DEVIKA BISWAS versus UNION OF INDIA & ORS.

Citation: [2016] 5 S.C.R. 773 · Decided: 14-09-2016 · Supreme Court of India · Bench: MADAN B. LOKUR · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2016] 5 S.C.R. 773 
DEVIKA BISWAS 
v. 
UNION OF INDIA & ORS. 
(Writ Petition (Civil) No.95 of2012) 
SEPTEMBER 14, 2016 
[MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.) 
Constitution of India: 
Art. 32 - Public interest litigation - Unsafe and unethical 
sterilization - In 2012, a single surgeon performed sterilization 
procedure on 53 women in a government school in a district in 
Bihar - Entire camp conducted in highly unsanitary conditions in 
an unprofessional and unethical manner - Women underwent 
tremendous physical pain and anguish and were traumatized - Not 
given any pre-procedure counseling and had no idea about the 
potential risks of undergoing sterilization - A/legations regarding 
occurrence of similar instances in Bihar, Kera/a, Madhya Pradesh, 
Maharashtra and Rajasthan - Writ petition by health rights activist 
raising issue of sterilization procedures carried out on women and 
also on men and sought series of directions - During pendency of 
the writ petition, allegations regarding sterilization camps conducted 
in a district in Chhattisgarh - Various affidavits filed by the States 
- In view thereof, issuance of certain directions to the Centre and 
States regarding conducting of ethical sterilization of women and 
men programme across the country. 
Art. 32 - Sterilization program - Whether a public health issue 
- Held: Sterilization program is not only a public health issue but a 
national campaign for population control and family planning -
Union of India erred in saying that it is concern of each State since 
it is a "Public health" issue covered by Entry 6 of List II in the 
Seventh Schedule (the State List) by overlooking the Concurrent 
List, Entry 20A which is Population Control and Family Planning -
Treating a national program as a public health issue has to stop 
and somebody must take ownership of the Population Control and 
Family Planning program. 
773 
A 
B 
c 
D 
E 
F 
G 
H 
774 
A 
B 
c 
SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
Arts. 21, 32 - Right to life - Unsafe and unethical sterilization 
procedures - Endanger two important components of the right to 
life under Art. 21-right to health and reproductive rights of a person 
- Right to life under Art. 21 includes right to lead a dignified and 
meaningful life and right to health is an integral facet of the right 
to life. 
Right to reproductive health - There is a recognition of the 
need to respect and protect the reproductive rights and reproductive 
health of a person - Reproductive rights have been recognized as 
an aspect of personal liberty under Art.21 - Freedom to exercise 
these reproductive rights would include the right to make a choice 
regarding sterilization on the basis of informed consent and free 
from any form of coercion - It is necessary that the policies and 
incentive schemes on sterilization are made gender neutral and 
unnecessary focus on female sterilization is discontinued. 
National Health Policy - National Health Policy not yet 
D . finalized despite the passage of more than one and a half years -
Issuance of direction to Union of India to take a. decision on or 
before December 31, 2016 on whether it would like to frame National 
Health Policy or not. 
E 
F 
G 
H 
Sterilization program - Female versus male sterilization -
Percentage of males being sterilized is so remarkably low as 
compared to females - Documents on record indicate that the 
incentive given to males for undergoing a sterilization procedure is 
less than it is for females and would be one of the reasons - Union 
of India to look into it, at least for reasons of gender equity. 
Disposing of the writ petition, the Court 
HELD: 1.1 The fundamental error that the Union of India 
made (repeated in its affidavits) was by asserting that the effective 
implementation of the sterilization program is the concern of each 
State since it is a "Public health" issue covered by Entry 6 of List 
II in the Seventh Schedule (the State List) of the Constitution. 
Apart from the fact that the various entries in the Seventh 
Schedule relate to legislative power, the Union oflndia completely 
overlooked the more appropriate Entry in the Concurrent List 
that is Entry 20A, "Population Control and Family Planning", 
inserted by the Constitution (Forty-second) Amendment Act, 1976. 
DEVIKA BISWAS v. UNION OF INDIA & ORS. 
If the sterilization program is intended for population control and 
family planning, there is no earthly reason why the Union oflndia 
should r

Excerpt shown. Read the full judgment & AI analysis in Lexace.