Role of Private Sector in Ayushman Bharat Digital Mission

On 27 September, 2021, Prime Minister Narendra Modi announced the rollout of the Ayushman Bharat Digital Mission with the aim of integrating the different and disparate digital health systems that exist into a National Digital Health Ecosystem.

What is Ayushman Bharat Digital Mission (ABDM)?

The ABDM currently has five main components:

Ayushman Bharat Health Account (ABHA) number: A unique health identification number,

Healthcare Professionals Registry (HPR): A repository of healthcare professionals across both modern and traditional systems of medicine,

Health Facility Registry (HFR): A repository of both public and private health facilities, including hospitals, clinics, diagnostic laboratories, and pharmacies,

Unified Health Interface (UHI): An open protocol for digital health services linking patients with healthcare providers,

ABHA Mobile App: An app allowing an individual to carry electronic health records.

Analyzing the future of India’s health care system

Digitization push of Government: To achieve the Sustainable Development Goals and targets of universal health coverage, the Indian government has expended significant efforts to promote the digitization of the healthcare sector to make health accessible, affordable, and equitably distributed.

Citizens and doctors can access the health registry: The two registries would ostensibly create a database of India’s healthcare institutions and professionals that citizens would be able to access.

Digital health card: The ABHA number and the application allow citizens to securely identify themselves and carry their health records to any healthcare facility.

Targeted health care services: And lastly, the UHI would facilitate greater access to and delivery of healthcare services.

Huge data for research: All of this activity has and will generate a tremendous quantity of data, which will be crucial for research, innovation, and policymaking.

Importance of private sector in health sector

Mixed health care system: India has a mixed healthcare system, which means that it has both public and private healthcare providers. Without significant participation from the private healthcare providers, the ABDM’s ability to achieve its objectives will be limited.

81% doctors are private: This is because private healthcare infrastructure accounts for nearly 62 per cent of all of India’s health infrastructure and the private sector also provides 81 per cent of the doctors in India.

Preference to private healthcare: Both rural and urban population in India seem to prefer seeking treatment from the private sector. Only 33 per cent of the rural and 26 per cent of the urban population depend on the public sector for healthcare.

Why Private health care are opting out of ABDM?

Voluntary participation in ABDM: The voluntary nature of participation in the ABDM has led to a significant portion of private healthcare providers opting to not participate in the universal programme nor integrate into the UHI.

High cost for digital records: Small healthcare providers like charitable hospitals, clinics, diagnostic labs, pharmacies, or nursing homes are less inclined to participate because of the significant costs involved.

Requirement of manpower for digitization: The cost to these healthcare providers, who are most likely in various stages of digitisation, is the number of man hours required to digitise their health records and other data.

Financial cost of digitization: The actual financial cost of upgrading or altering their digital health systems to meet basic required standards to participate in the ABDM and the UHI.

Impact of non-participation by private players

A lack of participation from the private sector will negatively impact the objectives of the ABDM in major way:

Limited success for UHI: Considering the concentration of private healthcare providers in urban areas, a lack of their participation and integration would limit the UHI’s ability to bring previously inaccessible services to the rural population who would otherwise have to travel to access them.

Incomplete data and ineffective policy: The data generated by the ABDM and use of the UHI would be incomplete, which in turn would significantly limit the effectiveness of policy planning and programme delivery.

Vice-Chancellor Appointment, New Chapter in Centre-State Relations

Recent judgments of the Supreme Court of India on the appointment of vice chancellors (VC) in State universities in violation of the regulations of the University Grants Commission (UGC) are significant in the context of higher education in a federal country such as India.

What are the recent judgements of Supreme Court?

Gambhirdan K. Gadhvi vs The State of Gujarat (March 3, 2022): In the case, Gambhirdan K. Gadhvi vs The State of Gujarat (March 3, 2022), from Sardar Patel University, Gujarat, the Court (Justices M.R. Shah and B.V. Nagarathna) quashed the appointment of the incumbent Vice Chancellor on the ground that the search committee did not form a panel for the appointment of VC, and, therefore, was not in accordance with the UGC Regulations of 2018.

