Litigation As TB Rights Advocacy: a New Delhi Case Study

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Litigation as TB Rights Advocacy: A New DelhiHHR_final_logo_alone.indd Case Study 1 10/19/15 10:53 AM

Kerry McBroom

Abstract

One thousand people die every day in India as a result of TB, a preventable and treatable disease, even

though the Constitution of India, government schemes, and international law guarantee available,

accessible, acceptable, quality health care. Failure to address the spread of TB and to provide quality

treatment to all affected populations constitutes a public health and human rights emergency that

demands action and accountability. As part of a broader strategy, health activists in India employ Public

Interest Litigation (PIL) to hold the state accountable for rights violations and to demand new legislation,

standards for patient care, accountability for under-spending, improvements in services at individual

facilities, and access to government entitlements in marginalized communities. Taking inspiration from

right to health PIL cases (PILs), lawyers in a New Delhi-based rights organization used desk research,

fact-findings, and the Right To Information Act to build a TB PIL for the Delhi High Court,Sanjai

Sharma v. NCT of Delhi and Others (2015). The case argues that inadequate implementation of government

TB schemes violates the Constitutional rights to life, health, food, and equality. Although PILs face

substantial challenges, this paper concludes that litigation can be a crucial advocacy and accountability

tool for people living with TB and their allies.

Kerry McBroom, JD, is a reproductive rights activist and the former Litigation Director of the Reproductive Rights Initiative at the Human Rights Law Network, New Delhi, India. Please address correspondence to Kerry McBroom: [email protected]. Competing interests: None declared. Copyright © 2016 McBroom. This is an open access article distributed under the terms of the Creative Commons Attribution Non- Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited.

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Introduction the outcome at the Delhi High Court. Finally, part four explores the challenges these activists faced State failure to adequately treat and prevent tuber- and the broader constraints of legal advocacy in culosis (TB) constitutes a human rights violation. India. In India, the Constitution, Supreme Court judgments, and international law commitments uphold the fundamental rights to life, health, equality, and Part One: Using human rights to evaluate dignity. At the same time, policies and legislation TB policy in New Delhi including the Revised National Tuberculosis Con- India and Nigeria alone accounted for one-third of trol Programme (RNTCP, 2005), the National Food the 1.5 million global TB deaths in 2014.3 In 2013, Security Act (2013), and the Consumer Protection New Delhi reported 3,239 medically certified TB Act (1986) ensure treatment, related services, and deaths, almost 10 deaths every day.4 For human legal protections for individuals living with TB. rights activists, this represents more than a public Despite legal guarantees, data indicate that in New health crisis, it constitutes a state failure to uphold Delhi individuals living with TB, especially women, basic human rights to life, health, and equality. As and TB affected people in marginalized communi- part of a wider strategy to hold the government ac- ties, cannot access quality testing services, adequate countable for ensuring the right to health, activists treatment, or the minimum nutrition they require. at the New Delhi-based Human Rights Law Net- Tuberculosis Control (TBC) India reports that 1,000 work (HRLN) developed a legal strategy to improve people die every day from TB across India.1 The TB treatment in the capital, culminating in a legal statistics on TB and TB-related deaths represent a case at the Delhi High Court. HRLN is a collective fraction of TB’s impact in India. For example, the of lawyers and social activists committed to using 2015 World Health Organization Global TB Report the law for social change and to pursuing justice shows that India accounts for 23% of the world’s 5 TB cases and for 54% of the reported multidrug for victims of fundamental rights violations. This resistant TB (MDR-TB) cases.2 TB affects millions section illustrates the first step of HRLN’s legal of Indians. As part of a broader strategy to combat advocacy strategy, documentation. TB, activists in New Delhi use the legal system to Documenting fundamental rights violations: close the gap between government policy goals and desk research, field research, and right to obligations and realities on the ground. information requests This paper argues that legal advocacy is an essential component of a human rights-based ap- Investigating and documenting health rights vi- proach to TB. It draws on a case study from New olations creates a record of key issues, improves Delhi to outline a broad array of legal tools and awareness among communities and activists, and arguments Indian activists use to advocate for the lays the foundation for further advocacy. As the rights to life, health, and equality in the context first component of the TB legal advocacy strategy, of TB. The case study also highlights limitations researchers and lawyers in New Delhi gathered and challenges of litigation. Part one describes information from diverse sources to create compre- how legal activists and lawyers in New Delhi use a hensive analysis of TB treatment and care in New rights-based approach to TB to document funda- Delhi. mental rights violations and government failures To evaluate TB services, the legal team em- to implement schemes. Part two provides an intro- ployed the Available, Accessible, Acceptable, and duction to public interest litigation (PIL) in India Quality framework, known as the “AAAQ” frame- and outlines right to health judgments and impacts work, outlined in the General Comment No. 14: The that inspired activists to use litigation in the TB Right to the Highest Attainable Standard of Health context. Part three examines the legal arguments by the UN Committee on Economic, Social and lawyers advanced in the TB PIL in New Delhi and Cultural Rights.6 Availability requires functional

