Chhattisgarh sterilization massacre

Time to re-evaluate medical standards

Raghavi Viswanath

The recent incident in Chhattisgarh calls for a serious re-evaluation of the Government’s approach to family planning. As part of the State’s sterilization program, laparoscopic tubectomies were performed on 83 women in the Bilaspur district in a span of merely five hours. All these operations were performed by a single doctor. According to several reports, the women were operated on the floor of a dilapidated clinic. As per the governmental guidelines pertaining to sterilization operations, doctors are not supposed to perform more than 30 operations in a day with three laparoscopic instruments and not more than 50, regardless of the number of instruments.

When the women were admitted, most of them complained of vomiting and fever. However, doctors are still unsure of the cause of death. While the Government alleged medical negligence on the part of the doctor, other authorities claimed that the medicines provided were adulterated. The National Human Rights Commission and the High Court took suo moto cognizance of the tragedy and an enquiry commission was instituted to look into the matter.

The appalling incident has diverted the focus of public institutions towards the systemic flaws in the State’s approach to family planning. This incident is one in the line of many deaths that have been caused due to faulty sterilization operations. Incidents such as that in Kaparfora, Bihar, in 2012, where 53 women were sterilized in two hours in a school and Malda, West Bengal, in 2013, where unconscious women were dumped in an open field after sterilization, show scant regard for women in the approach to sterilization ((Das Abhijit, India’s latest sterilization camp massacre, The BMJ, dated 1st December, 2014, available at http://www.chsj.org/uploads/1/0/2/1/10215849/bmj.g7282.full.pdf, last accessed on 19th January,2015)).

India introduced family planning in the wake of the global propaganda surrounding the phenomena of population explosion in the 1950’s.The following decade saw the Government embark on aggressive sterilization programs that did reduce the population from around 2.3% to 1.6%. However, the national sterilization campaign was abandoned in the 1970’s itself after reports of forced sterilizations. The government’s approach towards family planning was strongly condemned for violating people’s freedom to choose and stigmatized the concept of family planning (though not as stringently as China’s one-child policy). Ever since, India has not shown any progress, with respect to population control and is fast on its way to becoming the most populous nation by 2030.

Between 2009 and 2012, the government paid pecuniary compensation to nearly 568 families of women who had lost their lives as a result of faulty sterilization operations ((Jason Burke, India mass sterilization: women were ‘forced’ into camps, say relatives, The Guardian, 12th November, 2014 available at http://www.theguardian.com/world/2014/nov/12/india-sterilisation-deaths-women-forced-camps-relatives accessed on 19th January,2015)). Such state sterilization camps are conducted on a large-scale and several health workers are roped in to convince women to undergo the surgery. These workers also receive cash benefits. Moreover, in poverty-stricken states, women are offered cash incentives and disincentives. For instance, in 2012, the Madhya Pradesh, the Chief Minister announced incentives such as DVD players for surgeons and women who accepted sterilization ((Supra, see note 1)).

In the instant case, all women who had agreed to undergo the procedure were paid Rs.1400. The payment itself is a form of coercion. This reflects the lack of regard that Governments have for the reproductive rights that women are entitled to. Most states followed a target-based approach. For instance, Chhattisgarh set a target of 180,000 women to be sterilized by the March of 2015. Such unwritten targets compel doctors and other officials to coerce women into undergoing sterilization as opposed to other, possibly safer, methods of contraception. Moreover, surgeries such as abortion are made available only if the women agree to undergo sterilization. Most women are not even informed of the available methods of contraception. Instead, priority is affixed to sterilization, which is viewed as a full-proof method substantiated by the fact that it accounts for 72% of the use of modern contraception methods.

Such incidents also highlight the poor quality of medicines within the public health system and the proliferating adulteration businesses in the pharmaceutical sector. In most hospitals, basic disinfectants are also out of supply and are watered down to cut costs. Additionally, the patient’s medical history is not examined, there is no medical equipment to perform the surgery and the post-operative environment is not conducive to recuperation ((Das A, Rai R, Singh D. Medical negligence and rights violation Economic Political Weekly 2004 Aug 28; 39(35): 3876-9)).

