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India’s shrinking democratic space
The BJP’s dystopic national vision jeopardises the future of our republic
It seems that a pivotal moment in our political life is approaching, with the BJP and its allied organisations embarking on a strategic course that is far more ambitious and combative than in 2014, seeking as it does to alter the fundamental postulates of the democratic framework of the Indian nation.
As Indians, we are justly proud of the structure of our governance and our Constitution which has ensured that India is both a democracy and a republic. This powerful and well-articulated constitutional link between democracy and republic has entrenched all citizens as equal stakeholders in this nation state.
The Constitution, which came into force in 1950, had ensured that Indian citizens were given a set of inviolable freedoms, including equality before the law and freedom of expression.
An inheritance in peril
It is this democratic inheritance which is now in peril, with the BJP signalling a willingness to depart from the traditional moorings of governance. The ruling party and its Hindu nationalist affiliates are becoming increasingly vocal in the public sphere in their questioning of the foundational principles of our democratic framework, airing afresh pre-Independence Hindu nationalist doctrines that question the basis of India’s composite nationhood.
Meanwhile, the trend of the Modi administration’s policy responses and actions in recent months suggests a stronger tilt towards implementing the original agenda of Hindu nationalism, by making policy moves that seek to unsettle the governing consensus on nationhood and citizenship.
The edgier tone of the policy statements emanating from the party’s top leadership, particularly its president, Amit Shah, indicate that the BJP is preparing for a more combative political strategy. In the recent meeting of the BJP National Executive, Mr. Shah asserted the party’s determination to not only win 2019 but rule “for the next 50 years”.
The purpose of the BJP’s recent political moves on the Citizenship Act, on the controversial concept of the National Register of Citizens (NRC) and on the special status of Jammu and Kashmir is to challenge the prevailing governing consensus on key issues such as citizenship and the relationship of various States to the Union. All these moves would add up to a fundamental rewriting of the rules of engagement between the Indian nation and all other players, be it citizens, constituent States, or communities.
Under Prime Minister Narendra Modi, the government is taking decisive steps on fulfilling several of its core Hindu nationalist doctrinal commitments. Its policy articulations on citizenship, on the status of J&K, and its strident public campaign against intellectuals and civil society activists, branding them as “urban Naxals”, are all signposts of a new political culture that is sought to be forcibly entrenched in our public space.
Yet, neither the Congress nor other opposition parties acknowledge emphatically that what is really unfolding in the political arena is a fundamental contest between the original pluralist vision of Indian democracy and the monocultural and exclusivist view of the Hindu nationalists. These parties do not seem to have grasped the deeper pattern of interconnected trends unfolding behind the policy steps taken by the Modi administration with the encouragement of the ruling party.
When the Modi-led National Democratic Alliance government assumed power in 2014, its initial approach to historically sensitive issues such as Kashmir and minority groups was cautious. It also appeared eager to prove its governing capability and demonstrate a willingness to adhere to the Constitution. Mr. Modi was quick to show his disapproval of the mob violence and the cow vigilantism of right-wing groups that erupted brazenly after its assumption of power.
The gloves are off
But now the BJP appears determined to take its gloves off, eager to wade into controversial issues such as the status of J&K and the Citizenship Act. By explicitly placing these issues that relate to citizenship and community rights at the top of the party’s national political agenda, it is clearly readying for elections.
Government officials and party spokespersons are becoming explicitly combative on the concept of special rights for Kashmir. They are unapologetic on the controversy in Assam over the agony of genuine citizens who find their names missing in the new NRC. Undeterred by the strong public criticism, party and government leaders continue to affirm enthusiastically their commitment to the government’s proposed Citizenship (Amendment) Bill of 2016.
This proposal, which blatantly omits Muslims from the list of communities in the South Asian neighbourhood who are invited to take Indian citizenship, has been widely condemned as unconstitutional because of its exclusivist intent, violating Article 14 mandating equality before the law.
In recent months, the situation in the Kashmir Valley is at its inflamed worst, with the political process having collapsed as Governor’s Rule has been imposed. After the breakdown of the alliance with the PDP in June, the BJP has reverted to its traditionally hard-line position on the status of J&K, questioning the special provisions designed to protect its conditional accession to the Union.
