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located in the US, is Breaking India: Western Interventions in Dravidian and Dalit Faultlines. If that does not tell it all, then one just needs to have a look at his Hindutva: A Simplied Introduction. If memories of degradation are an enabling resource in producing alliances against continuing forms of oppression, erasure of such memories is what is being sought by the upwardly mobile

castes. The Nadar case is no exception. Yet, not everything is lost. A section of the Christian Nadars, perhaps to the dismay of Samuel Sargunar and Gnanamuthoo Nadar, continues to acknowledge their untouchable past. For instance, Samuel Jayakumar, a theologian and a historian of Christianity in Tamil Nadu, in his book Dalit Consciousness and Christian Conversion: Historical Resources

for a Contemporary Debate (ISPCK, Delhi, 1999) equates the Shanars along with the Parayars as dalits in the past with no discomfort at all.
Notes
1 Most of the details in this section are drawn from Y Vincent Kumaradoss, Robert Caldwell: A Scholar-Missionary in Colonial South India, ISPCK, Delhi, 2007. http://www.tamilhindu.com/2011/01/thol see lai-kalagam-book-review/

Regulation and the Medical Profession

Clinical Establishments Act, 2010
Sandhya Srinivasan

The Act was passed by the Lok Sabha in August 2010, and is now law in Arunachal Pradesh, Himachal Pradesh, Mizoram, Sikkim and the union territories. It is being introduced for adoption in various state assemblies even as the IMA ghts it tooth and nail. The most recent controversy concerns the plans to place it before the state legislature in Maharashtra. Context of the Law The national legislation has emerged from a patients rights movement dating back to the 1980s. Health activists across the country responded to growing reports of unethical practices within a highly privatised healthcare system, and the complete failure of self-regulation, through the medical councils, to act against doctors. They turned to the Consumer Protection Act (CPA) for relief against medical negligence and malpractice, arguing that medical treatment was essentially a consumer service. The IMA went to court to oppose this move. In 1995, the movement received a boost when the Supreme Court, in a landmark judgment, said that the CPA applied to the medical profession too (IMA vs V P Shantha and others 1995). The medical professions stand has been that doctors always act with their patients welfare in mind above all else, including their own interests. It holds that medical care is not a commercial transaction between consumer and provider, and to view it as such is contrary to the duciary nature of the doctor-patient relationship. However, this duciary nature is in question today, as doctors practise medicine within a mammoth healthcare industry, and their own interests often conict with that of their
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The Clinical Establishments (Registration and Regulation) Act, 2010 which is in force in a few states is being sought to be placed before the state legislature in Maharashtra amidst vehement protest from the medical fraternity. This legislation, which the Indian Medical Association claims will lead to doctors being harassed, was born of a long patients rights movement against abysmal infrastructure conditions and poorly qualied staff in small clinics, hospitals, and diagnostic and pathology laboratories.

Sandhya Srinivasan (sandhya_srinivasan@ vsnl.com) is Consulting Editor, Indian Journal of Medical Ethics, and Infochange News and Features.

he Indian Medical Association (IMA) has been running a sustained campaign against the Clinical Establishments (Registration and Regulation) Act, 2010, for some time now. In June 2012, it called a one-day national strike to protest the Act. Under the Act, no hospital, nursing home, clinic, diagnostic centre or any other establishment offering diagnosis or treatment in any recognised system of medicine may function without registration. It applies to establishments of all types of ownership except those belonging to the armed forces. Registration, which must be renewed every ve years, is received on meeting certain minimum standards for infrastructure, equipment and human power. These standards, which differ according to the category of establishment, are laid down by a national council with representation from medical councils, associations and government departments (GOI 2010a). All establishments are required to maintain computerised records, conduct audits of their work, and display their rates for various services. The permissible range of rates is determined by the government and depends on the category of establishment (GOI 2010b). Failure to comply with these standards can result in cancellation of registration and a ne of up to Rs 5 lakh (GOI 2010a).
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patients. For example, when medical students are prepared to invest Rs 1 crore for a postgraduate seat, their need to recoup their investment will surely compete with the duty to do the best for their patient. Horric Conditions The patients rights movement also drew on a campaign regarding standards in private medical establishments. In 1989, Eruch Tavaria died following a mismatched blood transfusion in a Mumbai hospital, where the person on duty at the time was a homeopath. His daughter, Yasmin Tavaria, along with the health group Medico Friend Circle, approached the Bombay High Court (HC) seeking details on the implementation of the Bombay Nursing Homes Registration Act (BNHRA), 1949, that governs private nursing homes in Maharashtra. They learned that many of these institutions were operating without registration, inspections were rare if ever, and violations of the law were never punished. Forty years after the law was passed, the state had not even formulated rules for its implementation (Iyer 1990). The Bombay HC ordered the Bombay Municipal Corporation to form a committee to revise the BNHRA, and set up a structure to implement the law. One of the committee members Sunil Nandraj (1992) studied 24 hospitals and nursing homes in the city. The ndings, while shocking, only conrmed what everyone already knew. The majority of medical establishments visited were housed in dilapidated buildings sometimes just tin roof sheds cramped and overcrowded, with dirty toilets and no running water. Operation theatres had leaking ceilings and peeling paint and lacked essential equipment. The resident doctors were often from other systems of medicine and worked with the support of visiting consultants. Most of the nurses were unqualied. Many of these establishments were not even registered under the BNHRA. A study in Satara district of 53 practitioners and 49 nursing homes/hospitals resulted in similar ndings (Nandraj and Duggal 1997). While all this was an open secret, the studies provided further evidence needed for the HC to act.
Economic & Political Weekly EPW

