Doctor in the dock

THE arrest of Ketan Desai, President of the Medical Council of India (MCI), on graft charges has not come too soon. On April 22, the Central Bureau of Investigation (CBI) arrested him for allegedly accepting a bribe of Rs.2 crore for granting recognition to a medical college in Punjab. Two others, J.P. Singh and Kanwaljeet Singh, who were part of the deal, were also arrested. The former is an alleged middleman while the latter is the vice-chairman of the Patiala-based Gian Sagar Medical College. Later, another person associated with the college, Sukhwinder Singh, was arrested. Intercepted telephonic conversations between the accused led to the arrest of J.P. Singh and Kanwaljeet Singh after the CBI laid a trap outside the middleman's residence in South Delhi.

On May 1, a Delhi court remanded the four in judicial custody for 13 days; on May 3, it rejected Desai's bail application. On May 11, the Delhi High Court questioned the CBI over Desai's bail plea and ordered it to file its response by June 3. The Gujarat government has removed Desai from his institution, B.J. Medical College, Ahmedabad, a government institution, where he headed the urology department.

Court strictures in 2001

This is not the first time Desai's corrupt practices have come to light. On November 23, 2001, the Delhi High Court concluded that there was a high level of corruption within the MCI. It ruled that there was a prima facie case for prosecution of the then MCI President, Desai, on charges of corruption and ordered his removal from the post. Such a person does not deserve to occupy the high public office of the President of the MCI, the judges, Arun Kumar and R.C. Chopra, observed. The court also directed the CBI to initiate his prosecution on the basis of the offences that had been brought to light.

Besides establishing the case of misuse and abuse of his statutory office by Desai, the Delhi High Court had also looked into the manner of the MCI's functioning, producing illuminating results. Perusing the minutes of the meetings for the years 1998, 1999 and 2000 of the Executive Committee, of which the President and Vice-President are ex-officio members, the court observed that these were replete with resolutions leaving the matters relating to recognition of colleges or inspection of colleges and admissions to medical colleges to the absolute discretion of the President. From 40 to 50 cases are dealt within a short span of time. These minutesare a pointer to the fact that the entire affairs of the Council are being controlled and managed by the President. The President has managed and manipulated the affairs of the Council in a manner that he exercises complete control over the affairs of the Council. The Executive Committee is being used to legitimise his activitieswho in turn is using his position to make illegal monetary gains. The role of the Central government in this connection has been rendered illusory.

Under Section 10A of the Indian Medical Council Act (1956), permission is required to establish a new college or to start a new course of study. The section also makes the government's permission mandatory for any increase in the admission capacity in any course of study or training: the college submits its scheme to the government, which refers it to the MCI for its recommendations, which form the basis of the government's decision. The MCI sends a team of inspectors to gather first-hand information before making its recommendations. The choice of inspectors is obviously significant as their report influences the MCI's recommendations, and there are no independent checks in the system.

It is generally known that admissions in excess of the stipulated number of seats are motivated by extraneous considerations, with each seat costing upwards of Rs.25 lakh. If it is from the non-resident Indian (NRI) quota, there is more money involved, and even more if the student seeking admission is a foreigner. From the Patiala College case, we know that the bribe for college recognition can run into crores. With the power to decide who went into the inspection teams, Desai could ensure that reports either highlighted deficiencies or underplayed them according to his diktat.

The Delhi High Court had noted that the respondents, the MCI and Desai, had not disputed that admissions in excess of the stipulated number of seats had been allowed in some cases. Similarly, inspections were followed up with re-inspections for the purpose of granting recognition. Coupled with the well-known fact about lakhs of rupees being charged for medical colleges for admission to medical collegesproves that persons in control are making a lot of illegal monetary gains, the court observed. What is most shocking, says K.M. Shyamprasad, former vice-president of the National Board of Examinations (NBE) and the present Chancellor of the Martin Luther Christian University, Meghalaya, are the surprise inspections', which are not in the regulations.

The Delhi High Court had also appointed an administrator from a non-medical background, Major-General S.P. Jhingon, to perform all the functions of the MCI President, including presiding over the meetings of the Council as well as those of its Executive Committee. The court had also authorised him to associate with a person from the medical profession whenever in need of advice. But the MCI challenged the court's verdict in the apex court. According to reports, the Executive Committee, filled as it was by Desai, did not allow Jhingon to function. His efforts to bring transparency and integrity into the Council's operations were thwarted repeatedly. Finally, trumped-up charges against him in the Supreme Court forced him to resign. The apex court, in turn, asked the Vice-President, Kesavankutty Nair, to take over from Jhingon, and it also appointed an ad hoc committee comprising four medical men to monitor the MCI's functioning.

