Madras High Court
The Registrar Judicial vs The Secretary To Government
Author: S.Nagamuthu
Bench: S.Nagamuthu, Anita Sumanth
IN THE HIGH COURT OF JUDICATURE AT MADRAS Order reserved on: 13..04..2017 Order Pronounced on: 28..04..2017 Coram: THE HON'BLE MR.JUSTICE S.NAGAMUTHU AND THE HON'BLE DR. JUSTICE ANITA SUMANTH Suo Motu H.C.P.No.446 of 2017 The Registrar Judicial, High Court, Madras 600 104. ... Petitioner -Versus- 1.The Secretary to Government, Health and Family Welfare Department, Government of Tamil Nadu,Chennai. 2.The District Collector, Erode. 3.The Chairman, District Child Welfare Committee, Erode. 4.The Superintendent of Police, Erode. ... Respondent Suo Moto Habeas Corpus Petition under Article 226 of the Constitution of India initiated as per the order of the Hon'ble Division Bench, dated 21.03.2017 based on the Laws Published in a Tamil News Paper "Dinamalar" Chennai Edition, dated 21.03.2017, carries a news item in Page No.11 under the title immunisation injection given, resulted in contusion which ultimately turned out to be contusion which ultimately turned to be cancerous growth aged six years is struggling for life treatment. Amicus Curiae : Mr.M.K.Kabir For Respondent : Mr.P.Govindarajan, APP ORDER
S.NAGAMUTHU, J.
The "Dinamalar" a Tamil Daily Newspaper in its Issue dated 21.03.2017, carried a news item under the title jLg;g{rp uj;jf;fl;L nfd;ruhf khwpaJ - rpfpr;irf;F jtpf;Fk; 6 taJ rpWtd; - Which means, ""Contusion caused by immunisation injection resulted in a cancerous growth - A child aged 6 years struggles for life without treatment.
2. According to the news, the male child - Anbarasan, aged 6 years", was given immunisation injection in a Government Institution when he was hardly 6 months old. His father - Mr.M.Radhakrishnan, aged 28 years, mother - Mrs.Suseela, aged 24 years, are construction labourers and they live in utter poverty. They are residents of Komarapalayam - Malaiyadipudhur village, Sathyamangalam Taluk, Erode District. It is further seen in the news item that after the immunisation was given, there developed a contusion at the situs of injection on the right thigh. They were initially told by the Doctors that in due course, it would dissolve. But, it did not occur. Instead, it grew into a big size mass on the thigh. The doctors diagnosed the same as a cancerous growth. A photograph of the child with balloon like right thigh also appeared in the news paper. The weight of the cancerous mass alone was roughly around 3 Kgs. The poor parents were not in a position to provide adequate medical attention to the child. The child was sinking without proper medical treatment. A cellphone contact number was also given requesting the pious people to generously extend financial help for treatment.
3. Having seen the said news item, we felt that gone are the days, the Judges were waiting in the closed court halls for the justice seekers to come and knock at the doors of justice. We have waited for seventy long years, post constitution, for them. But, still there are people, who are poor, marginalized, depressed, uneducated and non sensitised, many a times, do not come to court seeking justice. We, the judiciary, cannot afford to wait any longer for these people to come. Any more such waiting may amount to denial of justice due to them. Thus, it is time for the judges to go out of the court halls to reach out the needy poor people, who are deprived of their basic rights, to deliver justice at their door steps so as to ensure and protect their human rights and other rights. In the instant case, we felt that denial of immediate treatment to the child to save his life amounts to denial of his human rights and his right to life under Article 21 of the Constitution of India. Therefore, exercising our Habeas Corpus jurisdiction, we took up the issue suo motu with a view to save the life of the ailing child.
4. On 21.03.2017, while explaining the necessity for taking suo motu action in the matter, this court in paragraphs 4 to 12 passed the following order:-
4. Article 25 of the Universal Declaration of Human Rights, 1948 (UDHR) impresses upon the Member States to ensure Right to Health. It states:
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old 3 age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
5. But the above declaration did not create any binding obligation on the Member States. Therefore, subsequently in the "International Covenant on Economic, Social and Cultural Rights (ICESCR)" which was adopted in 1976, Right to Health was incorporated which among other things mandates specific measures on the part of the Member States to take steps to achieve full realization of this right which includes, creation of conditions which would assure to all medical service and medical attention in the event of sickness.
