluxe private ward (without giving  option to patient to go to other hospital, nor would emergency allow).  There is a surprising trend in corporate hospitals that all facility charges go exorbitantly high (nursing and OT charges, doctors visit fee during  hospitalization, surgeon fee, medical investigations etc etc… )  for patients if admitted in private/ deluxe ward though same doctor, OT, staff, consumables, machines will do the job. As patient is admitted in private/ deluxe ward,  he exceeds his entitlement(which nobody makes him aware),  thus becomes liable to pay  high hospital charges which are much higher than his/ her entitlement. Insurance companies keep a blind eye on this for unknown reasons……….

Here  Insurance company people for obvious reasons,  donot intervene or  question why SP has denied services on their agreed terms? Patient/ relatives also donot exercise their right to go to  other hospital as they know other places are they will meet same fate and secondly they are more concerned to treat the medical emergency first. After emergency when they complain to Insurance, their skeptical silence, further becomes a tool  and chain of harassment……

Its now an open fact that many hospitals  perform many  irrational investigations, surgeries,  fix implants  more for commercial gains than for medical rationale. They charge indiscriminately for these implants and most patients carry a doubt post surgery that was this surgery or implant a real medical need? Or is  implants implanted is same what their hospital or doctor  charged for. Insurance companies are lawfully better equipped with their panel of experts to intervene here and clear this façade and restore confidence of insured.

Our government, Insurance  and health authorities, political system  are very well  aware of these prevailing  malpractices. Our Insurance  Regulatory Authorities are totally apathetic towards  safeguarding  their own and their client’s interests being  watch dog, instead they   work like sleeping paper tiger, they hardly intervene or investigate thus encouraging these malpractices.

Example 2:

You are owner of a  new brand bike (6 months old). Some car hits you from back and  escapes…… God saves you and bike has following damage:

  1. Leg guard and  handle  has a minor bend
  2. Head light broken
  3. Clutch lever and wire loosened
  4. Wheel cover has minor bend, which seemingly can be repaired
  5. Side view mirror broken
  6. Slight bend on exhaust
  7. Indicator hanging
  8. Plus some general troubles as smooth running not there.

SP’s engineers/ technicians will ask you to leave  the vehicle and go as vehicle shall be inspected at the sweet will and time of  insurance co. surveyor. (No SP wants client to be present during survey).

Insurance company  submits him a  fat list of  replacement of  all the parts with labour cost. Suppose  surveyor allows only handle and headlight replacement, and rest to be repaired(Labour cost allowed).  (No discussion happens of surveyor with client nor client is given any authorization report of  surveyor).

 Now when poor insured enquires from SP about his claim, they are told:                        “The insurance company has allowed only handle and headlight replacement” (without showing  survey report) and rest new parts and labour you will  need to pay……. Than whole extortion process starts……… client is cheated……

In our country banking and insurance litigations form a major chunk of pendency in courts and it is still increasing. This vast number of  increasing insurance disputes are  a proof how  a majority of customers are cheated, how inefficient and incompetent is regulator and also how insurance and SPs companies use litigation to harass its clients.

By not practicing transparency and colluding with SP, insurance company in a way works against their  own aims and objectives, thus increasing  claims value v/s premium value ratio,  which than lead to losses to insurance and unlawful  gains to SP. The poor insured becomes looser who pays premium to company for the odd times and feels cheated when he/ she has to over pay for his/ her hospitalisation as hospital/ service station  bills reimbursements are rejected  by insurance companies on technical ground or being not adhering to their tariff.

Insurance companies are trustees of their clients funds  and have responsibility  to safe guard their client’s interests. They also have to serve as watch dog so that no SP,  is over charging, giving raw deal to their clients by  overruling their agreed rates and terms of treatment  and also that  only genuine procedures, medicines, spare parts/ implants are  carried out by SP. They must conduct frequent  surprise checks through their authorized  investigators where insured is availing services.