Another aspect of this program is its highly prejudiced approach where women are forced to shoulder the burden of the family as opposed to men. An explanation for this attitude can be in the traditional regressive notions that chastise men who undergo such operations. Tubal ligations, as a proportion of total annual sterilization operations (male or female) have increased from 71% in the early 1980s to 98% in 2013 ((Supra, see note 3.)).

From a medical perspective, sterilization is not full-proof and a woman may conceive even after undergoing the operation. Therefore, negligence charges cannot be affixed upon the doctor merely on the grounds of the operation. The Supreme Court, in its judgment in Ramakant Rai v Union of India ((Supreme Court, Civil Writ Petition No. 209/2003))and Devika Biswas v Union of India ((W.P. (C) 81 of 2012)), laid down certain guidelines in order to bring about uniformity in the surgical procedures adopted by the medical professionals. However, these directives have been incessantly violated. In response to these directives, the Government came up with the Family Planning Insurance Scheme in 2005 where it directed the Union of India and States/UTs to ensure enforcement of the union government’s guidelines for conducting sterilization procedures. This scheme covered the indemnity allowances for doctors and medical professionals up to a monetary limit of Rs 2 lakhs and as well as the damages that victims of medical negligence in sterilization operations are entitled to. This initiative created the much required safeguard for doctors, in order to encourage them to perform these operations without fear of litigation.

The fundamental right to health ingrained in Articles 14, 15, 21 and 47 of the Indian Constitution protects all citizens from such deplorable practices in the medical field. Additionally, woman have the right to voluntary sterilization services that are not coercive, unsafe or violent under the Convention on the Elimination of All Forms of Discrimination against Women (1980), the International Conference on Population and Development Cairo (1994) and the Fourth World Conference on Women, Beijing (1995) ((Shri Ramakant Rai & Health Watch UP and Bihar v Union of India and Others (SC 2003), Supreme Court, Civil Writ Petition No. 209/2003)).

It is imperative for an independent grievance redressal body to be instituted in order to assess adherence to the judicial directives and ensure that people can lodge complaints against coercive measures used against them. The State should also undertake to conduct camps to inform people about the various options available for contraception as well as the socio-economic need for family planning for the State to be support the growing population. This is the only means to facilitate accountability and culpability.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – An Analysis

Vishnu S Warrier

Sexual harassment is an act that creates a hostile working environment which may be by way of cracking lewd jokes, verbal or physical abuse, circulating lewd rumors etc. Though, India had signed and ratified Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) way back in 1993, we did not have a specific legislation to address the issue of sexual harassment at Workplace. Till 1997, facing victim of sexual harassment at the workplace had to lodge a complaint under Section 354 ((Criminal assault of women to outrage women’s modesty))and 509 ((Assault or criminal force to woman with intent to outrage her modesty))of the Indian Penal Code 1860. However, scenario changed when Supreme Court stipulated the famous Vishaka Guidelines though its landmark judgment in Vishaka and others v State of Rajasthan ((Word, gesture or act intended to insult the modesty of a woman)).

Further, Court observed that, the consideration of “CEDAW and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. Accordingly, Government of India passed the Sexual Harrassment of Women at Workplace (Prevention, prohibition & Redressal) Act ((Hereinafter the Act)), to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto, and the same has been made effective on December 9, 2013 ((Gazette Notification dated December 9, 2013)).

The Act will ensure that women are protected against sexual harassment at all the Workplaces, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth ((Press Information Bureau, Government of India (Dated November 4, 2010). Protection of Women against Sexual Harassment at Workplace Bill, 2010, last accessed on December 12, 2013.)).

Key Features of the Act

Sexual harassment at Workplace

The Act defines sexual harassment to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature ((Section 2 (n).)). It may further include any promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems ((Section 3 (2).)).