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TB facilities, goods, and services.7 Accessibility de- that recent health budget cuts could further gut mands that TB facilities, information, goods, and the RNTCP. 15 Moreover, desk research captured services are non-discriminatory, physically accessi- important information on TB and gender discrim- ble, and affordable.8 Acceptable TB services, goods, ination, TB and nutrition, and developments in and facilities respect medical ethics and culture testing technology. For instance, reports of birth while quality obligates states to provide scientifical- and death registrations show that in Delhi, the ly and medically appropriate heath facilities, goods, most women die from TB between the ages 15-24, and services.9 whereas the most men die from TB later, between India’s RNTCP has five key components aimed ages 45-54.16 at fulfilling each of the AAAQ requirements: (1) a The team used the desk research as context political and administrative commitment to ending for field reports. Fact-finding reports featuring TB, (2) good quality diagnosis, (3) uninterrupted testimony from communities personalize statistics supply of good quality anti-TB drugs, (4) super- and expose specific barriers to available, accessible, vised treatment to ensure adherence to treatment, acceptable, and quality care. HRLN social activists (5) systematic monitoring and accountability.10 To conducted fact-finding missions throughout Delhi test and treat TB, India relies on the Directly Ob- to investigate DOTS centers and to interview mem- served Treatment Short-Course (DOTS) strategy. bers of TB-vulnerable communities. Operating under the assumption that many TB pa- The first TB fact-finding mission in 2012 tients fail to complete treatment, DOTS mandates evaluated four DOTS centres and found that they strict observation of patients and increased out- did not have drinking water, clean, or comfortable reach to communities. The government of India has spaces for individuals under treatment, nor did they established DOTS centers throughout India where have adequate staff or outreach services. A DOTS health workers watch TB patients take their med- provider told the team that “the government does ication three days a week, coordinate community not care about his center’s situation and ... that two outreach, and perform diagnostics.11 DOTS-plus out of every three months the government does not centres add MDRTB diagnosis, management, and pay the staff’s salary.”17 The 2012 fact-finding team treatment.12 To uncover specific barriers to avail- also spoke to individuals receiving treatment about able, accessible, acceptable, and quality TB care in their experiences. Thirty-two-year-old Vipin suf- Delhi, HRLN researchers and lawyers collected ev- fered from TB for a year before seeking treatment idence on the RNTCP and DOTS implementation because “he thought he would get better by him- in three phases: desk research, field research, and self.”18 Another individual had undergone DOTS right to information (RTI) requests. treatment for two years with frequent interruptions Desk research examined publicly available in his treatment while he took trips to visit his home material including RNTCP data, World Health Or- village. His teenage daughter received a positive ganization reports, and media reports. Frequently, TB diagnosis on the same day that the fact-finding government evaluations and status reports provide team interviewed him. The family could not afford the richest source of data and pointed criticisms. to purchase adequate food and relied on the DOTS The information collected on TB uncovered a pub- centre to reimburse his transportation to the treat- lic health and human rights crisis in Delhi. Today, ment center.19 A follow-up fact-finding mission in 40% of the capital’s population lives with a latent November and December 2014 uncovered poor form of TB.13 Additional information from the record keeping; unhygienic conditions at DOTS RNTCP 2014 annual status report shows that 3% centres including sinks with “stains, spills, and of all DOTS patients in Delhi switched to MDR-TB dirt;” and inadequate staffing across DOTS provid- treatment, a substantially higher percentage than ers.20 in the rest of India.14 Desk research also discov- A February 2015 fact-finding visit to the Pul ered underspending on TB budgets and evidence Mithai slum community revealed additional state

JUNE 2016 VOLUME 18 NUMBER 1 Health and Human Rights Journal 3 K. McBroom / TB and the Right to Health , #-# failures to ensure the AAAQ guarantees.21 Even mother also has a chronic cough, and has a severely with a TB hospital across the road, Pul Mithai injured foot from a road accident.32 Sometimes the residents routinely succumb to TB. The following effect of the medicines is so strong that Suresh for- examples are drawn from a series of fact-finding gets to take the complete dosage for the day.33 For missions to Pul Mithai. example, the day prior to the fact-finding visit, he The interviews highlighted within fact-find- had taken four of six required tablets, meaning that ing reports show the RNTCP has failed to address the remaining two tablets would be wasted.34 key gender dynamics and cultural norms, impor- Suresh’s TB treatment experience highlights tant components of acceptable care. For example, violations of the AAAQ right to health framework. an interview with Poonam, aged 27, revealed that For instance, the government has failed to ensure women do not visit government health facilities available services where Suresh’s DOTS facility because of their past negative maternal health ex- has frequent medicine stock-outs. The prohibitive periences, the cost of travel, and limited freedom travel cost to the India Gate TB hospital represents to travel outside of the community.22 Throughout a violation of the right to accessible treatment. visits to Pul Mithai, fact-finding teams interviewed Suresh’s extreme reaction to the medicine limiting Munita, a widow with four children who lost her his ability to work and to consume the full daily husband, Khushi Ram, to TB in January 2014. He dosage indicates that the government of Delhi does had received treatment at a government facility, not ensure Suresh’s right to acceptable and quality but his condition did not improve.23 In May 2014 TB care. Munita, overworked, malnourished, and without In addition to desk research and fact-finding access to proper sanitation, also succumbed to TB.24 missions, the team used the Right To Information Although she lived across the street from a govern- Act (RTI Act, 2005) to seek additional information ment TB treatment center, Munita never received from the government on implementation of TB TB treatment.25 Women in Pul Mithai believe that programs.35 The RTI Act allows the public to submit the TB hospital is cursed because anyone who visits requests to the government for information about inevitably dies.26 programs and mandates that the government reply. Suresh’s case study from the February 2015 Activists routinely use the RTI Act to investigate fact-finding mission in in Pul Mithai uncovers chal- corruption and implementation of schemes. HRLN lenges even the most dedicated TB patients must filed RTI requests to the State TB Officer for Delhi overcome. Suresh received his second TB diagnosis requesting information on DOTS centres in the in August 2014.27 The February 2015 fact-finding state, the staff at each facility, the number of DOTS- mission reported that “Suresh feels weak, faint, has PLUS facilities (for treating MDR-TB), the number a constant cough, and sometimes vomits blood.”28 of individuals enrolled in MDR-TB treatment, the The report found that Suresh received medication number of individuals who completed TB treat- from the TB hospital across the road, but with reg- ment, the number of individuals treated at DOTS ular medicine stock-outs, he was expected to obtain centers who died as a result of TB, and the current the medicines at his own cost from a TB hospital stock of drugs at each facility. near India Gate, a distance of over 6km.29 Although Replies to the RTI requests showed wide- the treatment is free at this hospital, transportation spread failure to provide adequate treatment to cost him a nearly impossible sum of about Rs. 1,650 individuals with MDR-TB, failure to ensure avail- (USD 25) over the six months since his diagnosis.30 able drug supplies, and high numbers of DOTS TB medicines make Suresh lightheaded and dizzy; patient deaths. For example, an RTI response from after taking them in the morning he can only lie Guru Teg Bahadur Hospital, Dilshad Garden Chest down and rest. Unable to work, Suresh and his six and TB clinic reported 65 registered MDR-TB pa- children rely on his elderly mother’s income from tients in 2012-2013.36 The RTI reply stated that just selling dry fruits, sweeping, and odd jobs.31 His 33 patients had completed treatment and that nine

