IN THE HIGH COURT OF DELHI STATE

CIVIL ORIGINALJURISDICTION
.WRITPETITION(CIVIL)No 5446 OF 2014

In the matter of :-

Dr. Sanjay Kulshrestha

... Petitioner

VERSUS

Union of India &ors.

...Respondents.

WITH
I. A. NO. OF 2014

AN APPLICATION FOR DIRECTION

PAPER-BOOK

(For Index: Kindly see inside)

------------------------------------------------------------------------------PETITIONER IN PERSON: DR. SANJAY KULSHRESTHA

-------------------------------------------------------------------------------

Filed On: .08.07. 2014

SYNOPSIS
The main objective of filing this PIL Writ Petition under Article
32 read with Article 14 and 21 of the Constitution of India is
to

seek

direction

respondents

so

from

that

this

Hon'ble

necessary

Court

medical

to

the

insurance

policies/health policies by various Insurance agencies or

Insurance companies or health scheme by Government
bodies are made available for the babies having birth defects
and to formulate some guidelines for management of babies
having birth defects or congenital diseases in order to reduce
the very high Neonatal mortality rate in India as Right to Life
for protection of newborns is severely threatened.
Right to live is perhaps the most important
fundamental

right

for

everyone

and

it

is

also

the

responsibility of Government to ensure and protect this right

of citizens. It has been observed that in cases of newborns
and fetuses having some congenital anomalies or birth
defects, various health insurance companies and government
organizations are making clear cut discrimination. Almost all
insurance

companies

have

not

extended

any

medical

insurance facility/policy for treatment of various newborn

diseases including birth defects during or after pregnancy.

It is common knowledge that around 4% of newborns

have some major congenital anomalies [approximately 5 lakhs
babies per year] and account for 8-15% of peri-natal deaths
and 13-16% of neonatal deaths in India. However, at present
there is no Government health scheme or medical health
insurance policy to protect the life of newly born babies
suffering from such diseases or facing such problems during
pregnancy.

This

discrimination

by

insurance

agencies

indirectly encourages the parents to opt for abortion in case if

some birth defect is detected during pregnancy. Aborting
C
fetuses because they may be disabled sends an implicit
message of rejection to people with disabilities as if they are
no more required in this world and they have no right to live,
though this is not true in 80% of cases as babies lead a
complete normal life after correction/operation. However, due
to unavailability of treatment, lots of fetuses are aborted in
India even for minor defects which are easily correctable after
delivery. This hostile way of welcoming our tiny human
beings, who are going to become future of the country, is
certainly can be labeled as violation of their right to life. A
healthy outcome of the pregnancy can only be called if both
the mother and the baby are discharged in a sound state of
health from the hospital.
Similarly, this discrimination also exist at the
government level as unlike huge budget and schemes for
infective disease of newborns, there is extremely inadequate
facility for management of newborn babies with congenital
problems at government level in our country. Considering the
fact that these congenital anomalies are more common in

poor class and in a country like India where 30% of the

population is below poverty line who cannot afford their
meals on time, how it would be possible for them to bear
medical expenses of birth defects which is highly specialized
and relatively more costly.

Simple measures by the Centre

and the State government and by the insurance companies

can help us to reduce the Neonatal mortality rate in India.
With the new enhancement, parents would have option and
would have some peace' of mind knowing their babies will be
covered from birth with congenital malformations or related
other neonatal diseases.
The petitioner is a Senior Consultant Pediatric
Surgeon who is mainly involved with management of various
congenital anomalies or birth defects in the children and an
D
Executive Member of Indian Association of Pediatric surgeons
and he himself witnessed the pathetic condition of new born
infants with congenital anomalies like lip, absent anorectum,
spinal or neural defects, absent food pipe, etc. The petitioner
is concerned with the high rate of birth defects or congenital
anomalies

during

pregnancy

all-over

the

country.

No

significant measures have been taken in this regard and there

is need of fresh innovative measure to check this menace.
Congenital anomalies are a major cause of stillbirths and
infant mortality. Evaluation or screening of various organs of
fetus during pregnancy for congenital anomalies and their
appropriate management during pregnancy or after delivery
in high-risk mothers under some National Programme is the
important factor to be considered.

Hence this Writ Petition.

E
LIST OF DATES

. . . . . 2002-03,

Report by National Neonatal- Perinatal

Database Report 2002- 2003 supported by Indian Council of

Medical Research which says that asphyxia was the single
most important cause of still-births, accounting for 45.1% of
all cases, followed by congenital malformations seen In
7.90/0 and infections in 2.7%. Copy of the report IS annexed
herewith as Annexure P/ 6, page.16.

 . . . . . 03.04.2012,

There is article In the newspaper Times

of India) which states that Nearly 70% of infant deaths within

the first year of birth) in the country in 2010 took

place

during the first 29 days of life (neonatal). The copy of the

article is annexed herewith as Annexure P/8, page.18.