Article 370 of the Indian Constitution as also Article 35A were historical commitments to the State of Jammu and Kashmir based on the conditional terms of the Instrument of Accession in October 1947. Given that J&K’s adherence to the Indian Union remains vulnerable to external challenge, it is evidently bad strategy to embark on a confrontational course in respect of the special provisions designed to protect its status in the Union.
Therefore, inexplicable are the loud musings from senior officials in the Modi government such as the National Security Adviser, Ajit Doval, reportedly calling the idea of a separate Constitution for J&K an “aberration”. Also provocative was a BJP-sponsored challenge in the Supreme Court to the validity of Article 35A. Such a stand-off, while it possibly thwarts the prospect of a revival of a peace process in the State, benefits the BJP politically, as the hard-line stance is bound to appeal to its hard-core Hindu nationalist supporters.
Likewise, the pronouncements of Mr. Shah at the recent BJP National Executive meeting on Assam, the issue of illegal migrants, the NRC controversy and the Citizenship Amendment Bill underlined the party’s determination to press ahead with its polarising strategy. The political resolution adopted at the meeting echoed Mr. Shah’s assertions.
The resolution called the publication of the NRC “a monumental work in securing the cultural, economic and demographic interests of the state as well as the national security interests of India”. Further, militating against the global trend of humanitarian sympathy for the plight of the Rohingya, the resolution says the BJP National Executive “compliments the Modi government for its determination in weeding out the infiltrators, whether Bangladeshi or Rohingya”.
Alarming too is the BJP National Executive’s welcome of the proposal in the Citizenship (Amendment) Bill of 2016 to grant citizenship in a shortened time frame to Hindu minorities from the South Asian neighbourhood. In effect, what emerges from the BJP’s recent conclave is an insular and rejectionist perspective sharply at odds with India’s hitherto strong humanitarian traditions.
Meanwhile, in the public sphere, the repression of critical voices and dissent continues unabated. There is a vitriolic narrative being fed into the public discourse, aided by an incendiary social media campaign, against journalists and activists, painting them as “urban Naxals”, peddling unsubstantiated allegations of links between these critics of the government and the Maoist insurgency. This McCarthyist campaign is intended to discredit the public resistance steadily building up against the government’s efforts to curtail democratic freedoms.
If not for the Supreme Court, which is proving to be the last bastion in the defence of basic rights, India’s democratic governing framework would be under greater challenge. Political scientist Robert Paxton defined fascism in his seminal study in 2004, The Anatomy of Fascism, as “a form of political behaviour marked by obsessive preoccupation with community decline, humiliation or victimhood” and in which a mass-based party of committed nationalist militants “abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion”.
This could well be a description of the BJP’s mobilisation strategies and its political perspective. It is time for those of us invested in keeping India’s democratic imagination vibrant and expansive to resist such an exclusivist political vision.
Malini Parthasarathy is Director, Editorial Strategy and former Editor of The Hindu
The Supreme Court trans-formed
The ‘Navtej Johar’ judgment has created the conditions to dismantle gender biases in diverse ways
Step by step
When the Supreme Court in 2013 passed the Koushal judgment, overturning the Delhi High Court judgment reading down Section 377 in Naz v. Union of India, the LGBTQ community faced a huge setback. The silver lining, however, was that the LGBTQ movement on the ground was growing rapidly, with social acceptance for LGBTQ concerns increasing. Transgender persons, however, continued to be the most marginalised and vulnerable group within the community. They were routinely arrested and harassed by police, sexually abused, and had to bear the brunt of criminal threats as they were on the streets forced into begging and sex work.
This changed with NALSA. In 2014, a bench of Justices K.S. Radhakrishnan and A.K. Sikri passed a judgment holding that transgender persons have the constitutional right to self-identify their gender as male, female or transgender even without medical re-assignment. The Supreme Court held that the rights to life, dignity and autonomy would include the right to one’s gender identity and sexual orientation.
