Denial of the Right to Health in Orissa:

Where are NHRIs?

Global Human Rights CommunicationsIn association with

The Resist Initiative InternationalPeoples Rural Education Movement

International Centre for Health RightsIndia Friends Association

Research TeamDr. Subash MohaptraAdvocate Kanak ShawMr. Sudhanshu Sekhar MohantyMs. Kamayani SrivastavaMr. Mrutyunjay Pradhan

Published by:Global Human Rights CommunicationsKalamati-Dibyasinghpur ChhakRaigurupur, Puri, Orissa-752019, IndiaEmail: ghrcommunications@gmail.com

© Global Human Rights Communications. Year: 2010

Global Human Rights CommunicationsIn association withThe Resist Initiative InternationalPeoples Rural Education MovementInternational Centre for Health RightsIndia Friends Association

ContentsΙ. Executive Summary 04

ΙΙ. Right to Health and Role of NHRIs 05

ΙΙΙ. Orissa case 09

IV. Response from NHRIs 18

V. Findings 21

VI. Abbreviation 23

I. Executive SummaryThe report of an extensive public health inquiry conducted, & petitions made to National Human Rights Institutions, both National Human Rights Commission and Orissa Human Rights Commission by Global Human Rights Communications, bear witness to gross violation of right to health of the common people, indigenous communities, women and children in particular, in the State of Orissa. Despite the continual infringements & regular petition towards such violations, the response has been dismal, much to the chagrin of the masses. One aspect of this chain of unfortunate events is the lack of accountability of public health authorities in the State of Orissa causing increase in the death toll. The populace of the Orissa is excluded from any statutory recognition of right to health.

Global Human Rights Communications (GHRC), by engaging itself into monitoring of the issues and advocating at NHRIs, tries to facilitate the remedy and justice. In the matter of appalling breach of right to health of the people of State of Orissa, GHRC sought initiative to prevent death and provide relief to victims & compensation to deceased’s family members. But unfortunately, the NHRIs, both National Human Rights Commission and Orissa Human Rights Commission terribly failed to prevent such deaths. They blatantly violate the laws and procedures, the very basis of which they themselves are constituted. The arbitrary decision, delay, denial of natural justice and dead silence response to the petitions are common practice at National Human Rights Commission, which is headed by a former Chief Justice of India K.G. Balakrishnan. Orissa Human Rights Commissions is not concerned with the petitions in the interest of justice and human rights at all; petitions made always go without an acknowledgement.

To Global Human Rights Communications’ knowledge, NHRC has just issued notices in two cases to the concerned authorities, including the Chief Secretary and Health Secretary, of the Government of Orissa. Additionally, NHRC transferred the cases to OHRC, which is not to be disturbed from its “deep sleep”, under section 13 (6) of the Human Rights Protection act -1993 which states, “Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in accordance with the provisions of this Act”.

Global Human Rights Communications claims that NHRIs, both NHRC and OHRC must intervene immediately and act expeditiously in the interest of the justice and human rights, not to shield the perpetrators of human rights’ violators, i.e., the health authorities of Orissa. They ought to function in compliance with the Human Rights Protection Act and the Paris Principles. They must form investigation and for the prevention of more deaths of the indigenous communities by ensuring the right to health of the victims, who struggle for their lives in the remote areas of Orissa.

Besides, for the impartiality of the investigation, it is necessary for NHRC to collect the information, not only from the relevant government authority but also from the

victim’s family and others. So far NHRC did not intervene & collect any evidence and opinion for the purpose of addressing the breach of right to health, of people of Orissa. The NHRC’s duty is not to request a report from the administration but to investigate the parties in the administration against whom the complaints are made. Its primary role is to collect facts from various parties and make an unbiased conclusion. Unfortunately, so far NHRC did not make any objective investigation to discover the facts. In addition, there is a big time gap between the complaints and the investigation. It has miserably failed to execute its role & responsibility.

Global Human Rights Communications found 179 persons deceased due to denial of right to health and extreme poverty.

II. Right to Health and Role of NHRIs I.a Right to Health

A close review of the international instruments and interpretive documents brings into light that the right to health, as enshrined in international law, which extends well beyond health care to include basic preconditions for health, such as potable water, proper sanitation and nutrition ( Article 12.2 UDHR). There are myriad of norms and principles contained in international instruments impacting an individual’s right to health. In reference to a “highest attainable standard” of health, from the World Health Organization constitution; it builds in an equanimity standard for nations to follow. Even in International law the right to health has developed with alacrity bringing about resultant constructive effect for the health policy worldwide. The international human rights offer framework, in regards to the health which highlights it as a fundamental issue of democracy and social justice, thereby signifying opportunities for accountability.

In Paschim Banga Khet Majdoor Samity v. State of West Bengal (1996) 4 SCC 37, the Supreme Court did not stop at declaring the right to health to be a fundamental right and at enforcing that right of the laborer by asking the Government of West Bengal to pay him compensation for the loss suffered. It directed the government to formulate a blue print for primary health care with particular reference to treatment of patients during an emergency. In Indian context, to lay emphasis on the reconceptualization of the right to life, which impresses upon the state a positive obligation to safeguard the life of every individual, by affirming that “preservation of human life was of utmost importance” and that: “The Constitution envisages the establishment of a welfare state … Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the government in this respect [and it] discharges this obligation by running hospitals and health centers.”

Admittedly, health rights gained its significance largely as Supreme Court had achieved parity between civil rights and their economic and social counterparts. It had been made possible by employing a liberal definition of the right to life. Evidently, the right to health was one of the guarantees to primary benefit. In Laxmi mandal vs. Deen dayal Harinagar Hospital & Ors & and People”s Union for Civil Liberties vs.

Union of India also known as ‘PUCL case’ the Court focused on two inalienable survival rights that form part of the right to life, both of which is categorically right to health (which would include the right to access and receive a minimum standard of treatment & care in public health facilities). Additionally, right to health is not independent of right to healthcare and hence they must be seen in tandem.

