Following a newspaper report on a destitute woman who died on a busy street four days after giving birth to a baby girl, the Court brought this public interest litigation (PIL) on its own motion. The Court held that under Article 21 of the Indian Constitution, the government must create at least five shelters exclusively for pregnant and lactating women with medical aid and food so that no destitute woman would be compelled to give birth on the street.
Following a newspaper report regarding a destitute woman who died on a busy street four days after giving birth to a baby girl, the Court brought this public interest litigation (PIL) on its own motion. The Court also asked the Human Rights Law Network (HRLN), an ESCR-Net member organization, to file an amicus brief on the status of maternal health for destitute pregnant and lactating women in Delhi, and to suggest appropriate remedies. HRLN’s amicus outlined myriad state failures to implement government schemes providing for food and health services to women and marginalized groups. Moreover, the amicus included several examples of government hospitals refusing to admit homeless women in labor.
After an initial hearing, the Court issued a preliminary directive to the government of Delhi to set up: 1) five shelter homes exclusively for destitute, pregnant and lactating women; 2) a helpline to manage availability; 3) food and medical facilities available 24 hours a day in the shelters; 4) programs to spread information about the shelters aired on radio and television to reach the illiterate; 5) awareness camps every fortnight; 6) mobile medical units to bring people to the shelters; and 7) ways to involve NGOs in the shelter program. The government challenged the directive by arguing that such programs and homes already existed.
The Court noted that the programs the government pointed to were not funded by the state and did not have the capacity to meet the Court’s mandate. The Court also rejected the government’s argument that the people “in the lowest strata of society” were migrants who should be provided for by their neighboring, home states where more land was available.
The Court pointed to Article 21 of the Indian Constitution which states that “no person shall be deprived of his life or personal liberty except according to a procedure established by law.” This provision has been interpreted broadly in the past by Indian courts to encompass and guarantee many rights including the right to human dignity, the right to livelihood, the right to health, including the right to reproductive health, and the right to food. The Court held that under Article 21 “we […] cannot become the silent spectators waiting for the Government to move like a tortoise and allow the destitute pregnant women and lactating women to die on the streets of Delhi […] giving birth to a child or […] along with the child. Such a situation cannot be countenanced and is not possible to visualize in the backdrop of Article 21 of the Constitution of India.” The Court allowed the government to file further arguments, but in the meantime commanded the Government to establish at least two shelters with medical aid and food so that no destitute woman would have to give birth in the street. The Court also determined the State had to widely publicize the existence of the shelters.
The Court implicitly held that the Constitution guaranteed the right to maternal health. During the pendency of the case, two shelter homes were created and made operational. Upon final disposition of the case, the Court ordered that a third shelter be established in an area where large populations of homeless persons reside and stated that if the “occasion would arise for establishment of further two homes, liberty is granted to the counsel assisting us to move an appropriate writ petition.”
In 2014, conditions at the shelters drew the attention of the Court when HRLN filed a case on behalf of a women who lost her two-month-old daughter in an overnight shelter for families (Priya Kale vs NCT of Delhi WP (C)641/2013). A fact-finding mission revealed that women in the shelter do not have access to antenatal care and routinely deliver on the shelter’s balcony, being exposed to harsh weather conditions. The order resulting from this case required the Motia Khan shelter to dedicate sufficient space for antenatal checkups, to ensure access to supplemental nutrition for pregnant and lactating women, and to guarantee adequate hot water and heaters in winter. The state government has steadfastly fought against providing food to the shelter residents. In the hearing held in the Summer of 2014, the Court clarified that shelters only had to provide food for pregnant and lactating women and their families.[1]
[1] Order of 4-7-2014, High Court of Dehli W.P. 641/2013 & CM Appls. 1213/2013, 4428/2013, 12334/2013, available at http://delhihighcourt.nic.in/dhcqrydisp_O.asp?pn=123407&yr=2014; see also Order of 26-3-2014, High Court of Dehli, W.P.(C) 641/2013 & CM APPLs. 1213/2013, 4428/2013, 12334/2013, 14698/2013, available at http://www.hrln.org/hrln/images/stories/pdf/26314priya-kale.pdf.
This case was part of a larger movement in India to utilize the legal system and constitutional public interest litigation to secure rights and services for poor pregnant women and children. This case and others followed in the wake of a landmark joint ruling in Laxmi Mandal v. Deen Dayal Harinagar Hospital and Others (Delhi High Court, 2008) and Jaitun v. Maternal Home, MCD, Jangpura and Others (Delhi High Court, 2009), which held that the denial of maternal healthcare is a violation of fundamental constitutional and human rights. In those cases, the High Court held that the government must ensure rights to health and reproductive rights under the Constitution, and cited the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Economic, Social, and Cultural Rights and General Comment 14 issued by the Committee on Economic, Social and Cultural Rights. In initiating a ‘suo moto’ (‘on its own motion’) proceeding, the High Court demonstrated its willingness to enforce these rights in the face of inaction and inertia by the government.
Human Rights Law Network (Director Colin Gonsalves and Jayshree Satput appointed amicus curiae by the Court)