. . . . . .

07.05.2012,

Petitioner made a complaint to

Chairperson, National Human Right Commission (NHRC),

New

Delhi

companies

regarding
and

this

discrimination

Government.

On

this

by

Insurance

complaint

the

commission sought an explanation from both Ministry of

Finance

and

Ministry

of

Health

(Case

File

Number:

3094/30/0/2012, Annexure P/1, page.11].

. . . . .

11.09.1012 ,

Reply under RTI from Ministry of

Health regarding availability of pediatric surgical facilities

available in India [Annexure 14, page.24]

. . . . . . . . . . . 09.10.2012 ,
and suggested to the

The Commission (NHRC) stated

complainant to approach General

Insurance Council for evolving an appropriate product in this

regard. The copy of the order dated 09.10.2012 passed by
NHRC is annexed herewith as Annexure P/1, page.11.
F

.. . . . . 05.12.2012 The petitioner made a representation to

Mr.

R.

Chandrasekaran,

Secretary

General,

General

Insurance Council, Mumbai, and to Shri M. Ramaprasad,

Chairman,
requesting

General
them

to

Insurance
formulate

.Council,
such

health

Hyderabad,
policy

for

congenital anomalies. However, petitioner did not get any

reply from the President and Secretary of this Council.

. . . . . 23.02.2013 The petitioner again made a representation

to the Secretary and Chairman of General Insurance Council,
India, with a copy to Chairperson, National Human Right
Commission, New Delhi. However, petitioner did not get any
reply from the President and Secretary of this council.

. . .. . .08.2013

Hence this writ petition is being filed by the

petitioner before this Hon'hIe Court.

IN THE HIGH COURT OF DELHI STATE

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.

OF 2014

Under Article 32 of the Constitution of India.

In the matter of:-

DR. SANJAY KULSHRESTHA,

1/171, Delhi Gate,
Gulab Rai Marg,
Agra-2,UattarPradesh

Petitioner

VERSUS

1. UNION OF INDIA
THROUGH SECRETARY,
MINISTRY OF FINANCE,
Jeevan Deep Building, Parliament Street,
New Delhi - 110 001

2. UNION OF INDIA
THROUGH SECRETARY
MINISTRY OF HEALTH AND FAMILY WELFARE
Nirman Bhawan, Maulana Azad Road
New Delhi- 110001

3. UNION OF INDIA
THROUGH SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT
Shastri Bhawan, A-wing,
Dr. Rajendra Prasad Road
New Delhi-110001
. . . . . Respondents

WRIT PETITION UNDER ARTICLE 21, 15

OF THE

CONSTITUTION OF INDIA

TO,
THE HON'BLE CHIEF JUSTICE OF HIGH COURT OF
DELHI STATE AND HIS COMPANION JUSTICES OF THE
HON'BLE COURT OF DELHI STATE
THE HUMBLE PETITION OF THE
PETITIONER ABOVE-NAMED

MOST RESPECTFULLY SHEWETH :

[1].

That the main objective of filing this PIL Writ Petition

under Article 32 read with Article 14 and 21 of the

Constitution of India is to seek a direction from this Hon'ble
Court

to

the

respondents

so

that

necessary

medical

insurance policies/health policies by various Insurance

agencies or Insurance companies or health scheme by
Government bodies are made available for birth defects and
to formulate some guidelines for the management of babies
having birth defects or congenital diseases in order to reduce
the very high Neonatal mortality rate in India as the Right to
Life and protection of newborns is severely threatened.

[1-A].

Before coming to Honble court, petitioner made

following efforts for this cause: The Petitioner made a

complaint

to

Chairperson,

National

Human

Right

Commission (NHRC), New Delhi regarding this discrimination

by insurance companies and Government. On this complaint

the commission sought an explanation from both Ministry of
Finance and Ministry of Health [Case File Number: 3094 / 30
/0/2012]. On 9.10.12 the Commission (NHRC) stated and
3
suggested to the complainant to approach General Insurance
Council for evolving an appropriate product in this regard.
The copy of the order dated 09.10.2012 passed by NHRC IS
annexed herewith [Annexure P/1, page.11]. On 5th December,
2012, petitioner has written letters to Secretary General and
chairman of General Insurance Council, India, requesting
them

to

formulate

such

health

policy

for

congenital

anomalies. However, petitioner did not get any reply from the
president and secretary of this council. On 23 rd February
2013, he again reminded the Secretary and Chairman of
General Insurance Council, India with a copy to Chairperson,
National Human Right Commission, New Delhi. However,
petitioner did not get any reply from the president and
secretary of this council. On

9th June, 2012, Executive

Committee Members of Indian Association of Pediatric

Surgeons met Honorable President of India Mrs. Pratibha
Patil

regarding

this

discrimination

and

submitted

memorandum, however no progress could be made in this

direction.