Insurance companies, have legitimate right and ethical responsibility and necessary expertise to seek  justification/ rationale from SPs,   of any repair/ surgery or treatment or procedure and  its components like cost,  drugs, duration of stay, charges for procedures, implants etc etc…… so that pool of money is not used  on malicious fraudulent procedures/ consumables, which ultimately affects financial sustainability of insurer.

 

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How Indian Health and Vehicle Insurance companies and Service Providers cheat their customers.(Part-1)

InsuWhile vehicle insurance is lawfully binding on vehicle buyer to compensate the risk/ loss  in the event of any unfortunate eventuality,  health insurance is becoming essential  need for humans as everyone aspires  and deserves  good medical care in the event of  medical eventualities, and  its almost impossible  to gauge in advance quantum of  loss.

Insurance is.. a contract by which a company or the state (Insurer) undertakes to provide a guarantee of compensation for specified loss, damage, illness, or death in return for payment of a specified premium. It’s a thing  providing protection against a possible eventuality.

The basic premise of insurance is Society compensating  for your eventual  loss and respect every individual’s right to get quality medical care irrespective of his earnings or status. For example in a town 100 person lives whose income varies from 10K to 80 K per month. In the event of unforeseen medical emergency, which needs treatment worth Rs 40 K, than poor will find it difficult to pay. So if these 100 persons make a pool of money say Rs 10 K an year, than they will sufficient pool of money, which can be used for their members irrespective of their earnings, as all will not fall sick at a time.

Sadly but, both vehicle and health insured are cheated by unholy nexus of insurance companies and  their panel Healthcare service Providers or Vehicle Service Providers (Referred hereafter as SPs)

There are following  similarities, the way health and vehicle insured get unprofessional treatment  and cheated  en mass:

1.    For both health and vehicle insured (referred hereafter as both) their possessions i.e. their human life or vehicle are precious possessions, so they want assurance against possible eventuality, loss  and therefore  to indemnify themselves  buy insurance.

2.    Both are not technically qualified/ competent  to assess, treat or repair their own  ailment and are essentially dependent on a SP. Even if someone possess required technical knowledge,  even than they will have to essentially follow advice of an  authorized SP for treatment as their own opinion about their eventuality, loss or treatment procedures will not be accepted by insurance company.

3.    In the event of an  medical or accident eventuality, both have to essentially approach SP seeking necessary relief / correction, where their say or perceptions count to the extent of recording case history but judgment of SP is only final on state of medical condition and required mode of treatment or repair.

4.    Both are non competent to judge correctness of advice of  SP or its cost or available possible better/ cheaper alternates.

5.    Both are given warm welcome when they enter premises of  SP, as they are the source of revenue generation for them.

6.     On admission SP makes both  to sign list of papers (case history, Insured Id details, their treatment plan and projected cost) filled with technical data , which both insured are  not competent to verify or asses  genuinity, but both  have no other option but to sign them under the pressure that if they don’t, their  insurance claim will be rejected.

After duly verifying factual report, material evidence and proposed plan to treat it with cost estimate of service and parts/ implants provided by SP,  by their experts, insurance companies authorizes SP to perform specific procedure/ treatment/ repair plan and guarantees the payment.

Innocent insured patient or vehicle owner thanks god that he made a wise investment in insurance.

7.    Normally insurance companies have pre negotiated agreed norms, schedule of rates (for each service, procedure, surgery, implant or repairs, which might be lower than SP’s own rates) with each SP. They are supposed to follow the same in toto, without any exception or deviation.

8.    This agreement also binds SP,  to allow insurance companies to do surprise checks to see quality of service and consumables, and verify rationality and genuinity  of any transaction/ procedure being performed by SP.

9.    Both insured donot have any say nor are  involved in of  above transactions except counter signing reports submitted by SP. (Smartly no copy of paper is provided to insured by SP for customer’s reference).

