# DEVIKA BISWAS v. UNION OF INDIA & ORS

- **Citation:** [2016] 5 S.C.R. 773
- **Court:** Supreme Court of India
- **Decided:** 2016-09-14
- **Bench:** Madan B. Lokur, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/devika-biswas-v-union-of-india-ors-31486
- **Pages:** 43

## Headnote

Constitution of India:
Art. 32 - Public interest litigation - Unsafe and unethical
sterilization - In 2012, a single surgeon performed sterilization
procedure on 53 women in a government school in a district in
Bihar - Entire camp conducted in highly unsanitary conditions in
an unprofessional and unethical manner - Women underwent
tremendous physical pain and anguish and were traumatized - Not
given any pre-procedure counseling and had no idea about the
potential risks of undergoing sterilization - A/legations regarding
occurrence of similar instances in Bihar, Kera/a, Madhya Pradesh,
Maharashtra and Rajasthan - Writ petition by health rights activist
raising issue of sterilization procedures carried out on women and
also on men and sought series of directions - During pendency of
the writ petition, allegations regarding sterilization camps conducted
in a district in Chhattisgarh - Various affidavits filed by the States
- In view thereof, issuance of certain directions to the Centre and
States regarding conducting of ethical sterilization of women and
men programme across the country.
Art. 32 - Sterilization program - Whether a public health issue
- Held: Sterilization program is not only a public health issue but a
national campaign for population control and family planning -
Union of India erred in saying that it is concern of each State since
it is a "Public health" issue covered by Entry 6 of List II in the
Seventh Schedule (the State List) by overlooking the Concurrent
List, Entry 20A which is Population Control and Family Planning -
Treating a national program as a public health issue has to stop
and somebody must take ownership of the Population Control and
Family Planning program.
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Arts. 21, 32 - Right to life - Unsafe and unethical sterilization
procedures - Endanger two important components of the right to
life under Art. 21-right to health and reproductive rights of a person
- Right to life under Art. 21 includes right to lead a dignified and
meaningful life and right to health is an integral facet of the right
to life.
Right to reproductive health - There is a recognition of the
need to respect and protect the reproductive rights and reproductive
health of a person - Reproductive rights have been recognized as
an aspect of personal liberty under Art.21 - Freedom to exercise
these reproductive rights would include the right to make a choice
regarding sterilization on the basis of informed consent and free
from any form of coercion - It is necessary that the policies and
incentive schemes on sterilization are made gender neutral and
unnecessary focus on female sterilization is discontinued.
National Health Policy - National Health Policy not yet
D . finalized despite the passage of more than one and a half years -
Issuance of direction to Union of India to take a. decision on or
before December 31, 2016 on whether it would like to frame National
Health Policy or not.
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Sterilization program - Female versus male sterilization -
Percentage of males being sterilized is so remarkably low as
compared to females - Documents on record indicate that the
incentive given to males for undergoing a sterilization procedure is
less than it is for females and would be one of the reasons - Union
of India to look into it, at least for reasons of gender equity.
Disposing of the writ petition, the Court
HELD: 1.1 The fundamental error that the Union of India
made (repeated in its affidavits) was by asserting that the effective
implementation of the sterilization program is the concern of each
State since it is a "Public health" issue covered by Entry 6 of List
II in the Seventh Schedule (the State List) of the Constitution.
Apart from the fact that the various entries in the Seventh
Schedule relate to legislative power, the Union oflndia completely
overlooked the more appropriate Entry in the Concurrent List
that is Entry 20A, "Population Control and Family Plan

## Text

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[2016] 5 S.C.R. 773
DEVIKA BISWAS
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No.95 of2012)
SEPTEMBER 14, 2016
[MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.)
Constitution of India:
Art. 32 - Public interest litigation - Unsafe and unethical
sterilization - In 2012, a single surgeon performed sterilization
procedure on 53 women in a government school in a district in
Bihar - Entire camp conducted in highly unsanitary conditions in
an unprofessional and unethical manner - Women underwent
tremendous physical pain and anguish and were traumatized - Not
given any pre-procedure counseling and had no idea about the
potential risks of undergoing sterilization - A/legations regarding
occurrence of similar instances in Bihar, Kera/a, Madhya Pradesh,
Maharashtra and Rajasthan - Writ petition by health rights activist
raising issue of sterilization procedures carried out on women and
also on men and sought series of directions - During pendency of
the writ petition, allegations regarding sterilization camps conducted
in a district in Chhattisgarh - Various affidavits filed by the States
- In view thereof, issuance of certain directions to the Centre and
States regarding conducting of ethical sterilization of women and
men programme across the country.