Desai bounced back

Interestingly, this committee gave a clean chit to the MCI's functioning in its periodic reports to the Supreme Court. Shyamprasad points out, This committee practically shielded the MCI from public and judicial scrutiny of all the wrongdoings that are now being exposed. Corruption in the MCI was well known but this committee could find no fault with its functioning. The committee has a lot to explain. This allowed Desai to get a foot into the MCI and bounce back as President last year.

But even during the interim period of seven years, Desai was directing the MCI's operations by proxy. There is evidence, in the form of e-mails from the Executive Committee to Desai, including documents relating to college inspections, tampered inspection reports and letters from registration-seeking colleges to Desai, to show that Desai was very much in control even during his days of exile. During this period, he was also made the chairman of the Curriculum Development Committee, a new panel that was created, it would seem, just to accommodate him in some capacity in the MCI.

In establishing the charges of corruption against Desai, the Delhi High Court had relied on documents relating to Income Tax raids conducted at the business and residential premises of Desai on July 18 and 20, 2000, submitted to the court by the petitioner, Harish Bhalla. These raids had revealed that Desai and his family members had received payments to the tune of Rs.65 lakh from two business parties in Delhi, ostensibly as gifts. The documents clearly established that these so-called gifts were accommodation transactions of slush money in the form of gifts, and the alleged donors merely acted as conduits to channel the unaccounted money. Noting that there were serious irregularities in the inspections carried out by the MCI at D.Y. Patil Medical College, Pimpri, and Santosh Medical College, Ghaziabad, the court agreed with the petitioner's contention that there were sufficient reasons to believe that these were illegal payments made for favours shown to institutes.

CBI never pursued case

Despite these strictures, Desai went scot-free because the CBI never pursued the case to its logical conclusion. One of the crucial pieces of evidence, pointed out by the Income Tax authorities, was that the cash deposits in the banks from which the alleged gifts were issued (both the parties) were close to the dates of the gifts. The CBI, however, chose not to investigate the origins of these monies but closed the case merely on the basis of the fact that Desai's income tax declarations had reflected these gifts. It also did not go into the matter of corruption in the inspection of colleges by the MCI.

The closure report of the CBI, of October 2003, said that no evidence was found to indicate that Desai had extended any favours to the donors this had to be so, given that these were accommodation transactions and the said amounts had been paid to Desai voluntarily as goodwill money. Though the designated CBI court initially rejected the CBI's contention, later, under a different judge, it accepted the closure report in October 2005 without going into the merits of the case.

Most significantly, the CBI court noted that Harish Bhalla, the medical practitioner who had filed the writ petition in the Delhi High Court challenging Desai's appointment as MCI President, did not oppose the closure report. This indicates the extent of the clout that Desai could wield. He could bring sufficient pressure on the CBI not to investigate the case completely. The petitioner could also be influenced to withdraw the case without questioning the closure report. The government, which was a party to this petition, also never opposed the closure of the case against Desai. After the closure of the CBI's investigation, it took another couple of years for the Delhi High Court to dispose of the case fully. Unfortunately, the final judgment, favoured by a change in the Bench, cleared Desai of all charges.

On the basis of this verdict, the four members of the ad hoc committee wrote apparently identical letters to the amicus curiae of the Supreme Court, requesting the court to permit the MCI to hold elections and stating that a properly elected body was necessary for the smooth functioning of the body. As a result, the Supreme Court, in its order of February 5, 2009, permitted the MCI to conduct its elections and dismissed the case. Unfortunately, there was no other petitioner challenging the verdict. Since his membership to the Council had been withdrawn as a result of the 2001 judgment, following the CBI closure, Desai approached the Supreme Court seeking its approval for his Council membership. The Delhi High Court, in its decision on the matter in early 2008, directed the Centre to notify his membership, but with the caveat that there was no other case pending in the courts against Desai.

The representative of the Ministry of Health and Family Welfare, however, had misrepresented facts before the court by making a false statement. A revision petition against the order of the Special Judge of the CBI court of December 12, 2005, accepting the closure report, was, in fact, pending. This was dismissed by the Delhi High Court only in March 2008 after the court's directive to the government to notify Desai's membership to the MCI. Interestingly, this particular order cannot be found on the High Court website any longer.