Art. 25(2) of the Universal Declaration of Human Rights ensures right to standard of adequate living for health and well being of the individual including medical care, sickness and disability. Then there was a Declaration of Alma-Ata, International Conference on Primary Health Care (1978) to this effect. At the worldwide level the International Covenant on Economic, Social and Cultural Rights (ICESCR) mandates right to health through Article 9 and Article 12 of the covenant. Also Articles 7 and 11 include health provisions: “The States Parties ... recognize the right of everyone to ... just and favorable conditions of work which ensure ... safe and healthy working conditions; ... the right to ... an adequate standard of living.” In fact India ratified this Covenant on 10th April 1979, and having done that became obligated to take measures to assure health and healthcare (among others) as a right. As per Articles 2 and 3 of this covenant States ratifying this treaty are obligated to; it is now around 30 years since India committed to this treaty. Post-ratification efforts through the Sixth Five-year Plan and the first National Health Policy in 1982 were indeed the first steps in exalting this commitment.

Indian constitutional recognition provides the framework for further statutory inroads. “Duty of the State is to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” The court has always recognized the right to health as being an integral part of the right to life ( Parmanand Katara vs. Union of India, 1989 4 SCC 286)

In Municipal Council, Ratlam vs. Vardhichand & Ors, the municipal corporation was prosecuted by some citizens for not clearing up the garbage. The corporation took up the plea that it did not have money. While rejecting the plea, the Supreme Court through Justice Krishna Iyer observed: “The State will realize that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.” Even in Mahendra Pratap Singh vs. Orissa State, the court noted: Great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life. Health is life’s grace and efforts are to be made to sustain the same. In a Country like ours, it may not be possible. To have sophisticated hospitals but definitely villagers of this Country within their limitations can aspire to have a Primary Health Centre. The Government is required to assist people, and its endeavor should be to see that the people get treatment and lead a healthy life. Healthy society is a collective gain and no Government should make any effort to smother it.

Likewise in 1991, in CESC Ltd. vs. Subash Chandra Bose, (AIR 1992 SC 573,585) the Supreme Court relied on international instruments and concluded that right to health is a fundamental right. Again in State of Punjab vs. Mohinder Singh Chawla, the Supreme Court observed: It is now settled law that right to health is integral to right to life. Government has constitutional obligation to provide the health facilities. The Allahabad High Court in S.K. Garg vs. State of U.P., the High Court held that the Supreme Court in Consumer Education and Research Centre and others v. Union of India and others, 1995 (3) SCC 42 and in State of Punjab and others v. Mohinder Singh Chawla had categorically stated that quality medical care is part of Right to Health and Right & had held that the right to health is a part of the right to life guaranteed by Article 21 of the Constitution. It is also relevant to notice as per the judgment of the Supreme Court in Vincent Panikurlangara vs. Union of India, AIR 1987 SC 990 - (1987) 2 SCC 165, Unnikrishnan, JP vs. State of A.P., AIR 1993 SC 2178 - (1993) 1 SCC 645, the maintenance and improvement of public health is the duty of the State to fulfil its constitutional obligations cast on it under Article 21 of the Constitution. Thus, Article 21 of the Constitution, as interpreted in a series of judgments of the Supreme Court, has the legal effect of its justiciability.

II.b Role of NHRIs

The Principles relating to the Status of National Institutions (or the “Paris Principles” in brief) is the international standard for assessing the structure, competence, working procedure and other features of national human rights institutions. These principles provide guidelines for how institutions are to be independent from government and to reflect the pluralism of society in its membership. They address both promotional and protective aspects of the mandate of the institutions and add principles concerning the quasi-jurisdictional competence of those commissions possessing such powers. The standard-setting process did not achieve culmination until the holding of the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris, 7–9 October 1991. The workshop resulted in a set of principles and guidelines briefly titled the Paris Principles which was adopted by the Human Rights Commission the following year. The main objective behind the composition of the institutions is “to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights”.

The Human Rights Act, 1993 sets out the legal framework of the NHRC. The NHRC’s duty is not just to request a report from the administration but to investigate the parties in the administration against whom the complaints are made. It has a primary role to collect facts from various parties and make an unbiased conclusion. NHRC’s ambit ranges from reviewing safeguards for the protection of human rights and performing such other functions as it may consider necessary for the promotion of human rights and to realize the NHRC’s objective of “better protection of human rights and for matters connected therewith or incidental thereto”. The NHRC needs to examine the cause of the numerous deaths cause by epidemic & gross neglect of the public health authorities which will help identify those responsible. It is also to discover the effectiveness of the local administration and public servants and to find out what they have done for the deceased people, whose right to health was infringed and their family members. If the investigation by the NHRC unearthed information that

the public servants were responsible due to their negligence it has a duty to make a recommendation on prosecution and punishment to the relevant authorities. This is what the NHRC has to do according to the Human Rights Act 1995. India despite being a signatory to the Alma Ata Declaration of 1978, which promised ‘Health for All’ by 2000, is quite far from realizing this objective.

The law possibly is a functional scrutinizer and a supervisory body, by virtue of which State healthcare authorities owe a duty of care to their patients; and, if they break that duty and harm results, then liability may accrue in the tort of negligence. The government health organization may itself be held to be liable in the tort of negligence through “direct liability” for failure to provide a safe system for the common masses. Judicial pronouncements acquire meaning only after constitutional recognition of the Right to Health & Health care being human right and included under Article 21 of the Indian Constitution, the Right to Life. Supreme Court or the high courts have upheld decision to this effect.

It was underlined in CERC vs. Union of India, Health and Health Care of Workers is an essential component of right to life. The Court noted that the right to health and health care of a worker is an element of the fundamental right to life guaranteed under Article 21 of the Constitution of India. The Court observed: Article 38(1) lays down the foundation for human rights and enjoins the State to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Art. 46 direct the State to protect the poor from social injustice and all forms of exploitation. Article 39(e) charges that the policy of the State shall be to secure “the health and strength of the workers”. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity.

