JUDGMENT Subhasis Talapatra, J. 1. This pro bono publico petition has been filed by the Centre for Youth and Social Action (for short the CYSA), a registered society and a social activist namely Mr. Robin Ezung, President of the CYSA. Apprehensive of apathy of the State in taking preventive measures for safeguarding the right to life as stated by the apex Court in Paramanand Kataria Vs. Union of India (1989) 4 SCC 286 : There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be resorted as resurrection is beyond the capacity of man. The patient whether he be an innocent persons or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in-charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social loss do not complete death by negligence to tantamount to legal punishment. 2. In the backdrop of resurgence of malaria several international agencies have signalled alert. The World Health Organisation in the report titled as Strategic Plan to Roll Back Malaria in the South-East Asia Region has observed that: Malaria is occurring increasingly in the form of focal epidemics and the areas affected become endemic for malaria if the control measures are ineffective. Resistance to vectors is increasing and the cost of insecticides is becoming unaffordable thus rendering the control measures ineffective. In the member countries, malaria is predominantly a disease of the poor, marginalised and vulnerable population. This is affecting the socio economic development adversely. Accordingly to WHO report in 2001, malaria leads to an estimated loss of 1.87 million Disability Adjusted Life Years (DALYs) in the connection of SEA Region each year. This amount to direct or indirect loss of about 3 billion US Dollars (USD) every year. 3. In order to accelerate efforts towards rolling back malaria, the WHO Regional Office for South-East Asia (SEARO), has established a Regional Technical Advisory Group (RTAG) on malaria with the following terms of reference: (i) To advise the Regional Director on policies, strategies and activities that are crucial for scaling up malaria control in the region. 3. In order to accelerate efforts towards rolling back malaria, the WHO Regional Office for South-East Asia (SEARO), has established a Regional Technical Advisory Group (RTAG) on malaria with the following terms of reference: (i) To advise the Regional Director on policies, strategies and activities that are crucial for scaling up malaria control in the region. (ii) To provide the strategic directions in implementing the WHO Regional Strategy for malaria control in Member countries; (iii) To identify the strengths and weaknesses of the control strategy and to make practical recommendations; (iv) To advise on the use of appropriate and new technology for effective prevention and control of malaria; and (v) To identify areas of operational research and capacity building required by countries. The RTAG in its meeting held in Maneswar, Haryana recommended a few steps as an emergent measure after reviewing the malaria situation in the Region that: Indoor Residual Spraying (IRS), Insecticide Treated Nets (ITN), Long-Lasting Insecticidal Nets (LLIN) and effective anti-malarials should be recognized as important health enhancing public good to fight the scourge of malaria in the region. The RTAG also recommended that: Integrated Vector Management (IVM) should be guiding principle in vector control. This can be achieved by implementing and evidence-based, cost-effective multi disease control approach involving rational use of insecticides, use of alternative methods and scaling up of ITN and IRS engaging the local communities. Expansion of diagnosis and treatment should be based on the guidelines established by WHO. 4. In terms of those references the Government of India in the Ministry of Health and Family Welfare has farmed National Vector Borne Disease Control Programme. Vinod P. Sharma of India Institute of Technology, New Delhi has laid the background of the National Vector Borne Disease Control Programme in his article titled as Battling the malaria iceberg with Chloro-quine in India Mr. Sharma has observed: The National Vector Borne Disease Control Programme (NVBDCP) is reporting about 2 million parasite positive cases a year, 50 % of these Plasmodium falciparum. The WHO estimates 100 million cases in the South East Asian Region, 70 % of these occur in India [1, 2]. Independent studies by the Indian Council of Medical Research have unequivocally established that malaria incidence is hugely under-estimated [3-6]. Health is the state's responsibility, therefore, malaria control is carried out by the states, under the overall guidance of the NVBDCP. Independent studies by the Indian Council of Medical Research have unequivocally established that malaria incidence is hugely under-estimated [3-6]. Health is the state's responsibility, therefore, malaria