Latin American Conference on Reproductive Rights

1. Latin American Conference on Reproductive Rights Challenges in the Construction of Ethical Discourse in Defense of Dignified Life S. Muralidhar Judge, Delhi High Court India Mexico City, Mexico15th October 2013

2. Relevant Facts about IndiaStates and population statistics • Population size :1,21,01,93,422 (1.2 billion) • Sex ratio (Females per 1000 males) 940 • Child sex ratio 0-6 yrs (Girls per 1000 boys) 914 • Population Density: Persons per sq km: 382 • 28 States and Seven Union Territories • “The global annual increase of population is 80 millions. Out of this, India's growth share is over 18 millions (23 per cent), equivalent to the total population of Australia, which has two and a half times the land space of India. In other words, India is growing at the alarming rate of one Australia every year and will be the most densely populous country in the world, outbeating China, which ranks first, with a land area thrice this country's.”

3. Gross Domestic Product (per capita $)

4. Human Development Index • A long and healthy life is measured by life expectancy • Access to knowledge is measured by: i) mean years of adult education, which is the average number of years of education received in a life-time by people aged 25 years and older; and ii) expected years of schooling for children of school-entrance age, which is the total number of years of schooling a child of school-entrance age can expect to receive if prevailing patterns of age-specific enrolment rates stay the same throughout the child's life. • Standard of living is measured by Gross National Income (GNI) per capita

5. Other Human Development Indices • Inequality-adjusted HDI (India’s HDI for 2011 fell to 0.392 from 0.547 – a loss of 28.3%) • Gender-Inequality Index (India’s rank is 129 among 146 countries) • Multi-dimensional poverty index (MPI) • 41.6% below the income poverty line • 28.6% in severe poverty • 53.7% suffer multiple deprivations • 16.4% vulnerable to suffering multiple deprivations

6. Statistics Re: Maternal Mortality • Around 67,000 women die in India every year due to pregnancy related complications • 1.3 million infants die within a year of birth • Of the 0.9 million newborn who die within four weeks of birth about 0.7 million die within the first week (a majority of these within the first two days after birth) • (Source: Maternal Health Division, Ministry of Health and Family Welfare, Government of India)

7. Health Statistics: India’s children • 40% are malnourished. • > 48% are under-weight. • 45% are stunted. • > 50% of all deaths under five years are related to malnutrition. • 70% of children under five are anaemic. • Only 43% of children below two receive all immunisation. • (Source: CRY Foundation)

8. Food – Global Hunger Index Source : Global Hunger Index Report 2012 published by IFPRI India ranks 65th out of 79 countries.

9. The Promise: The Constitution of India Preamble: ‘Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; and equality of status and of opportunity’. Fundamental Rights: Article 14. Equality before law-The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Article 19 – Freedoms: Freedom of speech and expression, Freedom to assemble peaceably and without arms, Freedom to form associations or unions, Freedom to move freely throughout the territory of India, Freedom to reside and settle in any part of the territory of India, Freedom to practise any profession, or to carry on any occupation, trade or business. Article 21. Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.

10. Directive Principles of State Policy • Article 37. The provisions contained in this Part shall not be enforceable in any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. • Article 39. Certain principles of policy to be followed by the State: The State shall , in particular, direct its policy towards securing- (a) to (d)……. (e) that the health and strength of workers , men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength. (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

11. Directive Principles of State Policy • Article 42. Provision for just and humane conditions of work and maternity relief: The State shall make provision for securing just and humane conditions of work and for maternity relief. • Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and , in particular, the State shall endeavour to bring about the prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. • Article 51 Promotion of international peace and security-(c) Foster respect for international law and treaty obligations in the dealings of organised peoples with one another • Article 51-A Fundamental duties (e) ...to renounce practices derogatory to the dignity of women

12. Expansion of right to life and health • Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC “(T)he right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings.” • Pt. Parmanand Katara v. Union of India (1989) 4 SCC 286 - “Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. …The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.” • Paschim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37- Constitutional obligation of the state to provide adequate medical services irrespective of financial constraints. Directions given for up gradation of primary health centres, sub-division and district level hospitals, properly equipped ambulances, especially for emergency medical care. “Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.”

13. Role of Courts • Remedies for enforcement of rights (Right to Constitutional Remedies) • Article 32- Right to move the Supreme Court for enforcement of Fundamental Rights • Article 226- Right to move the High Courts for enforcement of Fundamental Rights • Substantive due process - Maneka Gandhi v. Union of India (1978) 1 SCC 248 • Public Interest Litigation (PIL) - A judge-led movement envisioned as a tool for delivering legal services with relaxed rules of standing and procedure. • Techniques: Amicus curiae, Commissioners/ Expert committees • Nature of orders: Declaratory/Mandatory • Continuing mandamus

14. Welfare schemes for reproductive health The Janani Suraksha Yojana (JSY) (2005) Integration of cash schemes with delivery and post-delivery care. An Accredited Social Health Activist (‘ASHA’) is expected to act as a link between poor pregnant women and the government at the community level The National Maternity Benefit Scheme (NMBS) • Cash assistance of Rs.500 to pregnant women for proper nutrition The Integrated Child Development Services (ICDS) Scheme To improve the nutritional and health status of children in the age-group of 0-6 years. The Antyodaya Anna Yojana (AAY) Provisioning of subsidized food grain to the poorest Janani Shishu Suraksha Karyakram (JSSK) (2011) make deliveries in hospitals and primary health centres accessible to women in order to bring down the infant mortality rate (IMR) and the maternal mortality rate (MMR)

15. The National Rural Health Mission (NRHM) (2005) • Objective: Reduction of MMR, IMR and the Total Fertility Rate through Service Guarantees. • Thrust of NRHM - ‘convergence’ of different schemes, to put in place a system that facilitates easy accessibility of the public health systems while making it accountable. • The interrelatedness of these schemes was recognised by the SC way back in an order dated 28th November 2001 in PUCL v. UOI and thereafter periodically orders by way of mandamus have been issued to the Union of India and the individual states, much remains to be done on the ground, as these two cases reveal.