4 JUNE 2016 VOLUME 18 NUMBER 1 Health and Human Rights Journal K. McBroom / TB and the Right to Health , #-# individuals died during treatment.37 Supreme Court judgment describes the crucial role Data from desk research, field visits, and the PIL plays in increasing access to justice: RTI requests created a strong case of government failure to adequately implement the RNTCP guar- Public interest litigation is not in the nature of antees in violation of the fundamental rights to life, adversary litigation but it is a challenge and an op- portunity to the government and its officers to make health, and equality. The team met with prominent basic human rights meaningful to the deprived TB activists to discuss arguments and to shape the and vulnerable sections of the community and to violations and demands. The fact-finding reports assure them social and economic justice…. The and documentation constitute important legal Government and its officers must welcome public advocacy tools themselves. HRLN lawyers and interest litigation because it would provide them activists presented findings from their research to an occasion to examine whether the poor and the down-trodden are getting their social and economic government representatives at meetings and con- entitlements or whether they are continuing to re- sultations throughout Delhi. Activists, including main victims of deception and exploitation at the the petitioner sent detailed letters to government hands of strong and powerful sections of the com- offices outlining findings and fundamental rights munity and whether social and economic justice violations, and requesting immediate improve- has become a meaningful reality for them or it has ments. The government never replied to any of the remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public letters. Faced with inaction, the team began draft- interest litigation is found to be true, they can in ing a public interest petition for the Delhi High discharge of their constitutional obligation root out Court. exploitation and injustice and ensure to the weaker sections their rights and entitlements.43 Part Two: Public interest litigation in India and the right to health In the same judgment, the Court examines “abuse of PIL,” underscoring a pervasive concern that The Constitution of India contains both guarenteed “meddlesome interlopers” file cases for personal Fundamental Rights as well as Directive Principles gain which diminishes the significance of PIL.44 which guide the creation and implementation of The judiciary has become increasingly weary of state policy.38 Fundamental Rights include the right frivolous PILs and PILs filed to score business vic- to life, the right to equality before the law, the right tories, while the Government of India has become to education, and the right to free expression.39 increasingly hostile toward non-governmental Directive Principles of State Policy encourage the organizations (NGOs) who use the legal system state to inter alia, ensure adequate working condi- to hold the state actors accountable.45 At the same tions, free legal services, and equal pay for men and time, human rights activists have questioned women.40 Directive Principles are not justiciable, whether PILs have a meaningful impact on poor but they should guide legislation. The Constitution people’s lives, whether the judiciary should issue empowers the judiciary to interpret Fundamental policy directives on issues ranging from clinical Rights and to adjudicate alleged violations.41 trials to air pollution, and whether litigation can PIL allows any person or organization to co-opt social movements.46 approach a high court or the Supreme Court in Despite increasing ambivalence and import- the wake of violations of Fundamental Rights vi- ant concerns from activists, lawyers continue to olations.42 Revolutionizing traditional locus standi obtain strong orders and judgments through PIL. norms, the petitioner does not have to be a direct PILs play an essential role in developing the right victim as long as the petition advances the public to health in India. The Supreme Court and high good. PILs allow activists, NGOs, and individuals courts have rooted the rights to health, nutrition, to access courts on behalf of dozens or millions of and dignity in Article 21 of the Constitution, which victims of Fundamental Rights violations. A 2010 guarantees that “No person shall be deprived of his

JUNE 2016 VOLUME 18 NUMBER 1 Health and Human Rights Journal 5 K. McBroom / TB and the Right to Health , #-# life or personal liberty except according to proce- can use the law to fight for improved TB treatment dure established by law.”47 The Supreme Court has and policies. held that the right to health includes a government Anchoring their arguments in these rights and duty to provide “adequate medical facilities for the legal victories, health rights activists and lawyers in people”48 and declared that “failure on the part of India use PILs to usher in new health rights legis- a government hospital to provide timely medical lation, to create minimum treatment standards, to treatment to a person in need of such treatment” hold states accountable for inadequate health ex- results in a violation of the right to life guaranteed penditures, to to improve conditions at individual in Article 21.49 The Supreme Court has also ordered health facilities, and to ensure right to health en- the government to ensure adequate access to af- titlements for specific marginalized communities. fordable medicines as a component of its right to This section uses six PILs to illustrate these out- health obligations.50 comes while the next section shows how activists in PILs have underscored and refined state obli- New Delhi have taken inspiration from these cases gations under the right to health. For example, the in the context of TB. At the same time, this section High Court at Jabalpur, Madhya Pradesh has held will begin to highlight the key PIL challenges and that the state’s failure to ensure adequate infrastruc- shortcomings that are outlined in full in part four. ture and “manpower” under the National Health Mission violates the rights to life and health under Usher in new health rights legislation: People’s Article 21 of the Constitution.51 The Delhi High Union for Civil Liberties v. Union of India and Court has held that “an inalienable component of Others (PUCL) the right to life is the right to health, which would Filed in the wake of massive starvation deaths in include the right to access government health fa- 2001, orders in this PIL have expanded coverage cilities and receive a minimum standard of care.”52 for supplementary nutrition, improved functioning Drawing from this jurisprudence and international of food distribution systems, and underscored the law obligations under the International Covenant states’ obligation to ensure adequate nutrition for on Economic Social and Cultural Rights (ICESCR), all under the umbrella of Article 21 of the Consti- the Delhi High Court recently held that right to tution.58 This PIL played an essential role in shaping health “core obligations” including access to essen- the National Food Security Act (2013), “an Act to tial medicines are non-derogable forbidding the provide for food and nutritional security in human government from failing to provide treatment for life cycle approach, by ensuring access to adequate diseases under any circumstances.53 quantity of quality food at affordable prices to Internationally, litigation has made a major people to live a life with dignity and for matters impact on human rights and health policy. For in- connected therewith or incidental thereto.”59 stance, in South Africa, litigation expanded access In the context of the right to health, PUCL to a drug that prevents mother-to-child transmis- illustrates that litigation contributes directly to sion of HIV,54 and obligated the government to schemes, laws, and policy across public health provide a homeless community with access to tem- issues. In addition to creating and expanding porary shelter.55 Nigerian courts halted gas flaring nutrition schemes, the Supreme Court has issued by oil companies on the grounds that it violated the directions ordering the state governments to imple- Iwherkan community’s rights to life, environmental ment programs for pregnant women, workers, and health, and dignity.56 A PIL case in Kenya outlawed homeless populations. In 2011, the Court ordered the government’s practice of imprisoning TB pa- the state governments to establish homeless shelters tients who failed to complete treatment.57 Courts in in major cities with specific provisions including Colombia and Brazil have heard thousands of cases mattresses, drinking water, latrines, electricity, on access to medicines and treatment. Creative and first-aid, health care services, detox facilities, and determined activists in almost every jurisdiction recreation.60