Art. 32 - Sterilization program - Whether a public health issue
- Held: Sterilization program is not only a public health issue but a
national campaign for population control and family planning -
Union of India erred in saying that it is concern of each State since
it is a "Public health" issue covered by Entry 6 of List II in the
Seventh Schedule (the State List) by overlooking the Concurrent
List, Entry 20A which is Population Control and Family Planning -
Treating a national program as a public health issue has to stop
and somebody must take ownership of the Population Control and
Family Planning program.
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Arts. 21, 32 - Right to life - Unsafe and unethical sterilization
procedures - Endanger two important components of the right to
life under Art. 21-right to health and reproductive rights of a person
- Right to life under Art. 21 includes right to lead a dignified and
meaningful life and right to health is an integral facet of the right
to life.
Right to reproductive health - There is a recognition of the
need to respect and protect the reproductive rights and reproductive
health of a person - Reproductive rights have been recognized as
an aspect of personal liberty under Art.21 - Freedom to exercise
these reproductive rights would include the right to make a choice
regarding sterilization on the basis of informed consent and free
from any form of coercion - It is necessary that the policies and
incentive schemes on sterilization are made gender neutral and
unnecessary focus on female sterilization is discontinued.
National Health Policy - National Health Policy not yet
D . finalized despite the passage of more than one and a half years -
Issuance of direction to Union of India to take a. decision on or
before December 31, 2016 on whether it would like to frame National
Health Policy or not.
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Sterilization program - Female versus male sterilization -
Percentage of males being sterilized is so remarkably low as
compared to females - Documents on record indicate that the
incentive given to males for undergoing a sterilization procedure is
less than it is for females and would be one of the reasons - Union
of India to look into it, at least for reasons of gender equity.
Disposing of the writ petition, the Court
HELD: 1.1 The fundamental error that the Union of India
made (repeated in its affidavits) was by asserting that the effective
implementation of the sterilization program is the concern of each
State since it is a "Public health" issue covered by Entry 6 of List
II in the Seventh Schedule (the State List) of the Constitution.
Apart from the fact that the various entries in the Seventh
Schedule relate to legislative power, the Union oflndia completely
overlooked the more appropriate Entry in the Concurrent List
that is Entry 20A, "Population Control and Family Planning",
inserted by the Constitution (Forty-second) Amendment Act, 1976.
DEVIKA BISWAS v. UNION OF INDIA & ORS.
If the sterilization program is intended for population control and
family planning, there is no earthly reason why the Union oflndia
should refer to and rely on Entry 6 of the State List and ignore
Entry 20A of the Concurrent List. Population control and family
planning has been and is a national campaign over the last so
many decades. Therefore, the responsibility for the success or
failure of the population control and family planning program (of
which sterilization procedure is an integral part) must rest
squarely on the shoulders of the Union of India. It is for this
reason that the Union of India has been taking so much interest
in promoting it and has spent huge amounts over the years in
encouraging it. It is rather unfortunate that the Union of In<Jia is
now treating the sterilization program as a Public Health issue
and making it the concern of the State Government. This is simply
not permissible and appears to be a case of passing the buck.