10.  After completion of treatment , insured is presented  with lots of papers about treatment/ procedures full of technical jargons  by SP , and he happily signs them as his treatment is done due to insurance. (Smartly no copy of paper is provided to insured by SP for customer’s reference).

11.   But at the time discharge/ vehicle delivery, both  insured are presented a fat bill by SP,  and are ruthlessly asked to pay upfront saying he has availed services beyond what was authorized by insurer. SP’s use all dirty tactics and insured is  not allowed to leave before he makes the payment.

12.   Both insured feel disappointed and cheated, as nowhere they exercised their choice and whole transaction was between SP  and insurance company (on behalf of insured).

13.  Billing disputes are referred to insurance co., who repudiates or reject the claim and seek 100 explanations from insured.

14. Both customers than keep moving between insurance company like pendulum and  SP,  to collect facts/ answer the queries of insurance company.

15. Unholy nexus of  SP  and insurance company than come into play. Both start ignoring, answering and harassing the insured…….. half of the harassed insured loose hope here and quite and forget. Remaining  half claims are taken to court on frivolous ground for long, tiring battle. While insurance companies have battery of lawyers on their panel, poor insured has to further engage a lawyer on additional cost.

In nutshell both insurance companies and service providers have had their booty and  both poor insured get a raw deal suffers loss and agony.

Are  Docs and Patients  dealing fair with each other?

In good olden days, minuscule number  of qualified Medical  Practitioners were treating  load of  ailing people within limited available resources,   and commanding  utmost respect in society.  Clinicians used to practice  with sole aim of serving to society compromising their earnings and comforts,  in turn society  used to treat them like demi gods.

With changing times and  advent of corporatization of healthcare services, high cost of medical education,  depleting social values in all walks of life including healthcare, the  scenario changed and healthcare became  a commercial commodity . Predictably at the rate commercialization of  healthcare providers and doctors increased (clubbed with increasing evidence of  unethical practices,  misconduct  of doctors  in public domain),   in the  same rate decline in their demi god’s status  occurred. Sadly many doctors and hospitals are  still living in past totally oblivion of todays  naked reality and thus facing  rough treatment by public.

Poor junior doctors  are easy pray  and sufferers. They are made to work 24 hours a day  like bonded labour,  without proper leaves, sleep and food. Since  majority of seniors doctors concentrate  solely on their earnings through their private practice, junior doctors has nothing to motivate them in this grim situation.

While there are number of demotivating  factors like ( Half of the beds in wards are of those patients who have paid money to Professors or Assistant Professors  for enjoying  preferential  treatment in govt hospitals, or VIP patients whom senior do wants to oblige……). He also sees that half of patients are advised  various investigations and treatment  by senior doctors without any significant impact on medical out come  or for personal gains of senior doctors who will visit ward for few minutes and than go home to attend to their private practice. This makes junior doc ill tempered, irritable and loose empathy towards patient.

Unfortunately in case of mishaps in hospital, whenever kiths and kins of patients face such apathy, poor unprofessional response from untrained junior doctor, they loose their cool and  even take law into their hands. Such unruly public behaviour though not  justified on any count, has turned into an epidemic, which is indication of loss of faith of common man into the all the public dealing establishments (Hospitals, Police, Banks, Political leaders etc etc). This credibility loss has occurred gradually over a period of time, when common man has seen more than enough greed, misconduct, insensitivity, lack of apathy towards public cause by professionals at the helm of affairs in public life. Surely not all hospitals, doctors and policeman (etc., etc…..) are irresponsible and corrupt but silence and inactivity of their own good people has brought us to see the epidemic.

“The world suffers a lot. Not because the violence of bad people. But because of the silence of the good people.”― Napoléon Bonaparte

Solution to this problem lies chiefly in the hands of Doctors/ Healthcare Professionals only. Medical Teaching must recognize and include  training its students on  practicing compassion, empathy,  sensitivity, medical ethics as part of their curriculam. They should be taught and trained how to deal/ communicate with   patients/ relatives professionally, during the course of treatment and also in the event of any unfortunate, unintended treatment outcome.