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The PIL encouraged reform and created a Health rights activists use the 2006 and 2008 Stan- space for accountability. For activists working on dard Operating Procedures to evaluate sterilization TB and the right to health, PUCL highlights the camps and demand improvements. For instance, Court’s understanding of the indivisibility of rights. the Chhattisgarh High Court, the Supreme Court, The Court links the rights to nutrition, antenatal and activists have coupled the Ramakant Rai care, shelter, and health making crucial connec- requirements with the Standard Operating Pro- tions for addressing barriers to accessible, available, cedures to hold the government accountable for acceptable, and quality care. Additionally, PUCL the 2014 Bilaspur, Chhattisgarh sterilization camp illustrates a PIL’s power to facilitate new legislation massacre.66 that creates obligations and mechanisms for en- While Ramakant Rai served as a foundation forcing a fundamental right. However, PUCL also for important policy changes and created an entire shows that litigation can only chip away at massive government regulatory system for sterilization, injustices like starvation, homelessness, and poor implementation suffers. In fact, the Supreme Court maternal health policy. Starvation deaths persist has expressed its frustration with state govern- throughout India; the Right to Food Campaign ments who fail to follow orders during hearings documents widespread failure to implement the in Devika Biswas.67 In the face of state apathy, the National Food Security Act, and states have largely Supreme Court has ordered the states to meet ignored the Court’s orders on homeless shelters.61 and develop a strategy for improved sterilization services.68 This development might not represent a Create minimum treatment standards: revolution in women’s constitutional rights, but it Ramakant Rai v. Union of India & Others does show that Ramakant Rai laid a foundation for In 2003, social activist Ramakant Rai filed a PIL a monitoring and accountability system for female on the horrific conditions in female sterilization sterilization. Broadly, this PIL illustrates that liti- camps throughout India.62 In 2005, the Supreme gation can create rights-based accountability tools Court issued final orders to empanel doctors for including guidelines, checklists, insurance policies, sterilization services, to create a pre-operative and monitoring bodies for specific health services. checklist for each patient, to ensure completion of informed consent paperwork, to constitute Quality Hold states accountable for inadequate or illegal Assurance Committees at the district and state health expenditures: Centre for Health and level, to maintain accurate data on sterilization, Resource Management v. State of Bihar and to hold enquiries into guideline breaches, and to Others (CHARM) create an insurance scheme for sterilization related This PIL in the High Court at Patna alleged poor deaths, complications, and failures. implementation of the government’s flagship In a new PIL on sterilization, Devika Biswas National Rural Health Mission (NRHM) in vio- v. Union of India and Others, affidavits from each lation the right to life, health, the right to survive state show at least minimal compliance with the pregnancy and delivery, and the right to equality. Ramakant Rai orders.63 States have empaneled Detailing conditions at a major District Hospital, doctors, created quality assurance committees, the PIL shows: and established insurance schemes. Thousands of women have received compensation for failed or The hospital presents an appalling lack of hygiene, botched sterilizations as a result of this judgment.64 construction, and operation. There appears to be no upgrading to the original structure, built in 1932. Moreover, in 2006 and 2008, the Ministry of The maternity ward was inoperative, all female pa- Health and Family Welfare issued comprehensive tients were housed in filthy rooms, with beds lacking Standard Operating Procedures for Male and Fe- mattresses, ceilings and walls caving inward, broken male Sterilization emphasizing informed consent, windows and open wiring throughout the room.69 full counseling, patient privacy, and hygiene.65

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In March 2011, the High Court at Patna of maintenance of health and not detrimental to demanded an affidavit from the State Health Sec- the maintenance of health.”76 In its order, the High retary detailing expenditures under the NRHM for Court established a committee of government func- 2007-2012.70 In a June 2012 order, the High Court tionaries to make immediate recommendations for demanded quarterly reports “with regard to medi- improving public health services. A 2015 follow cal facilities/equipments provided at Public Health up fact-finding visit discovered that as a result of Center(s) [in] all the Districts….”71 The Court evalu- this PIL, the government removed 300 trucks of ated every rupee spent by the state and demanded a garbage from the District Hospital courtyard and detailed account for each failure to spend allocated ensured improved hygiene standards throughout resources.72 the facility. Additionally, interviews with the Dean CHARM serves as an important example of of Hospital, doctors, and nurses found widespread litigation as an accountability tool against finan- awareness of the ongoing PIL and the need to cial corruption, under-spending, and inadequate maintain high standards of care to avoid further oversight in health policy. Unfortunately, CHARM High Court scrutiny.77 also shows that an individual judge can determine The PIL and fact-finding reports documented the scope and impact of a PIL. For years, the High hundreds of violations regarding hygiene, gender Court routinely demanded answers from govern- discrimination, infrastructure, staffing, HIV/ ment lawyers on poor health indictors, inadequate AIDS services, and worker rights.78 However, the infrastructure, and failure to spend health budgets. High Court’s orders focus almost exclusively on In 2015, a new Chief Justice in Patna closed the case, cleanliness at a few facilities.79 Improvements in with the tepid “hope that the facilities would be hygiene have dramatically changed conditions at maintained at proper level and the services would Nagpur District Hospital, but the Court’s orders do be extended to the public, without any deficien- not address key components of rights-based care cy….”73 An individual judge’s religious, political, including training, employee compensation, and and judicial philosophy can stop a powerful PIL in infrastructure. On the other hand, a PIL can take a single hearing. While interim orders in CHARM decades to work its way through the Indian legal represent a major victory for accountability, the system. The quick results in Dinanth Wagmare PIL did not create sweeping change in Bihar, where prove that PILs can achieve immediate and mea- rampant maternal mortality, illegal drug pricing, surable results at health facilities. Furthermore, and “fiscal irregularities” in National Rural Health this PIL shows how litigation can hold government Mission spending persist.74 health providers accountable where they know their facility is the subject of ongoing litigation. Improve conditions at individual health facilities: Dinanth Wagmare v. State of Ensure health rights entitlements for specific Maharashtra marginalized communities: Shakeel Ahmad v. In 2013, health activists in Maharashtra filed a PIL NCT of Delhi and Others in the Nagpur Bench of the Bombay High Court Housing rights activist Shakeel Ahmad filed this illustrating deplorable conditions with a special PIL on behalf of the 380 families living in the focus on fundamental rights violations at one of Pul Mithai homeless cluster in Old Delhi.80 The Asia’s largest hospitals, the District Hospital Nag- community did not have access to clean water, pur. In February 2013, the High Court urged the public health facilities, or supplementary nutrition government lawyer to “go pay a visit to a public schemes for children and pregnant women. In hospital and take appropriate action.”75 An October October 2014, the High Court ordered the state 2014 High Court order notes that “The right to government to ensure the rights to health and ed- health would also include the facilities to be provid- ucation in the cluster by providing potable water ed by the State Government which are conducive to residents, repairing a local school, providing

