CLAIMING DIGNITY REPRODUCTIVE RIGHTS & THE LAW ANUBHA RASTOGI Human Rights Law Network's Vision G To protect fundamental human rights, increase access to basic resources for the marginalised communities, and eliminate discrimination. G To create a justice delivery system that is accessible, accountable, transparent, efficient and affordable, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate. G Professionally train a new generation of public interest lawyers and paralegals who are comfortable in the world of law as well as in social movements, and who learn from such movements to refine legal concepts and strategies. CLAIMING DIGNITY: REPRODUCTIVE RIGHTS & THE LAW By: Anubha Rastogi © Socio Legal Information Centre* ISBN 81-89479-53-9 March 2009 Design: Mahendra S Bora Printed at: Shivam Sundaram, E-9, Green Park Extn., New Delhi-110016 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 views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. *Any section of this volume may be reproduced without prior permission of the Human Rights Law Network for public interest purposes with appropriate acknowledgement. ACKNOWLEDGMENTS Firstly, the Human Rights Law Network (HRLN) wishes to express its sincere and deep gratitude to the MacArthur Foundation for its generous support in the funding of this publication and its long standing relationship with HRLN. The author would like to thank and acknowledge Colin Gonsalves and HRLN for providing her with this opportunity. The idea of this book had been conceptualised by Shruti Pandey when she was part of HRLN. Not only does the author thank her for this idea, she also acknowledges the fact that Ms Pandey introduced the understanding of reproductive rights to her and that is where the foundation has been laid. Ms Anubha Rastogi further acknowledges the contribution of the Reproductive Rights Unit and the Women's Justice Initiative of HRLN consisting of Veena Kumari, Sandhya Raju, Sandhya J, Doma Bhutia, Sheela Ramanathan, Sanjai Sharma and Jameen Kaur for their tireless efforts in creating accesses for women to uphold their reproductive rights and for being so patient. She is in awe of the energy and dedication in this initiative. Finally, Ms Rastogi would like to thank the Publications Division of HRLN for displaying so much patience with her erratic schedules. Thank you very much. FOREWORD A Terrible Crisis in the Making Colin Gonsalves* The Human Rights Law Network (HRLN) began doing public interest writ petitions to implement the reproductive rights of women in a rather spontaneous and incremen- tal fashion. The Supreme Court decision in Javed Vs State of Haryana (2003 8 SCC 369) provoked much discussion among social activists because the Supreme Court had gone totally off the track. The judgement was a blunder of epic proportions. Persons who were disqualified from contesting the Panchayat elections in Haryana filed a petition in the Supreme Court impugning the constitutionality of the State noti- fications laying down the norm. In these proceedings, the central government appears to have given the Supreme Court the impression that the two-child norm was indeed part of the national population policy. Nothing could be further from the truth. The consultations that took place prior to the announcement of the national population policy, showed that the two-child norm with its package of disincentives was emphat- ically opposed due to the anticipated adverse impact on poor women and hence omit- ted from the policy altogether. The decision of the Supreme Court in Javed's case is a classic example of how a court can make a terrible mistake while dealing with an intricate social issue merely because the parties before the court are unable or unwilling to properly explain the complexities involved. The court made several mistakes. Firstly, it relied on an obsolete 1960s Club of Rome framework and characterised "the torrential increase in the population … as more dangerous than a hydrogen bomb (Russel)". It quotes with approval two obscure writers on the subject who say that "the rate of population growth has not moved one bit from 1979." This was very wrong. The truth is that India has experienced the sharpest fall in decadal growth from 23.81 in 1991 to 21.34 in 2001. This is the lowest population growth rate since Independence! Secondly, it referred to the five-year plans from the first to the seventh (ending 1991) in which emphasis was placed on punitive disincentives and failed to notice the land- mark departure within approach in the Cairo Conference (1994) with the emphasis now placed on development, quality of life, women's welfare, and the rejection of dis- incentives. Thirdly, it failed to notice that none of the grounds taken in the petition related to the impact on women. Towards the end of the judgement under the title "incidental ques- tions" reference was made to the impact on women but even these were dismissed out of hand. The court was not informed that population experts throughout the country were unanimous in their view that the impact on poor women would be immediate and severe. Research carried out in the states of Orissa, Rajasthan, Haryana and Madhya Pradesh, following the decision of the Supreme Court, indicated that the norm to dis- qualify candidates led to the desertion of wives and families, seeking of abortions with the associated related health risks, giving away of children for adoption and initiation of new marriages by male elected members. Women bore the brunt of the disqualifi- cation clause. For the breach of the two-child norm several states have put together a package of punitive measures including exclusion from elections, exclusion from ration cards, kerosene and other below the poverty line (BPL) incentives, denial of education in gov- ernment schools to the third child and withdrawal of welfare programmes for Dalits and tribals. This two-child norm became effectively a two-boy norm and, despite the prohibition in the law, sex selections and determinations were done extensively in the country. As a result, the sex-ratio is skewed to such an extent that there were hospi- tals in Delhi reporting no female births for month after month and there were villages in India with no girls to attend schools. A terrible crisis is in the making. The Human Rights Law Network (HRLN) has collaborated with many NGOs and aca- demics to host the people's tribunal on India's coercive population policies and the two-child norm in 2004. Testimonies of victims and experts were taken. These pro- ceedings are documented in an HRLN publication titled "Coercion versus Empowerment". Then the government at the Centre changed and the United Progressive Alliance (UPA) came to power. It must be said that the prime minister took a positive stand against the two-child norm and the crisis passed. The states domi- nated by the Bharatiya Janata Party continued to pursue this policy to varying degrees but with the central government withdrawing from the two-child norm the air was out of the tyres so to speak. It was around this time that the Uttar Pradesh and Bihar Health Watch brought HRLN a case regarding the barbaric practices in the government's sterilisation camps where women were treated worse than animals. The Supreme Court's final order -- which came rather quickly and which directed the enforcement of the extensive government guidelines that were largely ignored -- came as a happy surprise. The Supreme Court directed the government to appoint qualified and experienced doctors to do sterilisa- tions, carry out prescribed checks before doing any operation, obtain informed con- sent, ensure that the specified equipment were available, maintain proper records and statistics, hold enquiries in cases of malpractice and punish accordingly, bring into effect an insurance policy and pay compensation in appropriate cases. Then the Voluntary Health Association of Punjab with the assistance of HRLN filed a writ petition in the Supreme Court seeking guidelines to plug the loopholes in the implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. After holding a series of national consulta- tions, detailed proposed guidelines were submitted to the Supreme Court. The matter is pending there. In the meanwhile, despite the propaganda of the UPA, the situation of women on the maternal mortality and the morbidity front continues to deteriorate. The prime min- ister grandly announced the national rural health mission (NRHM) while simultane- ously following a policy of privatisation of health care. Public health services intro- vi duced and expanded the user fee system to such an extent that the poor today have to pay for their hospital bed, most of the medication, hospital food and bandages, injections, drips and diagnostic tests. Very often they have had to pay just to enter the hospital. So treacherous has been the central government and indeed all the state governments that it can be safely said that the right to health care declared by the Supreme Court in Paschim Banga Khet Majdoor Samity Vs State of West Bengal (1996 4 SCC 37) and Consumer Education and Research Centre Vs Union of India (1995 3 SCC 42), is illusory and unattainable and exists, as we Indians say, only on paper. And despite the victories that HRLN advocates have had in the courts, I would not hesitate to say that the judiciary has overwhelmingly and universally let down the people of India on the enforcement of the fundamental right to free public health care.