From the Field to the Judge’s Bench: Developing Litigation Strategies to Improve the Lives of Women 24th – 25th November 2012 Assam Association A-14 B Qutab Institutional Area, New Delhi IN COLLABORATION WITH HEALTHWATCH FORUM – BIHAR INITIATIVE FOR HEALTH AND EQUITY IN SOCIETY WOMEN’S ASSOCIATION MARCHING AHEAD MANASI SWASTHYA SANSTHAN ALL INDIA DRUG ACTIONNETWORK JANADHIKAR MANCH - BIHAR From the Field to the Judge’s Bench: Developing Litigation Strategies to Improve the Lives of Women IN COLLABORATION WITH HEALTHWATCH FORUM – BIHAR INITIATIVE FOR HEALTH AND EQUITY IN SOCIETY WOMEN’S ASSOCIATION MARCHING AHEAD MANASI SWASTHYA SANSTHAN ALL INDIA DRUG ACTIONNETWORK JANADHIKAR MANCH - BIHAR Human Rights Law Network’s Vision • To protect fundamental human rights, increase access to basic resources for marginalized communities, and eliminate discrimination. • To create a justice delivery system that is accessible, accountable, transparent, efficient, affordable, and works for the underprivileged. • To raise the level of pro-bono legal experience for the poor to make the work uniformly competent as well as compassionate. • To professionally train a new generation of public interest lawyers and paralegals to be comfortable in the world of law as well as in social movements and to learn from such movements to refine legal concepts and strategies. FROM THE FIELD TO THE JUDGE’S BENCH: DEVELOPING LITIGATION STRATEGIES TO IMPROVE THE LIVES OF WOMEN January 2013 © Socio Legal Information Centre* Editor: Kerry McBroom Coordinator: Karla Torres Printed at: Rudra Printers, 181, First Floor, Bapu Park, Kotla Mubarakpur, New Delhi – 110003. Published by: Human Rights Law Network (HRLN) A division of Socio Legal Information Centre 576 Masjid Road, Jangpura, New Delhi – 110014, India Ph: +91-11-24379855/56 E-mail: [email protected] Website: www.hrln.org Disclaimer: The views and opinions expressed in this publication are not necessarily the views of HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. HRLN takes sole responsibility for any remaining errors, omissions or inaccuracies that may remain. *Any section of this volume may be reproduced for public interest purposes with appropriate acknowledgement without prior permission of Human Rights Law Network. Table of Contents Introduction……………………………………………………………………………………………………………………………...1 Welcome Address……………………………………………………………………………………………………………………...2 Access to Sexual Health Education: Helping Youth Exercise their Rights………………………………………3 National Entitlements: There is No Benefit if There is No Implementation…………………………………...6 Access to Contraception: Supporting Women to Achieve the Highest Standard of Sexual and Reproductive Health………………………………………………………………………………………………………………..11 Skilled Birth Attendants in the Field: How a Shortage in Human Resources and Training Jeopardizes Women’s Maternal Health……………………………………………………………………………………..16 Child Marriage: Protecting the Rights and Lives of India’s Children……………………………………………18 Hysterectomies: Insurance Fraud and Reproductive Rights………………………………………………………23 Status of Family Planning in India………………………………………..........................................................................27 Experiences from the Field: Francis Elliot’s Personal Recount………………………………………………......29 Devika Biswas vs. Union of India and Ors.: Female Sterilization in India………………………………………30 Female Sterilization in India: A State by State Recount from Uttar Pradesh, Rajsathan, Odisha, Madhya Pradesh, and New Delhi…………………………….………………………………………………………………..34 List of Participants………………………………………………………………………………………………………………......47 Introduction Over two days, activists and advocates gathered to discuss some of the most pressing reproductive rights issues in India. Activist presented on a wide range of topics ranging from child marriage to sexual health education to female sterilization all with the aim to determine how these reproductive rights violations can be advanced through public interest interventions. Our purpose was to bring grassroots level activists, policy experts, and advocates together to bridge the gap between activists in the field and advocates in the courtroom. In this way, together, we can promote reproductive rights as human rights. Reproductive rights violations in India are fomented and compounded by cultural, religious, and societal contexts. Any approach to address reproductive rights violations in India must be committed, crosscutting, and collaborative. There is no silver bullet to right these wrongs, just like there is also no panacean, hierarchical, or methodical method