8 JUNE 2016 VOLUME 18 NUMBER 1 Health and Human Rights Journal K. McBroom / TB and the Right to Health , #-# reproductive health services, conducting immu- part one, lawyers for Sanjai Sharma developed nization camps, and operationalizing a center for arguments rooted in constitutional protections, Su- distributing supplementary nutrition to children, preme Court PIL judgments, and international law. adolescents, and pregnant and lactating women.81 Lawyers shaped the legal arguments to correspond As a result of this petition, the government to 13 specific reliefs rooted in three fundamental established a nutrition center for children and rights enshrined in the Constitution of India; the increased community outreach in Pul Mithai, right to health, the right to food, and the right to showing that a single PIL can substantially improve be free from discrimination.83 This section provides access to entitlements and health services in specif- a brief sketch of the key fundamental rights viola- ic communities. At the same time, Shakeel Ahmad tions alleged in the petition. underscores the need for a strong movement be- hind each PIL. Pul Mithai residents do not have The right to health the information or resources to demand services Sanjai Sharma draws on the AAAQ framework out- from government officials. Accordingly, even after lined in part one to argue that the Delhi government the Court order, outside activists visited the com- fails to provide available, accessible, acceptable, and munity on a weekly basis to monitor compliance. quality TB goods, facilities, services, and information Ultimately, Shakeel Ahmad filed a contempt peti- in violation of constitutional and international law. tion to demand full implementation of the Court’s directions.82 • Availability: The petition outlines myriad barri- As the fact-finding reports in part one show, ers to available TB care in Delhi. For example, TB represents a major human rights issue for Pul Sanjai Sharma argues that the drug stock-outs, Mithai residents. To ensure available, accessible, understaffing, and outdated testing methods acceptable, and quality TB treatment per its Consti- documented in the fact-findings and desk re- tutional and ICESCR obligations, the government of search render treatment unavailable. Moreover, India will have to facilitate social change, improve the PIL states that the high death rate indicates standards for patient services, ensure accountabil- the government’s failure to make treatment ity for budget expenditures, launch changes at the available to thousands of people who live with TB. facility level, improve access to drugs, and fully implement entitlement programs in vulnerable • Accessibility: The PIL also argues that TB treat- communities. Litigation can play a role in ensuring ment in Delhi is inaccessible to patients who these changes. cannot physically travel to DOTS centres, who cannot afford to miss work to travel to facilities, or who cannot bare the financial burden of travel Part Three: Constructing and arguing to facilities. Additionally, the PIL shows that in- the PIL: Legal arguments, reliefs, and dividuals with TB and vulnerable communities outcomes do not have access to information on TB or TB As a result of persistent inaction, HRLN filed a PIL treatment. Women in TB impacted communities in the Delhi High Court on behalf of health activist believed they could not get TB because they did and former TB patient Sanjai Sharma in August not drink, families did not understand transmis- 2015. Drawing inspiration from the PILs outlined in sion, and people undergoing DOTS treatment part two, Sanjai Sharma v. NCT of Delhi and Others did not understand the need to regularly take 84 aims to hold the government accountable and to their medication. obligate the government the take meaningful steps • Acceptability: The PIL contends that TB treat- to bridge the gap between constitutional rights and ment in Delhi is unacceptable where it does not implementation. align with the realities of people living in TB Using the information summarized in vulnerable communities. Reporting to a DOTS

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centre every day is impossible for individuals who health services. Even with these difficulties, a court work or cannot leave their homes. People in mar- direction obligates the government to act where it has ginalized communities like Pul Mithai lack access failed. The court order provides activists with a tool to nutrition and government rations, making it for demanding continued improvements. PILs with impossible to get food they require for recovery.85 equally expansive right to health reliefs have resulted Women feel uncomfortable in government health in massive hygiene improvements in Maharashtra, facilities and refuse to travel to care even when the improved implementation of government schemes, hospital is only minutes away. and legally binding standards of care.87 • Quality: Finally, the PIL uses examples of in- The right to food sufficient hygiene practices, inadequate record keeping, and the concerns of DOTS providers to Drawing on the fundamental right established in show poor quality TB treatment in Delhi. PUCL, Sanjai Sharma argues that failure to provide individuals with TB and their communities with To respond to right to health violations, the PIL supplemental nutrition violates the right to food. asks for the High Court to direct the state govern- The PIL shows that malnutrition increases the risk ment to conduct an independent audit and quality of latent TB developing into active TB, that malnu- control survey of all DOTS centres in Delhi. The trition persists in Delhi slums, that TB impacts an PIL urges the High Court to include members of individual’s ability to metabolize food, and that TB civil society in the audit process. This relief aims to creates economic constraints for families, reducing make the government accountable for the quality at nutritional intake for already vulnerable family 88 all DOTS centres and to create a record of the status members. The PIL also uses data from WHO, quo that can be used as a benchmark for measuring Delhi Government, and fact-findings to show that change and impacts. Civil society experts would inadequate access to nutrition disproportionately ensure an independent review. impacts women in violation of their right to equali- Additionally, to guarantee available and ac- ty enshrined in Article 15 of the Constitution. cessible goods, services, facilities, and information, Here, the PIL prays for a nutritionist or dieti- the PIL prays (the terminology used in the PIL) tian to provide counseling in all DOTS centres. The for new standard testing procedures; new DOTS PIL includes an urgent interim prayer requesting PLUS centres to treat MDR-TB; improved staffing, the High Court to direct the Delhi government infrastructure, and supplies at existing DOTS to provide supplementary nutrition to individuals centres; cash payments for travel to treatment; and with TB and their families as an emergency mea- an employee insurance scheme. Inspired by the di- sure before the final judgment in the case. Given rections in Ramakant Rai, CHARM, and Dinanth the widespread failure to enact the National Food Wagmare, these reliefs aim to create standards of Security Act and PUCL related schemes, ensuring care for patients and to improve conditions at the implementation of these prayers will also be a sig- facility level. nificant challenge. If the High Court did issue these directions, ensuring implementation would be a constant struggle. The right to be free from discrimination Activists supporting the Shakeel Ahmad PIL worked The petition shows that the state’s failure to pro- for over a year to ensure full implementation of the vide gender sensitive TB services constitutes High Court’s directions. In the end, the activists filed discrimination under the Constitution of India and a contempt petition to demand potable drinking international law. The petition uses the fact-finding water and basic services for just 380 families.86 Ad- reports and data to show that stereotypes based on ditionally, even with perfect implementation, these sex limit women’s access to quality care and prevent changes will not overhaul gender dynamics, geo- women from undergoing testing as they fear being graphic isolation, and stereotypes about government rejected by prospective husbands and in-laws.89 At