Following the Supreme Court order permitting the MCI to hold elections, the MCI conducted the elections to the posts of President and Vice-President on March 1, 2009. And, of course, Desai won the election unopposed. Not surprisingly, his candidature was nominated by Kesavankutty Nair's wife, Rani Bhaskaran of Dr Somervel Memorial CSI Medical College and Hospital, Thiruvananthapuram, and Ved Prakash Mishra of Datta Meghe Institute of Medical Science, Nagpur, who had been the chairman of the Finance Committee as well as of the Post Graduate Committee earlier. Interestingly, Mishra has recently been nominated for Council membership once again, though not through Nagpur University this time but by Ghulam Nabi Azad, the Union Minister for Health and Family Welfare, as a government nominee.

What is of interest is that the court and the government allowed Kesavankutty Nair to function as the acting President for as long as seven years, longer than a term for the President, as if there was no one else from the profession worthy of becoming MCI President and everyone was waiting for Desai to return. Indeed, it is a record of sorts that Desai has been the President of the MCI for 20 years.

Role of the MCI

Clearly, the MCI's functioning has to be thoroughly investigated much beyond what the honourable courts and the people concerned from the medical profession have done. Its structure needs to be overhauled completely. The MCI came to be established in 1934 under the Indian Medical Council Act, 1933. With the increase in the medical colleges after Independence, the Act was found inadequate, and so it was replaced by the IMC Act of 1956. Originally, the IMC Act, 1956, conceived the MCI as an advisory body to the government on matters relating to qualifications required for registration. But over the years, the Council usurped several powers beyond the scope of the IMC Act. This was done through amendments to the Act and by enacting regulations which required the concurrence of the government.

Postgraduate regulations in 2000 were made despite a specific prohibition vide Section 19A against making regulations regarding postgraduate medical qualifications. Postgraduation seats are the biggest money-spinners in the game today, with a seat costing from Rs.76 lakh to Rs.1 crore. In some cases, court orders were obtained to strengthen its powers. The government was the only party that could have challenged the MCI in courts, but in most cases, as in 2001, it chose not to do so or put up a weak fight.

The most harmful amendment, in hindsight perhaps, came in 1993 when a new section, 10A, was introduced Permission for Establishment of New Medical College, New Course of Study. Through this amendment, the MCI gained complete control of the entire process of establishing a college or starting a new course. Until then the States had a role in initiating the process, but with the new amendment their role was reduced to merely issuing a No Objection Certificate. A series of regulations were made on the basis of this amendment over issues such as curriculum, faculty requirement and the power to inspect colleges.

As a consequence, today we have a medical education system manipulated by a Council consisting of people whose integrity is questioned. With the supply of seats not being enough to meet the demand of aspiring students, and with private entrepreneurs with dubious backgrounds setting up medical colleges as business ventures across the country, money power has become central to the system. Corruption has seeped into the MCI with money being used to overcome every obstacle and subvert every established institution.

Today we have a highly skewed distribution of the 633,108 doctors registered with different State Medical Councils. According to the Report of the National Commission on Macroeconomics and Health (2004), States that perform better have thrice the number of doctors per 1,000 population compared with the poorly performing ones. The number of doctors per 1,000 population is less than the norm of 2.25 in States such as Assam, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Haryana, Maharashtra, Rajasthan and West Bengal. Even in terms of the distribution of medical colleges, the biggest gap is where the people are the most deprived. The five southern States account for 70 per cent of the seats in medical colleges, where money-minting activity is also greatly in evidence. Having moved into the vacuum of advising the government on medical education, the MCI failed to perform this role and suggest suitable measures. The citizen's interests have got short-changed in the manner of the functioning of the MCI, remarked a senior government official.

Minister's defence

After Desai's arrest, P. Rajeev of the Communist Party of India (Marxist), or the CPI(M), moved a calling attention motion in the Rajya Sabha on May 4 on Irregularities in the functioning of the MCI. Replying to the motion, Ghulam Nabi Azad stated that the government did not have the powers to intervene and take action in the functioning of the MCI. It was with the objective of empowering itself with legislation that could be used to take action that the government had moved the Indian Medical Council (Amendment) Bill in August 2005.

The Delhi High Court, in its ruling of November 23, 2001, which ordered that Desai shall cease to hold officewith immediate effect, had made the following observation: We are conscious of the fact that the. Act does not contain any provision for disqualifying a person from holding office in the MCI. But there is no bar either in the Act against removal of an elected office-bearer before [the] expiry of his term. While the court can intervene and act in the above manner when there is a vacuum in law, a government cannot do so. It has to empower itself to be able to discharge such a function.