[Para 69) [803-F-H; 804-A-C]
1.2 When the Union oflndia formulates schemes of national
importance such as family planning, their implementation is
undoubtedly dependent on the State Governments since they
have the requisite mechanism for implementing the schemes and
can also take into account the needs that are particular to the
State and its people. In this manner, the cooperation of the Union
of India and all State Governments is indispensable to the success
of such national programs. Adverting to the provisions of the
Constitution that allow for such coordination between the Union
and States, the Justice Sarkaria Commission held that these
provisions are not repugnant to but instead further the principle
of federalism. [Para 71) (804-H; 805-A-B]
1.3 In the same manner, it is imperative for both the Union
of India and the State Governments to implement schemes
announced by the Union of India in a manner that respects the
fundamental rights of the beneficiaries of the scheme. Given the
structure of cooperative federalism, the Union of India cannot
confine its obligation to mere enactment of a scheme without
ensuring its realization and implementation. [Para 72) (805-C]
1.4 Apart from anything else, by not giving the sterilization
program the importance it deserves (apart from other methods
of population control and family planning) and trying to pass the
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buck to the State Governments, the Union of India is attempting
to find an excuse for failure in its duty of effectively monitoring a
program of national importance. This game of passing the parcel
and treating a national program as a public health issue has to
stop and somebody must take ownership of the Population
Control and Family Planning program. [Para 73] [805-D-E]
2.1 A perusal of the various affidavits on record indicates
that the sterilization program is virtually a relentless campaign
for female sterilization. This is more or less confirmed from the
figures available on the website of the Ministry of Health and
Family Welfare of the Government of India. [Para 79) [806-H;
807-A]
2.2 It was conceded by all the counsels that the sterilization
program cannot be targeted primarily towards women but must
also actively include the sterilization of men as well. Without going
into the merits and demerits of the incentives given for
undergoing the sterilization procedure, the documents on record
indicate that the incentive given to males for undergoing a
sterilization procedure is less than it is for females and that may
perhaps be one of the reasons why the percentage of males being
sterilized is so remarkably low as compared to females. This is
an area that the Union of India must address itself to, if nothing
else then at least for reasons of gender equity. [Para 80] [807-CE]
3.1 The manner in which sterilization procedures have
reportedly been carried out endanger two important components
of the right to life under Article 21 of the Constitution-the right
to health and the reproductive rights of a person. The right to
life under Article 21 includes the right to lead a dignified and
meaningful life and the right to health is an integral facet of the
right to life. [Paras 81, 82] [807-E-G]
3.2 Over time, there has been recognition of the need to
respect and protect the reproductive rights and reproductive
health of a person. Reproductive health has been defined as "the
capability to reproduce and the freedom to make informed, free
and responsible decisions. It also includes access to a range of
reproductive health information, goods, facilities and services to
enable individuals to make informed, free and responsible
DEVIKA BISWAS v. UNION OF INDIA & ORS.
decisions about their reproductive behaviour." This Court has
recognized reproductive rights as an aspect of personal liberty
u/Art.21 of the Constitution. The freedom to exercise these
reproductive rights would include the right to make a choice
regarding sterilization on the basis of informed consent and free
from any form of coercion. [Paras 85, 86) [808-C-D; 809-A-B)
3.3 It has been emphasized by this Court that the State's
obligation in respect of fundamental rights must extend to ensuring
that the rights of the weaker sections of the community are not
exploited by virtue of their position. Thus, 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. In this regard,
it is necessary that the policies and incentive schemes are made
gender neutral and the unnecessary focus on female sterilization
is discontinued. [Para 87) (810-C-F]
C.E.S.C. Limited & Ors. v. Subhash Chandra Bose &
Ors. 1991 (2) Suppl. SCR 267 : (1992) 1 SCC 441;
Paschim Banga Khet Mazdoor Samity v. State of W.B.
1996 (2) Suppl. SCR 331 : (1996) 4 SCC 37; Bandhua
Mukti Morcha v. Union of India & Ors. 1984 (2) SCR
67:(1984)3 SCC 161; Suchita Srivastava v. ChandiKarh
Administration (2009) 9 SCC 1 - referred to.
Ms. A. S. v. Hungary CEDAW/C/36/D/412004 m1ailable
at http://www. un. orglwomenwatchldaw/cedaw/protocol/
decisions-views/Decision %204-2004%20-%20 -
referred to.
Committee on Economic, Social and Cultural Rights,
General Comment No. 22 (2016) May 2, 2016, E/C.121
GC/22 para 6, https://documents-dds-ny.un.org/doc/
UNDOCIGENIG 161089132/P DFIG 16089 32.pdf
referred to.
4. While it is generally the case of the Union oflndia and all
the States that the guidelines given by this Court in Ramakant
Rai (I) are being followed, it is found that at least in respect of
some of them, there is still much more that needs to be done for
their effective implementation not only in letter but also in spirit.