The BNHRA was amended in 2005. Following this, rules for implementation of the amended Act were drafted after extensive consultation between health rights organisations and doctors organisations in the state. These rules include minimum standards for infrastructure, equipment and stafng, procedures for monitoring and for action against infringements of the law, as well as a patients rights charter (included on the insistence of the Jan Aarogya Abhiyan, the Maharashtra chapter of the Peoples Health Movement India, which played a critical role in the consultative process). However, there has been no progress since then (Phadke 2010). Still, the sustained advocacy efforts have clearly had a critical role in getting the national legislation in place. Medical Professions Response Sanjay Nagral, a surgeon and member of the editorial board of the Indian Journal of Medical Ethics points out
There is a long history of blanket opposition from the organised medical profession in India, especially the IMA , to any serious attempt at regulation of the practice of medicine. The recent strike action, although hardly effective, was perhaps a more dramatic form of this phenomenon (Nagral 2012).

The vast majority of medical professionals, as well as clinical establishments, are in the private sector which accounts for the bulk of healthcare expenditure in India, hence Nagrals (ibid) comment: In a sense... the IMA has morphed into a body representing the trade and commerce of medicine rather than the practice of medicine as a whole. Instead of regulation, the IMA would like a purely voluntary process of accreditation, or at least exemption to doctorrun institutions from the law. It argues that accreditation gives medical establishments nancial incentives to improve standards, as it opens up a larger market. This may be true of larger hospitals that are looking to capture a part of the medical tourism market. But this would be of little benet to people using small hospitals as these do not serve medical tourists. Accreditation will have little impact on the thousands of small hospitals, nursing homes, clinics, diagnostic labs and related establishments,
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mostly owned and run by medical professionals, which represent the bulk of healthcare in the country. The Maharashtra health minister is quoted as saying: There is no data of how many hospitals, clinics, pathological laboratories and other diagnostics centres operate in the state (Shivadekar 2012). Today, patients approach medical services with trepidation, fearing poor quality treatment. And those who run these services do not seem to feel they are accountable to the public. The medical councils are composed of representatives from the profession, who are loath to take action against fellow-professionals. The courts take decades and in any case the consumer courts are understaffed and overworked, with a resulting massive backlog. The publics increasing frustration with exorbitantly priced, substandard treatment in hospitals that lack qualied staff and necessary facilities, and the absence of prompt and effective redress of grievances, is expressed in attacks on hospitals and doctors. The IMAs arguments (IMA 2010) against the Clinical Establishments Act (CEA) are of three types. First, doctors will be subject to harassment by an inspector raj, adding to existing laws governing healthcare and medical practice. Second, the changes required by the law will force small establishments to close down and healthcare will become unaffordable. Third, inspections will make patients doubt the competence and trustworthiness of their doctors, threatening the doctor-patient relationship, just as the CPA did. However, there is no law that currently provides for physical standards in clinical establishments, and the basic standards will not be a nancial burden on such establishments (Phadke 2010). The professions knee-jerk response amounts to a threat to patients. Need for Regulation Health activists have pointed out a number of gaps in the law. For example, the human power requirements cannot be met at present. Second, certain provisions, such as the requirement to provide emergency care, are vague. Third, there is no provision for handling the
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additional workload of regulating private clinical establishments. Fourth, minimum standards should not be limited to structural standards like physical space, equipment and staff; they should include some process standards, including observance of human rights of patients. Perhaps most importantly, the national council is restricted to government agencies and medical associations without the involvement of civil society organisations and health movements which were responsible for the law in the rst place (Ekbal 2012; Phadke 2010). However, patients distrust of medical professionals has reached such heights that a law such as the CEA is critical. Our focus must be on addressing the gaps in the law, and ensuring its proper implementation.

