Devika Biswas v. Union of India

(2016) 10 SCC 726
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The petitioner in the present case claimed that a sterilization camp managed by an NGO in Bihar was conducting sterilization without following any proper protocol. More than 50 women had undergone sterilization at the camp without being provided any kind of counseling and information about the procedure. The procedure of the sterilization was highly unsanitary; the women were operated in a school, on a school desk and without sanitary gloves. The women suffered from immense physical pain after the operation.

Due to dismissal of the police complaints, the petitioner prayed for a full investigation into the sterilization camp and for the strict implementation of sterilization procedure guidelines issued by the Government of India after the Ramakant Rai case. The petition brought together information about the state of sterilization camps all across the country and the blatant violation of fundamental rights of women.

 

The Court held that there had been a violation of Article 21 of the Constitution. It stated that right to health including reproductive rights was an integral part of Article 21. Further, the right to make a choice in relation to sterilization free from any coercion was also guaranteed under the Constitution. Relying on AS v. Hungary, the Court stated that informed consent in sterilization procedures is an essential aspect of the right to reproductive health.

The Court stated the importance of the guidelines issued pursuant to the Ramakant Rai case and further emphasized that the procedure and the consequences of the procedure must be explained to each woman in detail. The Court further directed the Government that no target-based approach should be followed as it leads to non-consensual sterilizations. The Government was directed to discontinue sterilization camps.

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. As the Justice Sarkaria Commission put it “Population Control and Family Planning is a matter of national importance and of common concern of the Union and the States.” (para 12 of the Directions)

The contents of the checklist prepared pursuant to the directions given in Ramakant Rai (I) 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. This can be achieved by (a) ensuring that the checklist is in the local language of the State; (b) it should contain a certificate duly signed by the concerned doctor that the proposed patient has been explained the contents of the checklist and has understood its contents as well as the impact and consequences of the sterilization procedure; (c) in addition to the certificate given by the doctor, the checklist must also contain a certificate given by a trained counselor (who may or may not be an ASHA worker) to the same effect as the certificate given by the doctor. This will ensure that the proposed patient has given an informed consent for undergoing the sterilization procedure and not an incentivized consent. Sufficient breathing time of about an hour or so should be given to a proposed patient so that in the event he or she has a second thought, time is available for a change of mind. The checklist prepared pursuant to the direction given in Ramakant Rai (I) with the aforesaid modifications should be prepared in the local or regional language on or before 31st December, 2016.” (Para 2 of the Directions)

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