6. Though in the international scenario, right to health has received the most attention of the world community of people and though in the Indian scenario, the provision for adequate health care is an obligation of the Government as enshrined in Article 47 of the Constitution of India, there are also complaints that in this Country, the depressed and marginalized people are not getting adequate health care."
7. After the judgement in Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597, the Hon'ble Supreme Court has expanded the ambit and sweep of Article 21 of the Constitution of India so as to hold that the Right to Life would also encompass right to medical treatment. In Parmanand Katara v. Union of India reported in AIR 1989 SC 2039 and subsequently in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal reported in AIR 1996 SC 246 the Hon'ble Supreme Court has re-emphasised the Governmental obligation to provide medical facilities. In these judgements, the Hon'ble Supreme Court has created a justiciable right to health. Thus, in the present scenario, in the Indian context, Right to Health falls within the ambit of Right to Life as guaranteed under Article 21 of the Constitution of India.
8. The Juvenile Justice (Care and Protection of Children) Act, 2015, while defining the term 'child in need of care and protection has classified a child, who has a parent or guardian, and if such parent or guardian is found to be unfit or incapacitated, to care for and protect the safety and well-being of the child and the child who is suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care as a child in need of care and protection. The said Act mandates as to how the said children are to be treated by providing them adequate medical facilities.
9. Despite these laws on child rights, it is unfortunate that the child "Anbarasu" is unable to get treatment for the cancerous growth for about six years. The pain of the child and his parents should certainly shake the conscience of anyone. The Haves should have concern for the Have Nots is the message. This story of the child Anbarasu is heart rending.
10. Since the child Anbarasu requires immediate medical care and since the child requires care and protection under the provisions of the Juvenile Justice (Care and Protection of Children) Act, and since this Court, being a Constitutional Court exercising power under Article 226 of the Constitution of India including the power to issue Writ of Habeas Corpus to protect the life and liberty of individuals, we are forced to initiate Suo Motu Habeas Corpus proceedings to protect the child Anbarasu. Accordingly we direct the Registery to assign a number to this Suo Motu Habeas Corpus petition.
11. We implead (1) The Secretary to Government, Health and Family Welfare Department, Government of Tamil Nadu, (2) The 6 District Collector, Erode, (3) The Chairman, District Child Welfare Committee, Erode and (4) The Superintendent of Police, Erode as respondents. The learned Additional Public Prosecutor took notice on behalf of all the respondents as directed by us.
12. Considering the urgency of the matter, we issue the following interim directions:
(i) The Chairman, District Child Welfare Committee, Erode and District Collector, Erode shall visit forthwith the child Anabrasu at his house, persuade the parents and seek their consent for taking the child to hospital for medical treatment. (ii) If the parents give consent, the District Collector shall make arrangements to take the child Anbarasu to the Adyar Cancer Institute, Chennai and admit him for treatment.
(iii) The District Collector also make arrangements for the stay of the parents of the child to take care of the child.
(iv) The Health Secretary, Government of Tamil Nadu shall ensure that the child Anbarasu is treated in the Adyar Cancer Hospital or in any other Hospital, at the advice of the treating doctors, according to the requirements at the cost of the Government.
(v) The Superintendent of Police, Erode, shall provide adequate support to the District Collector, Erode, for taking the child to Chennai for treatment.
(vi) If the parents of the child decline to give consent to take the child for treatment, the District Collector shall record their statements and produce the same before this Court through the learned Additional Public Prosecutor on 27.03.2017. (vii) The Health Secretary, Government of Tamil Nadu, The District Collector, Erode and The Chairman, Child Welfare Committee, Erode shall file compliance report through the learned Addl. Public Prosecutor on 27.03.2017."
5. On 27.03.2017, the Chairman of the Child Welfare Committee, Erode, made appearance before us and he filed an affidavit wherein he had explained that the ailing child in question was admitted in Adayar Cancer Institute, Chennai on 22.03.2017 at 10.00 p.m. itself as directed. The Doctors after examining the child forthwith commenced the treatment. He further told us that around 08.00 a.m. on the next day, he himself visited the child in the hospital and his parents.
