On September 14, 2016, Justice Madan Lokur, as a member of a two-judge bench of the Supreme Court, gave a verdict in response to a public interest petition to ensure that sterilisation procedures were conducted in accordance with legal norms, medical procedures and the provisions of the manuals. And that women and men who suffer due to failure or complications arising out of them are given adequate compensation.
Few countries in the world rely as much as India on sterilisation as a method of contraception. More than one in three (36%) women in India resort to sterilisation as against one in 20 in Bangladesh. In 2014, close to 150,000 Indian women underwent sterilisation as against some 5,000 men.
Three clear directives from the Supreme Court make this a landmark judgment. One, the judgment directs holding sterilisation camps be stopped in three years. Two, the judgment tells the state governments and Union Territories to ensure that family planning targets are not fixed so that health workers and others do not indulge in “what would amount to a forced or non-consensual sterilisation merely to achieve the target”. Three, the judgment recommends improving family planning programmes. These would mean access to empanelled doctors, making information available in the local languages, and ensuring the consent of the patient is taken.
Three additional features make this a momentous judgment.
One, the judgment acknowledges and highlights that the manner in which sterilisation procedures are being carried out endanger the right to health and the reproductive rights of a person.
Two, in the view of the court, the assertion by the Centre that sterilisation programmes are the concern of state governments is ‘fundamental error’. The error, according to the court, lies in the Centre treating family planning as a public health issue under the Seventh Schedule (the State List) of the Constitution and overlooking Entry 20A in the Concurrent List: “Population Control and Family Planning” inserted by the Constitution (Forty-second) Amendment Act, 1976.
Three, the Supreme Court has expressed disappointment at the “extremely casual manner” in which some states responded to the public interest petition. It has therefore directed the registry of the court to give a copy of the judgment to the registrar general of the High Courts of Madhya Pradesh, Maharashtra, Rajasthan and Kerala. And it has requested the Chief Justice to initiate a suo motu public interest petition to consider the allegations made by the petitioner, Devika Biswas, in respect of the sterilisation camps and any other laxity or mishap.
Finally, the Supreme Court has congratulated the Union ministry of health and family welfare on not treating the public interest litigation as an adversarial proceeding but as a collaborative effort to find workable solutions. This resonates with the experience of many other institutions including the Population Foundation of India, which, along with other non-governmental organisations, submitted a report on the deaths of 16 women in Bilaspur during a sterilisation camp in 2014. When it comes to family planning, however, it is necessary for India to move away from sterilisation, focus on spacing methods of contraception, and expand the choices of family planning options for women. Only by doing so and meeting the reproductive health needs of India’s young population can the nation aspire to accelerate and sustain progress.
Poonam Muttreja is executive director, Population Foundation of India
The views expressed are personal