Some fine tuning is also necessary in view of the passage of time,
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change in circumstances and the need to use technology to the
optimum. Accordingly the following supplementary directions are
issued:
(i) The State-wise, district-wise or region-wise panel of
doctors approved for carrying out the sterilization procedure,
must be accessible through the website of the Ministry of Health
and Family Welfare of the Government of India as well the
corresponding Ministry or Department of each State Government
and each Union Territory. The list should contain all necessary
particulars of each doctor. This exercise should be completed on
or before December 31,2016 and thereafter list be updated every
quarter.
(ii) The contents of the checklist prepared pursuant to the
directions given in Ramakant Rai (/) should be explained to the
proposed patient in a language that he or she understands and
the proposed patient should also be explained the impact and
consequences of the sterilization procedure. The checklist
prepared pursuant to the direction given in Ramakant Rai (/)
with the said modifications should be prepared in the local or
regional language on or before December 31, 2016.
(iii) The details and necessary particulars of each member
of the Quality Assurance Committee and the District Quality
Assurance Committee set up in every State and District should
be accessible from the website of the Ministry of Health and
Family Welfare of the Government of India as well the
corresponding Ministry or Department of each State Government
and each Union Territory on or before December 31, 2016 and
thereafter updated every quarter.
(iv) The QAC must publish an Annual Report (on the
website of the Ministry of Health and Family Welfare of the
Government of India as well the corresponding Ministry or
Department of each State Government and each Union Territory)
containing not only the statistical information number of persons
sterilized as well as the number of deaths or complications arising
out of the sterilization procedure, but also non-statistical
information in the form of a report card indicating the meetings
held, decisions taken, work done and the achievements of the
DEVIKA BISWAS v. UNION OF INDIA & ORS.
year etc. The first such Annual Report covering the calendar year
2016 should be published on the websites mentioned above on
or before March 31, 2017.
(v) During 2010-2013, more than Rs.SO crores have been
disbursed towards compensation in cases of as many as 363
deaths. Apart from steps taken by Bihar and Chhattisgarh during
the pendency of the writ petition to mitigate the sufferings of the
patients, this Court has not been told of any death audit conducted
by any State Government or Union Territory fo respect of any
patient, nor of any steps taken against any doctor or anybody
else involved in the sterilization procedure that has resulted in
the death of a patient or any failure or any other complication
connected with the sterilization procedure. There is a need for
transparency coupled with accountability and the death of a patient
should not be treated as a one-off aberration. Therefore, it is
directed that the Annual Report prepared by the QAC must
indicate the details of all inquiries held and remedial steps taken.
(vi) With regard to the implementation of the Family
Planning Indemnity Scheme (FPIS), there does not seem to be
any definitive information with regard to the number of claims
filed, the claims accepted and in which category (death, failure,
complication etc.), claims pending (and since when) and claims
rejected and the reasons for rejection. The QAC is directed to
include this information in the Annual Report and the Ministry of
Health and Family Welfare of the Government of India as well as
the State Governments should make this information accessible
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on the website, including the quantum of compensation paid under ·
each category and to the number of persons.
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(vii) The Solicitor General is directed to furnish the full
details of the funds utilized under the FPIS. In addition thereto,
the Ministry of Health and Family Welfare should conduct an audit
to ensure that the funds given by the Government of India have
been utilized for the purpose for which they were given for the
period from 2013-14 onwards.
(viii) The quantum of compensation fixed under the Family
Planning Indemnity Scheme (FPIS) deserves to be increased
substantially and the burden thereof must be equally shared by
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the Government oflndia and the State Government. The quantum
of compensation is not fixed but suggestion is made, following
the example of the State of Chhattisgarh, that the amount should
be doubled and shared equally.
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(ix) The Union of India should make efforts to ensure that
sterilization camps are discontinued as early as possible but in
any case within the period of three years. The Union of India and
the State Governments must simultaneously ensure that Primary
Health Centres are strengthened.
(x) Although the Union of India has stated that no targets
have been fixed for the implementation of the sterilization
program, it appears that there is an informal system of fixing
targets. It is left to the good sense of the each State Government
and Union Territory to ensure that such targets are not fixed 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.