of bringing an end to them either. Instead, a comprehensive, multi-faceted approach to advocacy is necessary. This approach must embrace field level activism and litigation, policy advocacy and demonstrations; all efforts undertaken as pieces of a bigger, cohesive, picture to eradicate the ills of rampant reproductive rights violations. Reproductive Rights in India The 1994 Cairo International Conference on Population and Development (ICPD) defines reproductive rights as follows: Reproductive Rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence.1 In India today, women young and old are victims of one of the highest maternal mortality rates in the world, coercive population control policies, forced sterilization, a lack of comprehensive sexual health education, limited information regarding contraception, inadequate access to contraception, and persistent child marriages. All of these issues continue compromising the lives of millions of women, female adolescents, and girl children in violation of their reproductive rights. The following paragraphs provide a short background on each reproductive rights issue discussed during our National Consultation. Following each issue is a summary of the information presented and the recommended ways forward. 1 Chapter VII, Reproductive Rights and Reproductive Health, International Conference on Population and 1 Welcome ADDress Sonali Regmi, Center for Reproductive Rights (CRR) Ms. Regmi presented on the work of her organization, the CRR. The CRR is an international NGO based in the United States, which has been working on reproductive rights for 20 years. The organization recently opened regional offices in Latin America, Africa, Europe, and Asia. Ms. Regmi is based at the Asian regional office, which is based in Kathmandu. Ms. Regmi began her presentation by stating that as reproductive rights are not fully recognized as human rights, the CRR works to connect reproductive rights to the larger human rights framework. She told the participants that there is a clear link to the right to life and the right to health but that reproductive rights also engage a myriad of other rights. She also stated that reproductive rights are inherently connected to women’s rights and that the CRR uses international standards such as the ICPD and the Beijing Declaration to promote women’s rights in the area of reproductive health law. Ms. Regmi told the participants that the CRR focuses on reducing maternal mortality, increasing access to contraception, improving access to safe and affordable abortions, and, more recently, preventing harmful traditional practices including child marriage. Ms Regmi shared that the CRR is now focusing on child marriage, as there is a link between this practice and maternal deaths. She told the participants that CRR felt it was essential to begin working against child marriage, as when people are married at a young age, they generally do not know their rights. This means that young married people often have limited access to contraception and are unaware of their right to decide on number and spacing of children which in turn leads to greater maternal mortality. The strategies employed by the CRR include litigation, amicus briefs, and advocacy before treaty committees. The CRR focuses on advocacy at both a national and international level by taking litigation to national courts but also appalling to international treaty monitoring bodies which offer an extra forum if domestic remedies fail to create change. Ms. Regmi told the participants that the CRR also works on policy reforms and initiatives where lacunas exist in reproductive rights. Finally, Ms. Regmi shared that the CRR also conducts training for lawyers and judges to sensitize them to reproductive rights issues and the human rights framework. She told the participants that training helps ensure more comprehensive and supportive orders from the courts. She stated that they have spent ten years working with judges in Nepal, which has led to good judgments, such as the 2009 Lakshmi judgment. This case concerned a women who was pregnant for the fifth time and who wanted an abortion. Abortion is legal in Nepal but the women and her husband could not afford the 1,200 rupees that they were quoted at the public hospital for the procedure. She therefore had to continue her pregnancy against her will. In their judgment, the court utilized a reproductive rights framework and held that access to abortion was a constitutional right and directed that the government formulate a separate, rights based law for abortion. Ms. Regmi