In the Supreme Court of India
|Case Name||Devika Biswas v. Union of India|
|Citation||AIR 2016 SC 4405, 2016 (4) RCR 461 (Civil), 2016 (8) SCALE 707, 2016 (10) SCC 726|
|Date of Judgement||14 September 2016|
|Respondent||Union of India|
|Bench||Justice Madan B Lokur and Justice U U Lalit|
|Relevant Acts||Constitution, 42nd Amendment Act, CESCR|
In this PIL, an activist of health rights has challenged the State Governments’ practice of subjecting women to sterilization procedures in dangerous and unsanitary sterilization camps, where informed consent is often not obtained from patients before conducting the procedures. The Apex Court found these practices, mainly focused on the poor, rural women, to be in violative of the right to health and more specifically their reproductive rights, two key components of Right to life under the Indian Constitution.
The judgement noted that evidence of the poor quality of care during sterilization camps leading to deaths in several cases has been reported from several states including Chhattisgarh, Uttar Pradesh, Kerala, Rajasthan, Madhya Pradesh, and Maharashtra during the hearing. The civil society organisations have welcomed the judgment as it calls for strengthening of the health system, to improve the quality of care of the Family Planning programme and accountability of the government.
The 14 September judgement of the Honorable SC in Devika Biswas v. Union of India writ petition on sterilisation has boosted the morale of the many public-spirited citizens. It places accountability on the Central Government and has ordered a cessation on sterilisation camps as a way of control in population. The judgment vindicates conscientious citizens who contest the category of prejudice that underlies the targeting of poor women as objects for sterilisation while disregarding their personhood and human rights.
However, unless the dehumanizing biases and the mindset behind such policies and programmes are challenged, along with meticulously focusing on several alternatives suggested in the final judgment, abandoning sterilisation camps in itself may not be sufficient in restoring the dignity and right of choice to vulnerable women, which is the larger goal behind the contestation.
Facts of the case
In January 2012, 53 women went to a sterilization procedure in Bihar. At the sterilization camp managed by an NGO, Jai Ambey Welfare Society, granted accreditation by the District Health Society, performed the sterilization without following any formal process. The women had not been given counseling regarding potential dangers or outcomes of the sterilization procedures. They were operated on in a school instead of a hospital, in an unsanitary and unethical manner, by a single surgeon, under torchlight on top of a faculty desk, and without running water or sanitary gloves. Many of the ladies experienced tremendous physical pain post-operation and consequently filed police complaints. A subsequent investigation by State authorities found that the camp had largely been successful, but it utilised expired medicine.
About the petition
- It brings out how sterilisation is viewed as ‘population control’ and ‘stabilization measure’ by the healthcare personnel as a way of safeguarding a Woman’s Reproductive Rights.
- The fact-finding reports of the Petitioner and the submissions of the Respondents stand as testament that while the Union of India believes that issuing guidelines is where its responsibility ends, the States openly disregard them and the consequences include a country which amounts for 20% of the maternal deaths in the world and a public healthcare system that is fast approaching a failed state.
- HRLN filed a PIL on behalf of Devika Biswas(Civil Writ Petition) in the Supreme Court at Delhi under Article 32 of the Constitution of India.
- A Sterilisation camp in Chhatisgarh which was conducted in conditions similar to the January 2012 camp in Bihar left 15 women dead. The Petitioner subsequently prays that the state of Chhatisgarh also be added to the list of Respondents.
Submission of Devika Biswas
- A list of impanelled doctors is not readily available.
- Consent forms are not available in the local language.
- Unrealistic targets are set for sterilization procedures.
- Non –consensual and forced sterilization carried out on young, illiterate, physically, and mentally challenged clients.
- Functional details of Quality assurance committees are not available on the MoHFW website.
Prayer by Devika Viswas
- Set up a committee to investigate the facts relating to the sterilisation camp held on 7 January 2012.
- Initiate departmental and criminal proceedings against those who were involved in the sterilisation camp.
- Guidelines given in GoI manuals prepared by the GoI should be scrupulously adhered to so that such incidents do not recur.
- If such incidents occur, additional compensation should be paid to the women in distress.
Summary of the case
The petitioner, health rights activist Devika Biswas, claimed before the Supreme Court of India (Court) that these incidents constituted a violation of the Constitution of India (Constitution). The petition requested a full investigation into, and redress for, the 2012 incidents. Further, to stop similar violations in the near future, the petition also requested orders for strict implementation of the sterilization procedure manuals previously issued by the govt. of India, following the 2005 Supreme Court decision in Ramakant Rai (I) &Anr. v. Union of India &Ors. (Ramakant Rai), in adherence to which the govt. had published multiple manuals establishing procedural and substantive guidelines for female and male sterilization under Planning of family or public health programs, including regarding quality assurance and standard operating procedures (Procedure Manuals).