UGC regulations will prevail over state law: It was held that since the State law was repugnant to the UGC regulations, the latter would prevail and the appointment under the State law had become void ab initio.

Professor (Dr) Sreejith P.S vs Dr. Rajasree M.S. (October 21, 2022): In the second case, from Kerala, i.e., Professor (Dr) Sreejith P.S vs Dr. Rajasree M.S. (October 21, 2022), with the Bench of Justices M.R. Shah and M.M. Sundresh, the appointment of the Vice Chancellor of the A.P.J. Abdul Kalam Technological University, Thiruvananthapuram, was challenged on the ground that the search committee recommended only one name, which is against the UGC Regulations.

Supreme court quashed the appointment of VCs: The Court quashed the appointment of the VC on the ground that the provision relating to the search committee in the University Act is repugnant to the UGC Regulations, and was therefore void.

Implications of the recent judgement

Many VCs asked to resigned by Governor: Decision of the Supreme Court triggered unprecedented developments in Kerala with the State Governor, who is the Chancellor of all the universities in Kerala, asking as many as 11 VCs of other universities of the State to resign immediately on the ground that their appointments too had become void after the Supreme Court’s judgment.

Tussle between governor and state: No VC has resigned as per the direction of the Governor. This development has intensified an already raging battle between the state government and the Governor, which is likely to become fiercer with the Kerala High Court quashing the appointment of the VC of the Kerala University of Fisheries and Ocean Studies on November 14 on the ground that this appointment was in violation of the UGC Regulations.

What are the legal and constitutional issues with judgement?

UGC regulations vs state university Act: In both these cases, the issue framed by the Supreme Court is about whether the appointment of VCs should be made as per the UGC Regulations or the provisions of the State University Act.

Education in concurrent list, Centre and state can make a legislation: As education is a subject on the Concurrent list, this question needs to be addressed seriously. A VC is appointed by the Chancellor under the relevant University Act, but the Supreme Court has brought in Article 254 of the Constitution to rule that if provisions of the State law are repugnant to the provisions of the Union law, the State law will become void.

State law declared void over UGC violations: In the cases mentioned above, the top court found that the search committee recommended only one name for the appointment of VC which violates the UGC Regulations which require three to five names, and, therefore, the provision of the State law is void.

Subordinate regulations prevailed over state law: Thus, the Court’s conclusion is that if any provision in the State university law is repugnant to the UGC Regulations, the latter will prevail and the former will become void. So, on the one side we have an Act passed by a legislature and on the other we have regulations made by a subordinate body such as the UGC.

Opinion of experts

State laws are subordinate to the act of parliament: A careful reading of Article 254 would show that the repugnancy under this Article relates to a state law and a substantive law made by Parliament. It impliedly excludes rules, regulations, etc. Rules and regulations are made by subordinate authorities in this case the UGC whereas the substantive law is made by the superior authority, namely Parliament.

State laws are not subordinate to UGC regulations: The repugnancy can arise only between the provisions of the University Acts and the UGC Act, and not the regulations of the UGC.

UGC regulations are inferior to state assembly: The rules and regulations made by the subordinate authority, though laid in Parliament, do not go through the same process as a law. Normally these do not require the approval of Parliament. The rules and regulations have an inferior status as compared to an Act. The Constitution cannot be assumed to equate the Act with the rules.

Article 254 does not include regulations: The Constitution does not, in general terms, define the term law. The inclusive definition of law given in Article 13(2) is applicable only to that Article. It has no application to other Articles, which means the term law does not include the rules, regulations, etc. for the purpose of Article 254.

Violation of federal principle: The regulations made by a subordinate authority of the Union overriding a law made by a state legislature will amount to a violation of federal principles and a negation of the concurrent legislative power granted to the State by the Constitution.

UGC regulations are Not part of UGC act: The UGC Regulations on the appointment of VCs are outside the scope of the main provisions of the UGC Act as none of its provisions refers to the appointment of VCs.

The case of India-UK Free Trade Agreement

To achieve the export target of $2 trillion by 2030, India is going the whole hog on free trade agreements (FTAs). India is negotiating FTAs with countries such as the European Union, Canada, the U.K., and Israel.