It is the function of the NHRIs, both National Human Rights Commission and Orissa Human Rights Commission to inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or on a direction or order of any court], into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant. Further, they are empowered to:

• intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

• review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

• review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

• study treaties and other international instruments on human rights and make recommendations for their effective implementation;

• encourage the efforts of non-governmental organizations and institutions working in the field of human rights.

Undoubtedly any violation of Article 21 by the State will give rise to a claim under public law remedy. The State is also vicariously liable for acts of its agents or police or Government hospitals. In the case of Peoples’ Union of Civil Liberties vs. Union of India,PIL was filed against the Government for backing out of a project to build a psychiatric hospital-cum-medical college in Delhi. Once the court took a broader view of the scope and content of the fundamental right to life and liberty, there was no looking back. Article 21 was interpreted to include a bundle of other incidental and integral rights which clearly embraces right to health

III. Orissa CaseDuring the May and 2010, the State of Orissa has witnessed the death of 169 rural tribal people due to denial of access to public health institutions. They died as they had no access to appropriate and minimum medical care and treatment. Furthermore, the extreme poverty made them more vulnerable. The victims sold off their minimum resources what they had. Unfortunately, many of them sold off their voter identity cards and BPL Cards to save their lives.

It was expected that the State Government will come for their rescue while responding to the issue. Global Human Rights Communication urged the State Government of Orissa seeking intervention in the interest of the people and communities which suffer. Unfortunately, the State Government of Orissa did not even provide an acknowledgment (see Table: 01).

Table: 01 Intervention sought from the State Government of Orissa Sl. No Name of the Authorities Date Response from

the authorities 01 The Chief Secretary

Government of OrissaBhubaneswar

03 September 2010 No Response

02 The SecretaryDept. of Health & Family WelfareGovernment of Orissa, Bhubaneswar

03 September 2010 No Response

03 The SecretaryDept. of Health & Family WelfareGovernment of Orissa, Bhubaneswar

24 August 2010 No response

04 District Collector, Malakanagiri 02 July 2010 No response 05 Chief Secretary

Government of Orissa, Bhubaneswar02 July 2010 No response

06 Commissioner-cum-SecretaryDept. of Health & Family WelfareGovernment of Orissa, Bhubaneswar

02 July 2010 No response

07 The District Collector , Koraput District 24 June 2010 No response 08 The Secretary

Dept. of Health & Family WelfareGovernment of Orissa, Bhubaneswar

24 June 2010 No Response

09 The Chief Secretary 24 June 2010 No response

Government of OrissaBhubaneswar

A 20-member Doctors’ team led by the Joint Director and Deputy Director of Health Department visited the diarrhea affected areas of Rayagada district on 5 September 2010. As per government figures, the death toll is 32. The government figures suggest 10 persons have died in Bisamkatak, 4 in Gudari, 4 in Gunupur, 7 in Kalyansinghpur, 6 in Kashipur and one in Raygada block1.

Under 12 (a) of the Protection human Rights Act-1993, Global Human Rights sought the intervention of the National Human Rights Institutions to provide expeditiously justice. Global Human Rights Communications filed the several petitions seeking immediate action from national Human Rights Commission and Orissa Human Rights Commission.

III.a. Petition before National Human Rights Commission

On 27 June 2010 Global Human Rights Communications sought the immediate intervention of the National Human Rights Commission against the death of 7 persons, namely Bina Majhi (9 years), Bondo Majhi (6 years), Nandei Majhi(2 years), Nay Majhi (1 year), Rupuli Majhi (19 years), Dambu Mahji (26 years) and Batri Majhi (52 years), of the village Panbandh under Kashipur Block of Raygada District who died as they did not get medical treatment on the complete failure of district health administration and denial of access to health institutions. The relatives of the deceased approached the health authorities to visit the village and treat the deceased. Unfortunately, the authorities of District Health Administration denied visiting the village stating as the village is not accessible by vehicle, and there is no proper road communication. D. Bendudhar Nayak, the Chief District Medical Officer upon request by a group of journalists for his visit to village, states, “Why do you the media people spread exaggerated story, there are no such incidents”.

0n 2 July 2010 the National Human Rights Communication has been approached against the death of 80 persons between May and June 2010 in Malakanagiri District of Orissa due to the complete failure and serious negligence by the District Health Authorities, including the Chief District Medical Officer of Malakanagiri. It is learnt from the patients’ relatives, journalists and other concerned citizen that District Health Administration was engaged in white washing the evidence and manipulating the report when they badly needed to address the issues and provide appropriate treatment to the patients.

On 5 July 2010 the National Human Rights Commission was petitioned against the death of one Mrs. Kiyavati Nayak of the village Musukuri under Kashipur Block of Rayagada District, Orissa. The petition claimed that one Mrs. Kiyavati Nayak of the village Musukuri under Kashipur Block in Raygada Distct of Orissa died from malaria on 4th July 2010. It was due to the negligence of the health authorities, and for their failure to provide treatment at appropriate time as requested by the deceased’s relatives. The petition further stated that over 500 rural dalit and tribal people of Raygada District of Orissa are suffering from malaria. The said petition expressed

1 http://orissadiary.com/CurrentNews.asp?id=21022

concern that the Rayagada District, Kashipur Block in particular, is severely affected by malaria. Over 500 people are struggling for their lives.

On 24 July 2010 the National Human Rights Commission has been further approached against the death of 9 persons due to denial of the public health services in Patrapur block of Ganjan district of Orissa during July 17-23, 2010. Out of 9 persons, 5 children are died as in the remote rural and tribal villages of Patrapur Block under Ganjam District of Orissa due to denial of access to public health services in the Surangi and Khariaguda Primary Health Centres. The sources revealed that the doctors, who are staff of the primary health centres, were demanding money for the treatment and the poor rural and tribal people did not pay as they had no capacity to make payment towards the treatment. Many of the doctors from the above stated primary health Centres engaged treating the people privately at their residences, which are provided by the State Government of Orissa.