With the NALSA judgment, there was no looking back. This immediately gave new grounds, and indeed new hope, to revive the Section 377 challenge. In 2016, two fresh petitions were filed under Article 32 of the Constitution: the first by Navtej Johar and others, and the second by Akkai Padmashali, Umi and Sana, three transgender activists from Karnataka. Both petitions urged the Supreme Court to reassess the constitutionality of Section 377. This was also the first time that transgender voices were before the Supreme Court.
In 2017 came another big judgment in Puttaswamy v. Union of India, in which the Supreme Court said that there is a constitutional right to privacy inherent in the right to life, equality and fundamental freedoms. It went on to hold that the right to privacy specifically includes the right to have intimate relations of one’s choice and the right to sexual orientation and gender identity, and that the Koushal judgment was incorrect.
After Puttaswamy, more petitions and interventions were filed against Section 377. Finally, the Supreme Court, in a five-judge Bench led by the Chief Justice of India, unanimously held in Navtej Johar that Section 377 was unconstitutional to the extent that it criminalises consensual relationships of any kind between adults, and overruled Koushal.
The impact of the Navtej Johar decision is unprecedented. Justice D.Y. Chandrachud recognised that Section 377 had consigned a group of citizens to the margins and was destructive of their identities, and held that lesbians, gay, bisexual and transgender persons have the constitutional rights to full and equal citizenship and protection of all fundamental rights.
The most far-reaching contribution is the elaboration on the right against non-discrimination on the basis of sex, guaranteed in Article 15 of the Constitution. The Supreme Court confirmed that as held in NALSA, ‘sex’ under Articles 15 includes discrimination on the ground of gender identity. It went even further to say that discrimination on the grounds of ‘sex’ would also include discrimination due to sexual orientation or stereotypes. This means that being gender non-conforming or not adhering to society’s ‘norms’ of gender roles, be it in the way you dress, speak or behave, cannot be a ground for discrimination. The main reasons for violence against trans persons is that they do not conform to gender roles. This inclusion of discrimination on the ground of sex stereotyping will go a long way in dismantling gender stereotypes not just for the LGBTQ community, but also for women.
In this way, with the Navtej Johar judgment, the court has gone far beyond the anti-sodomy judgments from around the world that were referred to it. By recognising these twin aspects of gender identity and sexual orientation, the court acknowledges the voices of the most vulnerable sexual minorities within the LGBTQ community and takes the stand that the Constitution protects the rights of all.
Jayna Kothari is founder of Centre for Law and Policy Research
Out of joint
When a faulty hip implant was globally recalled by its manufacturer, Johnson & Johnson, in August 2010, neither its Indian subsidiary nor the regulatory agencies systematically reached out to Indian patients. Doctors, too, maintained an eerie silence. Jyoti Shelar reports on how patients continue to suffer due to the lack of accountability in the Indian healthcare sector
In May 2008, Rani, a Visakhapatnam-based jewellery designer, was implanted with a metal-on-metal (MoM) articular surface replacement (ASR) hip by DePuy, a subsidiary of the pharmaceutical giant Johnson & Johnson (J&J). The implant was recalled globally in August 2010 for two reasons: it left large quantities of metal debris in the body and it had a very high failure rate. The leaching of metals, mainly cobalt and chromium, caused severe pain, neuropathy, fluid accumulation, and metal poisoning, all of which Rani suffered for years.
The company claims that its first point of contact to spread awareness about the faulty implant, its risks, and the recall were doctors. But it took six years for Rani’s orthopaedic surgeon, H.J. Sangtani, to tell her that her implant could be the root cause of her problems. The revelation came only in March 2016, when she met him for a follow-up after having had a miscarriage.
“Don’t plan for a family at the moment. Get in touch with the company on this toll-free number,” the doctor had told her, handing over the number of the ASR helpline set up by the pharmaceutical company. “I never missed my follow-up. In 2013, when my parents found a match for me, I first sought the advice of my surgeon. Even then — and this is three years after the global recall — he did not mention that the implant inserted in my body could be destroying it from within,” Rani says.
She is among the 4,500 patients in India who were implanted with the faulty hip joint. Most of them never heard about the defect from the surgeons who had operated on them. The implant manufacturer, drug regulators, and the government systematically neglected these patients and their suffering. The doctors, who they had trusted blindly, failed them too.