Many  senior doctors will agree with me patient  or relatives are less irritated on  unfortunate medical outcome but more on sudden insensitive, unprofessional, non empathetic, rude and irritating  behavior of all hospital staff.

Untrained, less experienced Healthcare professionals suddenly become dumb in such unfortunate situations,  as they over promised earlier while admitting patient (to convince for  costlier investigative and treatment procedures) or  are seen  behave weird, unable to answer even genuine queries of  on patient/ relatives .

Imagine a case of poor junior doctor, who is aware that certain procedures were done irrationally by his senior without any hope of good prognosis (just for his greed)- will he ever try to put brave face with logical answers to battery of irritated relatives? To my mind if above is done and juniors will start increasingly witnessing their  seniors conducting themselves professionally, ethically half of this problem will die suo motto.

Many docs and their associations are crying wolf  for stricter laws, swift response by police and harsher punishment by judiciary. I sympathize  them as they are expecting three much from our already crippling criminal justice system of our country.  If stricter laws would have been the answer than ‘Dowry” should have become  extinct  in our country by now.

Some have suggested “ Purple  Alarm” , so that all hospital staff will assemble at crisis scene will only worsen the already charged scene and will result in more violence.

Up gradation of Government-run healthcare facilities infrastructure and staff  to make them deal with  overloaded will be another key factor.

Having said above, I must admit not all the medical accidents are due to medical negligence. There are times when patients/ relatives donot have realistic expectations and make unnecessary, unwarranted hue and cry, such group of  people  must be dealt sternly by law not by healthcare professionals.

Predicament of Indian Pharmaceutical Industry

WhatsApp Image 2017-04-21 at 3.40.05 PMIn my view, majority of Indian Pharma industry never valued systematized sales generation by design,  by innovating and implementing market and patient friendly trade and marketing practices……though Pharma Industry have been operating on high margins …. (I know many industry leaders will not agree with me on this publicly).

For a long,  Pharma industry’s all sales efforts revolved around the ‘KEY CUSTOMERS’ (Qualified doctors, Unqualified Jhola Chaap doctors, para medical staff, Chemists in remote village to cities etc. etc.), through them they over the years pushed their drugs in the throat of poor, suffering patient,  where poor fellow had no option of exercising his choice over his purchase…. It worked very well in olden days when demand was more and supply was less… however like every other industry things started changing when competition grew….

Industry  employed sales people in low to high hierarchy with various designations to revolve around these ‘KEY CUSTOMERS’….. sans any scientific or otherwise differentiation in the working pattern of field sales executive (MR today is no more considered a decent job title) and the  battery of his bosses except bigger the designation of boss, bigger the incentive (appeasement) he could offer to these ‘KEY CUSTOMERS’ and get better sales volumes  and in return get accolades from company……

Chemists being important part of this nexus/ chain also earned  hefty margins with extra gratification from companies. This long industry practice across the spectrum of Pharma Companies corrupted every stake holder in the sale/ marketing chain…. to the extent that even retail and wholesale chemists through their associations exhorted high unjustified margins and profits by twisted the ears of Pharma manufacturers!!

Many smart, enterprising Medical Reps who were driving the business on above simple sales generation techniques/ fundamentals (which were demonstrated and reinforced by his respected senior successful bosses) had a self realisation about their capabilities and this motivated them to start their own ventures for better returns be it P.C.D. or frenchisee or starting his own venture on loan license etc. …. thus becoming another competitor in their pocket…..