Regarding the deaths of 4 tribal children, namely Basanti Majhi (1.5 years), Sahadev Majhi (5 years), Madhuri Nayak (7 years) and Parsuram Majhi (1 year) Kashipur Block of Raygada District of Orissa during July 8-14, 2010 NHC was approached on 16 July 2010. The doctors did not visit the area, and those who were brought to the primary health centres of the District are also not attended properly as the tribals could not pay as demanded by the doctors and other medical staff. One Madhuri Nayak, aged seven years, daughter of Harihar Nayak of the village Hadkabahal of Kashipur block of Rayagada District was admitted in Tikiri Primary Health centre. She was just given saline water for three days, and she was not provided any medicine as her father could not afford the cost of the medicine. She died in the hospital on 15th July early morning. This had raised public protest and anger. The two tribal children, Sahadev and Basangti, of Podapadar also died from Malaria without access to doctors, medicine and treatment. On 10th July 2010, another tribal one year infant Parsuram Majhi also died and he was the son of Lucky Majhi.

On 17 July 2010 another petition was filed before the National Human Rights Commission against the death of 7 tribal persons, including 6 children Sayanti Majhi, a girl of one and half year of the village Kadapar and other five persons of Kanuguda village died from malaria, namely Tripati Majhi (aged 9 years), Jitendra Majhi (aged 5 years), Sumita Majhi (aged 10 years), Ratikanta Majhi (aged 6 years), Jhuri Majhi (aged 3 years) and Dhan Majhi (aged 32 years) during July 14-16, 2010, on account of the failure and denial of right to health by the Orissa State. The petition narrated that the inaction of the Health Authorities and the District Administration of the Raygada District helped on the rise of the death toll of the poor tribal in the Kashipur block and turned as a death valley for them.

On 24 July 2010 National Human Rights Commission was solicited for its immediate intervention against the death of 9 persons due to denial of the public health services in Patrapur block of Ganjan district of Orissa during July 17-23, 2010. The petition explained that above stated persons, including 5 children are died as in the remote rural and tribal villages of Patrapur Block under Ganjam District of Orissa due to denial of access to public health services in the Surangi and Khariaguda Primary Health Centres. It stated in the petition that due to rain, the water sources are

contaminated. All these people died from diarrhea and malaria, despite of the request made by the local residents the doctors and other PHC staff did not come to affected villages. Many other villages, over 100 people are affected, of Batrashi, baligaon, Laida, Talbad, Gudipadar etc.

On 28 July 2010 National Human Rights Commission was sought to act against the death of 6 persons due to denial of the public health services in Patrapur block of Ganjan district of Orissa during July 24-27, 2010. It reported to NHRC that the vibrio cholerae bacteria have been found in the Patrapur Block of Ganjam District since June 2010, and yet the health authorities have not taken any measures to control. The Bacteria spreaded over, and claimed 24 lives in the block as on 27 July 2010. The petition stated that the death toll is on the rise, both the district administration and the health authorities are completely silence over the issue. It turned into the epidemic. This region also has witnessed the effect of vibirio cholare bacteria in 2007, which already claimed 143 lives of the rural tribal persons. It expressed concern that over 100 persons of this region were struggling with their lives unattended, and without access to minimum medical care and public health institutions. These people are poor tribals. Many rural and tribal poor sold off their minimum belongings to save the lives of their relatives. The contaminated water, as there are no safe drinking water facilities, is used by the rural-tribal population. No minimum medical care and access to public health services provided, and the poor are transferred to Andhra Pradesh, and the doctors at Andhra Pradesh reported that many of them are brought dead. The role of the department of health of the Orissa Government is full contrarily to the basic human rights standards, including the right to health and control of endemic epidemic, as guaranteed by the constitution of India, and several human rights instruments, including the article 12 of the International Covenant of Economic Social and Cultural Rights.

On 29th July 2010 the National Human Rights Commission was approached against the death of Jagannath Das, aged 1 year, son of Congress Das of the Tota Sahi (slum for scheduled caste) in Assika under Ganjam District of Orissa on 28th July 2010. Jagannath Das has been admitted in the Government Hospital in Assika on 26th July 2010, and died on 28th July 2010. The water supplied by PHED in Assika is contaminated, and not appropriate to drink. It is not safe as it looks complete black and mixed with many floatables. Including Jaganath, over 200 persons are affected, and they struggle with their lives. Unfortunately, one year old Jagannath died due to unsafe drinking water provided by PHED of the State Government of Orissa. The shocking news of the death of infant came when the whole world celebrates the joy as the UN consider access to safe drinking water and sanitation as a component of the right to an adequate standard of living, recognized in Article 11 of the Covenant on Economic, Social and Cultural Rights, one year Jagannath died due to supply of unsafe and polluted water provided by PHED of the Orissa Government.

Immediate intervention of the National Human Rights Commission was sought on 3 August 2010 against the death of 4 tribal persons due to denial of access to public health institutions and minimum of medical care and treatment during July 26-August 2, 2010 in Gunupur block under Rayagada District of Orissa. it reported another 4

persons’ condition is said to be critical out of 30 persons are affected by endemic cholera.On 24 August 2010 Global Human Rights Communications wrote to seek National Human Rights Commission’s immediate intervention against the death of 9 Indigenous persons in Koraput and Raygada District in Orissa and over 100 persons are affected in the region during August 12-23, 2010. The above stated 9 persons, mostly are from indigenous tribal communities, was the native residents of the remote areas of the Raygada and Koraput District of Orissa. They all died from extreme poverty and denial of public health systems and minimum medical care. Since amidst of the May 2010, the media, human rights institutions and civil society organizations are raising alarm of extreme poverty and denial of minimum medical care in the said districts- to which- the state government willfully ignored and caused factors for the rising of the death toll of the tribes and other indigenous communities. The communities are not accessing the public distribution system as they do not have the capacity to pay @INR 2 to have rice. They are compelled to eat the uneatable including aambtakua, rotten meat collected from the dead animals. Further, due to consumption of the uneatable, they suffer diarrhea, anthrax and other bacteria affected diseases. As they can not afford and access the medicines and medical care, they die unattended. If few are taken to private hospitals by their families’ members, all most sold off their land and other minimum properties (e.g. utensils etc) and become worst sufferers. It is also revealed the health authorities run private practice and gain illegal money and resources from the victims.

