LITIGATING REPRODUCTIVE RIGHTS: Using Public Interest Litigation and International Law to Promote Gender Justice in India Center for Reproductive Rights 120 Wall Street New York, New York 10005 www.reproductiverights.org [email protected] Avani Mehta Sood Bernstein International Human Rights Fellow Yale Law School [email protected] © 2006 Center for Reproductive Rights Avani Mehta Sood Any part of this report may be copied, translated, or adapted with permission of the Center for Reproductive Rights or Avani Mehta Sood, provided that the parts copied are distributed free or at cost (not for profit), that they are identified as having appeared originally in a Cen- ter for Reproductive Rights publication, and that Avani Mehta Sood is acknowledged as the author. Any commercial reproduction requires prior written permission from the Center for Reproductive Rights or Avani Mehta Sood. The Center for Reproductive Rights and Avani Mehta Sood would appreciate receiving a copy of any materials in which information from this report is used. ISBN: 1-890671-34-7 978-1-890671-34-1 page 2 Litigating Reproductive Rights About this Report This publication was authored by Avani Mehta Sood, J.D., as a Bernstein International Human Rights Fellow working in collaboration with the Center for Reproductive Rights. The Robert L. Bernstein Fellowship in International Human Rights is administered by the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School. In 2004, the Center for Reproductive Rights launched a global litigation campaign to promote the use of strategic litigation for the advancement of women’s reproductive rights worldwide. Concerned by the magnitude of reproductive right violations that occur with impunity in India and inspired by the use of Public Interest Litigation (PIL) in that country to defend fundamental rights guaranteed by the Indian Constitution, the Center saw the need for in-depth research and analysis of this mechanism and its potential for advancing gender justice, with a specific focus on women’s reproductive rights. This report, which explores the use of PIL to promote gender justice and future opportunities for advancing women’s reproductive rights in India, is based upon an analysis of relevant international and Indian constitutional law, case studies of select Indian Supreme Court litigation, and interviews with approximately 65 key stakeholders. The interviewees included former and current Supreme Court and High Court justices; lawyers; human rights and public health activists; social scientists; journalists; at-risk women living in conditions of poverty; and former and current officials of the National Commission for Women, the National Human Rights Commission, and the Law Commission of India. Ms. Sood conducted the interviews between December 2005 and August 2006 in New Delhi and Mumbai, and at the National Judicial Academy in Bhopal. The primary goal of this publication is to advance strategic litigation and other forms of advocacy for the formal recognition and practical realization of reproductive rights. The report does not purport to comprehensively cover the development and dynamics of PIL or women’s rights in India. Rather, the analysis, recommendations, and views presented by the interviewees relate to select dimensions of these complex and politically intricate topics. Using Public Interest Litigation and International Law to Promote Gender Justice in India page 3 page 4 Litigating Reproductive Rights Acknowledgments Numerous individuals at the Center for Reproductive Rights worked with Avani Mehta Sood toward the realization of this report. Melissa Upreti, Legal Adviser for Asia, supervised the project and provided input regarding the report’s conceptualization, methodology, and content. Laura Katzive, Deputy Director of the International Legal Program, provided critical comments on the report and oversaw the production process. The draft was also reviewed by Pardiss Kebriaei, Legal Adviser for International Litigation, who offered vital suggestions. Morgan Stoffregen, International Program Associate, coordinated the production and publication process. Ilona Lewyckyj, International Legal Program Intern, and Susannah Masur, International Legal Assistant, assisted with source verification and research. And the leadership of Nancy Northup, President of the Center, and Luisa Cabal, Director of its International Legal Program, enabled the fruition of this project. Special thanks to the following peer reviewers who shared their vast knowledge and provided invaluable comments on drafts of the report: Shruti Pandey, Director of the Women’s Justice Initiative at Human Rights Law Network (New Delhi); Molly Beutz, Cover-Lowenstein Fellow at the Orville H. Schell, Jr. Center for International Human Rights, Yale Law School (New Haven); Dr. Abhijit Das, Director of Sahayog (Lucknow) and the Center for Health and Social Justice (New Delhi); Dr. Asha Bajpai, Reader at the Tata Institute of Social Sciences (Mumbai); and Dr. Usha Ramanathan, independent