With the time India saw a considerable rise in its  production of drugs  with growing world class large manufacturing  facilities  thus intense competition among companies to retain/ increase their market share. But companies did not innovate ways. They started making territories smaller with big targets, made more divisions of same company to market same product with different  teams and brand names. This though helped their reach to micro towns   but now more number of sales persons were luring  same KEY CUSTOMER, who also fell pray to unethical practice of  ruthlessly looting patients by prescribing irrational combinations of drugs, unjustified and over use of higher and exorbitantly costlier antibiotics, tonics etc. etc. Now the stage came  companies started sharing more and more booty  its  profits as  KEY CUSTOMER started bargaining  more as there were many givers lined up before him. This unfortunately resulted in extortion of patients by both companies and doctors which still continues….. 

Many of industry stalwarts keep talking about raising standards of Pharma sales person in terms of their knowledge, technology of their presentations, upgrading soft skills etc. etc. so that they are in better position to tackle competition.  However my   question is, will the upgrading soft skills or technological support to sales person will help enhancing his effectiveness i.e. business…. I really doubt.Because fundamentals set by industry over the past many years are  solely  based on personal appeasement of  its KEY CUSTOMERS, which has gone to the level that company sales person is now arranging personal monthly grocery needs of doctors, paying his cars monthly installments,  to paying fee of their kids to arranging their leisure  holidays at remote places…..

So the moot question is what is the way ahead? In my opinion a complete paradigm shift  is required in sales and marketing efforts of industry.   Dr Shalini Ratan, Founder & Chief Knowledge Facilitator, NIRVAN Life Sciences puts it in right words ” Focus need to shift from Profit generation to Patient concerns, like, Patient Safety, Social Responsibility, Trust Building, Doctor Engagement with something more meaningful and not necessary talking about Products only.” 

Role of strong honest, effective  regulatory body surely can help changing this scenerio, but might of money power of industry has been successfully  managing and silencing  these defunct bodies uptil now. Hope scene shall change to save poor patient…..

Ten common neglects by Level 2 and 3 Hospitals in India

Please visit with me, few common  neglects of hospitals which are  visible to almost all its patients, attendants and visitors:

1. Parking:  Generally you donot find designated and sufficient parking area, pausing day to day problem to hospital neighborhood and its patients.

2. Drinking water:   You find one old water cooler fitted with one old water purifier both are put in a dingi place, forming a puddle on the floor beneath the cooler  with improper or blocked waste water drainage. Even by looking at them one can observe these water coolers and  purifiers are not maintained…..

3. Dirty Toilets: Hospital toilets require regular cleaning throughout the day but visitors find them dirty, dripping water from rusty taps, not properly ventilated.

4. Absence of  Trained designated Janitors : Very few hospital monitor or  train or sensitize Janitors  on daily cleaning norms. Hardly you find them  using Gumboots, while cleaning and  sweeping  unidirectional while mopping. Use  of a double bucket system when mopping the floors so that dirty water is not reused while mopping is rare. . This person is expected to do multi tasks so his/ her main job always suffers.

5. Place for Garbage Storage:  Even good infrastructures lack designated place for Garbage storage and keeping  their cleaning tools like brooms, mops. Mostly you find dirty mops in toilets and garbage storage at the entrance passage of hospital.

6. Hygienic Pantry for staff and Patients: Mostly not available. Leave patients, even staff uses dirty utensils and kept in various chambers, cleaned in dirty wash area.

7. Cleaning Air ducts of AC/ Coolers:  Ductings are  perhaps not cleaned even once a year and  are fixed in a way that leaves no room  for their cleaning. They are rich source of infection.

8. Maintenance of routinely used medical equipments:  Most  commonly used equipments  (BP apparatus, Stethoscopes, toungue depressors, tourniquet, autorefractometers, Thermometers, chair units, ECG Machine, Nebulisers  Pulse oxymeters etc etc.), you find dusty, ill maintained.

9. Maintenance  of trolleys, wheels, stretchers, wheel chairs, doors:  Even good running hospitals neglect this and this is another area where patients take close impression.

10. Compromising Sterility Norms:   There are no  demarkation of   sterile and non sterile areas.  Its a common  scene even in big hospitals that you find surgeons and staff going in and out of of  OT in OT dress and sleepers, making mockery of sterilization norms.