On 27 August 2010 National Human Rights Commission was asked to intervene against the death of two persons of Goilakana village under Bisamkatak Block in Rayagada District of Orissa. It reported Mina Praska, aged about 75 and Chanchala Sahu of the village Goilakana village under Bisamkatak Block in Rayagada District of Orissa died in the Christian Hospital at Bisamkatak on 25th and 26th August 2010, and the condition of four others of the same village is said to be critical. Further, it was stated that the villagers were suffering extreme poverty, and they had no food for last one week, aftermath of the continuous rain for three days. They ate uneatbles collecting from forest and drank the contaminated water. In the village, no facilities are available for safe drinking water, and the State machinery failed to provide them the minimum food when they face hunger. The extreme poverty and hunger in the village claimed two lives, and four others are said to be critical. The PDS cards are sold off @ INR 20 per month and Voter Cards are mortgaged as guarantee against the loan of INR 100. Although, the region is infamous for hunger and diarrhea, the public health authorities have not provided any care to the victims.On 28 August 2010, NHRC was informed regarding Kandhmal District. It was asked NHRC intervene against the death of 5 persons in Daringibadi Block of Kandhmal District of Orissa and over 100 persons are affected in the block during August 21-27, 2010.The deaths were reported since 21 August in five remote villages under Daringibadi public health centre. The disease had taken an epidemic form in Hatimunda village in Hatimunda gram panchayat where one person died and about 20 others were affected. In Kallingi village under Tajungia GP the disease has claimed two lives including a woman and affected 25 others. Similarly, in Danekbadi village under the same GP a girl identified as Sasmita Baliarsingh died and seven others were affected. At least 26 people including a number of children in Badangia villagia under

Sirkaburga GP and 20 persons in Gadapur village under same GP 20 people affected with the disease during the period.On 31 August 2010 the National Human Rights Commission was approached against the death of 10 persons from indigenous communities from the Bisamkatak Block in Rayagada District of Orissa during August 23-30, 2010. The petition narrated that GHRC has been monitoring the issues of situation of right to health and human rights of the indigenous communities in the poverty stricken KBK districts of Orissa and urged many times to District Administration and the health authorities to save the lives- there are report of deaths every week, and the death toll on the rise. I have also informed more than ten times during June- August 2010 to National Human Rights Commission seeking its urgent intervention. Unfortunately, the State authorities have been neglecting the indigenous communities in the region and they die. There is a well in Gadaba village, which is only water source in the village, is contaminated and people suffered after they used the water from the well. The health authorities neither purified the available water source nor take any adequate and appropriate step to prevent the deaths in the region. It is unfortunate, 10 deaths occurred without safe drinking water, and other 30 are affected.

02 September 2010, GHRC asked urgent intervention of National Human Rights Commission Against the deaths of rural tribal people of Orissa since ealy June 2010. It stated death toll is on the rise and the State Government of Orissa is completely denying any medical service to the victims and badly failed to control the enedemic epidemic in the State. 01. Parameswar Behera, 02. Sulochna Behera, 03. Krushna Behera, 04. Banamber Behera, 05. Gokula Kahanar06. Bharat Bhukta of Khajuripada Block and 07. Paramanand Dalbehera (62) from Panaspadar Village under Kusupandi Gram panchayat in Phulbani District died during August17-31, 2010. Further, it is also learnt that 6 persons, including Udhab Pujari (40) and Dumar Majhi (43), from Mahulpadar GP under Papadahandi Block of Nabarangpur District died in diarrhea during August 25- September 01, 2010.

On 3 September 2010 NHRC has been apprised of the situation of Orissa and asked urgent intervention against the endemic epidemic Cholera rise in the State. It explained that 11 more deaths occurred in the district of Malakangiri, Nabarangpur and Rayagada. It further expressed concern that the epidemic of cholera spreaded to more than 10 districts of Orissa.

On 6 September 2010 NHRC has also been apprised of 14 deaths in Pipalpadar Grampanchayat under Laxmipur block in Koraput District during August1- September 3, 2010.

III.b Petition before Orissa Human Rights Commission

On 24 July 2010 Global Human Rights Commission filed a petition with Orissa Human Rights Commision seeking justice for the 8 tribal students who were suffering in the Bhimei Kanyashram in Baleswar District. On 24 July 2010 Orissa Human Rights Commision was requested to intervene the matter of death of Mamata Swain, wife of Danei Swain of the village Padajitpatna under Brahmagiri Police station of Puri

District. Mamata died on 22nd July 2010 in the District Hospital without any access to medicine, care and treatment as denied by the Dr. BC chhotray.

On 26 July 2010 a petition was filed with Orissa Human Rights Commission against the discrimination committed to HIV positive persons in Ganjam, and unfortunately they were denied by the doctors for treatment.

On 26 July 2010 again another petition was filed with Orissa Human Rights commission against the death two tribal persons, namely Sarathi Sabar and Saniya Bhuyan, of Buratal Gram Panchayat of Ganjam District. They died without any access to public health institutions as the primary health centre authorities denied to visit they as the victims family could not afford their travel expenses. On 2 August 2010 Global Human Rights Communications approached Orissa Human Rights Commission against the negligence of the doctors at Dasrathpur Primary Health Centre of Jajpur District where 70 students were suffering and struggling with lives.

III.C List of the deaths

Sl.No.