(xi) The decisions taken in the high level meetings as well
as the National Summit on Family Planning should be scrupulously
implemented by the Ministry of Health and Family Welfare of the
Government of India. The said Ministry should also ensure
effective implementation of the decisions.
(xii) The Union of India is directed to ensure strict
adherence to the guidelines and standard operating procedures
in the various manuals issued by it. The Sterilization program is
not only a Public Health issue but a national campaign for
Population Control and Family Planning. The Union of India has
overarching responsibility for the success of the campaign and it
cannot shift the burden of implementation entirely on the State
Governments and Union Territories on the ground that it is only
a public health issue.
(xiii) None of the States-Madhya Pradesh, Maharashtra,
Rajasthan and Kerala gave any acceptable response to the
allegations made concerning mismanagement in at least one
sterilization camp and there is no option but to assume that the
camps that have been referred to in the writ petition were
mismanaged as alleged by the petitioner. The Chief Justice of
the High Court in the States of Madhya Pradesh, Maharashtra,
DEVIKA BISWAS v. UNION OF INDIA & ORS.
Rajasthan and Kerala is requested to initiate a suo moto public
interest petition to consider the allegations made by the petitioner
in respect of the sterilization camp(s) held in these States (the
allegations not having been specifically denied) and any other
similar laxity or unfortunate mishap that might be brought to the
notice of the Court and pass appropriate orders thereon. The
Chief Justice of the Patna High Court is requested to ensure
speedy completion of the investigations and proceedings relating
to the mishap on January 07,2012 in the sterilization camp in the
Government School, Araria district as well as the mishap in
Chhapra in Saran district that led to cancellation of the
accreditation of the Maternity and Surgical Clinic on March 24,
2012.
(xiv) The State of Chhattisgarh is directed to implement
the recommendations given in the Ms. Anita Jha Report at the
earliest.
(xv) The National Health Policy has not yet been finalized
despite the passage of more than one and a half years. The Union
of India is directed to take a decision on or before December31,
2016 on whether it would like to frame a National Health Policy
or not. In case it is worthwhile to have a National Health Policy, it
should take steps to announce it at the earliest and keep issues
of gender equity in mind as well. [Para 88] [810-F-H; 811-A-H;
812-A-H; 813-A-H; 814-A-H; 815-A-E]
Ramakant Rai (I) & Am: v. Union of India & Ors. (2009)
16 sec 565 - relied on.
Case Law Reference
1991 (2) Suppl. SCR 267
referred to
Para 82
1996 (2) Suppl. SCR 331
referred to
Para 82
1984 (2) SCR 67
referred to
Para 83
(2009) 9 sec 1
referred to
Para 86
(2009) 16 sec 565
relied on
Para 88
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 95
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Pinky Anand, ASG, Colin Gonsalves, Sr. Adv., Jugal Kishore Gilda,
Adv. General, Ms. Olivia Bang, Ms. Jyoti Mendiratta, Rishabh Jain, Ms.
Snidha Mehra, Ansh Singh Luthra, Ms. Somya Rathore, Shadman Ali,
Ajay Kumar Singh, Raj iv Nanda, Ms. Sunita Sharma, Ms. Rekha Pandey,.
R.S. Nagar, Ms. Sunita Rani Singh, Mohan Pd. Gupta, D.S. Mahra, A.P.
Mayee, A. Selvin Raja, Gopal Singh, Shivam Singh, AdvityaAwasthi,
Kabir Dixit, Advs. for the appearing parties. ·
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. 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 oflndia 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.
2. 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.
3. 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 oflndia 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 (/) & Anr. v. Union of India & Ors. 1
1 (2009) 16 sec 565
•
DEVIKA BISWAS v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
4. Pursuant to the directions given by this Court, the Government
oflndia 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
c country under the population control and family planning program or the
public health program.
5. 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 I 0 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.
6. 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
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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 oflndia
and that this was confirmed by the women who were operated upon as
well as their relatives.
7. 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.
·
8. 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
ofindia 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.
9. 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 em panel led private doctor might also be pennitted to carry
out family planning sterilization procedures in government institutions.
The Quality Assurance Committee of the distr.ict was entitled to employ
private do.ctors including contractual doctors whose term had expired
for carrying out the sterilization procedures.