References
Ekbal, B (2012): IMA Strike: Need for Public Debate, Indian Journal of Medical Ethics, 9 (4): 226-28, available from http://www.ijme.in/204ed 226. html Government of India (2010a): Ministry of Law and Justice (Legislative Department). The Clinical Establishments (Registration and Regulation) Act, 2010. No 23 of 2010. New Delhi, 19 August 2010, available from http://www.mohfw.nic.in/WriteReadData/l892s/6867094504Clinical %20 Establishment%20Act%202010%20(nal). pdf (2010b): Clinical Establishments (Registration and Regulation) Rules, 2010. Draft rules for the Central Government, available from: http://www.ima-india.org/downloads/Clinical% 20Establishment%20Draft%20Rules%20for%20 Central%20Govt.pdf Indian Medical Association (2010): The Clinical Establishments (Registration and Regulation) Bill, 2010 IMA view point, availble from http:// www. ima-india.org/4.%20IMA%20White%20Paper% 20on%20Clinical%20Establishments %20(Registration%20and%20Regulation)%20Act.pdf Iyer, S (1990): Wholl Answer for Pvt Hospitals? The Times of India, 23 July, Reprinted in mfc bulletin, August, available from: http://www. mfcindia.org/mfcpdfs/MFC166.pdf

Nagral, S (2012): Doctors in Entrepreneurial Gowns, Economic & Political Weekly, 47(36): 10-12. Nandraj, S (1992): Private Hospitals and Nursing Homes: A Social Audit, report submitted to the committee appointed to regulate private hospitals and nursing homes in the city of Bombay, Bombay. Cited in: Beyond law and the lord. The quality of private health care. Sunil Nandraj. http://www.cehat.org/publications/ pb06a22.html Nandraj, S and R Duggal (1997): Physical Standards in the Private Health Sector (a case study of rural Maharashtra), Mumbai, Cehat, http://www. cehat.org/publications/PDf%20 les/r7.pdf Phadke, A (2010): The IMA and the Clinical Establishments Act, 2010, irrational opposition to regulation, Indian Journal of Medical Ethics, 7(4): 229-32, available from http://www.issuesinmedicalethics.org/184co229.html Shivadekar, S (2012): Medical Centres Will Have to Register with the Maharashtra Govt, TOI, 22 February 2012, http://articles.timesondia. indiatimes.com/2012-02-22/mumbai/31086145 _1_clinical-establishment-registration-andregulation-medical-establishments Supreme Court of India (1995): Indian Medical Association vs V P Shantha and Others, 13 November 1995, 1996 AIR 550, 1995 SCC (6) 651.

Rape and Medical Evidence Gathering Systems

Need for Urgent Intervention
Amita Pitre, Lakshmi Lingam

Extensive reforms are required so that sexually assaulted women do not feel they are the accused when they submit themselves for medical examination and trial. Urgent reforms such as setting up humane rape crisis centres where women can directly approach women counsellors to tell their story, lodge a complaint, and get examinations done at one place are required to improve the situation.

Amita Pitre (amita@oxfamindia.org) is with Oxfam India and Lakshmi Lingam (lakshmil@ tiss.edu) is with the Tata Institute of Social Sciences, Mumbai.

hile we mourn the death of the Delhi rape victim, the nation is stirred to think of corrective measures like never before. Concrete measures that need to be taken to make public places safer, ensure efcient response of the police, better investigation, swifter rather than delayed judgments, and improved rates of conviction are often suggested. Public debates are focused on the need for changing attitudes of the police, increasing availability of police personnel for patrol duties and investigations, social auditing of police functioning, setting up of fast-track courts, employing more judges and reducing the overall delays in justice. There are clear voices from women condemning societal double standards that attempt to curb womens meagre freedoms and not question misogyny. Of all the measures required for guaranteeing conviction in rape cases, the most unclear and understudied aspect is
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the method of medical examination in rape and its use in the courtroom. It is often assumed that the statement of the woman is enough to establish the crime of rape. Unfortunately, this is seldom the case. Due to the peculiar nature of the crime one that seldom has an eyewitness and, hence, corroborative evidence medical evidence and forensic samples are gathered to prove the offence of rape world over. However, this crucial link in the chain of evidence-seeking is often fraught with poorly equipped systems and biased mindsets. The World Health Organisation has provided Guidelines for medico-legal care for victims of sexual violence (2003), which lays emphasis on consent, privacy and women-friendly facilities for medical examination, and suggests guidelines for medical evidence collection as well as a package of essential healthcare services. The rape survivor is supposed to be ensured privacy, comfort and counselling, and be provided with medical treatment, prophylaxis and care. Demonstration models of sensitive and one-stop care and evidence collection models exist, such as the Dilaasa model being implemented at the Brihanmumbai Municipal Corporation hospital at Rajawadi in Mumbai in collaboration with the Centre for Enquiry into Health and Allied
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