Name Age Address Date/Duration

01 Mulia Nayak 40 Beileiguda, Semiliguda Koraput

1-15 June, 2010

02 Pati Dalei 50 Beileiguda, Semiliguda Koraput

1-15 June, 2010

03 Mati Bhoi 28 Beileiguda, Semiliguda Koraput

1-15 June, 2010

04 Bina Majhi 9 Panbandh, Kashipur, Rayagada 16-25 June, 2010

05 Bondo Majhi 6 Panbandh, Kashipur, Rayagada 16-25 June, 2010

06 Nandei Majhi 2 Panbandh, Kashipur, Rayagada 16-25 June, 2010

07 Nay Majhi 1 Panbandh, Kashipur, Rayagada 16-25 June, 2010

08 Rupuli Majhi 19 Panbandh, Kashipur, Rayagada 16-25 June, 2010

09 Dambu Mahji 26 Panbandh, Kashipur, Rayagada 16-25 June, 2010

10 Batri Majhi 52 Panbandh, Kashipur, Rayagada 16-25 June, 2010

11-90 80 persons Malakanagiri district May-June 201091 Kiyavati Nayak Musukuri, Kashipur, Rayagada 04 July 201092 Basanti Majhi 1.5 Podapadar, Kashipur,

Rayagada16-25 June 2010

93 Sahadev Majhi 5 Podapadar, Kashipur, Rayagada

16-25 June 2010

94 Madhuri Nayak 7 Hadkabahal Kashipur, Rayagada

16-25 June 2010

95 Parsuram Majhi 1 Panbandh, Kashipur, Rayagada 16-25 June 201096 Tripati Majhi 9 Kanuguda, Kashipur, Rayagada 14-16 July 201097 Jitendra Majhi 5 Kanuguda, Kashipur, Rayagada 14-16 July 201098 Sumita Majhi 10 Kanuguda, Kashipur, Rayagada 14-16 July 201099 Ratikant Majhi 6 Kanuguda, Kashipur, Rayagada 14-16 July 2010100 Jhuri Majhi 3 Kanuguda, Kashipur, Rayagada 14-16 July 2010101 Dhan Majhi 31 Kanuguda, Kashipur, Rayagada 14-16 July 2010102 Sayanti Majhi 1.5 Kadapadar,Kashipur, Raygada 14-16 July 2010103 Brajhari Sabar 60 Batrasahi, Buratal, Ganjam 21 July 2010104 Ganapati Sabar 40 Batrasahi, Buratal, Ganjam 21 July 2010105 Daugther of

Ganesh Sabar5 Batrasahi, Buratal, Ganjam 22 July 2010

106 Daugther of K. Ramaro

1.5 Budagad, Patrapur, Ganjam 18 July 2010

107 Ruby Sethi 7 Budagad, Patrapur, Ganjam 21 July 2010108 Son of Ganga

Guad2 Budagad, Patrapur, Ganjam 23 July 2010

109 son of Gada Sethi

minor Turubedi, Patrapur, Gnjam 23 July 2010

110 Bhim Nayak Puriasahi, Patrapur, Ganjam 23 July 2010111 Manguli Sabar Adpadar, Patrapur, Ganjam 24-27 July 2010112 Brundaban

BeheraAdpadar, Patrapur, Ganjam 24-27 July 2010

123 Jagannath Bhuyan

Batrasahi, Patrapur Ganjam 24-27 July 2010

114 Baradi Sabar Batrasahi, Patrapur Ganjam 24-27 July 2010115 Jagili Sabar Batrasahi, Patrapur Ganjam 24-27 July 2010116 Sabita 5 Batrasahi, Patrapur Ganjam 24-27 July 2010117 Jagannath Das 1 Totasahi, Asika, Ganjam 28 July 2010118 Kumari Sabar 23 Titimiri GP, Gunupur, Raygada 26 Jul- 2Aug