10. 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
DEVIKA BlSWAS v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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.
11. Similarly, in February 2012 a Fact Finding Mission by a social
activist reported that sterilization procedures carried out in three districts
in Maharashtra, that i~, Nagpur, Chandrapur and Gadchiroli found that
sterilization camps were routinely conducted in unsanitary and unsafe
facilities.
12. 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 oflndia.
13. 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 oflndia. In paragraph 40 of the writ petition,
Devika Biswas submits that "In July 2011, a local journalist in Wayanad
and the Chiefofthe 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 govenlment
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."
14. 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 ih 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
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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.
15. 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 concerned with the allegations made in respect of the camps
conducted in that State as well.
16. What was brought to our notice with regard to the sterilization
camps conducted in Bilaspur district was that as many as 137 women
were subjected to a sterilization procedure and unfortunately 13 of them
died. Many others complained of problems such as vomiting, difficulty
in breathing, severe pain etc. They were taken to nearby hospitals and
discharged after necessary treatment. It appeared that some women
who had not undergone" a sterilization procedure also had similar
complaints and some of them died thereby increasing the number of
deaths to over 13. Undoubtedly, this was a matter of great concern
brought to our notice during the pendency of the writ petition.
Orders passed by this Court.
17. Notice in the writ petition was issued on 2'' April 2012 ang
thereafter the petition was taken up for active consideration only on 30
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January 2015 when the Social Justice Bench of this Court was seized of
this matter and after completion of pleadings and instructions received
by the learned Additional Solicitor General from the Union oflndia.
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18. On 30 January 2015 after hearing learned counsel, a request
was made by us to the learned Sqlicitor General to ensure that a chart
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be prepared giving the status of implementation of each direction given
in Ramakant Rai (I). Details with regard to the implementation of the
Family Planning Indemnity Scheme, 2013 were also sought particularly
with regard to the release and utilization offunds under the said Scheme.
19. During the hearing, the events in Bilaspur, Chhattisgarh
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(mentioned above) also came up for consideration and so the State of
DEVIKA BISWAS v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
Chhattisgarh was required to file an affidavit stating the steps taken to
ameliorate the conditions of the persons who had faced the recent tragedy.
The State Government was also required to indicate the action taken
against the doctors involved and steps taken to educate the people in
Chhattisgarh with regard to the sterilization procedure and its impact..
20. The petition was then taken up for consideration on 20th
March 2015 when it w;1fi noted that even though Chhattisgarh had filed
an affidavit dated 19t February 2015, it had not given sufficient
particulars and details with regard to the action taken subsequent to the
mishap in the sterilization camp. Chhattisgarh was therefore required to
file a proper and detailed affidavit including a copy of a sample FIR, post
mortem report and charge sheet filed, if any.
21. With regard to an affidavit filed by the Union of India in
relation to the implementation of the Family Planning Indemnity Scheme,
2013 it was noted thatthe manner ofutilization offunds was not indicated.
The learned Solicitor General assured this Court that full details in this
regard would be furnished and also an audit would be conducted to
ensure that the funds are utilized for the purpose for which they have
been given by the Government of India to the State Governments.
Unfortunately, these details have not yet been furnished and we have
only the figures giving the budget approved as well as the expenditure
incurred by the State Governments and Union Territories.
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22. On 17 April 2015 the writ petition was again taken up for
consideration and as an interim measure the Secretary in the Ministry of
Health and Family Welfare of the Government oflndia was directed to
hold a meeting with his counterparts in the States and the Union Territories
to arrive at a consensus on the effective implementation of the various
schemes relating to sterilization [of females and males], the Family
Planning Indemnity Scheme, 2013 and the directions given in Ramakant
Rai (I).
23. Chhattisgarh was also required to file a Status Report on the
progress made by a Commission set up by it (the Ms. Anita Jha
Commission) to look into the tragedy that had occurred in the sterilization
camps held in Bilaspur.
24. The learned Advocate General appearing for the State of
Chhattisgarh stated that he would look into the issue of taking action
against the manufacturer of the drug used in the sterilization camps and
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the feasibility of filing a charge sheet against the offenders and to step
up efforts to arrest the absconding persons or if necessary to declare
them proclaimed offenders.