control is carried out by the states, under the overall guidance of the NVBDCP. To monitor the impact of interventions surveillance is organized to detect malaria cases by examining fever cases in the entire country. In rural areas, blood smears are collected at fortnightly intervals by multi-purpose workers i.e. through Active Case Detention (ACD) and also collected at the Primary Health Centres (PHCs) i.e. Passive Case Detection (PCD). In urban areas, PCD is carried out at the malaria clinics. The blood smears are estimated in the laboratory for parasite identification and results are used for follow-up action. Cases found positive are given radical treatment, as per the policy of the NVBDCP. This dates used in calculating epidemiological indices at the various levels of health services. PHCs reporting cases of drug failure are referred to the drug monitoring terms for further investigation on drug sensitivity in P. falciparum. If 25 % (now reduced to 10%) of the cases tested show resistance to CQ, the drug policy is changed for the second line of drug. Thirteen NVBDCP teams routinely monitor P. falciparum drug sensitivity in the country. These terms are located in various regions so as to cover the entire country. P. Falciparum monitoring for drug sensitivity is done using the World Health Organization (WHO) methodology of in vivo (28 day) test procedure for determining the status of resistance to CQ and other antimalarial drugs in P. falciparum. Malaria Drug Policy (2007) of the NVBDCP provides inter alia the following treatment guideline country wide. 1. All fever cases should preferably be investigated for malaria by microscopy or Rapid Detection Test (RPT). 2. The first line of treatment is chloroquine and the second line is ACT (artesunate + sulphadoxine/Phrimethamine) combination in case resistance to these formulations and to treat severe and complicated malaria, quinine will be the drug of choice. 3. Microscopically positive P. falciparum case should be treatment with chloroquine in therapeutic dose of 25 mg/kg body weight over three days and a single dose of primaquine 0.75 mg/kg body weight on the first day. The practice is to followed at all levels including Voluntary Health Workers (VHWs) like Drug Distribution Centre (DDCs)/Fever Treatment Depots (FTDs)/Accredited Social Health Activist (ASHA) as well. 5. The practice is to followed at all levels including Voluntary Health Workers (VHWs) like Drug Distribution Centre (DDCs)/Fever Treatment Depots (FTDs)/Accredited Social Health Activist (ASHA) as well. 5. National Vector Borne Disease Control Programme (for short the NVBDCP) has adopted the Malaria Drug Policy (2007), objective of which has been outlined thus: Around 2 million laboratory confirmed cases of malaria are reported in the country annually. Out of the total malaria cases, 40-50% is P. falciparum. The P. falciparum species is spreading wider due to migration of population from endemic to non endemic areas and vis-a-vis has increased tremendously. One of the reasons attributed to rise in P. falciparum is resistance to drug chloroquine, which is being used as a first line of treatment for malaria cases. During recent years it has been observed that chloroquine resistance is widely spread as per the results of the drug sensitivity studies conducted. This is a serious concern to the programme as this species is responsible for mortality. It is observed that P. falciparum infection may lead to complications in 0.5% to 2% of cases. Mortality may result in about 30% of such cases if timely treatment is not given. Use of an appropriate malaria drugs is very important not only to save the life in P. falciparum cases but also to contain the spread of his species. At present the main thrust in the programme is on early diagnosis and prompt treatment which are the key components of malaria control. Malaria diagnosis is carried out by microscopic examination of blood films collected by active and passive agencies. The presumptive treatment (chloroquine at a dose of 10 mg/kg body weight) is given at the time of blood smear collection and radical treatment (chloroquine at a dose of 25 mg/kg body weight + prima quine as per the species) to confirmed malaria patients on microscopy confirmation. The treatment schedule varies from area to area depending on endemicity and status of resistance of antimalaria. The WHO technical advisory group on malaria in its meeting held in India on 15-17 December, 2004 has recommended that the Member countries should be discouraged from implementing presumptive single-dose and incomplete treatment with chloroquine. If a patient is suspected of having malaria which cannot be immediately confirmed, full treatment with recommended drugs should be given. The WHO technical advisory group on malaria in its meeting held in India on 15-17 December, 2004 has