Importance of FTA

FTA include multiple trade aspects: FTAs cover a wide array of topics such as tariff reduction impacting the entire manufacturing and the agricultural sector; rules on services trade; digital issues such as data localization; intellectual property rights that may have an impact on the accessibility of drugs; and investment promotion, facilitation, and protection.

Great impact on economy and society: Consequently, an FTA has a far-reaching impact on the economy and society. Given this, one legitimately expects transparency and greater scrutiny of the FTA process both during and after the negotiations.

What are the problems with Indian FTA negotiations?

Lack of transparency in negotiations: India negotiates most FTAs behind closed doors with very little information about the objectives and processes followed and negligible scrutiny.

No robust framework for FTA negotiations: This is not the case in other countries with whom India is negotiating such an FTA. In the U.K., for example, there are several robust mechanisms that foster a certain degree of transparency in the FTA negotiations. Furthermore, there are institutional apparatuses that enable the scrutiny of the actions of the executive, during and after the signing of the FTA.

Case study of FTA framework in U.K

Detailed information on FTA’s: Department of International Trade (DFIT), U.K., publishes a policy paper laying down the strategic objectives behind negotiating an FTA and why it is important for the U.K. to have an FTA with a particular country. This policy paper is fairly detailed listing the specific advantages of signing an FTA such as the economic gains expected, distributional impacts, the environmental impact, and the labour and human rights dimensions of the FTA.

Inputs from stakeholders: The policy paper that the DFIT publishes also contains the inputs and responses received by various stakeholders such as businesses, non-governmental organizations, and others. Furthermore, the policy paper also explains the government view on specific suggestions

FTA scrutiny by parliament: In the U.K., the strategic objectives identified by the government for signing an FTA are scrutinized by the U.K. Parliament. This job is performed by the International Agreements Committee (IAC) of the British Parliament. The IAC hears expert witnesses on the FTA, critically examines the government’s strategic objectives for each FTA under negotiation, and offers key recommendations wherever it finds gaps in the government’s approach. The U.K. government then responds to these recommendations.

Parliament has to ratify the FTA: In the U.K, under the Constitutional Reform and Governance Act, 2010, the executive has to lay down a treaty before the British Parliament for 21 sitting days with an explanatory memorandum before ratifying it. This allows Parliament to be apprised of the treaty the executive is going to ratify.

The contrast case of India’s FTA

No publicly produced document in India: In India, no such document is produced publicly that makes a case for signing an FTA and assessing its impact on the environment and society at large. The Commerce Ministry the nodal body dealing with FTAs on its website provides the bare minimum information about FTA negotiations.

No record of discussion with the stakeholders: Seemingly, the Commerce Ministry also undertakes stakeholder consultations and inter-ministerial meetings but there is no public record of these discussions and the government’s response to the concerns of stakeholders.

No parliamentary scrutiny: In India, there is no mechanism for such parliamentary scrutiny of the executive’s actions during the FTA negotiations. India’s parliamentary system allows for department-related parliamentary committees that discuss various topics of importance and offer recommendations. However, the Parliamentary Standing Committee on Commerce (PSCC) rarely scrutinises the Indian government’s objectives behind negotiating and signing an FTA.

Recommendations for Improving the India’s FTA framework

Publicise the objectives of FTA: India should take a leaf out of the U.K. book and develop a law on entering treaties including FTAs. This law should have the following parts. The executive should make a clear economic case outlining its strategic objectives publicly for entering into negotiations for a treaty such as an FTA.

Mandatory consultation with all stakeholders: The executive should be under an obligation to consult all stakeholders, respond to their concerns and make this information publicly available.

Dedicated parliamentary committee to scrutinize the FTA: The Indian Parliament should constitute a committee on the lines of the U.K.’s IAC that will scrutinise the strategic objectives behind entering into an FTA.

Mechanism to ratify the FTA by parliament: The executive should place the FTA on the floor of Parliament for a certain duration, allowing Parliament to debate it, before ratifying it.