25. In the hearing on ]4th August 2015 it was noted that the
Secretary in the Ministry of Health and Family Welfare had held a meeting,
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as earlier directed, on 15'h May 2015. It was noted that one of the
suggestions given in that meeting was that similaF high level meetings
should be conducted every six months. Accordingly, we expected the
Secretary in the Ministry of Health and Family Welfare to conduct a
similar meeting after six months that is on or about J Sth November 2015.
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26. As far as Chhattisgarh is concerned, it was noted that it had
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filed an affidavit and the learned Advocate General stated that the Ms.
AnitaJha Commission submitted its report on 1 Oth August 2015 and that
the report was likely to be considered by the State Cabinet in the next
c01,1ple of weeks.
27. The learned Advocate General informed us that two charge
sheets had been filed in connection with the tragedy and that no FIR
was pending investigation. He further stated that some scientific reports
were expected from a Forensic Science Laboratory and a supplementary
charge sheet would be filed, if necessary, immediately thereafter.
28. With regard to two absconding persons concerned with the
tragedy, it was stated by the learned Advocate General that they had
been declared proclaimed offenders and a reward had also been
announced for their whereabouts.
29. In the hearing on 4'h December 2015 we were informed that
the report given by Ms. Anita Jha had since been accepted by the State
Cabinet. Subsequently, on 29'h March 2016 we were informed that an
Action Taken Report on the Ms. Anita Jha Commission Report had
been placed before the Legislative Assembly.
30. Since the proceedings in this case were not adversarial in
nature we requested the learned Additional Solicitor General appearing .
in the matter as well as the learned Senior Counsel to sit down and give
suggestions on how to implement the Standard Operatins Procedures
and the Guidelines laid down by the Union of India in the matter of
sterilization procedures.
31. On 4'h August 2016 when we heard the writ petition, we
DEVIKA BISWAS v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
were informed that a meeting was in fact held between the learned
Additional Solicitor General, learned Senior Counsel for Devika Biswas
and officials of the Ministry of Health and Family Welfare of the
Government of India and that an affidavit in this regard had also been
filed. We then heard learned counsel for the parties and reserved
judgment.
Affidavits filed by the Union of India
32. The Ministry of Health and Family Welfare of the Government
·of India has filed as many as I 0 (ten) affidavits. It is not necessary to
traverse each of them in detail. However, it is necessary to highlight the
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broad submissions made. These are:
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(i) It is admitted that the Union oflndia received a complaint with
regard to the sterilization camp held on 7'h January 2012 and a report
had been called for in this regard. A report has since been received from
the concerned authorities in the State of Bihar and Dr. Abhay Kumar
Chowdhary, a contract physician at the Primary Health Centre had since
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been dismissed and it had further been ordered that he may not be
employed in any government work in future. First Information Reports
(FIRs 1 were lodged in respect of the events of 7'h January 2012,
investigations have concluded and charge-sheets filed.
(ii) The Government oflndia has published several Manuals for
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the guidance of the State Governments and Union Territories in respect
of sterilization procedures and conducting such camps. These are:
(a) Standards for Female and Male Sterilization, 2006;
(b) Quality Assurance Manual for Sterilization Services, 2006;
( c) Standard Operating Procedures for Sterilization Services in
Camps, 2008;
(d) Fixed Day Static Approach for Sterilization Services, 2008;
(e) Family Planning Insurance Scheme;
(f) Compensation Scheme for Acceptors of Sterilization (revised
on 31" October 2006 and improved with effect from 7'h
September 2007);
(g) Standards and Quality assurance in Sterilization Services, 2014
including Standard Operating Procedure for camps;
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(h) Reference manual for Female Sterilization, 2014;
(i) Reference Manual for Male Sterilization, 2013;
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(j) Manual for Family Planning Ind~mnity Scheme, 2013 (updated
in 2016);
(k) Frequently Asked,Questions, 2016.
(iii) Public Health is a State subject occurring in Entry 6 of List II
of the Seventh Schedule of the Constitution. The Government oflndia
only plays a supportive and facilitative role in achieving health welfare
schemes and it is essentially the State Government that is in the best
position to monitor the quality of services in accordance with agreed
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