10 JUNE 2016 VOLUME 18 NUMBER 1 Health and Human Rights Journal K. McBroom / TB and the Right to Health , #-# the same time, India’s reproductive health schemes between the petitioner and the government. In largely ignore TB even though uterine TB has a high an individual meeting, the petitioner will have prevalence rate and TB drugs may decrease the ef- more time to develop and explain the arguments fectiveness of oral contraception.90 In this context, in the petition. In fact, similar meetings resulting women cannot access acceptable TB services and from PILs have improved implementation of gov- information. The government fails to ensure gender ernment schemes.95 Most importantly, the order equality where women do not have access to the allows the petitioner to approach the High Court same services as men. if the government fails to take meaningful action. To ensure TB treatment free of discrimination While the order facilitates a crucial dialogue and and to address disproportionate impacts of TB on allows for future legal action, the Court did not marginalized groups, the PIL requests the Court to issue specific directions or demand accountability direct the state to implement outreach programs for fundamental rights violations. An unpredict- in slum areas and to expand TB awareness with a able judicial system represents just one substantial focus on women, pregnancy, and MDR-TB. Fur- challenge PILs face. thermore, the PIL asks for employee training on TB and pregnancy, and improved links with field Part Four: Limitations and challenges level health providers. PILs on women’s rights have failed to create gender sensitized government poli- The cases in part two show that legal advocacy cies.91 However, the success in Shakeel Ahmad and has the potential to create immense change in Dinanth Wagmare show that a single case can result TB policies, treatment, and perspectives. At the in immediate change in specific communities. same time, the outcome of Sanjai Sharma illustrates four key challenges right to health PILs face. The outcome Sanjai Sharma underscores the importance of In November 2015, the Delhi High Court heard using litigation as just one component of a multi- arguments in Sanjai Sharma v. NCT of Delhi. The pronged strategy for change. Court’s order acknowledged that the petitioner First, PILs designed to tackle systematic and “points out many shortcomings in the functioning widespread fundamental rights violations may of DOTS centres in Delhi...and come(s) out with fail to acknowledge nuance, to address communi- certain suggestions….”92 The government lawyer ty-specific issues, or to evolve flawed policy. The argued that Delhi had launched a program to Indian judiciary has been the subject a fierce debate improve accessibility to DOTS centres. The govern- on judicial activism with some scholars arguing ment lawyer also stated that “further suggestions if that Indian judges violate their constitutional pa- any from the petitioner for strengthening the sys- rameters and act as legislators who create laws and tem are welcome.”93 Accordingly, the High Court policy.96 Scholars on the other side of the debate ordered the government to give “an audience” to argue that continued government failure to ensure the petitioner to ensure improved implementation the minimum guarantees make it necessary for of DOTS. Lastly, if the government does not act, the “activist” judges to fill the gaps between policy and High Court allowed the petitioner “to seek revival reality. Either way, even the best intentioned judg- of this petition.”94 With that, the High Court closed es may not understand the dynamics of a specific the case. After legal activists spent years collecting right to health issue. For example, in Ramakant data, filing RTI requests, and drafting a 100 page Rai, the Supreme Court created a standard protocol petition in collaboration with TB activists, the High for sterilization procedures but failed to address the Court did not evaluate the specific arguments, fun- underlying gender and class discrimination issues damental rights violations, and/or reliefs outlined inherent in India’s family planning programs. In in the petitioner’s case. the context of TB, orders in any single PIL cannot The order does create a space for a dialogue capture or address the innumerable intersections

JUNE 2016 VOLUME 18 NUMBER 1 Health and Human Rights Journal 11 K. McBroom / TB and the Right to Health , #-# between class, gender, caste, geography, religion, For example, a 2014 fact-finding mission in Indore, HIV status, sexuality, and education that impact Madhya Pradesh found zero compliance with the TB services. Barriers to TB treatment and defini- PUCL orders on homeless shelters.101 A 2012 Su- tions of acceptable care may vary widely between preme Court PIL highlights state failures to fully two communities in the same city. A high court implement the Ramakant Rai orders, leading to judge may not be the best person to reshape India’s continued deaths and complications at sterilization TB policy. camps across India.102 The Delhi Government failed Secondly, an incredibly overburdened judicia- to implement the full range of orders for the Pul ry and hostile government pose a perpetual threat Mithai residents in Shakeel Ahmad. Unquestion- to human rights litigation. Certain judges may have ably, PILs encourage government action, but it may little interest in PILs. In hearings for a PIL regarding be limited or short lived. Poor implementation the death of a homeless woman’s infant daughter, a results from inadequate monitoring, insufficient Delhi High Court judge joked that the PIL was a accountability for failures to follow court orders, “publicity interest litigation and not public interest and from unclear court directions. As Mahendra litigation.”97 In the Supreme Court, many PILs have Singh articulates, “a judge may talk of right to life been delegated to the newly created Social Justice as including right to food, education, health, shelter Bench, creating delays and removing important so- and a horde of social rights without exactly deter- cial issues from the spaces where property matters, mining who has the duty and how such a duty to criminal cases, and corporate litigation dominate.98 provide positive social benefits could be enforced.”103 At the same time, the Indian government has be- Sanjai Sharma had not reached the relief stage, but come increasingly inimical to NGOs that challenge the activists knew it would be almost impossible to policy or highlight fundamental rights violations ensure full implementation of their prayers without in India.99 Fortunately, progressive judges have vigilant monitoring. continued to protect and promote PILs, under- Lastly, a PIL may take years of arguments, scored in the 2010 Uttranchal decision discussed in filings, and adjournments before a court issues part two and highlighted in PUCL, Ramakant Rai, a substantive order. PUCL has been in the Su- CHARM, Dinanth Wagmare, and Shakeel Ahmad preme Court since 2001. It is important to have a orders. High courts have also upheld the rights of petitioner and legal team with the resources and NGOs who have been the target of government wherewithal to respond to government replies, to retribution.100 evaluate implementation of interim orders, and Sanjai Sharma may have faced ambivalence to participate in wider advocacy on a single is- from overburdened judges. It is a positive sign sue. Interim prayers, narrowly tailored petitions, that the order allows the petitioner to return to and progressive judges can facilitate meaningful the High Court if the government fails to improve impacts in a matter of months as evidenced by DOTS centres. In the future, another court could Dinanth Wagmare and Shakeel Ahmad. Even these be more enthusiastic or could refuse to hear the positive outcomes generated additional work for case altogether. In this unpredictable and increas- petitioners. In both cases, the petitioners conducted ingly hostile environment, a PIL must represent follow-up fact-finding visits to measure implemen- one component of a wider human rights strategy. tation and filed additional briefs or petitions in Although Sanjai Sharma did not move the Delhi their respective courts. Likewise, in Sanjai Sharma, High Court justices, activists continue to docu- the petitioner has to meet with government officials ment violations, to advocate for change with policy and continue to monitor and document fundamen- makers, and to hold India accountable for poor TB tal rights violations for future legal advocacy. indicators at the international level. The challenges and limitations outlined above Third, even when courts issue groundbreak- create human rights advocacy space outside of the ing orders, the government routinely fails to act. courtroom where activists, NGOs, government