“Had the doctor told me about the defect, I would have had the revision surgery much earlier. I wouldn’t have got married either,” says Rani. Her in-laws and husband are extremely supportive. But she feels guilty for having made them suffer for her illness. “I can’t stop thinking that the faulty implant led to my miscarriage,” she says. Some international agencies do warn about the contraindications of MoM implants in women of child-bearing age, possibly caused by the unknown effects of metal ion release on the foetus.
Poison in the body
In 2016, when Rani finally got in touch with the company, her blood had 9.40 micrograms per litre (ug/l) of cobalt and 18.18 ug/l of chromium. The typical cobalt and chromium levels in well-functioning hip implants are 1.7 and 2.3 ug/l, respectively. Rani’s MRI report confirmed “thick-walled fluid collection” and “moderate to severe muscle atrophy” at the site of the implant.
Sangtani, who runs the Ortho Relief Hospital in Nagpur, where Rani was operated, says that there was no clinical link between the faulty implant and the miscarriage. “The company told me about the recall in 2013. I did call my patients after that,” he says, refusing to elaborate. In February 2017, Rani underwent a revision surgery funded by J&J and carried out by another surgeon in Chennai. But that didn’t make a big difference either. Rani says that the only difference is that now the implant in her body is not a faulty one. “But the damage done by the previous implant remains. The nagging pain continues as there was a lot of tissue damage around the site of the implant. I have palpitations and loss of memory,” she says.
Vijay Vojhala, 44, a resident of Dombivli, Mumbai’s extended suburb, holds a similar grudge. “It was not a cold drink bottle lying in my refrigerator that was recalled. It was an implant inside my body, poisoning me every single day. Nothing can justify why the doctor never called to inform me about such a big development,” he says, visibly angry. Vojhala feels that the medical fraternity failed in its responsibility towards patients.
In July 2008, Vojhala underwent the hip implant surgery after being diagnosed with avascular necrosis, a condition that kills the bone due to a lack of blood circulation. Months after the joint replacement, he started having severe bouts of pain. A squeaking noise from the implant made things worse. By 2011, Vojhala, who worked as a product manager in a medical equipment manufacturing company, had developed a limp. At an orthopaedic conference a surgeon observed his discomfort and told him that his implant could be faulty. Vojhala subsequently did a blood test, which revealed extremely high levels of metals: 171.8 ug/l of cobalt and 85.76 ug/l of chromium.
In June 2012, Vojhala underwent a revision surgery by another surgeon in Mumbai. His first orthopaedic surgeon, Sangeet Gawhale, says that the implant maker got in touch with him about three to four years after the global recall. “Till then, we had no idea about the fault. When I came across a few media reports about the defect, I tried to get in touch with seven patients. But I could reach out to only two of them,” claims Gawhale, adding that the company has acted irresponsibly and has hidden a lot of crucial information.
The hip joint is the largest joint in the human body. In 2006, the Drug Controller General of India (DCGI) granted permission to import and market DePuy’s ASR hip implant, which was then being aggressively promoted as a long-lasting, durable and ideal choice for younger candidates opting for hip replacement. While most orthopaedic implants wear off over a period of 10 to 15 years, necessitating a revision surgery, the ASR hip was pushed with a promised lifespan of 20 to 25 years. The logic given was simple. The implant, consisting of the femoral head and stem, and the socket (acetabular cup), promised more longevity as both are made of metal compared to the metal- on-polyethylene implants which were widely in use then. At present, most surgeons have moved on to fourth generation ceramic-on-ceramic implants, which are known for better durability.
In 2009, when distributors were busy marketing DePuy’s prosthesis to Indian doctors, Australia withdrew it from the market. The Australian Orthopaedic Association National Joint Replacement Registry had red-flagged the early revision surgery rate of the implant. While implants in general wear off over 10 to 15 years, in the case of ASR, it was observed that patients were requiring a revision surgery much before 10 years.
