The September 14 judgment of the Supreme Court in the Devika Biswas vs Union of India writ petition on sterilisation has boosted the morale of many public-spirited citizens. It places accountability on the central government and has ordered a cessation on sterilisation camps as a method of population control.
The judgment also vindicates conscientious citizens who contest the class prejudice that underlies the targeting of poor women as objects of sterilisation while disregarding their personhood and human rights.
But unless the dehumanising biases and the mindset behind such policies and programmes are challenged, along with meticulously focusing on a number of alternatives suggested in the final judgment, abandoning sterilisation camps in itself may not be sufficient in restoring the dignity and right of choice to vulnerable women, which is the lager goal behind the contestation.
The history of litigations on the issue of sterilisation dates back to 2001 when the coercive two-child policy was challenged in the Supreme Court. An amendment to the Haryana Panchayat Raj Act in 1994 had barred adults with more than two children from contesting local body elections.
A set of over 100 special leave petitions challenging this exclusionary clause was filed in the apex court and were clubbed together as Javed vs State of Haryana. The Supreme Court dismissed this petition citing population as the problem behind India’s poverty and saying that the population policy could not be challenged. The judiciary in this judgment displayed the Malthusian paranoia harboured by the upper classes and the social elites about an illusory exponential rise in population depriving them of their unlimited access to the resources of the world.
Through this judgment, the judiciary also unceremoniously dispossessed the citizenry of the power to challenge any population control related policy. This in turn led to the enactments of many variants of the two-child norm in several states. The impunity provided to the state thus became grounds for the onslaught of sterilisation of the poor. Healthwatch Uttar Pradesh, a civil society coalition, found an innovative way of circumventing the policy handcuffs imposed by the Supreme Court while filing the petition Ramakant Rai vs Union of India in 2002. The evidence of morbidity suffered by women, along with the unreported deaths due to the lack of quality care in sterilisation camps formed the basis of this litigation. The apex court was magnanimous in its judgment, which specified quality of care standards along with appropriate protocols that were to be stringently followed. Had it been followed to the letter, the need for the next litigation would not have arisen. The callousness exhibited by both the central and state governments was challenged in Devika Biswas petition, which was filed in 2012 on the basis of evidence of continued violation of the Supreme Court order. The impunity of state authorities was such that even during the pendency of this petition, deaths in sterilisation camps continued unabated as exemplified by sterilisation deaths in Chhattisgarh in 2014.
The symbolic, the persuasive and the prescriptive
Will the current judgment curtail the callousness and impunity of the various government authorities and the relentless targeting of poor women? Will the order be followed in toto?
The legal scholarship speaks of the symbolic, the persuasive and the prescriptive elements in the judgment. The symbolic are the aspirational utterances of the judiciary, often lost in the obiter dicta and at times found articulated in the written judgments. The persuasive are the recommendations to the government to follow. The prescriptive or the imperative imply a binding direction which is clearly articulated. The power of the judiciary manifests itself in the construction of the judgment and the language it employs to communicate its intention.
The 89-paragraph long judgment spread over 51 pages has all the three elements. In several paragraphs it has been reinforced 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 “it is necessary that the policies and incentive schemes are made gender neutral.” This can be considered a purely symbolic element of the judgment as it has no element of accountability or compliance. The judgment states that “In any event, the Union of India should adhere to its view that sterilisation camps will be stopped within a period of three years,” which can be construed as either a directive or a prescriptive element.
Between the two, there are a number of measures suggested by the judiciary as ‘supplementary’ directives that are essential to the success of achieving the larger goal of this petition, like upholding the rights of women from marginalised communities. “In our opinion, this will necessitate simultaneous strengthening of the primary health care centres across the country, both in terms of infrastructure and otherwise, so that health care is made available to all persons. Therefore, we direct the Union of India to pay attention to this as well, since it is absolutely important that all citizens of our country have access to primary health care.”
Other such directives are regarding the panel of doctors, checklist of the quality of care in local language, trained counsellors, an hour’s time per woman opting for sterilisation, inquiries and remedial steps in case of deaths, implementation of the Family Planning Indemnity Scheme, discontinuance of fixing targets and so on.
From the public health point of view, this is a very significant and welcome statement by the judiciary. However, is this binding? Is it merely symbolic, persuasive or also prescriptive? The judgment itself does not allude to the binding or hierarchies in these supplementary directives.
It could be argued that merely abandoning the camp method without the imperative of putting in place these ‘supplementary’ directives will only be a cosmetic compliance without any substantial change to the lives of women who are targeted. The judgment leaves us with a chicken or egg dilemma. The camp method in sterilisation is resorted to precisely because the successive governments progressively dismantled a primary health care system in the country by under-resourcing it. Even today, the government per capita public health expenditure stands at a meagre Rs 1,042. As a result, the out of pocket expenditure by citizens has reached 75% of the total health expenditure as per the National Health Accounts (2013-14). The quantum of current investment is hardly sufficient to put in place the directions of the judgment.
With such a weak political will accompanied by the Malthusian mind set of the bureaucracy, the social elites and the middle class combined, one wonders what aspect of the judgment would be implemented and in what manner. Or, will the government continue to turn a blind eye to the order as before? Will there be a circumventing legislation? Will the bureaucracy use coercive methods to deprive the poor of social rights such as PDS entitlements, employment, contesting elections and housing if they have more than two children? Civil society has the challenge to be vigilant and to be ready for a long battle, not only concerning the implementation of the order, but also for contesting the Malthusian mind set which breeds such discriminatory policy and dehumanising operations.
E. Premdas Pinto is an advocate and a Ph.D. scholar at the Centre for Social Medicine and Community Health, Jawaharlal Nehru University, researching on the subject of healthcare jurisprudence.