Setting out the context for these incidents, the petition highlighted other sterilization camps in states across India where similar procedures were conducted in unsanitary and unsafe conditions, and where women were either not provided any information regarding the character of the procedure or were outright misled, for instance being told by government doctors that it had been compulsory to undergo sterilization. In addition, the petition focused on the fact that an amazing number of sterilization procedures in India, on the brink of 100%, are targeted towards women.
The Court ruled that the respondents had violated two components of Article 21 of the Constitution (Protection of Life and Personal Liberty):
- The fundamental right to health and
- Reproductive rights.
The Court held that the liberty to exercise reproductive rights includes a right to make a choice regarding sterilization on the basis of consent and free from any form of coercion. In its deliberations, the Court referenced General Comment No. 22 on the Right to sexual and reproductive health issued by the UN Committee on Economic, Social and Cultural Rights, which observes that reproductive health is an integral part of the right to health. It also drew on the 2004 decision, A.S. v Hungary, by the UN Committee on the Elimination of Discrimination against Women, which held that fully consent to sterilization is crucial.
The Court emphasized the necessity for coordination among State governments and therefore the Union of India, noting that the Union of India must ensure strict adherence to the Procedure Manuals. Further, the Court gave additional specific guidance, for example: directing that the checklist prepared pursuant to Ramakant Rai, also Due to impact and consequences of the sterilization procedures should be explained to each patient in a language they understand and with sufficient time for consideration; requiring data collection to strengthen monitoring and supervision of the practices; and ensuring transparency and accountability (with increased levels of compensation) with reference to any deaths or complications connected to such procedures.
In reference to the informal system of fixing sterilization targets at the State level, the Court directed each state government and Union Territory to make sure that no such fixed targets exist, in order that doctors and other don’t compel persons to undergo what would amount to a forced or non-consensual sterilization merely to attain the target. The Court also considered “the impact that policies like the setting of informal targets and provision of incentives by the govt. can have the reproductive freedoms of the most vulnerable groups of society whose economic and social conditions leave them with no meaningful choice…and render them the simplest targets of coercion.” On this issue, the Court held that “the policies of the govt. must not mirror the systemic discrimination prevalent in society but must be aimed toward remedying this discrimination and ensuring substantive equality [and that] the policies and incentive schemes are made gender-neutral and also the unnecessary concentrate on female sterilization is discontinued.”
The Court ordered the Union of India to ensure the discontinuation of the sterilization camps as early as possible but in any case within three years, emphasising that such action must be accompanied simultaneously by measures by the Union of India and also the State Governments to strengthen Primary Health Centres both in terms of infrastructure and accessibility of health care to all persons.
The Hon’ble Supreme Court recognized deaths, failures, complications, and coercion as a result of female sterilization have implications for women’s rights to life. Important points of the judgment:
- The judgment directs the government to phase out the camp approach in the next three years and instead strengthen health facilities for better services.
- Coercive methods are not justified and are not effective in meeting the goals of controlling the population. Improved access, education, and empowerment should be the aim.
- The court pointed out that the Government must take ownership of the family planning programme which is a matter of the ‘Concurrent list’ of the constitution. The responsibility of success and failure of the family planning must rest squarely on the shoulders of UOI and it cannot ‘pass the buck to the state government.
- The judgment confirms the allegations that the overwhelming number of sterilization procedures is targeted towards women and there is virtually no attention paid to male sterilization.
- Contents of the checklist should be explained to the proposed patient in a language that he or she understands and the proposed patient should also be explained the impact and consequences of the sterilization procedure to avoid ‘incentivised consent’.
- State Government and Union Territory to ensure that targets are not fixed for health workers which amount to forced or non-consensual sterilization.
- Quality Assurance Committees at the State and District Level should publish details of committee members on the website of the Ministry of Health and Family Welfare as well as the corresponding Ministry or Department of each State Government and each Union Territory, six-monthly reports containing the number of persons sterilized as well as the number of deaths or complications arising out of the sterilization procedure, non-statistical information in the form of a report card indicating the meetings held, decisions taken, work done and the achievements of the year, etc.
- Regular audits to be conducted of failures and deaths and Annual Reports of the Quality Assurance Committees must include details of such audits held and remedial steps taken. The first Annual Reports should be published before March 31, 2017.
- The quantum of compensation fixed under the Family Planning Indemnity Scheme (FPIS) deserves to be increased substantially and the burden thereof must be equally shared by the Government of India and the State Government. The Supreme Court has directed the Union of India to finalize the National Health Policy on or before 31 December 2016 keeping issues of gender equity in mind.
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