16. LaxmiMandal v. DeendayalHarinagar Hospital &Jaitun v. Maternity Home, Jangpura 172 (2010) DLT 9 • The two cases revealed the unsatisfactory state of implementation of the schemes in the two “high performing states” (HPS) of Haryana and the National Capital Territory of Delhi. • They highlighted the systemic failure resulting in denial of benefits to two mothers below the poverty line (BPL) during their pregnancy and immediately thereafter, under certain welfare schemes. • The petitions were essentially about the protection and enforcement of two inalienable survival rights that form part of the right to life: the right to health and in particular, the reproductive rights of the mother and the right to food.

17. Jaitun Facts • Petitioner’s daughter Fatema, an epileptic girl, was deserted by her husband on becoming pregnant. • Fatema gets no assistance from the Maternity Home run by the Municipal Corporation of Delhi (MCD) • In May 2009, Fatema delivered Alisha, in full public view, under a tree. On the same day, the Petitioner informed the Maternity Home of the delivery. However, no visit was made by the staff of the Hospital. • Alisha taken for vaccination but no facility under NRHM extended • Petition filed praying for compensation, proper implementation of schemes and providing Fatema and Alisha with nutrition and health care. • On 8th January 2010, the Court passed orders directing • the civic agencies to provide Fatema and Alisha • their dietary, medical and cash entitlements under various schemes

18. Devices adopted by the Court • Expert opinion – maternal audit • Monitoring through interim orders • Placing the issue in a constitutional law framework and showing interrelatedness of basic rights • Drawing inspiration from international law • Moulding relief: • Directions particular to the cases apart from compensation • General Directions

19. Reliefs granted • Laxmi Mandal • Hospital to refund fee charged for treatment, as Shanti Devi entitled to free treatment. • Entitlements under NMBS, AAY and other applicable schemes. • Shanti Devi recognised as the ‘primary bread winner’ and her family held entitled to a lump sum under National Family Benefit Scheme on her death. • Monetary compensation awarded for the avoidable death of Shanti Devi. • Jaitun • Directions to provide • Fatema’s entitlements under NMBS, AAY and regular free medical check up for her epilepsy. • Alisha’s entitlements under ICDS, Ladli Scheme and annual scholarship under the Balika Samridhi Yojana Scheme (BSYS). • Monetary compensation for denial of basic medical services and being forced to give birth under a tree.

20. Further directions regarding Schemes • Assurance of inter-State portability. • Cash assistance under NMBS independent of JSY, and irrespective of the number of live births or the age of the mother. • In spite of administrative overlap/variations, entitlements must be available at a single location. • Improvement in referral system, safe and prompt transportation. • Women to be routinely considered ‘bread winners’, at least under NFBS. • Improved quality of data on performance of JSY for categorisation of States as HPS and LPS.

21. Positive impact of court intervention • Judicial intervention was effective in highlighting the issue and catalysing changes in law and policy. • Government of India launched in June 2011 another scheme, Janani-Shishu Suraksha Karyakram (JSSK) spelling out the following entitlements for pregnant women and sick new born including free drugs, treatment, transportation, user charges etc. • JSSK provides for a grievance redressal mechanism, insists on wide prominent dissemination, help desks, and maintenance of proper records. • Emphasised a well integrated referral system with actions at district level and state level including provision of ambulances. • Instructions and guidelines issued by Government for mandatory ‘maternal death audit’

22. Positive impact of court intervention • Delineating scope and content of individual rights. Recognising ‘entitlements’ in the policy as ‘rights’ within the constitutional framework. • Carving out the core content of the right and the corresponding obligation of the state, irrespective of its economic capacity. • Developing human rights jurisprudence in line with international law. • Interlinking of rights. • Recognising that the bread-winner in the family could be a woman. • Emphasising importance of inter-disciplinary approach. • Has had precedential value: at least eight other petitions filed in different High Courts on the basis of the judgment in Laxmi Mandal seeking similar reliefs. • Government has come up with a notification for mandatory maternal death audit.

23. Court intervention: the limitations • Law v. policy: The legitimacy of intervention in ESCR is often questioned being in the realm of executive policy. • Legitimacy v. competence: While an informed and responsive judiciary is possible, does its intervention produce results consistent with the advancement of ESCR. • Subjective assessment as regards compensation • Balancing competing rights and interests: the challenges of re-ordering priorities for the state. • Reluctant compliance by government: contempt petitions seeking compliance

24. Broad themes for discussion • Indivisibility of rights civil and political rights and economic and social rights – their linkage to the right to ‘development’ • Gender and ‘horizontality’ of rights – how do we treat our women and girl children? • Access to justice – Justice as a compendious term not confined to what happens in courts. How do we make the Constitution work for the poor? Viewing the Constitution from the perspective of the ‘weakest’ • Ethics of making women as targets of practice population control measures: De-prioritising women’s and children’s health • Schemes that focus on tertiary level over community based care • Public Health System: role and responsibility • Beneficiaries of welfare being viewed as secondary citizens • Role of the judiciary: proactive, counter-majoritarian and yet responsive to the growing expectations and changes around us