recommended that the Member countries should be discouraged from implementing presumptive single-dose and incomplete treatment with chloroquine. If a patient is suspected of having malaria which cannot be immediately confirmed, full treatment with recommended drugs should be given. Health agencies and volunteers running fever treatment in inaccessible areas should be provided with rapid diagnostic for diagnosis and to ensure full radical treatment to confirmed malaria cases. Priority for treatment should be given to clinically suspected cases rather then on the basis of only fever. Further, the WHO malaria treatment guidelines also recommend that anti malaria treatment policy should be changed when treatment failure rates are considerably lower i.e. the initiation of alternative treatment regimen at the treatment failure proportion exceeds 10%. The reason attributed for implications of using drugs with low efficacy is that once the drug resistance has emerged in a locality, the continued use of the failing drug will result in the rapid spread of drug resistance in the area. 6. The petitioners on witnessing the deplorable state of the anti malaria measures as devised have filed this petition for intervention of this Court Prior to that, the petitioners have surveyed two regions of the State of the Nagaland and found that the Government reported: a mortality rate for P. falciparum anywhere from 2 % to 15 % (i.e. 10 to 75 times higher than the national average). In UMS Dimapur this rises to an incredibly high 65 % mortality rate for P. falciparum in 2006 (325 times the national average). In general the high number of deaths in the State can be linked to staffing shortage, inadequate lab facilities, and important treatment. 7. The petitioners urged for the direction for immediate implementation of the directives of National Malaria Control Policy having due regard to the local situations. The petitioners suggested the steps to: (i) Provide Artesunate Combination Therapy (ACT) as first line treatment for P. falciparum Malaria and Chloroquine as treatment for P. Vivax malaria (ii) Appoint 667 malaria field workers for proper malaria surveillance and basis treatment i.e. 1 per 3,000/- populations. (iii) Provide field workers with any access to appropriate transport on call, telephone, back up of a doctor an primary health centre. (iii) Provide field workers with any access to appropriate transport on call, telephone, back up of a doctor an primary health centre. (iv) Provide adequate number of Rapid Diagnostic Kits (RDK), life saving appropriate medication to the field workers. (v) Appoint 100 lab technicians i.e. 1 per 20000 populations. Lab Technicians shall tie up and work with field workers. (vi) Establish mobile malaria clinics to diagnose and treat patient in the villages. (vii) Distribute long lasting Insecticide treated bed nets of adequate size to all families in need and explain the recipient how to use the net. All cases tested positive for malaria should be provided with insecticide treatment bed net. (viii) Include testing and treatment for malaria as a part of ante-natal check up for all pregnant women in the Janani Suraksha Yojana (JSY) and also to provide Long Lasting Insecticide treated bed nets to all pregnant women in their ante-natal check up or on registration of pregnancy. (ix) Commence treatment of a P. falciparum malaria patient immediately i.e. within 24 hours after getting results of blood sample and full compliance of dosages taken to be observed. (x) Conduct additional round of Indoor Residual Insecticide spray in all districts of Nagaland. However, it should be ensured that the spray is done systematically and the manpower is adequately trained prior to undertaking the spray operations. (xi) Fully equip the District Hospitals, PHCs and CHCs with necessary infrastructures, equipments drugs and staff. Indoor facilities for admission of severe and complicated cases of malaria must be kept in readiness. The staff shall be trained to handle emergency malaria cases. (xii) Create a Drug Distribution Centre in every village with adequate stocks of drugs, long lasting insecticides treated bed nets, rapid diagnostic kits and adequate stock of temephos for disinfecting household water. (xiii) Develop follow up mechanism for P. falciparum cases until the parasite clearance. (xiv) Appoint a departmental Technical Group to review and monitor the ongoing malaria situation and suggest necessary control measures. 