2010119 Daupadi sabar 14 Titimiri GP, Gunupur, Raygada 26 Jul- 2Aug

2010120 Saliki Sabar 60 Titimiri GP, Gunupur, Raygada 26 Jul- 2Aug

2010121 4 years child 4 Ankareli, Gunupur, Rayagada 26 Jul- 2Aug

2010122 Krishna Majhi Duluki, Kashipur, Rayagada 12-23 August

2010123 Tulasi Majhi Sikarpai, Kashipur, Raygada 12-23 August

2010124 Madhu Bhoi Bandamalihuga, Koraput 12-23 August

2010125 Ras Maniaka Talsahi, Kalyansinghpur,

Rayagada12-23 August 2010

126 Salba Huisika Upparkukmbha, Kalyansighpur, Raygada

12-23 August 2010

127 Sundar Maniaka Talaanchalbadim Kalyansinghpur, Rayagada

12-23 August 2010

128 Renji Majhi Tolamandijhola, Kashipur, Rayagada

12-23 August 2010

129 Sashi Bhaoi Bandamalihuga, Koraput 12-23 August 2010

130 Rana Majhi, Tolamandijhola, Kashipur, Rayagada

12-23 August 2010

131 Mina Praska 75 Goilakana, Bisamkatak, Rayagada

25 August 2010

132 Chanchala Sahu Goilakana, Bisamkatak, Rayagada

26 August 2010

133 Silpa Bindhani 6 Gadapur, Daringibadi, Kandhmal

21-27 August 2010

134 Sukanti Malik Kallingi, Daringibadi,Kandhmal 21-27 August 2010

135 name not known Kallingi, Daringibadi,Kandhmal 21-27 August 2010

136 Nirani Malik Hatimunda, Daringibadi, Kandhmal

21-27 August 2010

137 Sasmita Baliyarsingh

Danekbadi, Daringibadi, Kandhmal

21-27 August 2010

138 Dana Kundika 60 Gadba, Bisamkatak, Raygada 23-30 August 2010

139 Birsingh Kundika 35 Gadba, Bisamkatak, Raygada 23-30 August 2010

140 Praska Mangu 40 Gadba, Bisamkatak, Raygada 23-30 August 2010

141 Kundika Lachhi 50 Gadba, Bisamkatak, Raygada 23-30 August 2010

142 Sanmai Patika Gadba, Bisamkatak, Raygada 23-30 August 2010

143 an infant girl .5 yr Gadba, Bisamkatak, Raygada 23-30 August 2010

144 two villagers Kandhuga,Bisamkatak,Raygada 23-30 August 2010

146 two villagers Gayalkana village, Bisamkatak, Rayagada

23-30 August 2010

148 Parameswar Behera

Khajuripada Block, Kandhmal 17-31 Aug 2010

149 Sulochna Behera Khajuripada Block, Kandhmal 17-31 Aug 2010

150 Krushna Behera Khajuripada Block, Kandhmal 17-31 Aug 2010

151 Banamber Behera

Khajuripada Block, Kandhmal 17-31 Aug 2010

152 Gokula Kahanar Khajuripada Block, Kandhmal 17-31 Aug 2010153 Bharat Bhukta Khajuripada Block, Kandhmal 17-31 Aug 2010154 Paramanand

Dalbehera62 Panaspada, Kandhmal 17-31 Aug 2010

155 Udhab Pujari 40 Mahulpadar, Papadahandi, Nabarangpur

Aug 25- Sept 01, 2010

156 Dumar Majhi 43 Mahulpadar, Papadahandi, Nabarangpur

Aug 25- Sept 01, 2010

157 Dambaru Khara 65 Kalanadhia line, Balimela, Malkangiri

22 August 2010

158 Bimala Khara Kalanadhia line, Balimela, Malkangiri

26 August 2010

159 Aapna Khara 35 Kalanadhia line, Balimela, Malkangiri

25 August 2010

160 Pinki Nayak 8 Paikbarangpadar, Nabrangpur 26Aug- 3 sep, 2010

161 Chitra Paik 50 Katahandi of Korapur 26Aug- 3 sep, 2010

162 Nalini Bidika 8 Batpadar, Bisamkatak, Rayagada

26Aug- 3 sep, 2010

163 Sukru Badigam Bandhuguda, Bisamkatak, Raygada

26Aug- 3 sep, 2010

164 Budu Garle Hatmuniguda GP, Bisamkatak, Raygada

26Aug- 3 sep, 2010

165 Radhai Kulesika 35 Keskapadi, Laxmipur, Koraput 25-30 August 2010

166 Seva Hikka Keskapadi, Laxmipur, Koraput 25-30 August 2010

167 Rao Kulesika Keskapadi, Laxmipur, koraput 25-30 August 2010

168 Kedi Kulesika Keskapadi, Laxmipur, koraput 25-30 August 2010

169 Ani Mandika 53 Sangotiguda, Bisamkatak, Rayagada

4 September 2010

170 Anju Mandagi 35 Pipalpadar, Laxmipur, Koraput171 Dipai Mndagi 65 Pipalpadar, Laxmipur, Koraput September 3,

2010172 Sal Mandangi 45 Pipalpadar, Laxmipur, Koraput173 Mamata

Mandangi4.5 Pipalpadar, Laxmipur, Koraput August 31, 2010

174 Dieswar Mandagi 1.5 Pipalpadar, Laxmipur, Koraput August 12, 2010176 Two children Kebedi, Laxmipur, Koraput177 Mutyalu Maniaka 3 Dhamanganda,Laxmipur,

Koraput178 Name not known Baringa, Laxmipur

179 Kuda Manding 70 Pipalpadar, Laxmipur, Koraput

IV. Response from NHRIsIV.a National Human Rights Commission

Global Human Rights Communication has filed 16 cases before the National Human Rights Commission. NHRC has not responded to 10, issued notice to concern authorities, including Chieft Secretary and Health Secretary of Orissa in 3 cases, transferred to Orissa Human Rights Commission under u/s 13(6) of the Protection of Human Rights Act, 1993, as amended in 2 cases and considering the complaint in one case.

Sl.No. Date Subject Response from authority 01 06 Sep 201002 03 Sep 2010 Complaint against 11 more

deaths in Orissa as endemic epidemic is on the rise

No response

03 02 Sep 2010 Complaint against 13 deaths in Orissa as denial and failure of health services

No Response

04 31 Aug 2010 Death of 10 persons from indigenous communities from the Bisamkatak Block in Rayagada District of Orissa during August 23-30, 2010

No Response

05 28 Aug 2010 Death of 5 persons in Daringibadi Block of Kandhmal District of Orissa and over 100 persons are affected in the block during August 21-27, 2010

No response

06 27 Aug 2010 death of two persons of Goilakana village under Bisamkatak Block in Rayagada District of Orissa

No response

07 24 Aug 2010 Death of 9 Indigenous persons in Koraput and Raygada DistrictDate: 24 August 2010

No response

08 08 Aug 2010 Death of 9 persons in Siripai Gram Panchayat under Kahipur Blok in Rayagada District of Orissa on 6th and 7th Augut 2010.

No response

09 03 Aug 2010 Death of 4 tribal persons due to denial of access to public health institutions and minimum of medical care and treatment during July 26-August 2, 2010

NHRC issued the direction, sates, “The grievance raised in this complaint relates to a matter, which is a subject of the State. Let the complaint be transferred to the Orissa State Human Rights Commission u/s 13(6) of the Protection of Human Rights Act, 1993, as amended by the Protection of Human Rights (Amendment) Act, 2006, for disposal in accordance with the provisions of the Act”.

