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SUPREME COURT OF INDIA
Madan B. Lokur, Uday Umesh Lalit, JJ.
Devika Biswas – Petitioner
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CIVIL) NO. 95 OF 2012
Decided On : 14-09-2016
(b) Family Planning Programme – Sterilization camps for male and female – Violation of norms and directives of government and the Supreme Court – No improvement in situation in Bihar. (Para 43)
(c) Family Planning Programme – Sterilization camps – Submissions made by writ petitioner – No specific denial by State of Kerala and State of Madhya Pradesh – No specific denial of the events in Balaghat district of Madhya Pradesh. (Para 45, 46)
(d) Family Planning Programme – Sterilization camps – Maharashtra – Events at Nagpur, Chandrapur and Gadchiroli districts – Single affidavit – No detailed report annexed – No further affidavit filed regarding any action taken against any officer responsible for the mishap, any compensation paid or any further action taken in this regard. (Para 48)
(e) Family Planning Programme – Sterilization camps – Rajasthan – Not specifically contradicting report on Bundi district. (Para 49)
(f) Family Planning Programme – Sterilization camps – Chhattisgarh – Mismanagement of the sterilization camps in Bilaspur district – Issue taken up with due promptitude and seriousness – Affidavit filed specifying the ameliorative and preventive steps taken against recurrence of a similar tragedy – Compensation given to victims – Departmental action and criminal action taken against responsible persons – State of Chhattisgarh has reacted positively to the tragedy. (Para 50, 54, 55, 57, 59)
(g) Family Planning Programme – Sterilization – Over-whelming number of sterilization procedures targeted towards women – Virtually no attention paid to male sterilization. (Para 61, 80)
(h) Family Planning Programme – Union of India contending that effective implementation of the sterilization program is the concern of each State since it is a “Public health” issue covered by Entry 6 of List II in the Seventh Schedule (the State List) of the Constitution – Erroneous – More appropriate Entry is Entry 20A of List III, “Population Control and Family Planning” – Schemes announced by the Union of India – Implementation – Action by both, Union of India and the States, imperative – Union of India cannot confine its obligation to mere enactment of a scheme without ensuring its realization and implementation. (Para 69, 72, 73)
(i) National Health Policy – Absence of – Lamented. (Para 78)
(j) Constitution of India – Article 21 – Right to life – Includes the right to health and the reproductive rights of a person – Reported sterilization procedures endanger both these rights – Family Planning Programme – Sterilization – Policies and incentive schemes should be made gender neutral – Unnecessary focus on female sterilization should be discontinued. (Para 81, 86, 87)
(1996) 4 SCC 37; (1992)1SCC 441; (1984) 3 SCC 161; (2009) 9 SCC 1 – Relied upon
(j) Family Planning Programme – Sterilization procedures – Norms and guidelines – Implementation of directions given in Ramakant Rai (I) – Directions given. (Para 88, 89)
(2009) 16 SCC 565 – Relied upon
Facts of the case:
This public interest petition raises very important issues concerning the entire range of conduct and management, under the auspices of State Governments, of sterilization procedures wherein women and occasionally men are sterilized in camps or in accredited centres. The issues raised also include pre-operation procedures and post-operative care or lack of it.
On 7th January 2012 as many as 53 women underwent a sterilization procedure in a camp in highly unsanitary conditions in Kaparfora Government Middle School, Kursakanta, Araria district in Bihar between 8 p.m. and 10 p.m. through a single surgeon. In fact, some of the broad issues concerning the sterilization camp included an absence of pre-operative tests on the women or proposed patients; they were not given any counseling of any kind at all; they had no idea about the potential dangers and outcomes of the sterilization procedure; the sterilization procedures were carried out in a school and not in a government hospital or a private accredited hospital; running water was not available at the site; the sterilization procedures were carried out under torch light with the women being placed on a school desk; the surgeon did not have any gloves or at least did not change the gloves available with him; no emergency arrangements were made etc. etc.
What is worse is that the camp was conducted under the auspices of an NGO called Jai Ambey Welfare Society who had been granted accreditation by the District Health Society only a few months earlier that is on 29th November, 2011 apparently without following any formal and transparent procedure.