Concerns listed above mark basic minimum requirements, majority of which requires commitment of hospital management not big capital investment. Quality shall begin later.  Its irony that today’s hospitals are spending big on infrastructures and high cost, high tech equipments but have perhaps low focus on these common neglects, which are openly visible to all customers   and become key on switching their loyalty as a better alternate fall on their way. Best way to do reality check on this,  is to see how many Doctors, management and staff  donot prefer drinking  water provided by hospital…..

  Two main roles a  hospital play in society: first is the treatment for existing disease and second is help prevention of diseases.  Today medical fraternity widely acknowledges the  prevalence of Hospital acquired infections, as a major concern for patients and challenge for hospitals.

Hippocrates made the relatively profound statement “Primum non nocere”  that –If you wish to become a physician, always follow the maxim, first do no harm (Carrick 2000). It is obviously the case that modern medicine bears little resemblance to that practiced two millennia ago, but the maxim clearly still applies.

Nearer to the present day, Florence Nightingale paraphrased Hippocrates’            “ …….. the very first requirement in a hospital that it should do the sick no harm”. (Nightingale F 1859).

Protection to Judiciary v/s Violation of Fundamental Rights of Innocent Citizens

While I had just concluded my previous blog “How cheap we take Human Rights of a Common Man”,   I came across following two interesting judgments of  “Kerala High Court” and “Supreme court of India” protecting judicial officials for their errors of judgments which may cause harassment, agony, mental torture and gross violation of Human and Fundamental Rights  of  innocents. To my mind such orders fully absolves judiciary from its  responsibility and accountability. While law puts responsibility by putting reasonable restrictions on citizens  on exercising even their guaranteed  Fundamental Rights,  but it seems judiciary donot want to follow the same dictum…..

Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law by state  or acts under the authority of the State which are not according to procedure established by law.. Constitution donot  define ‘state’ in a restricted sense, it includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, so also   judiciary.

The fundamental right under Article 21  has been described as heart of fundamental rights by the Apex Court and  its main object  is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed. Right to Life means the right to lead meaningful, complete and dignified life free from exploitation.

As far as Personal Liberty is concerned , it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution.Procedure established by Law means the law enacted by the State.

The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Similarly its unambiguous responsibility of judiciary to bring to book who so ever’s negligence or failure to act lawfully, diligently has lead to gross violation of Fundamental Rights.

Under the light of above, I request readers to go though following judgments and decide for themselves do our judiciary be allowed to unlimited powers sans accountability or reasonable restrictions?

Do you agree with following  logic of High Court, for overriding rights of citizens by acquiring absolute and unchecked power : The maintenance of the independence of the judiciary being a larger public interest which overrides the public law rights of individual citizens, ……..

Case 1–  A Judicial officer cannot be penalized for passing erroneous orders: Kerala HC
http://www.livelaw.in/a-judicial-officer-cannot-be-penalized-for-passing-erroneous-orders-kerala-high-court/

 Case 2–  Even a wrong order should not be visited with Adverse Remarks against Judge; SC

http://www.livelaw.in/even-wrong-order-not-visited-adverse-remarks-judge-sc/

One  can agree that judicial officers can make  mistake or error of judgment, but such verdicts  which restricts scrutiny of lower courts decisions by upper courts (and need be passing adverse remarks) will not only make them autocratic  but  detrimental to bring correction in junior judiciary. I find following quotes worth sharing:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”  ‘John Emerich Edward Dalberg-Acton’

“Despotic power is always accompanied by corruption of morality.”  ‘Lord Acton’

“There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed.  We are not final because we are infallible, but we are infallible only because we are final.”   U.S. Supreme Court Justice Robert H. Jackson

 

How cheap we take Human Rights of a Common Man

 Though India as a  nation got liberated   from colonial rule more than 68 years back but  our leaders, policy makers, Judiciary and Executive of independent India preferred   working as Maharajas, ditto on colonial  systems at all level which has reinforced feudal master and slave mindset in the psyche of common man. The worst impact of  this phenomenon is our common citizen have very low self esteem,  respect and  value for individual as a self and others. Therefore we   always embrace humiliation, insult, atrocities and attacks on our self respect and gross violation of our Fundamental rights, without raising our eyes.