In 2010, a joint registry in the U.K. announced that 12%-13% of patients were in need of a revision surgery within five years of getting an ASR implant. This finally triggered a global recall by the company in August 2010. By this time, 4,700 ASR surgeries had been carried out in India on nearly 4,500 patients. Between 2006 (when it got the marketing licence) and 2010, DePuy Medical Private Ltd., Mumbai, imported a total of 15,829 ASR implants into India. While the price of a single MoM implant could be anywhere between ₹90,000 and ₹1.2 lakh, the cost of the procedure ranges from ₹2.5 lakh to ₹4 lakh.
Failure of regulatory bodies
The Maharashtra Food and Drugs Administration (FDA) was the first Indian agency to pull up J&J. In 2011, it lodged an FIR against the company for not making a serious effort to inform patients about their defective implant. The then FDA commissioner, Mahesh Zagade, also flagged the issue to the Central Drugs Standard Control Organisation (CDSCO), asking it to take corrective action. The CDSCO was thus in the know of things as early as 2011. But it took the drug regulator 24 months to finally put out a ‘medical device alert’ on its website. Also, it was only in February 2017 that the Ministry of Health and Family Welfare formed a committee to probe the issue.
The 11-member committee, headed by the former dean of Maulana Azad Medical College, New Delhi, Arun Agarwal, submitted its report in January 2018. Based on the exhaustive report, which found J&J “evasive and delaying the passing of information about the failure of ASR”, the Ministry has now formed national and State-level committees to track patients and decide on compensation. The government committees will evaluate each case individually, study the extent of the medical problems and loss of wages, and work out an amount that J&J will be asked to pay. A base compensation of ₹20 lakh has been fixed for all the affected patients.
“The CDSCO did not react with the urgency that was required. It was sheer negligence on their part,” says Zagade. The IAS officer blames the “deep-seated necrotic rot commandeered by the pharmaceutical industry” as the reason for the regulator turning a blind eye. “The pharma company had a commercial motive. The doctors were afraid of the backlash that they might have had to face if they had willingly revealed that the implant they had chosen was a faulty one. But the drug regulator should have risen above all this to get things in order and help the patients in distress,” he says.
If the regulators failed to do their due diligence and the company remained evasive, the medical fraternity maintained an eerie silence on the issue. In 2014, the CDSCO had written to M.S. Dhillon of the Postgraduate Institute of Medical Education and Research, Chandigarh, and S.K. Marya of the Medanta Hospital in Gurugram. Dhillon was an office-bearer in the Indian Arthroplasty Association and Marya was president of the Indian Orthopaedic Association (IOA). In its letter, the CDSCO had asked them to circulate the ASR device alert to all members of their respective associations and design a protocol to receive complaints about the implant and ensure patient safety.
Marya claims that his tenure as president got over in 2013. “I have never received any communication from the CDSCO,” he says, adding that he doesn’t recall the IOA circulating any brief on ASR implants to the IOA members. Says Sudhir Kapoor, the IOA’s 2016 president, “We have not circulated any email to our members. But we have widely discussed this issue during our annual conferences attended by over 6,000 doctors.”
In contrast, the IOA’s U.K. counterpart, the British Orthopaedic Association (BOA), was prompt in contacting its members and asking them to see their patients each year and investigate them for cobalt and chromium in their blood. The BOA also recommended using an “MRI scan to look for changes in the tissues, including those muscles around the hip replacement that may indicate the body reacting to the presence of metal debris released by the metal ball of the hip [implant] rubbing on the metal cup”.
Mumbai-based hepatobiliary surgeon Sanjay Nagral, chairperson of the Forum for Medical Ethics, says that medical professionals ought to be the gatekeepers of the healthcare system. “Unfortunately, Indian doctors and associations don’t see themselves as gatekeepers or guardians of patients’ interest. Associations have to start seeing themselves as independent voices,” he says. “This case is a classic example of how an important issue has been brought up by patients while the medical professionals remained silent.” Activists also blame this silence on the deep-rooted doctor-pharma nexus, huge kickbacks on devices, and pharma sponsorship for conferences and seminars.
The absence of a monitoring system is seen as another reason for the lack of accountability. More than one lakh joint replacement surgeries are carried out in India annually. Of these, an estimated 70,000 to 80,000 are knee replacements, and 20,000 to 30,000 are hip replacements. However, the joint registry established by the Indian Society of Hip and Knee Surgeons (ISHKS) has recorded only 1.71 lakh knee and 14,000 hip replacement surgeries since it began collecting data in 2007.