Workplace, Employer, Employee

Workplace is defined to include all organizations, and any other places visited by an employee during the course of work ((Section 2 (o).))and it covers every woman at the work place whether employed or not ((Section 2 (f).)). Further, the Act defines employer as the person responsible for the management, supervision and control of the work place ((Section 2 (g).)).

Internal Complaints Committee & Other Local Committees

The Act insists upon the formation of an Internal Complaints Committee in every workplace, as per the provisions of Section 4. It further provides that, where the offices or administrative units of the workplace are located in various places, Internal Complaints Committee shall be constituted in all such units.

The Act also empowers the District Officer to constitute Local Compliant Committees in every district. And such Local Committee shall include an eminent woman who is working in the area of Social Work and committed towards the cause of women, as the Chairperson, and two members from an NGO committed to the cause of women ((Section 7)).

Duties of Employer

Chapter VI of the Act entrusts certain duties upon the employer ((Section 19)). Under which, every employer has to;

  1. Provide a safe working environment at workplace;
  2. Constitute an Internal Complaints Committee and conspicuously display the order constituting the Committee;
  3. Organize workshops and other training programmes at regular intervals for sensitizing employees;
  4. Provide assistance during any inquiry;
  5. Initiate actions against the perpetrator; and
  6. Provide assistance to the women if, she prefers to file complaint under the provisions of Indian Penal Code.

Redressal mechanisms – Complaint filing & Inquiry initiating

Chapter IV of the Act prescribes the procedures to be followed in filing complaint. Under the provisions of this Act, aggrieved women shall make a complaint in writing to the Internal Complaint Committee within three months of the last incident. In case the women is not in a position to file complaint due to her physical or mental incapacity, death or otherwise, her legal heir shall file the complaint ((Section 9)). In the absence of Internal Complaint Committee, complaint shall be filed with the Local Committee ((Id.)).

The Committee is required to complete the inquiry within a time period of three months. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be. They are mandated to take action on the report within two months. On request from the complainant, the committee shall provide for conciliation ((Section 10)). Complainant may also seek other remedies, including initiating criminal proceedings under the provisions of any other laws in existence.

Penalty & Appeal

The Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act, in case the allegations are proved. Besides, the Committee may provide for monetary compensation to the complainant. Further, whoever contravenes the provisions of Section 16 ((Prohibition of Publication or making known contents of complaint and inquiry proceedings)), shall be punished with a fine of Rs. 5000/- ((Section 17)). Any person aggrieved by the recommendations of the Committee, shall appeal within 90 days of the recommendations. All such appeal shall be preferred to a Court/Tribunal ((Section 18)).

Analysis & Major Issues

  1. Act insists upon the employer to constitute an Internal Complaints Committee at every unit. Practically, it may be impossible for big employers.
  2. Definition of employee is in its wider sense. Hence, it could be interpreted that, even a “domestic worker” who is working at home shall come under the protection of this Act.
  3. Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country needs to have one such person in the Committee. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available ((PRS Legislative Brief, The Protection of Women against Sexual Harassment at Work Place Bill, 2010 available at http://www.prsindia.org/uploads/media/Sexual%20Harassment/Legislative%20Brief%20-%20Sexual%20Harassment%20-%2020May11.pdf last accessed on December 12, 2013.)).
  4. Act doesn’t provide the maximum number of members which shall form part of the Committee.
  5. The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. however, the composition of the Internal Committee does not require any member to have a legal background. Moreover, the Act does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge ((Id.)).
  6. Act provides that every District Officer shall constitute a Local Complaints Committee in the district. However, jurisdiction and functions of these committees have not been detailed. It is also unclear whether the block or taluk level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases only.
  7. Act provides that in case a committee is of the opinion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. However, the provision also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Though there may be merit in providing safeguards against malicious complaints, this provision penalises every false complaints, which may not be malicious. This could deter women from filing complaints.

*** This article was initially published at eMagazine of ICSI Mysore Chapter (Edition 121, February 2014)