Prakash Mani Sharma v. Gov’t of Nepal (SCN, Writ No. 064)
Petition against five government institutions seeking mandamus for provision of services for women’s health relative to uterus prolapse, implementation of educational programs, and the drafting of a bill on women’s reproductive health.
In 2007, petitioners brought a case seeking mandamus to enforce obligations of women’s reproductive health rights under Article 20 (2) of the Interim Constitution and international human rights treaties to which Nepal is party. Petitioners argued that despite budgetary allotments by the government, no meaningful or effective programs had been initiated by the State to address the problem of uterine prolapse, as evidenced by the hundreds of thousands of women suffering from the condition.
The case was brought against the Prime Minister and Council of Ministers, the Ministry of Population and Health, the Ministry of Women, Children and Social Welfare, the Nepal Women’s Commission, and the Nepal National Human Rights Commission. Each of the five petitioners was given 15 days to submit a rejoinder explaining why the mandamus need not be issued. The respondents’ rejoinders challenged the order on the grounds that no State actions had violated individual rights, rights arising under human rights treaties created no justiciable private right or standing, the Court had no power to order the legislature to create law, and there were already budget allotments to address the issue. The questions presented were whether the orders sought by petitioners needed to be issued and whether the issue of uterus prolapse was one of fundamental legal rights, justiciable before the Court.
The Court noted women’s right to reproductive health was recognized in international instruments to which Nepal is party including the UDHR, ICCPR, ICESCR, CRC, and CEDAW. The Supreme Court held the right to reproductive health contained in the constitution to be fundamental, non-derogable, non-restrictive, and not subject to any conditions for its execution. Such right requires meaningful implementation by the State, including through legislation and infrastructure., and although the State had allocated funds to address the issue, the budgetary allotments alone were insufficient since no plans or services had been implemented. The Court understood that there was a need to assess “how active the State was”, “what positive programs did the State launch for the enjoyment of this right” and “whether or not practical benefits were provided for [a specific] class of individuals”.
The Court found the case to be one of public interest, not requiring personal harm for standing or jurisdiction, and held that the State had failed to execute its responsibility regarding protection of fundamental rights. The Court also established, in regard to the principle of separation of powers, that “where the Legislature does not perform well pursuant to the provision of the Constitution, or fails to execute its responsibility with regards to the protection of the fundamental rights of the people, the Court in this regard can call for attention for the execution of the States responsibility.” The Court ruled mandamus necessary and ordered the Ministries of Women, Children and Social Welfare and of Population and Health to provide free services and facilities to affected women and initiate effective programs for raising awareness of the issue. It further ordered the Prime Minister and Council of Ministers to consult with experts and draft a bill for submission to the legislature.
The government of Nepal responded by providing funding and surgical centers to perform hysterectomies to remedy uterine prolapse, but reduced available funding and targets for such surgeries in 2010.
Though the government has put measures in place to make surgical treatment accessible to women affected by uterine prevention, very little has been done with a focus on education and prevention. The 2008 draft National Multi-Sectoral Strategic Plan for the Prevention and Management of Uterine Prolapse 2008-2017, a potentially positive step which allocated specific responsibilities to all relevant ministries to prevent and treat this condition, has not been adopted as an official policy. Under this Plan, the Ministry of Women, Children, and Social Welfare, Ministry of Labour and Employment and Ministry of Health and Population were all responsible for implementing awareness raising policies and other preventive measures.
In its 2014 report "Nepal: Unnecessary burden: Gender discrimination and uterine prolapse in Nepal", Amnesty International, also a member organization of ESCR-Net, identified wide-spread gender discrimination as increasing women and girls’ risk of uterine prolapse in Nepal. Risk factors for uterine prolapse, rooted in gender discrimination, include a lack of health-related information, adolescent pregnancy (often linked to early marriage), lack of control over sexual conduct, multiple pregnancies and a lack of control over reproduction, physical labour during and after pregnancy, lack of access to skilled birth attendants and a lack of adequate nutrition. Citing this case, the report found that the government has failed to adequately address this underlying gender discrimination and reduce women’s risk of this condition. In early 2014, Amnesty International also launched a campaign calling on the government of Nepal to recognize the high prevalence of uterine prolapse in Nepal as a human rights issue, and to take action to prevent the condition by urgently addressing the underlying gender discrimination women and girls face. This is a part of Amnesty International's My Body My Rights campaign, which urges governments to respect, protect and fulfill sexual and reproductive rights.
Implementation of the 2008 Nepali Supreme Court decision will be reviewed, along with other human rights issues, by the UN Committee on Economic, Social and Cultural Rights this November. The list of issues from the Committee includes this request: "please clarify whether the State party has taken steps to enact effective laws and policies to reduce the exposure of women and girls to the risk factors for uterine prolapse and to implement the Supreme Court ruling in Prakash Mani Sharma v. Government of Nepal (2008)."
 Unnecessary Burden: Gender Discrimination and Uterine Prolapse in Nepal, Amnesty International (2014) at 10, 51.
 Id. at 53.
Groups involved in litigation: Pro Public, Women’s Rehabilitation Center, Safe Motherhood Network Federation
Groups involved in the campaign for sexual and reproductive right in Nepal: Amnesty International
The case confirmed Nepal’s legal commitments under its constitution to effectively implement the right to health, including reproductive health. Noting a lack of definition in domestic law relative to reproductive health, the Court relied upon international health and human rights principles to define women’s rights to reproductive health and the State’s obligations to ensure enjoyment of those rights. The Court understood that reproductive health includes “decision regarding reproduction, voluntary marriage, decision as to conceive or not, decision to abort a child pursuant to law, period and determination of number of children, reproductive education, and freedom from sexual violence which have also been prescribed in various treaties and declarations”.
The Court further recognized that, pursuant to the Nepal Treaty Act, treaties which the State has ratified, acceded to, approved or accepted should be treated as law. This case marked the first application of the human rights framework to the issue of uterine prolapse.
The rate of uterine prolapse has remained high after the implementation of plans by the State and the problem is ongoing.
 Payal Shah, Uterine Prolapse and Maternal Morbidity: A Human Rights Imperative in Nepal, 2 Drexel L. Rev. 491 at 517.
Updated on August 2014.