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CASE NO.: Writ Petition (civil)  196 of 2001

PETITIONER: People\022s Union for Civil Liberties

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 20/11/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T IA NOS. 34, 35, 37, 40, 49, 54, 58, 59, 60, 61, 62 & 77

IN  

WRIT PETITION (C) NO. 196 OF 2001

WITH SUO MOTO CONTEMPT PETITION (C) NO. 128 OF 2007  IN W.P. (C) NO.196 OF 2001 IN RE: CHIEF SECRETARY  STATE OF BIHAR AND 4 ORS.

Dr. ARIJIT PASAYAT, J.

1.      By this order two IAs. No.37 of 2004 and No.54 of 2005  stand disposed of. IA No.37 of 2004 is an application by the  Union of India for permission to modify the National Maternity  Benefit Scheme (in short \021NMBS\022) and to introduce a new  scheme called the Janani Suraksha Yojana (in short \021JSY\022).  IA  No.54 of 2005 is an application by the petitioner questioning  legality of the discontinuation of the benefit under the NMBS  due to introduction of JSY. By order dated 27.4.2004 this  Court directed as follows:

\023No Scheme\005in particular\005.National  Maternity Benefit Scheme shall be  discontinued or restricted in any way without  prior approval of the Court.\024

2.      Again by order dated 9.5.2005 this Court directed as  follows:

\023By LA 37, permission is sought to modify The  National Maternity Benefit Scheme (NMBC)  and to introduce a new scheme namely Janani  Suraksha Yojana (JSY). Whereas in IA 54, the  prayer is that the Scheme should not be  modified by reducing, abridging or qualifying  in any way the social assistance entitlements  created under the original scheme of NMBS for  expecting BPL mothers, including rash  entitlement of Rs.500/- provided therein. We  have requested learned Additional Solicitor  General to place on record further material in  the form of affidavit to effectively implement  the new Scheme sought to be introduced. The  further material shall include the approximate

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distance of Public Health Centre from the  residential complexes and the facility of  transportation etc. The Commissioner shall  also examine the matter in depth and file a  report.  The response to the application may be  filed within eight weeks.  Meanwhile, the  existing National Maternity Benefit Scheme will  continue.\024            3.      The government set a numerical ceiling of 57.5 lakh  beneficiaries as the annual target for NMBS. However, the  number of beneficiaries under JSY in 2006-07 was only 26.2  lakh i.e. 45.5% and in the year 2005-06 this was as low as  5.7 lakh i.e. 10%. While there has been an improvement in  the last one year, the coverage under this scheme is still way  below the target number of women to be covered by the  NMBS.       4.      According to the Union of India the JSY was introduced  to put a premium on the willingness of poor women to go in  for institutional delivery instead of home delivery. But it was  recognized that in States  with lower institutional delivery  rates, one of the reasons for low performance have been  lesser availabilities of facilities in the Health Centres, which  act as disincentive for the poor illiterate women to seek the  services.        5.      Pursuant to the order of this Court dated 9.5.2005 the  Commissioner had prepared a report.       6.      After discussions with the Commissioner appointed by  this Court, senior officials, the Central Government took a  decision to modify the JSY Scheme to continue benefits of  NMBS and also to improve upon such benefits for non- institutional delivery, where the woman chooses to deliver  her baby at home. In this connection, a letter dated  13.7.2006 was written to the Commissioner by the Secretary  health and Family Welfare under the amended JSY. The Low  Performing  States and High Performing States were defined  as follows:

\0234.1 The scheme focuses on the poor pregnant  woman with special dispensation for states  having low institutional delivery rates namely  the States of Uttar Pradesh, Uttaranchal,  Bihar, Jharkhand, Madhya Pradesh,  Chhattisgarh, Assam, Rajasthan, Orissa and  Jammu and Kashmir. While these states have  been named as Low Performing States (LPS),  the remaining states have been named as High  Performing States (HPS).\024        7.      The table below gives details of the number of  beneficiaries under JSY (all these would have received the  Rs.500/- under NMBS irrespective of place of delivery) vis-a- vis the annual targets set by the Government of India for  NMBS.       Percentage of Eligible Beneficiaries Covered Under NMBS