10 29 Jul 2010 Death of Jagannath Das, aged 1 year, son of Congress Das of the Tota Sahi (slum for scheduled caste) in Assika under Ganjam District of Orissa on 28th July 2010

The grievance raised in this complaint relate to the matter, which is a subject of the State. Let the complaint be transferred to the Orissa State Human Rights Commission u/s 13 (6) of the Protection of Human Rights Act, 1993, as amended by the Protection of Human Rights (Amendment) Act, 2006, for disposal in accordance with the provisions of the Act

11 24 Jul 2010 Death of 9 persons due to denial of the public health services in Patrapur block of Ganjan district of Orissa during July 17-23, 2010

Issue notice to Secretary, Ministry of Health, Govt. of Orissa, Bhubneswar calling for a report within four weeks and Response from concerned authority is awaited.

12 20 Jul 2010 Death of 4 tribal persons, namely Dayimati Pasi (aged 40 years), Ban Ulaka (aged 35 years), Rai Mundika (aged 27 years) and Tamba Pidikaka (aged 45 years) during July 4-19, 2010 in the Bisamkatak block of Rayagada District of Orissa

The Complaint is under consideration

13 18 Jul 2010 Death of 6 persons, namely namely Tripati Majhi (aged 9 years), Jitendra Majhi (aged 5

Issue notice to concerned authority, calling for a report within four weeks and

years), Sumita Majhi (aged 10 years), Ratikanta Majhi (aged 6 years), Jhuri Majhi (aged 3 years) and Dhan Majhi (aged 32 years) under Kashipur Block of Raygada District of Orissa during July 14-16, 2010 from malaria as denial by health authorities

response from concerned authority is awaited.

14 05 Jul 2010 Death of Mrs. Kiyavati Nayak of the village Musukuri under Kashipur Block of Rayagada District, Orissa

No response

15 02 Jul 2010 Death of 80 persons suffering from Malaria upon negligence by public health authorities in Malakanagiri District, Orissa

No response

16 27 Jun 2010 Death of 7 persons, namely Bina Majhi (9 years), Binod Majhi (6 years), Nandei Majhi(2 years), Nay Majhi (1 year), Rupuli Majhi (19 years), Dambu Mahji (26 years) and Batri Majhi (52 years), of the village Panbandh under Kashipur Block of Raygada District of Orissa during June 16-25, 2010 from malaria as denial by health authorities

Notice issued to the Chief Secretary, Orissa calling for a report within four weeks by NHRC and response from concerned authority is awaited at NHRC

IV.b. Orissa Human Rights Commission

Global Human Rights Communications had filed five cases regarding violation of the right to health of the marginalized communities, tribal communities, students and pregnant women in particular, by the state health authorities. Unfortunately, Orissa Human Rights Commission has not intervened in a single case as on 06th September 2010. The blatant violation of human rights and denial of access to human rights institutions in the State, and it is committed by the Orissa Human Rights Commission who is meant to respect, promote and protect human rights.

V. Findings In to the cases of violations of the right to health in Orissa, Global Human Rights Communications in its petitions had demanded that NHRC and OHRC to intervene by taking following measures:

• Direction for the investigation into the cases by impartial authorities• Direction for the suspension of the involved health authorities to prevent

further malpractice during the investigation• Direction for taking disciplinary action and bring the culprits into court of

justice• Direction for the compensation of INR 10 lakh each to next kin of the victims• Direction for health policy and budgetary allocation to prevent further

epidemic and unwanted situation• Direction for the compliance of the human rights norms and principles set and

the State has obligations to its National Constitution of India and international instruments

The complaint handling mechanism at Orissa Human Rights Commission badly failed as there are no responses made to the petitions, not even acknowledgement provided. The OHRC itself denied the access to National Human Rights Institution mechanism, and contributed pathways for establishing impunity in Orissa and miscarriage of justice.

The National Human Rights Commission although registered the cases only in the two cases “Issued notice to the Chief Secretary and Health Secretary of Orissa”2. In another two cases3, transmitted the petition to Orissa Human Rights Commission. The NHRC direction states, “The grievance raised in this complaint relate to the matter, which is a subject of the State. Let the complaint be transferred to the Orissa State Human Rights Commission u/s 13 (6) of the Protection of Human Rights Act, 1993, as amended by the Protection of Human Rights (Amendment) Act, 2006, for disposal in accordance with the provisions of the Act4”.

Unfortunately, NHRC did not respond to the petitions in time and violated section 8 of the National Human Rights Commission (procedure) Regulation Act-1996, which states, “All complaints in whatever form received by the Commission, shall be registered and assigned a number and placed for admission as per the special and general directions of the Chairperson before a single member bench constituted for the purpose, not later than one week of the receipt thereof”.

2 Case Details of File Number: 1085/18/32/2010

3 Case file number: Case Details of File Number: 1122/18/32/2010, and Case Details of File Number: 1148/18/5/2010

4 Supra

Global Human Rights Communications’ complaints are grave as the death toll is on the rise in the state, which requires prompt action. NHRC transferred the cases to Orissa Human Rights Commission-a defunct body. Without hearing the petitioner, the transfer of complaint is utter denial of principles of natural justice.

Thus it is recommended• NHRIs, both National Human Rights Commission and Orissa Human Rights

Commission, must act in accordance with the laws and procedures made for the protection of human rights i.e. The Human Rights Protection Act-1993 and its procedures of regulations and the Paris Principles.

• NHRC must constitute a team and place them for on-the-spot study and make it public with its finding

• NHRC must direct the State Government of Orissa for relief, rescue, and rehabilitation along with health policy to prevent further unwanted situation, along with the direction for bringing the culprit into court of justice.

• OHRC must act expeditiously to the cases transferred from NHRC and must break its dead sleep.

• The State Government of Orissa must stop the deaths by taking action preventively and fixing accountability of its health authorities. It must provide the compensation to the next kin of the victims.

VI. Abbreviation

GHRC Global Human Rights CommunicationICESCR International Covenant on Economic, Social and Cultural Rights NHRC National Human Rights CommissionNHRIs National Human Rights Institutions OHRC Orissa Human Rights CommissionPUCL Peoples Union for Civil LibertiesSC Supreme Court of India UDHR Universal Declaration of Human Rights