[2].

The petitioner is a Senior Consultant Pediatric Surgeon,

who

is

mainly

involved

with

management

of

various

congenital anomalies or birth defects in children and an

Executive Member of Indian Association of Pediatric surgeon,
who is concerned with discrimination by government and

health insurance agencies regarding treatment of newborns

having birth defects. That the alarming facts regarding mismanagement of birth defects in India leading to filing of
present writ petition are stated as under:-

[3].

In

India

reported

incidence

of

major

congenital

malformations is around 3.7% of all newborn babies

[annexure 2, 3 page. 12,13 ]. In India it is estimated that
4
4,95,100 newborns with major malformations are delivered
every year [annexure 4, page. 14 ] Congenital malformation is
responsible for about 15% of neonatal mortality[annexure 5,
page. 15 ]. According to report of National Neonatology Forum
of India in collaboration with Indian Council of Medical
Research[ICMR] and All India Institute of Medical Sciences,
New Delhi, congenital malformations comprised the second
commonest cause for still births, third commonest cause for
perinatal mortality and fourth commonest cause for neonatal
mortality in India.[annexure 6, 7 page. 16, 17 ]. It is equally
important to note that whatever figures mentioned above for
India are probably grossly underestimated. The reason being
these all are hospital based studies based only on the records
of admissions in hospitals and are not the population based
one. This gives a rough idea about the gravity of the situation
in India. As per report in Times of India on 3rd April, 2012
during the period of 2010, 8.62 lakhs newborn died within 1
month in India [annexure 8, page. 18 ]. Than considering the
neonatal mortality due to birth defects in India as 15%,
approx. 1.3 lakh neonates are dying every year in India due to
birth defects.

[4].

Almost all Insurance Companies have not extended any

medical insurance facility/policy for treatment of various

newborn diseases including birth defects during or after
pregnancy [annexure 9 to 13 page. 19 to 23]. The insurance
companies reimburse only for those expenses that are made
towards the mother and that too by few companies only] and
they refuse for any expense that is made for treating the baby
having some congenital problems. Some agencies like LIC
India refuses for health benefit not only to congenital
anomalies but also to all kinds of disease of the newborn that
is traceable to pregnancy. This hostile way of welcoming our
5
tiny human beings, who are going to become future of the
country, is certainly can be labeled as violation of their right
to life. Sir, as per terms of Section 2[d] of the Protection of
Human Rights Act, "human rights" means the rights relating
to life, liberty, equality and dignity. Here right to life and
equality of these tiny human beings in terms of medical
treatment are being violated.

[5].

In rest of other cases these companies are providing

medical insurance for majority of diseases with some

exclusion only. Excluding some medical conditions by these
companies seems to be correct in some situations/diseases
which are not genuine or just for cosmetic reasons. However,
in cases of newborn & fetus these all companies have flatly
refused for ALL KINDS of health problems, be it a major or
minor, surgical or medical, or even for life saving diseases. So
much so that medical insurance may be denied even in

disease occurring later in childhood or in adults, if it is

proved that this present disease has a congenital origin or
traceable to pregnancy!! Is it not the clear cut discrimination
with the little angels!

[6].

Here it is important to discuss about what are the

alternative options or facilities available to these babies of

birth defects for common people in this country who have
been refused for medical insurance. The detection of any fetal
anomaly generates lot of stress and anxiety in the couple.
This becomes more when couple comes to know that this
baby is not going to get medical benefit for its correction,
during or after delivery. Although today more that 80% cases
of birth defects are correctible and the baby after correction
can look forwards an absolute normal life. However, due to
unavailability of treatment, lots of fetuses are aborted in India
6
even for minor defects which are easily correctable after
delivery. It will not be an exaggeration to say that signature of
a doctor on the report who has diagnosed the congenital
anomaly is like that of a judge who is passing a death penalty
to an accused. If we consider the fetus as a patient, this
would amount to euthanasia for a considerable number of
babies whose parents cannot afford treatment. Aborting
fetuses because they may be disabled sends an implicit
message of rejection to people with disabilities or babies
having some birth defects are no more required in this world.

[7].

Many times the couple chose to continue the pregnancy

in the hope for getting the best management after delivery.

Once such babies are delivered, due to refusal of insurance

companies, in majority of such cases of birth defects parents
are forced to take treatment in private hospitals. Parents have
to spend for treatment out of their pocket. That is possible
only

for

some

selected

financially

well-of

people

and

significant number of cases remains untreated due to poverty,

illiteracy or lack of specialized medical facilities in that area.
That is why a back-up of medical insurance is very necessary.