6. Having heard them, we thought that our visit to the hospital would encourage the child and his parents so as to relieve them, at least, to some extent, from their worries. So at 02.00 p.m., on 23.03.2017, we visited the child in the hospital. We found that the child was very anaemic and he was in a highly depressed mood. We met the parents of the child also. Visibly they were very much worried and upset over the child's bad health. The doctors in the hospital attending on him, explained to us the measures taken already and the plan of future action to save the child.
7. On 27.03.2017, when this matter came up for hearing, the Principal Secretary, Department of Health and Family Welfare, Government of Tamil Nadu, filed a report along with Two Annexures as directed earlier. In the report, the Secretary had narrated the steps taken by the Government to provide treatment to the child. It was further stated that the child was evaluated by a medical team in the Adayar Cancer Institute. The summary of the assessment made upon the child by the team set out in Annexure-I had clarified that immunisation injection given to the child when the child was aged hardly six months as alleged in the news item had nothing to do with the present condition of the child. He further stated that cancerous growth on the right thigh of the child was not due to the immunisation at all.
8. In Annexure-II, the Director of Public Health and Preventive Medicine, Government of Tamil Nadu, Chennai, had stated that the occurrence of cancer following the immunisation is not reported anywhere in the world. In essence, the Director of Public Health and Preventive Medicine, was also of the opinion that the immunisation injection given to the child had nothing to do with the present ailment of the child.
9. Mr.M.K.Kabir, Senior Advocate, who was requested by this court to assist the court as an Amicus Curiae, submitted that in order to ascertain as to whether the vaccine was the cause for the cancerous growth or not, further opinion could be obtained from three different experts. Mr.Kabir was influenced by few articles which have appeared in the web-sites of various organisations, supporting the view that the immunisation is also one of the causes for cancerous growth.
10. Having gone through the articles of various organisations, as produced by Mr.Kabir, which are in conflict with the reports of the Principal Secretary to Government, Health and Family Welfare Department, Government of Tamil Nadu, and the Director of Public Health and Preventive Medicine, Government of Tamil Nadu, we felt that it would be appropriate to obtain opinion from three experts from different institutions. We further felt that it was absolutely necessary since the above news item has spread a message to the people that immunisation may result in cancerous growth and so the innocent people may be reluctant to take their children for immunisation in future and the cascading effect of the same would be disastrous. Therefore, with a view to clear the doubt as to whether immunisation would, at least, remotely, result in cancerous growth, by our order dated 27.03.2017, we issued the following directions:-
(i) The Principal Secretary to Government Health & Family Welfare Department, Secretariat, Chennai, shall forward by email all the medical records pertaining to the child along with the documents annexed to the report as Annexures I & II, to the Head of the Department of Oncology, All India Institute of Medical Sciences, New Delhi and to the Head of the Department of Oncology, Tata Memorial Hospital, Mumbai, with a request to them to forward a report in this regard by email to him, on or before 04.04.2017. Similar report shall be called for from the Director of Adyar Cancer Institute, Chennai also. These three experts shall answer the query as to Whether there is any possibility for cancer due to immunization ? and in the instant case, Whether the present condition of the child could have been due to the immunization injection given to him when he was aged hardly four months ? On receiving the said reports, the Principal Secretary to Government Health & Family Welfare Department, Secretariat, shall file the same to this Court on or before 05.04.2017.
(ii) In the meanwhile, the treatment to the boy shall go on.
11. Later, the Principal Secretary to Government, Health and Family Welfare, produced the letter from one Dr.Laliti Kumar, M.D., D.M., Professor & Head, Department of Medical Oncology, Dr.BRA Institute Rotary Cancer Hospital and All India Institute of Medical Sciences (AIIMS), New Delhi, dated 11.04.2017 wherein, the doctor has answered the query as raised by the Principal Secretary to Government, as follows:-
Query : Whether the present condition of the child could have been due to the immunization injection given tohim when he was aged hardly 4 month?
Reply : To the best of our knowledge, there is no association between DPT Vaccination injection to this child at the age of 4 months and development of cancer.
12. Dr.T.G.Sagar, Director, Cancer Institute (WIA), Adayar, Chennai, has given his opinion on the issue as follows:-
Question : Can the vaccination process initiate the development malignancy?