State/UT No. of Women  eligible for  NMBS

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No. of  Beneficiaries  in 2006-07 Percentage  of Eligible  Beneficiari es covered    Andhra Pradesh 296033 457000 154.4 Rajasthan 280123 387648 138.4 J & K 50494 57798 114.5 Assam 182894 183231 100.2 Orissa 264249 227204 86.0 Madhya Pradesh 472840 401184 84.8 Mizoram 4429 3330 75.2 Chattisgarh 148876 74778 50.2 Uttaranchal 37117 18614 50.1 West Bengal 425520 199000 46.8 Tamil Nadu 301676 136091 45.1 Karnataka 289339 81152 28.0 A & N Islands 2295 600 26.1 Kerala 107602 27683 25.7 Bihar 732891

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171352 23.4 Puducherry 6446 1315 20.4 Gujarat 212845 42373* 20.0 Punjab 41297 8276 20.0 Maharashtra 529777 97390 18.4 Tripura 20601 3203 15.5 Manipur 11112 1684 15.2 Goa 3188 483 15.1 Lakshadweep 333 42 12.6 Sikkim 4598 446 9.7 Meghalaya 22768 2031 8.9 Himachal Pradesh 29222 2508 8.6 Uttar Pradesh 1073341 71456 6.7 Haryana 92856 3294 3.5 D & N Haveli 3850 76 2.0 Chandigarh 2108 0 0.0 Delhi 42447 20

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0.0 Arunachal  Pradesh 10399 NR NR Daman & Diu 632 NR NR Jharkhand 208592 NR NR Nagaland 12763 NR NR Total-India 5925554 2618889 44.2   

8.      The scheme as the details above go to show has virtually  not taken off in many states. Delhi has given the benefit under  the NMBS to only 20 women in 2006-07, while in Chandigarh  the number of beneficiaries is 0. In Sikkim, Meghalaya,  Himachal Pradesh, Uttar Pradesh, Haryana and Dadar &  Nagar Haveli less than even 10% of the eligible beneficiaries  have been covered under the NMBS. Except for the states of  Andhra Pradesh, Jammu & Kashmir, Rajasthan, Madhya  Pradesh, Assam, Orissa and Mizoram where more than 75% of  the eligible beneficiaries seem to have been reached out to, the  performance of this scheme has been very poor in all other  states.

Indicated below are percentage of Home delivery figures  

State/UT % Home delivery  reported out of JSY  beneficiaries (2006- 07)  % Home delivery in  the State (NFHS 3) Assam 4.4 77 Madhya Pradesh 0.9 70 Haryana 0.0 61 Rajasthan 13.5 68 Manipur 0.0 51 Delhi 0.0 39 Meghalaya

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41.4 70 Orissa 33.3 61 Chattisgarh 59.2 84 Sikkim 44.8 51 Tamil Nadu 5.7 10 Bihar 75.9 78 Karnataka 37.6 33 Kerala 5.2 0 Mizoram 44.1 35 Tripura 60.5 51 Uttar Pradesh 90.2 78 Uttaranchal 96.9 64 Punjab 82.9 47 Maharashtra 86.0 34 Goa 67.9 7

9.      In the States of Madhya Pradesh, Haryana, Manipur and  Delhi there are almost no JSY beneficiaries who had a home  delivery. This indicates that in these States the scheme\022s focus  continues to be only on institutional deliveries and not all  deliveries. Even in the States of Assam, Rajasthan, Meghalaya,  Orissa and Chhattisgarh the JSY has been disproportionately  given to only those who have had institutional deliveries.  

10.     At this juncture, the financial performance needs to be  noted.

11.     The Janani Suraksha Yojana is a centrally-sponsored  scheme with the centre providing 100% of the funds. Some  States e.g. Andhra Pradesh make their own contribution  thereby increasing the amount of cash assistance for  institutional deliveries.  Tamil Nadu has introduced a separate  scheme for providing mothers with Rs.1000/- per month for  six months i.e. three months prior to the delivery and three  months after.  Given below are the details of allocation and

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utilization of the funds provided by the Central Government.     12.     Out of the funds provided for JSY for 2006-07, about  71.2% of the funds allocated have been utilized in the year  2006-07.