As a result of the sterilization camp, many women who were operated upon underwent tremendous physical pain and anguish and were traumatized. Consequently, a series of complaints were filed and they were registered at Kursakanta Police Station on 8th January 2012.
Some of these complaints were inquired into by the State authorities and it was found that the sterilization camp was a success except that an expired medicine had been given to the women.
On the other hand, the study and the investigations carried out by Devika Biswas along with a journalist called Francis Elliott concluded that the sterilization camp did not meet any of the requirements laid down by this Court or by the Government of India and that this was confirmed by the women who were operated upon as well as their relatives.
This public interest litigation has been filed to ensure that sterilization procedures nationwide are conducted in accordance with accepted legal norms, medical procedures and the provisions of the manuals and that those women and men who suffer due to the failure or complications in implementing the norms, procedures and provisions are given adequate compensation.
Finding of the Court:
The right to health and the reproductive rights of a person are integral to right to life guaranteed by Article 21.
Result: Petition disposed of.
JUDGMENT
Madan B. Lokur, J.
1. This public interest petition raises very important issues concerning the entire range of conduct and management, under the auspices of State Governments, of sterilization procedures wherein women and occasionally men are sterilized in camps or in accredited centres. The issues raised also include pre-operation procedures and post-operative care or lack of it. A sterilization surgery does not appear to be complicated and yet several deaths have taken place across the country over the years. Undoubtedly, this needs looking into by the Government of India and the State Governments and remedial and corrective steps need to be taken. Persons who are negligent in the performance of their duties must be held accountable and the victims and their family provided for. It is time that women and men are treated with respect and dignity and not as mere statistics in the sterilization program.
2. The petitioner Devika Biswas is a public spirited individual of Araria district in Bihar. She is a health rights activist with extensive professional experience in the development and health sectors. She has worked in Uttar Pradesh, Delhi, Jharkhand and Bihar in her capacity as a health rights activist. She has also been associated with the Integrated Child Development Scheme in Bihar and has published articles and books in her field of specialization.
3. Sometime in 2005 the issue of sterilization procedures for females and males under the Population Control and Family Planning program or the Public Health program of the Government of India came up for consideration before this Court in a petition filed by Ramakant Rai. The petition was substantially decided by this Court on 1st March 2005 by passing several directions. The directions are reported as Ramakant Rai (I) & Anr. v. Union of India & Ors., (2009) 16 SCC 565.
4. Pursuant to the directions given by this Court, the Government of India published a Quality Assurance Manual for Sterilization Services (in 2006); Standards for Female and Male Sterilization (in 2006); and Standard Operating Procedures for Sterilization Services in Camps (in 2008). These manuals really form the procedural and substantive basis for conducting sterilization procedures both of females and males in the country under the population control and family planning program or the public health program.
5. What seems to have provoked Devika Biswas in filing a writ petition under Article 32 of the Constitution in this Court is that on 7th January 2012 as many as 53 women underwent a sterilization procedure in a camp in highly unsanitary conditions in Kaparfora Government Middle School, Kursakanta, Araria district in Bihar between 8 p.m. and 10 p.m. through a single surgeon. In fact, some of the broad issues concerning the sterilization camp held on 7th January 2012 as found on investigation by Devika Biswas, included an absence of pre-operative tests on the women or proposed patients; they were not given any counseling of any kind at all; they had no idea about the potential dangers and outcomes of the sterilization procedure; the sterilization procedures were carried out in a school and not in a government hospital or a private accredited hospital; running water was not available at the site; the sterilization procedures were carried out under torch light with the women being placed on a school desk; the surgeon did not have any gloves or at least did not change the gloves available with him; no emergency arrangements were made etc. etc. Essentially, the entire camp was conducted in unsanitary conditions, in an unprofessional and unethical manner. What is worse is that the camp was conducted under the auspices of an NGO called Jai Ambey Welfare Society who had been granted accreditation by the District Health Society only a few months earlier that is on 29th November, 2011 apparently withou
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