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agencies, policy makers, academics, and individ- Central Tuberculosis Division, March 2014), p. 73. Avail- uals affected by TB can fight for rights using a able at http://www.tbcindia.nic.in/pdfs/TB%20INDIA%20 human rights framework. For lawyers and legal 2014.pdf. 15. D. C. Sharma, “Budget cuts threaten AIDS and tu- activists, the Delhi High Court’s decision in Sanjai berculosis control in India,” The Lancet 386 (September 5, Sharma has paved the way for a dialogue and for 2015), p. 942. future litigation. Working together, these diverse 16. Directorate of Economics & Statistics & Office of the voices can ensure the right to health for all. Chief Registrar (Birth & Death), Government of the Na- tional Capital Territory of Delhi, Government of National Capital Territory of Delhi report on medical certification of Acknowledgments cause of deaths in Delhi – 2013, (November 2014), pp. 22-23. 17. Human Rights Law Network, TB control: DOTS The author would like to thank HRLN volunteers centres in Delhi, a fact-finding report prepared by Human and advocates Emily Heggadon, Katie Stephen- Rights Law Network (New Delhi: Human Rights Law Net- son, Pierre-Philippe Richard, Albin Meynier, and work, June 2012). Available at http://www.hrln.org/hrln/ Sangamitra Bomzon for their research and com- images/stories/pdf/RR-fact-findings-reports-11.pdf. mitment to TB advocacy, and to extend gratitude 18. Ibid., p. 19. 19. Ibid., pp. 27-29. to social activist Pratibha D’mello for her inspiring 20. Human Rights Law Network, TB control: DOTS field work. centres in Delhi, a fact-finding report prepared by Human Rights Law Network (New Delhi: Human Rights Law Net- References work, November-December 2014). 21. E. Heggadon, Knowledge and experience of TB and 1. Directorate General of Health Services Ministry of the effectiveness of DOTS centres and the public health Health and Family Welfare, Government of India, About system: Fact-finding at Pul Mithai slum (New Delhi: Hu- RNTCP. Available at http://www.tbcindia.nic.in. man Rights Law Network, February 2015). 2. World Health Organization, Global tuberculosis re- 22. Ibid., p. 11. port 2015, (Geneva: World Health Organization, 2015), p. 2. 23. Ibid., p. 6. 3. Ibid., p. 24 24. Ibid., pp. 4-5. 4. Directorate General of Health Services Ministry of 25. Ibid., p. 6. Health and Family Welfare, Government of India, (see 26. Ibid., p. 11. note 1). 27. Ibid., pp. 7-11. 5. Human Rights Law Network, Human Rights Law 28. Ibid., p. 7. Network (HRLN). Available at www.hrln.org. 29. Ibid., p. 9. 6. Committee on Economic Social and Cultural Rights, 30. Ibid. General Comment No. 14: The Right to the Highest Attain- 31. Ibid. able Standard of Health (Art. 12), UN Doc E/C.12/2000/4 32. Ibid. (2000). 33. Ibid. 7. Ibid. 34. Ibid., p. 8. 8. Ibid. 35. Government of India, Ministry of Law and Justice, 9. Ibid. Right to Information Act, 2005, Act No. 22 of 2005 (modi- 10. Directorate General of Health Services Ministry of fied February 2011). Health and Family Welfare, Government of India, (see 36. Guru Teg Bahadur Hospital, Dilshad Garden Chest note 1). and TB Clinic, Right to Information Reply (New Delhi: 11. Ministry of Health & Family Welfare, Central TB Guru Teg Bahadur Hospital, February-March 2015). Division, Directorate General of Health Services, Re- 37. Ibid. vised National Tuberculosis Control Program, DOTS-Plus 38. Constitution of India, Parts III and IV. Guidelines. Available at: http://health.bih.nic.in/Docs/ 39. Constitution of India, Part III. Guidelines/Guidelines-DOTS-Plus.pdf. 40. Constitution of India, Part IV. 12. Ibid. 41. Constitution of India, Part V, Chapter IV. 13. TB FACTS, TB statistics in India (2015). Available at 42. Hussainara Khatoon & Others v. Home Secretary, http://www.tbfacts.org/tb-statistics-india/. State of Bihar (Supreme Court of India, Writ Petition 57 of 14. Government of India, TB India 2014: Revised Nation- 1979, Final Judgment, March 9, 1979). al Control Programme annual status report (New Delhi: 43. State of Uttranchal v. Balwant Singh Chaufal and

