Writ Petition (Civil) No. 95 of 2012 (Under Article 32 of the Constitution of India). Case: Devika Biswas Vs Union of India (UOI) and Ors.. Supreme Court (India)
| Case Number | Writ Petition (Civil) No. 95 of 2012 (Under Article 32 of the Constitution of India) |
| Counsel | For Appearing Parties: Pinky Anand, ASG, Colin Gonsalves, Sr. Adv., Jugal Kishore Gilda, Adv. General, Olivia Bang, Jyoti Mendiratta, Rishabh Jain, Snidha Mehra, Ansh Singh Luthra, Somya Rathore, Shadman Ali, Ajay Kumar Singh, Rajiv Nanda, Sunita Sharma, Rekha Pandey, R.S. Nagar, Sunita Rani Singh, Mohan Prasad Gupta, D.S. Mahra, A.P. Mayee, A.... |
| Judges | Madan B. Lokur and U.U. Lalit , JJ. |
| Issue | Constitution (Forty-second) Amendment Act, 1976; Constitution of India - Articles 21, 32 |
| Citation | AIR 2016 SC 4405, 2016 (4) RCR 461 (Civil), 2016 (8) SCALE 707, 2016 (10) SCC 726 |
| Judgement Date | September 14, 2016 |
| Court | Supreme Court (India) |
Judgment:
Madan B. Lokur, J.
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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.
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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.
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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) and Anr. v. Union of India and Ors. (2009) 16 SCC 565.
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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.
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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 without following any formal and transparent procedure.
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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 being S.DE. No. 135/12, 136/12, 137/12 and 144/12. 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.
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Devika Biswas then felt compelled to file a public interest litigation in this Court 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. That is really the core issue raised by Devika Biswas and that such instances are not repeated.
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In this context, Devika Biswas says in her writ petition that on 9th February 2008 the State Health Society in Bihar issued a memorandum to the Civil Surgeon in each district in the State. The result of this memorandum was that sterilization procedures could now be conducted in accredited private health facilities also in a camp mode. The memorandum also mentioned that the State Government would provide funds to the private facilities and the motivators as per the Government of India norms for conducting sterilization procedures. However it was made clear that extra funds for camp management, transportation etc. would not be provided by the Government to the accredited private facilities.
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This was followed by another memorandum dated 9th February 2009 regarding sterilization procedures carried out at government institutions by empanelled private doctors. The memorandum issued by the State Health Society of Bihar to the Civil Surgeon in all districts stated that an empanelled private doctor might also be permitted to carry out family planning sterilization procedures in government institutions. The Quality Assurance Committee of the district was entitled to employ private doctors including contractual doctors whose term had expired for carrying out the sterilization procedures.
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The petition filed by Devika Biswas goes on to say that in 2010 a Non Government Organization (NGO) called the Centre for Health and Social Justice released a report concerning the quality of care and consequences of female sterilization procedures in Bundi district of Rajasthan in 2009-10. According to the report 749 women (mainly underprivileged) were sterilized at Public Health Centres, Community Health Centres or Camps. They were interviewed by researchers who found that a significant number of them were not counseled about the permanent nature of the sterilization procedure and almost 88% of them told the researchers that they did not receive any information about potential complications, failures or side effects of the sterilization procedure. The report indicated that while the internationally accepted failure rate is 0.5% the failure rate in Bundi district in Rajasthan was 2.5% that is 5 times the acceptable international standard.
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Similarly, in February 2012 a Fact Finding Mission by a social activist reported that sterilization procedures carried out in three districts in Maharashtra, that is, Nagpur, Chandrapur and Gadchiroli found that sterilization camps were routinely conducted in unsanitary and unsafe facilities.
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Again in February 2012 a sterilization camp in Madhya Pradesh was conducted in Balaghat district without following any of the established procedures and tribals were lured into sterilization camps by motivators who collected a substantially large amount over and above the financial norms fixed by the Government of India.
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In Kerala also a similar story was repeated in July 2011 highlighting that sterilization procedures were not conducted in accordance with the prescribed requirements of law or the procedures laid down by the Government of India. In paragraph 40 of the writ petition, Devika Biswas submits that "In July 2011, a local journalist in Wayanad and the Chief of the Kattunayakan tribe, who serves as the President of the Primitive Tribal Association, met with health workers in Kerala. They shared stories of men and women who were told by the government health workers that it was compulsory to undergo sterilization. The Chief is concerned about government coercion and compulsion in sterilization and its effect on the tribe's population."
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In this background, Devika Biswas prayed for a series of directions including setting up a committee to investigate the facts relating to the sterilization camp held on 7th January 2012 and to initiate departmental and criminal proceedings against those who were involved in the sterilization camp. It is also prayed that the guidelines given in the manuals prepared by the Government of India should be scrupulously adhered to so that such incidents do not recur in any part of the country and if they do, additional compensation should be paid to the women in distress.
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In this writ petition, we are primarily concerned with the affidavits of the Union of India, the States of Bihar, Kerala, Madhya Pradesh, Maharashtra and Rajasthan since allegations have been made in respect of sterilization camps held in these States only. However, during the course of hearing of this writ petition, allegations surfaced with regard to sterilization camps conducted in Bilaspur district, Chhattisgarh [between 8th and 10th November 2014] and so we are also...
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