According to orthopaedic surgeon S.S. Mohanty, who is on the education chair of ISHKS, there are an estimated 10,000 orthopaedic surgeons in India but only 261 submit their data regularly to the registry. This number has increased from 140 in 2016, but it still means that only 2.6% of the surgeons report regularly. A 2013 article in the Indian Journal of Orthopaedics states that for a registry to provide meaningful and validated information, it should have at least 90% participation from surgeons. “Apathy, lack of trust and fear of information disclosure are some of the reasons for non-participation by surgeons,” the article says.
“The aim of a registry is twofold: to track the performance of the implants as well as that of the surgeons,” says Mohanty, adding that doctors in the U.K. are given regular feedback based on the registry data. “If a particular surgeon has high failure rates in a certain kind of implant procedure, he or she can even be stopped from performing those procedures. It’s the same with failing implants as well.” He says the government should make reporting to the registry compulsory.
The 39-year-old Swedish Hip Arthroplasty Register, which is the oldest in the world, has more than 98% reporting. “We have had a great focus on implant selection, which has led to a homogeneous use of implants that have good long-term results. For example, only six different stem designs account for more than 90% of all total hip replacements in Sweden,” says register director Ola Rolfson. He adds that MoM implants have been sparsely used in his country. “As the register has close contacts with other registries around the world and tracks world-wide trends, we had observed the failures of MoM implants and recommended against their use among Swedish orthopaedic surgeons.”
Martyn Porter, medical director of the U.K.’s National Joint Registry (NJR), says that the data allow surgeons to readily see how implants are performing across the country and in their own patients. Data from the NJR had led to ASR’s global recall in 2010. “It’s very important to realise that with a NJR, patients with any implant can be identified immediately,” says Porter. “Without this, hospitals would be unable to identify which patients had the implants in question.”
Indian patients get short shrift
According to a J&J spokesperson, an Urgent Field Safety Notice dated August 24, 2010 was sent to surgeons informing them about the higher than expected revision rates involving ASR. This notice directed them to stop implanting the ASR devices and provided full details about the reimbursement process and the ASR Help Line. “DePuy provided an ASR resource guide containing information about the recall and reimbursement programme. It was sent to all surgeons in India who implanted the ASR Hip System. The guide outlined the comprehensive patient reimbursement process and how patients should register at the ASR Help Line,” says the spokesperson, adding that till date, they have reached out to 400 surgeons in the country and sent nearly 10 ‘reinforcement communications’ to the doctors. But patients say that the company was not cooperative when they reached out to it. “Call back when you have a severe problem” was the response given to Tardeo resident Shailesh Bachate (47) when he called the ASR helpline in 2011. “I was speaking to someone named Irfan. He told me rudely that my nagging pain was not a big enough problem,” says Bachate, who felt extremely insulted during the conversation. “He made it seem like I should not call till I was made bedridden by the faulty implant.” The driving instructor was implanted with the ASR hip in January 2007 and underwent a revision surgery in October 2016, both under orthopaedic surgeon Darius Soonawalla.
So far, the company has funded revision surgeries of 275 patients in India. But not a single patient has received any compensation. Meanwhile, the company has agreed to pay $2.5 billion to nearly 8,000 patients in the U.S.
The company’s reluctance to take responsibility is also evident in the Health Ministry’s report, where the firm is quoted as saying that patient details were only available with the surgeons and the hospitals. Gawhale, however, points out that that the company has access to patient details through their dealers.
The DCGI, S. Eswara Reddy, seems confident that aggressive measures are being taken. “Our first priority is to set the process of compensation in order, for which two committees have already been formed. J&J had shut down its ASR helpline in 2017. We have got them to re-start it and keep it open till 2025. We are also streamlining a mechanism of materio-vigilance under which such devices will be screened on a regular basis,” he says. The government also plans to make it compulsory for doctors to send data to the joint registry, he adds. “A software is being developed for this.”
But all these developments have failed to impress the patients who have fought a long battle. “It all an eyewash,” says Vojhala. “Let’s wait and watch if there is any further development in the next few months.”