[8]. Although a health insurance would be a good relief for

the birth defects, however, Petitioner would also like to
mention

that

besides

insurance

there

is

need

of

improvement of birth defects management in government

sectors also. So simultaneously we have to target the
government also for more and more such facilities in govt.
sectors. In India large section is very poor and cannot afford a
relatively costly treatment in private set up. Its an irony that
these of Birth defects are more common in poor class that
really depends on government hospitals.
7
[9].

Facility for management of newborn babies with

congenital problems at government level in our country are

extremely inadequate. At present there is no program for the
management of birth defects during pregnancy at government
level in India. To manage such cases there are only few [4050] government centers in the whole country that are grossly
inadequate for these babies especially considering the fact
that every year about 4,95,100 newborns with major
malformations are delivered in India. Though the petitioner
tried to know the status of pediatric surgery in government

sector in terms of total number of pediatric surgeons,

specialized pediatric surgical centers and available beds in
India through RTI, however, the reply was grossly inadequate
and inconclusive[annexure 14, page.24 ].

[10].

There is a need for adequate facility to be available in

all the districts and medical colleges and an attempt be made

to cover all pregnancies. In fact Government should make a
national program for the management of birth defects to
ensure adequate facilities available in all districts and
medical colleges for routine fetal screening for congenital
anomalies. Or alternatively Government should merge the
birth defects management program with some other national
health program that already running in our country in the
field of mother and child health like Reproductive Child
Health [RCH] program. Petitioner would like to inform that at
present birth defects management is not the part of RCH
scheme as replied by Under Secretary, Ministry of Health and
family welfare, Government of India in response to his
complaint to National human Right Commission [annexure
15, page.25 ].

8
[11].

Considering the magnitude of problem, there IS a need

for a National Program for congenital anomalies or birth

defects. A National Program for birth defects will help to
achieve the desired reproductive goal to improve the outcome
of pregnancy that would indirectly reduce the sufferings and
deaths of neonates due to birth defects. A cost effective

Antenatal

screening

circumstances

will

program

reduce

the

that
neonatal

suits

Indian

mortality

and

morbidity in the following ways: [A] By providing improved

prenatal and postnatal surgical and medical care, an
improvement in survival rate of newborns with correctable
birth defects is expected. [B] By providing therapeutic
abortion to incompatible or uncorrectable anomalies the
incidence of deliveries/stillbirths of neonates having such
anomalies will be reduced. The birth of such undetected
uncorrectable anomalies not only cause severe mental
trauma to the parents but also increase the figure of our
countrys neonatal mortality rate for which we are not
responsible directly. [C] By taking preventive measures like
genetic counseling and preventive measures both occurrence
and recurrence of birth defects is expected to come down.
Besides, newborn this program would also cause a reduction
in the maternal mortality and morbidity due to obstetrical
complications caused by such congenital anomalies.

[12].

That the petitioner, therefore, is advancing the present

writ petition under Article 32 of the Constitution of India

raising the following questions of law:-

[A] Whether there is a violation of Article 21 of the

Constitution of India which encapsulates the Right to
live with freedom?

9
[B]. Whether there is violation of rights of the new born

infants with congenital anomalies like cleft lip, absent food

pipe, spine or neural defects, absent rectum, etc under
Article 21 of the Constitution of India?

[C]. Whether there is failure on the part of Government and

its enforcement agencies in taking proactive steps to curb
this menace, as people refuses to accept babies with
congenital diseases and it sends an implicit m~ssage of
rejection of people with disabilities?

[13].

That the aforesaid relief has been prayed for under

Articles 32 read with Articles 14 and 21 of the Constitution of

India before this Hon'ble Court as the insurance companies
and Government of India have not taken any effective steps to
provide for good health of mother and baby and they can be
discharged in a sound state of health from the hospital.

[14]. The petitioner has not filed any other similar writ
Petitioner before this Hon'ble Court or before the Hon'ble
High Court for the relief sought herein.

PRAYER
It is, therefore, most respectfully prayed that this
Hon'ble Court may kindly be pleased to:-

(A) ISSUE a Writ of mandamus to Government to ensure

universal health insurance policies for medical and surgical
diseases

for

fetuses,

newborns

pregnancy and after delivery.

and

children

during

10
(B) ISSUE a Writ of mandamus to the Union of India to make
a national program for the management of birth defects to
ensure adequate facilities available in all districts and
medical colleges for routine fetal screening during pregnancy
for congenital anomalies.

(C) PASS such other order or orders as this Hon'ble Court

may deem fit and proper in the facts and circumstances of
the present case;

AND FOR THIS ACT OF KINDNESS THE PETITIONER

SHALL EVER PRAY AS DUTY-BOUND

Drawn and Filed by:

DR. SANJAY KULSHRESTHA

MBBS,MCh,FIAPS
Sr Consultant Pediatric Surgeon
Petitioner-in-Person

DATE : 05.07.2014
PLACE: New Delhi
FILED ON: .05.07.2014