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Others (Supreme Court of India, Special Leave Petition 1134 62. Ramakant Rai v Union of India and Others (Supreme – 1135 of 2002, final judgment, January 18, 2010), para. 39. Court of India, Writ Petition (Civil) 209 of 2003, final judg- 44. Ibid., paras. 46 and 163. ment, March 1, 2005). 45. See, for example, S. Datta, “Is the Modi Govt Hound- 63. Devika Biswas v. Union of India and Others (Supreme ing Lawyers’ Collective?” Catch News (March 13, 2016). Court of India, Writ Petition (Civil) 95 of 2012). Available at http://www.catchnews.com/india-news/is- 64. See, for example, Pratibha D’Mello v. Government the-modi-govt-hounding-lawyers-collective-1457880024. of NCT of Delhi (Delhi High Court, Writ Petition (Civil) html; See also, Surya Dave, “Public Interest Litigation 10827 of 2015), petition. in India: A Critical Review,” Civil Justice Quarterly 28/1 65. Government of India, Standard Operating Procedures (2009), pp. 33-34. for Sterilization Services in Camps (New Delhi: Ministry of 46. Ibid., p. 36. Health and Family Welfare, March 2008). 47. Constitution of India, Article 21. 66. See, for example, Sama Resource Group for Women 48. Paschim Banga Khet Mazdoor Samity v. State of West and Health, Jan Swasthya Abhiyan, and National Alliance Bengal (1996), S.C.C. 37. for Maternal Health and Human Rights, Camp of wrongs: 49. Francis Coralie Mullin v. The Administrator, Union of The mourning afterwards, a fact finding report on steriliza- India, (1981 SCR (2) 516). tion death in Bilaspur (New Delhi: National Alliance for 50. Vincent Pannikulangura v. Union of India (Supreme Maternal Health and Human Rights, November 2014). Court of India, 1987 2 SCC 165). 67. Devika Biswas v. Union of India and Others (Supreme 51. See Sandesh Bansal v. Union of India and Others Court of India, Writ Petition (Civil) 95 of 2012, orders dat- (High Court at Jabalpur, Writ Petition (Civil) 9061 of 2008, ed January 30, 2015 and August 14, 2015). order June 2, 2012), para. 22. 68. Ibid. 52. Laxmi Mandal v. Deen Dayal Harinagar Hospital 69. Centre for Health and Resource Management v. State & Others (Delhi High Court, Writ Petition (Civil) 8853 of of Bihar and Others (Patna High Court, Writ Petition (Civ- 2008, final judgment, June 4, 2010), para. 19. il) 10724 of 2011). 53. Mohd. Ahmed v. Union of India & Others (Delhi High 70. Ibid. Court, Writ Petition (Civil) 7279 of 2013), Paras 64-69. 71. Ibid., (order dated June 25, 2011). 54. Minister of Health v. Treatment Action Campaign, 72. Ibid. (Constitutional Court of South Africa, 2002 (5) SA 721 (cc)). 73. Ibid., (order February 2, 2015). 55. Government of the Republic of South Africa v. Groot- 74. “Fiscal irregularities in NRHM in Bihar, says CAG re- boom, (Constitutional Court of South Africa, 2001 AS 46 port,” The Times of India (March 18, 2016). Available at http:// (cc)). timesofindia.indiatimes.com/city/patna/Fiscal-irregulari- 56. Gbemre v. Shell Petroleum Development Company ties-in-NRHM-in-Bihar-says-CAG-report/articleshow/51463130. Nigeria Limited and Others (Federal High Court of Nigeria cms/. in the Benin Judicial Division, suit FHC/B/CS/53/05, 14 75. Dinanth Wagmare v. State of Maharashtra and Oth- November 2005). ers (Bombay High Court, Writ Petition (Civil) 19303 of 57. J. Oloka-Onyango, “Human rights and public inter- 2013, order dated 8 February 2013). est litigation in East Africa: A bird’s eye view,” The George 76. Ibid., (order dated October 12, 2014), Para. 5. Washington International Law Review 47/44 (2015), p. 793. 77. Human Rights Law Network, Fact finding report 58. People’s Union for Civil Liberties v. Union of India and on the implementation of NHM schemes and High Court Others (Supreme Court of India, Writ Petition (Civil) 196 recommendations in Waghmare v. district collector, Nag- of 2001). pur, Chnadrapur, and Yoetmal Districts, Maharashtra 59. The National Food Security Act, No. 20 of 2013, pre- (Nagpur: Human Rights Law Network, August 6-10, 2015). amble, The Gazette of India (2013). 78. Ibid. 60. See People’s Union for Civil Liberties (see note 58, 79. Dinanth Wagmare v. State of Maharashtra and Oth- interim order dated July 18, 2011). ers (Bombay High Court, Writ Petition (Civil) 19303 of 61. See, for example, UNICEF, Improving Child Nutri- 2013), order dated 8 February 2013. tion, The achievable imperative for global progress (Geneva: 80. Shakeel Ahmad v. NCT of Delhi and Others (Delhi UNICEF, 2013), p. 13; See, Right to Food Campaign, Na- High Court, Writ Petition (Civil) 2840 of 2014), order dat- tional Food Security Act Violated, (June 18, 2015)., Available ed October 15, 2014. at: http://www.sacw.net/article11302.html; H. Mander, 81. Ibid. Living Rough, Surviving City Streets: A Study of Homeless 82. Ibid. Populations in Delhi, Chennai, Patna, and Madurai for 83. Sanjai Sharma v. NCT of Delhi & Others (Delhi High the Planning Commission of India (New Delhi: Planning Court, Writ Petition (Civil) 10855 of 2015). Commission of India, February 12, 2014). 84. E. Heggadon, Knowledge and experience of TB and

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the effectiveness of DOTS centres and the public health 101. B. K. Jha “HC notice to IMC over poor state of system: Fact-finding at Pul Mithai slum (New Delhi: Hu- shelter homes for destitute pregnant women,” The Times man Rights Law Network, February 2015). of India (March 28, 2014). Available at http://timesofindia. 85. Ibid. indiatimes.com/city/indore/HC-notice-to-IMC-over-poor- 86. Shakeel Ahmad v. NCT of Delhi and Others (Delhi state-of-shelter-homes-for-destitute-pregnant-women/ High Court, Contempt Petition (Civil) 810/2015). articleshow/32855300.cms. 87. Dinanth Wagmare v. State of Maharashtra and Oth- 102. Devika Biswas (see note 63). ers (Bombay High Court, Writ Petition (Civil) 19303 of 103. S. Deva, “Public interest litigation in India: A crit- 2013), order dated 8 February 2013; Centre forHealth and ical review,” Civil Justice Quarterly, 28/1 (2009), p. 33-34, Resource Management v. State of Bihar and Others (Patna citing M. Singh, ‘‘Protecting the rights of the disadvantaged High Court, Writ Petition (Civil) 10724 of 2011); Ramakant groups through public interest litigation’’ in M. Singh, H. Rai v Union of India and Others (Supreme Court of India, Goerlich and M. von Hauff (eds), Human Rights and Basic Writ Petition (Civil) 209 of 2003, final judgment, March 1, Needs Theory and Practice, p.322. 2005). 88. Sanjai Sharma v. NCT of Delhi & Others (see note 83). 89. Ibid. 90. Ibid. 91. See, for example, Laxmi Mandal v. Deen Dayal Hari- nagar Hospital & Others (Delhi High Court, Writ Petition (Civil) 8853/2008); Vishaka & Others v. State of Rajasthan ((1997) 6 SCC 241). 92. Sanjai Sharma v. NCT of Delhi & Others, (Delhi High Court, Writ Petition (Civil) 10855 of 2015), November 24, 2015 order. 93. Ibid. 94. Ibid. 95. See VHAP v. Union of India & Others, (Supreme Court of India, Writ Petition (Civil) 349/3006). 96. See M. Khosla, “Addressing judicial activism in the Indian Supreme Court: Towards an evolved debate,” Hast- ings International & Comparative Law Review 32 (2008), pp. 55-56. 97. Justice Rajiv Sahai Endlaw, during oral arguments in Priya Kale v. NCT of Delhi & Others (Delhi High Court, Writ Petition (Civil) 641/2013), oral arguments on Septem- ber 19, 2014. 98. See, for example, No author listed, “7 cases showing why SC’s social justice bench has failed to close a single social justice,” Legally India (August 29, 2015). Available at http://www.legallyindia.com/SCOI-Reports/7-cases-showing-why-sc-s-social-justice-bench-has-failed-to-close-a-single-case-of-social-justice. 99. See, for example, No Author listed, “Licenses of 4,470 NGOs, including those funding Supreme Court Bar Association, cancelled,” NDTV (June 10, 2015). Available at http://www.ndtv.com/india-news/government-cancels- licenses-of-4-470-erring-ngos-entities-barred-from-funding-supreme-court-bar-asso-770210. 100. See, for example, Greenpeace, Delhi HC overturns offloading, terms move undemocratic (New Delhi: Green- peace, 2015). Available at http://www.greenpeace.org/ india/en/Press/Victory-for-Greenpeace-activist-Priya-Pil- lai—Delhi-HC-overturns-offloading-terms-move-undemocratic/.

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