The Bihar government has decided to drastically slash the compensation amount that was to be given to 702 women who underwent unnecessary hysterectomies under the Rashtriya Swasthya Bima Yojana, the central government’s health insurance scheme.

Investigations revealed that in the years 2011 and 2012, doctors in Bihar used the scheme as a pretext to conduct hysterectomies even when medically not needed since each surgery would assure them a fee of at least Rs 10,000 from the government. Some of the surgeries were performed on women as young as 22 years old.

On April 28, 2016 after an enquiry by the state, the Bihar State Human Rights Commission ordered compensation of Rs 2.5 lakh to women under 40 years and Rs 1.5 lakh to women over 40 years. This compensation was to be paid by November this year.

In the order, the commission said, “The Commission can imagine the shock both physical and psychological of a lady to lose her womb. There were ladies in each group of 20-40 which is a productive age and without medical necessity removing the uterus is simply criminal.”

But the state health department has abruptly reduced the compensation to Rs 50,000 to each woman, irrespective of her age. Shankar Prasad, officer on special duty for the health department of the state, said “This decision has been taken in concurrence with the finance department.”

The government has also decided to recover the compensation from the erring doctors who stand accused of conducting the unnecessary hysterectomies. Prasad said that the government will first pay the amount to the women, before proceeding against the accused doctors.

The money crunch

This is a major step back from the commitment expressed by Chief Minister Nitish Kumar to provide justice to these women. Most of them are from low-income and landless families and survive on daily wages, as Scroll.in reported from Bihar in September this year. Many women suffered health problems after their surgeries and were not able to work well – a double disaster in a poor family.

Most of these unwarranted hysterectomies were detected in Samastipur and Gopalganj districts, where 316 and 318 cases were reported respectively. Some cases were also found in Siwan, Sheikpura, Madhubani and Nawada.

Indudevi's family lives on daily wages.
Indudevi's family lives on daily wages.

Indudevi Paswan of Rewari village in Samastipur was just 22 when she underwent a hysterectomy after the birth of her third child. Paswan developed piles after the delivery and was told by the doctor that the surgery for piles may injure her uterus and therefore it had to be removed.

In September, Paswan told Scroll.in that she was in pain most of the time and not able to tak up work outside her home. The only thing she could do, she said, was cook. Like many of the other women who has similar procedures, Paswan was not informed later that her surgery had not been necessary or that the human rights commission had ordered the state to provide her compensation.

When Scroll.in spoke to her over the phone in December, Paswan said that she did not know about the lastest development. “Nobody told me about compensation to begin with, let alone the compensation being reduced,” she said. Meanwhile, in the midst of demonetisation, Paswan’s family members have not been able to get jobs for about a month.

Proceedings against doctors?

The government’s decision to recover the amount for compensation from the errant doctors is impractical at this time when criminal proceedings against them are still in initial stages. A total of 33 First Information Reports have been filed in connection with the scam of which 13 reports are against doctors.

The doctors’ regulatory body Medical Council of India has not taken any steps to cancel these doctors’ registrations either.

The state officials are not clear on how the money will be recovered. While Prasad mentioned that the money will be recovered by the police, chief secretary Amir Subhani said that the state will initiate civil proceedings against the doctors.

Dr Mahesh Thakur from Samastipur city, who has been booked in one of these cases said that the doctors will move the High Court once they get a notice from the state in this matter. “Till we are proven guilty, how can they initiate civil proceedings on us?” he asked.

Toothless tiger

In a hearing on the case before the human rights commission in August, the government had sought time from the commission to disburse compensation citing delays due to floods that affected many parts of the state.

The state government promised that the compensation will be given by November 3, the next date of hearing. Prasad, too, had said in September that the state was only waiting to clear queries by the home department on the action taken against the erring doctors and hospitals.

However, since then, Justice Bilal Nazki, the chairperson of the commission who was hearing the case, was transferred to Jammu and Kashmir State Human Rights Commission. According to commission member Neelmani, the matter has not been listed by the commission since Nazki’s transfer and is yet to be assigned to another commission member.

The National Human Rights Commission has long been known to be a “toothless tiger”, as Justice HL Dattu, chairman of the National Human Rights Commission said early this year. He complained that the commission can only recommend remedial measures or give directions to the state to pay compensation, but cannot enforce implementation of the recommendations. The Supreme Court has proposed to consider the grievance of Justice Dattu.

The Bihar government too is saying that it is not compelled to follow the order. Prasad said, “The Finance Ministry said that the Bihar Human Rights Commission [order] is not binding on the government.”

Unlike an order from the higher courts, there is no fear of being reprimanded by a human rights commission. This is also evident in the attitude of the home department, which is supposed to now disburse the compensation through the district authorities. The state authorities refuse to commit to a time frame within which they will provide the sanctioned compensation to the women.

Sanjai Sharma, director of Peoples’ Health Rights Initiative in the the Human Rights Law Network, said that he had not heard of anyone getting benefits from the human rights commission or the women’s commission or child rights commission so far.

Sharma said, “Often petitions are languishing and not decided. The petitioners have to move the High Court or Supreme Court where the party can invoke Constitution, when the orders are implemented.”

The Human Rights Law Network which had earlier filed a public interest litigation in 2013 on the unethical and unlawful hysterectomies conducted in Bihar, Chhattisgarh and Rajasthan under the central government insurance scheme, is planning to file a petition challenging this compensation reduction in the Patna High Court.

Asked when the compensation will be given, Amir Subhani, the chief secretary, home department of Bihar state said, “As soon as possible.”

When pressed for further details, he said, “Don’t put words in my mouth. I can only say for now that we will give compensation as soon as possible.”