In particular, the amendments sought to vest the powers with the government to limit the term of the President and the Vice-President of the Council and to remove the President or the Vice-President or a member of the Council from office before the expiry of their terms on the grounds of misconduct or incapacity.

The Statement of Object and Reasons for the proposed Bill said: After reviewing the working of the Council, and the problems being faced, a need has been felt to empower the Central government to give such directions to the Council wherever necessary on matters of policy and public importance and to ensure their proper compliance, and also Council's accountability to the tasks entrusted to it [I]t is also proposed to make provisions for removal of members of the Council [including the President and the Vice-President] and, in specified circumstances, dissolution of the Executive Committee or any other Committee (emphasis added). The italicised part clearly referred to the Delhi High Court order of November 2001.

The Parliamentary Standing Committee for the Ministry of Health and Family Welfare during 2005-07 under Amar Singh, to which the Bill was referred, however, shot down nearly all the proposed provisions, except for the one that allowed the government to issue directives to the MCI in a limited way, on the grounds that the proposed amendments would undermine the autonomy and democratic functioning of the Council.

I would urge all the honourable Ministers that the time has come for us to revisit this issue, the Minister said during the recent Rajya Sabha debate. There can be no disagreement with the view of the Standing Committee that any regulatory body such as the MCI needs autonomy and independence of action if it is to perform its duties credibly. The IMC Act, 1956, reflects the faith and confidence that the Parliament reposed in the MCI and its ability to regulate and govern itself. Recent events suggest the need for further reform in all aspects of the structures governing medical education in the country. Our first and immediate concern should be to restore the credibility of the MCI and to restore the confidence of all those involved in medical education in the country.

This view was endorsed by some other members during the debate.

Autonomy: A red herring

The issue of autonomy is actually a red herring, the main issue being the Council's accountability. It is a case of autonomy versus accountability where the latter was thrown to the winds, thanks to the government's inept handling and even complicity in some cases. It is unfortunate that the Parliamentary Committee could not see through this smokescreen of the autonomy argument made by certain quarters, in particular by MCI members.

However, it is a moot point whether the proposed amendments alone can reform the MCI. The Act actually has a provision under Section 30 by which it can appoint a three-member commission to inquire into any matter concerning the MCI, including any action on an MCI official. It is not known if the government has ever used this provision at all to rectify the irregularities that have come to light and make the Council accountable.

For example, the Council has failed to maintain the Indian Medical Register (IMR) of registered medical practitioners in the country after 1993, as noted by the Estimates Committee of 2005.

But more importantly, as pointed out earlier, the root cause of all the corruption in the MCI can be traced to the amendment of 1993 (Section 10A) that gave powers to the MCI to recommend the setting up of new colleges and courses.

Many in the profession, and even government officials, are of the view that the MCI should be stripped of this function and should go back to its original mandate of advising the government and be concerned with ensuring ethics in the profession. The aspect of medical education and human resource should be left to the newly proposed National Council for Human Resource in Health (NCHRH), to which the country's President accorded her approval in her speech to Parliament last year. Unfortunately, the Bill has been drafted badly and needs to be redrafted taking into account issues that have been raised in several quarters.

In this context, it must be said that the Minister's statements appear to be contradictory. On the one hand he wishes to restore the MCI's credibility in the field of medical education and, on the other, he has promised in the House to introduce the NCHRH Bill at the earliest. This dubious stand of the Minister with regard to the MCI was evident in the recent controversy and the court case relating to the proposed short-term medical course ( Frontline, February 26 and April 9) for rural health care.

The Minister supported the MCI's proposal of a three-and-a-half-year Bachelor of Rural Medicine and Surgery (BRMS) course instead of following the recommendations of the task force under the National Rural Health Mission (NRHM).

In the light of this perspective, a new amendment Bill for the IMC Act needs to be moved, which restricts the MCI only to regulatory and advisory aspects of the medical profession, including ethics.

A system that leaves functions that affect nearly six lakh doctors in the country to a few members elected by a convoluted collegium as prescribed in the Act needs to be reformed forthwith. Every registered practising doctor should have the right to vote in the election.

In this age, it is easy for every one of the six lakh voters to vote electronically and choose the right person to head the body that will oversee their activities, points out a senior functionary of the government. The new IMC Act amendment Bill, which too may be brought in soon, should incorporate this as well.