Utilization of funds allocated by JSY      

Rs. In lakhs Name of the  State/UTs  Funds released  in 2006-07 Expenditure  Reported by  States  % Utilization Andaman &  Nicobar Island   10.00 1.99 19.9 Andhra Pradesh 4073.20 4550.00 111.7 Arunachal  Pradesh 26.20 0.31 1.2 Assam 1300.00 1331.32 102.4 Bihar 610.00 190.00 31.1 Chandigarh 5.23 0.00 0.0 Chattisgarh 513.00 516.55 100.7 D & N Haveli 9.17 0.73 8.0 Daman & Diu 5.23 0.00 0.0 Delhi 65.49 0.20 0.3 Goa 7.86 3.38

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43.0 Gujarat 851.85 185.56 21.8 Haryana 350.00 39.11 11.2 Himachal Pradesh 100.00 20.66 20.7 J & K 138.33 123.84 89.5 Jharkhand 392.89 64.67 16.5 Karnataka 916.00 594.02 64.8 Kerala 511.94 284.45 55.6 Lakshadweep 4.38 0.31 7.1 Madhya Pradesh 4261.00 2482.00 58.2 Maharashtra 785.79 209.07 26.6 Manipur 78.57 13.45 17.1 Meghalaya 39.29 42.75 108.8 Mizoram 78.57 37.27 47.4 Nagaland 65.49 0.00 0.0 Orissa 1600.00 1571.31 98.2 Pondicherry 19.64 6.10 31.1

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Punjab 145.37 56.84 39.1 Rajasthan 4085.00 3056.35 74.8 Sikkim 13.10 7.46 56.9 Tamil Nadu 1827.00 1441.00 78.9 Tripura 117.86 43.70 37.1 Uttar Pradesh 1375.00 436.80 31.8 Uttranchal 79.56 56.06 70.5 West Bengal 1678.99 1233.67 73.5 Total 26141.00 18600.93 71.2

13.     Looking at the State-wise break-up it is seen that states  like Delhi, Nagaland and Arunachal Pradesh, and union  territories of Chandigarh and Daman & Diu have not at all  utilized the funds allocated to them for the purpose of JSY.   Among other states, Manipur, Jharkhand and Haryana  utilized less than 20% of the funds released to them.  Only 10  states spent more than 70% of the funds allocated to them  under JSY.   

14.     At the time of hearing of the applications, learned  counsel for the petitioner and the Union of India highlighted  various aspects. Considering the submissions and the material  data placed on record we direct as follows:-                                       (a)     The Union of India and all the State  Governments and the Union Territories shall (i)  continue with the NMBS and (ii) ensure that  all BPL pregnant women get cash assistance 8- 12 weeks prior to the delivery.    (b)     The amount shall be Rs.500/- per birth  irrespective of number of children and the age  of the woman.    (c)     The Union of India, State Governments and  the Union Territories shall file affidavits within  8 weeks from today indicating the total  number of births in the State, number of  eligible BPL women who have received the

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benefits, number of BPL women who had  home/non-institutional deliveries and have  received the benefit, number of BPL women  who had institutional deliveries and have  received the benefit.  (d)     The total number of resources allocated and  utilized for the period 2000-2006.      (e)     All concerned Governments are directed to  regularly advertise the revised scheme so that  the intended beneficiaries can become aware of  the scheme.  (f)     The Central Government shall ensure that the  money earmarked for the scheme is not  utilized for any other purpose.  The mere  insistence on utilization certificate may not  yield the expected result.         (g)     It shall be the duty of all the concerned to  ensure that the benefits of the scheme reach  the intended beneficiaries.  In case it is noticed  that there is any diversion of the funds  allocated for the scheme, such stringent action  as is called for shall be taken against the  erring officials responsible for diversion of the  funds.

15.     At this juncture it would be necessary to take note of  certain connected issues which have relevance.  It seems from  the scheme that irrespective of number of children, the  beneficiaries are given the benefit. This in a way goes against  the concept of family planning which is intended to curb the  population growth.  Further the age of the mother is a   relevant factor because women below a particular age are  prohibited from legally getting married. The Union of India  shall consider this aspect while considering the desirability of  the continuation of the scheme in the present form.  After  considering the aforesaid aspects and if need be, necessary  amendments may be made.    

16.     The IAs are accordingly disposed of.