Reply : Immunisation or vaccination has been one of the greatest achievements of modern medicine. Billions of children and adults have been saved fro, life threatening infections because of effective vaccine against these infections. India has been declared polio free thanks to the pulse polio vaccination program. Disease like Smallpox have been completely eradicated from this planet because of immunization. Dreaded diseases like diphtheria, whooping cough, meningitis, hepatitis B liver disease, Japanese encephalitis, tetanus, measles, mumps and rubella have been bought under control due to vaccination of children. Studies have shown that early initiation of vaccine in infants protect against blood cancer. Immunisation is one of the most important measures for improving public health in a country and is an important pillar of national health policy.
There is no scientific evidence that vaccination initiates the development of cancer in human. On the contrary vaccination has reduced many infection related cancer like liver cancer due to hepatitis B infection and cervical cancer due to human papilloma virus infection. Vaccination can be associated with common side effects like pain, redness and swelling at the site of injection which is self limited. This is a common phenomenon and parents are advised to look for it. This occurs because of the reaction between the patient's immune system and the vaccine. Pain, swelling and redness at vaccine site can be managed with regular pain killers. There are no identified carcinogens or cancer causing substances in vaccine and therefore exposure to vaccine unlike smoking or consuming alcohol does not pose a risk for cancer. More than a centuries experience with vaccination has never ever revealed a patient developing cancer due to a vaccine.
Question: Is it possible that in our index patient vaccination procedure had triggered the development of malignancy?
Reply: The childs ewings sarcoma is not related to his vaccination and without scientific evidence as mentioned above, the association of vaccination with cancer in conjectural. Ewings sarcoma arises from the bone as was the case in this child, vaccines are given in soft tissue and not in bone. The child developed pain and swelling at the vaccination site at the age of 3 months, this reaction was expected and it subsided in 2 week's time. The child remained well after the vaccination for almost 18 months, during this period he grew and developed normally. It is common for patients to attribute trauma to a site where the cancer arises. However, it is well known that there is no association between trauma and cancer. There is no scientific or logical or temporal association between the development of cancer in the patient and procedure of vaccination."
13. Dr.Sarita Khobreakar, Medical Superintendent, Tata Memorial Hospital, Parel, Mumbai, has forwarded the opinion of Dr.Shripad D.Banavali, Professor and Head, Department of Medical Oncology, Tata Memorial Hospital, Mumbai, which reads as follows:-
"We have perused letter no.10592/P2/2017-3 dated 30.03.2017 along with its enclosures. This concerns the patient 6 years old boy Master Anbarasan S/o Radhakrishnan, Kumarapalayam Malaiyadipudhur, Sathiyamangalam Taluk, Erode Dt, Tamil Nadu. The case history of the said patient, as seen from the report dated 23rd March, 2017 of the Cancer Institute, Adayar, Chennai, has also been perused.
This is an unfortunate case of a child who developed Ewing's Sarcoma (a type of bone cancer) of lower 1/3rd of right femur at 2 years 6 months of age. Rest of the events, including the current status, are recorded in the said report of the Cancer Institute, and hence not repeated.
The Hon'ble High Court, Madras has vide its orders dated 27th March, 2017 , directed a report on the following queries raised by it.
(a) Whether there is any possibility for cancer due to immunisation? and in the instant case
(b) Whether the present condition of the child could have been due to the immunisation injection given to him when he was aged hardly four months?
It is submitted that there are reports on social media that immunisation causes cancer. There is no medical literature/evidence to prove that cancer in child could be caused due to immunisation. On the other hand, there are many scientific papers published in peer reviewed journals which, suggest a protective role of routine vaccination in childhood cancer and specifically in childhood RMS (Rhabdomyosarcoma). In this case, one of the latest paper is from Children's Oncology Group of USA which collectively treats more than 90% of children with cancer in USA. A copy of research paper published by the said Children's Oncology Group, entitle "The Role of childhood infections and immunisation on childhood RMS, a report from the Children's Oncology Group by Hari Sankaran, Heather E.Danysh, Michael E. Scheurer, etc is attached (Annexure 1). The study concludes that this is the largest study of RMS to date demonstrating a possible protective effect of immunisation against development of childhood Rhabdomyosarcoma. Our findings add to the growing body of literature suggesting a protective role of routine vaccination in childhood cancer and specifically in childhood RMS."