research on the jurisprudence of law, poverty, and rights (New Delhi). James Silk, Executive Director of Yale Law School’s Schell Center, provided important guidance during the course of the author’s fellowship. Ms. Sood and the Center are also extremely grateful to many people in India who were very generous with their time and provided essential information and feedback for the report, especially the following: Justice V. S. Verma, former Chief Justice of the Supreme Court of India and former Chairperson of the National Human Rights Commission; Justice B. N. Srikrishna, recently retired Justice of the Supreme Court of India; Justice M. J. Rao, former Justice of the Supreme Court of India and recently retired Chairperson of the Law Commission of India; Justice Leila Seth, former Chief Justice of the Himachal Pradesh High Court and former Member of the Law Commission of India; Justice D. Y. Chandrachud, current Justice of the Mumbai High Court; Fali S. Nariman, Senior Supreme Court Advocate and former Additional Solicitor General of India; Naina Kapur, Director of Sakshi; Rohan Thawani, Supreme Court Advocate; Dr. A. R. Nanda, Executive Director of the Population Foundation of India; Akhila Sivadas, Director of the Center for Advocacy and Research; Dr. Girija Vyas, Chairperson of the National Commission for Women; Yogesh Mehta, Legal Officer of the National Commission for Women; Aruna Sharma, Joint Secretary of the National Human Rights Commission; Dr. Rajeev Dhavan, Senior Supreme Court Advocate and Director of the Public Interest Legal Research and Support Center; Shireen Jejeebhoy, Senior Program Associate at Population Council, India; Aman Ahluwalia; Vishnu Vardhan Shankar; Rukhmini Bobde; Sandipto Dasgupta; Sanjeeb Panigrahi; Anil Bangalore Suraj; Laxmi Vijaypalan; Tony George; Rohit De; and Purnima Mehta. We are additionally indebted to those interviewees who provided key insights but whose names have been withheld to protect their confidentiality. Finally, Ms. Sood and the Center extend many thanks to Shauna Cagan, who designed the cover and layout of the publication; Manisha Sood Mehta, who took the cover photo; and Sara Shay, who copyedited the report. Using Public Interest Litigation and International Law to Promote Gender Justice in India page 5 Table Of Contents ABOUT THIS REPORT 3 ACKNOWLEDGMENTS 5 TABLE OF ABBREVIATIONS AND GLOSSARY 11 RECOMMENDATIONS 15 INTRODUCTION 19 PART I: CONTEXT AND LEGAL FRAMEWORK 23 CHAPTER 1. PUBLIC INTEREST LITIGATION IN INDIA. 24 A. CONSTITUTIONAL BASIS 24 B. FEATURES OF PIL 25 1. Expansion of locus standi to provide remedies 25 2. Non-adversarial nature 26 3. Role of third parties 27 4. Role of the Court 27 5. Finality of decisions 28 C. JUDICIAL ACTIVISM 28 1. Criticisms 28 2. Context 29 3. Public response 29 CHAPTER 2. INTERNATIONAL AND COMPARATIVE SOURCES OF LAW 31 A. KEY INTERNATIONAL TREATIES AND INTERPRETATIONS 31 1. Convention on the Elimination of all forms of Discrimination Against Women 31 2. International Covenant on Civil and Political Rights 33 3. International Covenant on Economic, Social and Cultural RightS 34 4. Convention on the Rights of the Child 35 B. COURT’S APPLICATION OF INTERNATIONAL LAW 36 1. Status of international law 36 2. Patterns of usage 37 C. COMPARATIVE LAW 37 1. Impact on development of PIL 37 2. Current trends 38 CHAPTER 3. CONSTITUTIONAL LAW 40 A. FUNDAMENTAL RIGHTS 40 1. Article 21: Right to life 40 2. Articles 14-15: Rights to equality and non-discrimination 43 B. DIRECTIVE PRINCIPLES 45 C. DUTIES OF PRIVATE ACTORS 46 1. Article 12 jurisprudence 46 2. Fundamental Duties 46 CHAPTER 4. RELIGION-BASED PERSONAL LAWS 48 A. STANCE OF THE CONSTITUTION AND THE COURT 48 B. SHAH BANO AND THE MUSLIM WOMEN’S ACT 49 C. JUDICIAL AMBIVALENCE 51 D. UNIFORM CIVIL CODE 51 Using Public Interest Litigation and International Law to Promote Gender Justice in India page 7 CHAPTER 5. NATIONAL STATUTORY BODIES 53 A. NATIONAL COMMISSION FOR WOMEN 53 1. Mandate 53 2. Involvement with the Court 53 3. Limitations 54 B. NATIONAL HUMAN RIGHTS COMMISSION 54 1. Mandate 54 2. Involvement with the Court 55 3. Composition 55 C. LAW COMMISSION OF INDIA 56 1. Mandate 56 2. Involvement with the Court 56 PART II: PUBLIC INTEREST LITIGATION CASE STUDIES 57 CHAPTER 6. VISHAKA V. STATE OF RAJASTHAN 58 A. BACKGROUND 58 B. BUILDING THE CASE 58 C. JUDGMENT 60 D. PREDECESSOR CASES 61 E. IMPLEMENTATION 62 F. ROLE OF NATIONAL COMMISSIONS 62 G. IMPACT 63 H. LEGISLATION 63 I. SUBSEQUENT HISTORY 64 J. PETITIONING LAWYER’S EXPERIENCE 65 CHAPTER 7. JAVED V. STATE OF HARYANA 66 A. BACKGROUND 66 B. LITIGANTS’ ARGUMENTS 66 C. JUDGMENT 67 1. Right to equality 67 2. Right to life and liberty 68 3. Right to religious freedom 68 4. International law 69 D. RESPONSE 69 E. SHORTCOMINGS OF PETITIONS 71 F. ROLE OF NATIONAL COMMISSIONS 71 G. NEXT STEPS 72 CHAPTER 8. PENDING CASES 73 A. FFDA V. UNION OF NDIA 73 1. Factual case 73 2. Legal arguments 73 3. Comparative law 74 4. Requests for relief 74 5. Current status 74 B. RAMAKANT RAI V. UNION OF INDIA 75 1.