8. The respondents by filing an Affidavit-in-Opposition have produced some records to show how the baseline surveys are being conducted to adopt the appropriate anti malaria measures. But from a report dated 13.09.2006 on NVBDCP of Nagaland State, the following information can be gathered Population 18,05,263 with 16 major Tribes and 16 different dialects. Area 16,488 sq km with 200km international Border with Myanmar. But from a report dated 13.09.2006 on NVBDCP of Nagaland State, the following information can be gathered Population 18,05,263 with 16 major Tribes and 16 different dialects. Area 16,488 sq km with 200km international Border with Myanmar. No. of District 11 No. of District Hospital 8 No. of CHC 21 No. of PHC 87 No. of Sub-Centres 394 No. DDC 858 No. Malaria Clinics 19 No. of village 1276 Urban Malaria Scheme 1 9. The respondents however, furnished the information fact sheet to the Director of NVBDCP to show that for the effective steps as taken by the Government of Nagaland the reported case of malaria are coming down. For appreciation, the table of epidemiological situation is extracted therefrom: Epidemiological Solution Year Board sides examined Positive SPR% Pf. Ceases Pv. Cases Pf% API 2002 Active 48822 2407 4.93 134 2273 5.56 2.05 Passive 10956 1538 14.03 104 1434 6.76 1.31 Total 59777 3945 6.59 238 3707 6.03 3.36 Year Board sides examined Positive SPR% Pf. Ceases Pv. Cases Pf% API 2003 Active 55063 1777 3.17 88 1689 4.95 1.60 Passive 10627 1593 14.99 189 1404 11.86 1.43 Total 66590 3370 5.06 277 3093 6.03 3.06 Year Board sides examined Positive SPR% Pf. Ceases Pv. Cases Pf% API 2004 Active 49689 1639 3.29 39 1600 2.37 0.14 Passive 17822 847 4.75 89 758 10.50 0.76 Total 67511 2486 3.68 128 2358 5.14 2.25 Year Board sides examined Positive SPR% Pf. Ceases Pv. Cases Pf% API 2005 Active 64482 1632 2.51 32 1591 1.97 0.89 Passive 21988 1366 6.21 58 1308 4.24 0.75 Total 86470 2989 3.45 90 2899 3.01 1.65 Year Board sides examined Positive SPR% Pf. Ceases Pv. Cases Pf% API 2006 Active 39718 1199 3.01 145 1054 12.09 0.66 Passive 13351 818 6.12 257 561 31.41 0.45 Total 52156 2017 3.86 402 1615 19.93 1.11 10. But the dismal inadequacy of infrastructural capability is manifest from the shared feet as excerpted. The Government of Nagaland is having 19 clinics altogether whereas the villages are 1276 and the population is of 18,05,263 as per 2001 Census with 16 major tribes. From the District wise epidemiological situation, 2006, it appears that the reported cases of death from malaria for the year 2006 were 75. The Government of Nagaland is having 19 clinics altogether whereas the villages are 1276 and the population is of 18,05,263 as per 2001 Census with 16 major tribes. From the District wise epidemiological situation, 2006, it appears that the reported cases of death from malaria for the year 2006 were 75. The respondents have placed their data on records as supplied to the Government of India to demonstrate that the state have been pursuing effective anti malaria strategy for preserving the life of the people. District-wise epidemiological situation 2006 (Jan-Dec) Name of Popn. BSC BSE POSITIVE Pf% ABER API SPR SFR RT Death Pv Pf Total Kohima 174399 12389 12389 345 168 513 32.7 7.10 2.94 4.14 1.35 513 10 Phek 119795 6852 6852 460 7 467 1.49 5.71 3.89 6.81 0.10 467 - Wokha 140249 6642 6642 392 25 417 5.99 4.73 2.97 6.27 0.37 417 - Mokokchong 172571 20060 20060 716 48 764 6.28 11.62 4.42 3.80 0.23 764 6 Zunhebolo 163231 10791 10791 42 7 49 14.28 6.61 0.30 0.45 0.60 49 - Mon 239945 6620 6620 141 60 201 29.85 2.75 0.38 3.03 0.90 201 - Tuensang 146768 5202 5202 159 11 170 6.47 3.54 1.15 3.26 0.21 170 - Dimapur 160576 6446 6446 87 44 131 33.58 4.01 0.81 2.03 0.68 131 - UMS, Dimapur 159542 3279 3279 117 90 207 43.47 2.05 1.29 6.31 2.74 207 59 Kipheri 127448 4258 4258 297 5 302 1.65 3.04 2.36 7.09 0.11 302 - Longleng 124992 6367 6367 94 15 109 13.76 5.09 0.87 1.71 0.23 109 - Peren 75747 3047 3047 5 26 31 83.87 4.02 0.40 1.01 0.85 31 - Total 1805263 91953 91953 2855 506 3361 15.05 5.09 1.80 3.65 0.55 3361 75 11. In para-6 of the Affidavit-in-Opposition filed by the respondents it has been stated as that: The deponent respectfully begs to state that in Nagaland, the achievement on Malaria curative impact may be seen from the list of malaria death cases which shows declining rate during 2009 and 2010 as per latest report collected from all the districts in Nagaland. Period Death cases 1. January 2009 – July 2009 20 persons 2. January 2010 - July 2010 0.6 persons 12. Period Death cases 1. January 2009 – July 2009 20 persons 2. January 2010 - July 2010 0.6 persons 12. It appears further from the Affidavit-in-Opposition filed by the respondents that they have robustly claimed that the Government of Nagaland has been taking all possible steps for anti malaria measures in tune with the national norms. The petitioners have seriously contested that claim of the State of Nagaland stating that: (a) there is no clarity in the Affidavit-in-Opposition filed by the State-respondents' comment of the ACT treatment being given to the beneficiaries. (b) In contrary to its own statement, the respondents in Para-29 of the Affidavit-in-Opposition admits that there is a shortage of the trained manpower. (c) There is no supporting Official documents showing the appointments on contractual basis under NVBDCP Programme for additional manpower of MPWs. (d) There is no official document to support that there is regular monitoring programme. 