This fact is evident in every walk of life. If any  US citizen is kidnapped/ killed  anywhere in the world, we know respecting his individuality all efforts will be done in retaliation, rescue as well as to adequately compensating to family. But same is not true for we Indians.. Here there is hardly any value is attached to a victim of accident or mob….. Oh let me correct myself… here differential value is attached to individuals…. If you are son of a mighty neta, Tycoon or babu your time is considered precious as is value of your life. But for a common man if he has to wait or visit  for meeting Babu is his office endlessly than it doesn’t matter so is low value of his life  victimised.

In nutshell gross violation of Fundamental and Human Rights of common man  are not duly recognized or respected (visa vis human right of mighty babu or business tycoon or wealthy film star thus making obvious discrimination)  by  our political leadership, executive or judiciary, perhaps because they have emerged from the aforesaid system.

Case in hand that I wish to high light here is of Chattisgarh, where in two laborers had to undergo 113 days illegal detention in jail despite High court had set them free. Pl read Chattisgarh High court Judgment here for details of the case:

http://highcourt.cg.gov.in/Afr/courtJudgementandAFR/2016/April/wpcr29of2014.pdf

In this case,  Special Judge (NDPS)  by its judgment delivered on 27-7-2011 convicted them for  to undergo R.I. for five years……. Later on the appeal of convicts, Chattisgarh High Court  by its judgment dated 18-6-2013  upheld the conviction but reduced their imprisonment to the period already undergone by them. The Registry of the High Court by its memo dated 25-6-2013 endorsed the copy of the judgment duly certified to the Special Judge, NDPS Act,  Superintendent of Central Jail and also to the petitioners ……for information and necessary action. The certified copy of the judgment of this Court (High Court) was duly received in the Court of Special Judge (NDPS), but no release/super-session warrant was issued by his office directing the jail authorities to release the petitioners upon the jail sentence held to be undergone by……. the petitioners made an application only on 9-10- 2013 before the Court of Session, and on the same day, they were released……

In nutshell, both persons served illegal detention (18.06.13 to 8.10.13)  in jail for 113 days and had to again approach high court for their Fundamental right violation and compensation …..

I find following very touchy and interesting in High court Judgment:

  1. Judgment of  18.06.13 was sent by High court Registry on 25.06.13,  in this era of  fast communication- what a respect to Fundamental Right to Life and Liberty/ Article 21
  2. Submission of Special Judge (NDPS) that order of High court though received but poor Reader of his court didnot place before him, was taken on face value and in a way  Special Judge (NDPS) was exonerated of his lapse of his responsibility, accountability and vicarious liability.
  3. Special Judge (NDPS) was exonerated and only state was held vicariously liable for compensation.
  4. HC  directed state govt to pay Compensation  @  minimum wages  Rs. 200/- per day and for 113 days =Rs 22,600/-, adding  meager Rs. 28,000/- (app Rs 248 per day) more for mental pain and suffering , Thus total Rs.  50,000/- .

To my mind Chattisgarh High court has grossly under valued compensation and damages for mental pain and agony for serious and gross violation of  Fundamental Rights guaranteed by our constitution under Article 21,   object of which is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law.

Calculation of petty compensation @ Rs 248 per day for common citizen for violation of their heart of Fundamental rights exhibits discrimination on Right to equality, life and liberty….

This is painful because in many cases our apex court, being guardian of our constitution,  has added various dimensions and given dynamic and wider meaning (right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc), and  widest possible scope  to Article 21 through various judicial pronouncements.