14. From these opinions of three eminent doctors from much celebrated hospitals in the country and from the opinion of the Director of Preventive Medicine , now, it has been made clear to us that the cancerous growth on the right thigh of the child in question was not at all as a result of immunisation injection given when the child was hardly 4 months old. Somehow or the other , the poor illiterate parents have been made to believe that the cancerous growth was only due to the immunisation injection. Without clarifying the correctness of such apprehension, the Tamil Daily news paper has reported as though the cancerous growth was as a result of immunisation injection. The said news paper has got a wide circulation throughout the State which reaches out the people even in the remote villages. This news item will undoubtedly create apprehension in the mind of the people that there is, at least, a close nexus between the immunisation injection and the cause for paediatric cancer. We apprehend that, in future, the people, more particularly, innocent, ignorant and remote villagers may be reluctant to take their children to the Government Institutions on time to immunise them. This will have a disastrous impact on the society. We are told that because of immunisation, some viral diseases like smallpox, polio, etc. have almost been eradicated in the country. If people stop immunising their children, it may have cascading adverse effect and the same would amount to denial of right of the children to have health care.
15. This may amount to violation of basic human rights declared in Article 25 of The Universal Declaration of Human Rights as extracted above and various judgements of the Hon'ble Supreme Court declaring that this right to have medical facility would fall within the right to life guaranteed under Article 21 of the Constitution of India. In our considered opinion, therefore, it is essential for the Government to reach out the people through the press and electronic media explaining to them that immunisation has got nothing to do with cancer. The people should also be informed that from various studies conducted across the world, vaccination protects the children from childhood cancer and specifically in childhood RMS (Rhabdomyosarcoma). We are hopeful that the Government would unfailingly reach out the people and sensitise them in this regard as indicated above.
16. Now, turning to the present condition of the child in question, we are told that intensive care is taken and treatment is given to the child in the Cancer Institute, Adayar, Chennai, which is known for its reputation. Our direction given already in respect of the expenses towards medical treatment to be borne by the Government is made absolute. Let the treatment be continued to ensure that the child lives his full span of life.
"Let us wait for the child to walk freely from the hospital with normal legs and play childhood games. Let the tears of sorrow from the eyes of his parents stop. Let there roll tears of joy from the eyes of all."
17. We appreciate the Chairman, District Child Welfare Committee, Erode, Erode District, Dr.Harshvardhan.N, Assistant Surgeon, Ukkaram Primary Health Centre, Erode Hud, the Doctors, Cancer Institute (W.I.A.), Adayar, Chennai, who had come on many occasions all the way to this court to explain the condition of the child and also (1) Dr.Lalit Kumar, Professor & Head, Department of Medical Oncology, Dr.B.R.A., I.R.C.H., (AIIMS), New Delhi (2) Dr.T.G.Sagar, Director, Cancer Institute (WIA), Adayar, Chennai and (3) Dr.Sarita Khobreakar, Medical Superintendent, Tata Memorial Hospital, Parel, Mumbai, has forwarded the opinion of Dr.Shripad D.Banavali, Professor and Head, Department of Medical Oncology, Tata Memorial Hospital, Mumbai, who have quickly offered their respective opinion in response to the queries made to them in the larger public interest.
18. Before parting with this Habeas Corpus Petition, we place on record the excellent services rendered by Mr.M.K.Kabir, the learned Counsel who was appointed as Amicus Curiae by this Court and also by Mr.P.Govindarajan, the learned Additional Public Prosecutor.
19. In the result, the suo motu Habeas Corpus Petition is disposed of accordingly.
Index : yes. [S.N.J.,.] [A.S.M.,J.]
Internet : yes. 28..04..2017
kmk
To
1.The Registrar Judicial, High Court, Madras 600 104.
2.The Secretary to Government, Health and Family Welfare
Department, Government of Tamil Nadu, Chennai.
3.The District Collector,Erode.
4.The Chairman,District Child Welfare Committee, Erode.
5.The Superintendent of Police, Erode.
S.NAGAMUTHU. J,.
and
DR.ANITA SUMANTH.J.,
kmk
Pre Delivery Order
in
Suo Motu
H.C.P.No.446 of 2017
28..04..2017
http://www.judis.nic.in