13. Ms. Ayemi, learned Counsel appearing for the petitioners has referred to the Nagaland NVBDCP annual reports wherein the following figures are available: Year No. of Malaria cases Pf cases Deaths 2006 3361 506 75 2007 4976 820 26 2008 5503 821 19 2009 8489 2893 35 `She lambasted the boastful statement of the respondents. The state of Nagaland is infested with what is popularly known as 'Forest Malaria'. The unreported cases are plenty. The Government of Nagaland should have devised their own guidelines confirming to the broad National guidelines in order to effectively control and prevent people from morbidity and mortality due to malaria. There cannot be any complacency as regards the malaria control rather the State should always be on alert regarding the anti malaria programme until the disease is completely eradicated. 14. Learned Government Advocate, Nagaland appearing for the respondents submitted that a special programme management has been monitoring the implementation and deployment of fields staffs for anti malarial measures. For illustrating the State action, the learned Government Advocate, Nagaland has referred to the inputs as issued to the Wokha District under NVBDCP, Nagaland. 14. Learned Government Advocate, Nagaland appearing for the respondents submitted that a special programme management has been monitoring the implementation and deployment of fields staffs for anti malarial measures. For illustrating the State action, the learned Government Advocate, Nagaland has referred to the inputs as issued to the Wokha District under NVBDCP, Nagaland. However, from the Annexure-5 to the Affidavit-in-Opposition as filed by the respondents, it appears that the Director, NVBDCP by the DO No. 5-27/2008/I & E/TAC/NVBDCP had requested the said Programme Officer, NVBDCP, Nagaland to initiate the preparatory activities like comprehensive/hands on training of all health workers i.e. MPWs & heal volunteers like ASHA on the new guidelines regarding the use of RDT and ACT drug schedule. But the respondents are quite silent over that issue. 15. This Court has scrutinized the documents/reports/data sheets as produced and also considered the averments as advanced for the petitioners as well as for the State. It appears that there is a serious gap in the reported advance and the grass root reality. Due regard has been given to the preventive measures as stated to have been taken by the Government of Nagaland such as indoor residual spray, deployment of man Power, advance information and mobilizations for acceptance by the community, concurrent and consecutive supervision, compilation and analysis of reports on Malaria as filed by the field workers, supply of insecticides treated bed nets, distribution of Larvivorous fish, behavior communication change, capacity building and malaria curative aspects etc. 16. In most of the cases, the malaria positive cases are not being followed as per the National Drug Policy according to the date as available from the Government records. The health centres and health units are not being provided with anti malarial drugs for any eventuality as supplementing unit to support the anti malaria drive. 17. The apprehension as raised by the petitioners are rooted in the reality as exposed during the deliberation. In the consideration thereof, we direct the State of Nagaland to formulate a comprehensive State Action Plan for eradication of malaria by way of anti malarial measures as per the national norms as formulated by the NVBDCP, Malaria Drug Policy (2007) and National Policy on Malaria for giving the direction to achieve the object of preserving the human life from the scourge of malaria which has resurged in this region. It is further directed that under the State Action Plan, a high power monitoring body has to be created to oversee the activities under the State Action Plan and to make emergent or remedial measures without bureaucratic sluggishness. While constituting the said high power monitoring body, representatives from the non-Governmental Organisation or Voluntary Action Groups (NGOs) working in the filed be inducted so as to harness peoples participation in the State Action Plan. The said State Action Plan and the high power monitoring body have to be framed and constituted within a period not later than 3(three) months from today. The State has the Constitutional obligation under Article 47 to frame such policy as directed by this Court. While framing the said State Action Plan the steps as suggested by the petitioners be considered in the right spirit. With this direction and observation, this petition stands allowed and disposed of.