Devika Biswas v. Union of India & Others, Petition No. 95 of 2012
In this public interest litigation, a health rights activist challenged the State Governments’ practice of subjecting women (and occasionally men) to sterilization procedures in dangerous and unsanitary sterilization camps where informed consent is often not obtained from patients prior to conducting the procedures. The Supreme Court found these practices – focused mainly on poor, rural women – to be in violation of the right to health and more specifically reproductive rights, two key components of the right to life under the Indian Constitution.
In January 2012, up to 53 women underwent a sterilization procedure in Bihar, India, at a sterilization camp managed by an NGO which had been granted accreditation by the District Health Society, apparently without following any formal, transparent process. The women had not been given any counseling regarding the potential dangers and outcomes of the sterilization procedures. They were operated on in a school rather than a hospital, in an unsanitary and unethical manner, all by a single surgeon, under torchlight on top of a school desk, and without running water or sanitary gloves. Many of the women experienced tremendous physical pain post-operation, and consequently filed police complaints. Subsequent investigation by State authorities found that the camp had largely been a success, save for its use of expired medicine.
Following her own investigation, 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 prevent similar violations in the future, the petition also requested orders regarding strict implementation of the sterilization procedure manuals previously issued by the Government 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 Government had published multiple manuals establishing procedural and substantive guidelines for female and male sterilization under family planning 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 nature of the procedure or were outright misled, for example being told by government health workers that it was compulsory to undergo sterilization. In addition, the petition focused on the reality that an overwhelming number of sterilization procedures in India – close to 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 right to health and reproductive rights. The Court held that the freedom to exercise reproductive rights includes the right to make a choice regarding sterilization on the basis of informed 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 informed consent to sterilization is essential.
The Court emphasized the need for coordination among State governments and 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, as well as the 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 respect to any deaths or complications connected to such procedures.
In relation to the informal system of fixing sterilization targets at the State level, the Court directed each State Government and Union Territory to ensure that no such fixed targets exist, so that health workers and others do not compel persons to undergo what would amount to a forced or non-consensual sterilization merely to achieve the target. The Court also considered “the impact that policies such as the setting of informal targets and provision of incentives by the Government can have on 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 easiest targets of coercion.” On this issue, the Court held that “the policies of the Government must not mirror the systemic discrimination prevalent in society but must be aimed at remedying this discrimination and ensuring substantive equality [and that] the policies and incentive schemes are made gender neutral and the unnecessary focus 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 the State Governments to strengthen Primary Health Centres both in terms of infrastructure and accessibility of health care to all persons.
The case is an attempt by the Supreme Court to monitor and force implementation of its earlier decision in Ramakant Rai. This is in keeping with the doctrine of the ‘continuing mandamus’ where courts in India are not content merely with the making of orders but are equally concerned about the implementation of court orders.
Human Rights Law Network, National Alliance for Maternal Mortality and Human Rights, Health Watch Forum, Population Foundation of India.
This decision was widely celebrated by women’s rights activists in India. Poonam Muttreja, executive director of the Population Foundation of India commented, "We welcome the Supreme Court judgment which we consider a landmark one. Providing quality services to and upholding the dignity of women will now be placed strongly on the national agenda." The decision must be contextualized in the context of an estimated four million tubal ligations (female sterilizations) every year in India, more than any other country. Advocates have long campaigned for better regulation or elimination of sterilization camps, and more investment in alternative forms of contraception.
The decision was noteworthy given its focus on both specific incidents, as well as the wider context (such as informal sterilization targets set by State governments) that give rise to conditions encouraging non-consensual sterilizations. The case confirmed the need for free and informed consent prior to sterilization procedures; in the absence of such consent, sterilizations are considered to be involuntary or coerced, and constitute serious human rights violations, as confirmed in CEDAW’s General Recommendation No. 24 on women and health. Vulnerable groups, for example, women, persons living in poverty, ethnic and indigenous minorities, persons with disabilities, or with HIV, transgender persons and intersex persons, have historically been the target of such practices, in India and across the world. This case also highlights quality of care (including pre- and post-operation) as a core component of the right to health, as set forth in CESCR General Comment No. 14 on the right to health.
The UN interagency statement ‘Eliminating forced, coercive and otherwise involuntary sterilization’ provides useful international guidance on a human rights-based approach to sterilization. While recognizing that sterilization remains an important option for individuals and couples to control their fertility, the statement reaffirms that sterilization practices should be available, accessible, acceptable, of good quality, and free from discrimination, coercion and violence, and based on the full, free and informed decision-making of the person concerned.