Case study on DEVIKA BISWAS V. UNION OF INDIA AND ORS. 14.9.2016

TITLE OF THE CASE               - Devika Biswas v. Union of India and Ors.   

APPELLANT                               - Devika Biswas       

REPONDENT                               - Union of India and Ors.

CORAM                                         - Madan B. Lokur and U.U. LALIT, J.J.

COUNSEL OF APPELLANT      - Sr. Adv. Jugal Kishore Gilda

COUNSEL OF RESPONDENT   - Advocate Kabir Dixit

COURT                                            - In the Supreme Court of India

DECIDED ON                                  -14.09.2016

 Writ Petition (Civil) No. 95 of 2012

Under Article 32 of the Constitution of India

SUBJECT – Constitutional law related with the Sociological Jurisprudence and Medical Jurisprudence

ACTS/RULES/ORDERS

Constitution (42^nd Amendment Act, 1976), Constitution of India – Article 21 and 32

FACTS:-

The petitioner Devika Biswas is a public spirited individual of Araria District in Bihar. She is a health rights Activist with extensive professional experience in the development and health sectors. She has worked in Uttar Pradesh, Delhi, Jharkhand and Bihar in her capacity as a health rights activist. She has also been associated with the Integrated Child Development Scheme in Bihar and has published articles and books in her field of specialization. In 2005 the issue of sterilization procedures for females and males under the Population Control and Family Planning program or the Public Health Program of the Government of India came up for consideration before this court in a petition filed by Ramakant Rai. It was decided on 1 March, 2005. Then, the Government of India published a Quality Assurance Manual for Sterilization services and for male and female sterilization. These procedures given for both of females and males in the country under the population control and family planning program or the public health program.

Then, Devika filed a writ petition under Article 32 of Constitution as many as 53 women underwent a sterilization procedure in a camp in highly unsanitary conditions in Koparfora Government. These procedures were carried out under torch light with the women being placed on a school desk and the doctors do not have gloves also. The camp was in unsanitary conditions. The camp was conducted under the auspices of an NGO. Then some of these complaints were inquired into by the State Authorities. Then Devika felt compelled to file a PIL in this Court to ensure that sterilization procedures are conducted in accordance with accepted legal norms and those who suffer due to failure or complications should be given adequate compensation.

The State health society in Bihar issued a memorandum to the civil Surgeon in each District in the State. Then the result of this was that now it will be conducted in private health facilities. The State Government would provide funds to the private facilities as per the Government of India norms.

In this writ petition we are primarily concerned with the affidavits of the Union of India, the States of Bihar, Kerala, Madhya Pradesh, Maharashtra and Rajasthan in these States only.

ISSUES:-

1. Whether the entire range of conduct and management, under the auspices of State Government of Sterilization procedures wherein women and occasionally men are sterilized in camps or in accredited centers?

2. Whether it includes pre- operation procedures and post- operative care or lack of it?

3. Whether is it a public health issue?

CASES REFERRED:-

Ramakant Rai and Anr v. Union of India and Ors. (2009) 16 SCC 565, C.E.S.C Limited Ors v. Subhash Chandra Bose and Ors. , Paschim Banga Khet Mazdoor Samity v. state of West Bengal.

ORDERS PASSED BY THE COURT:-

The State Government was required to indicate the action taken against the doctors involved and steps taken to educate the people in state with this regard to the sterilization procedure and its impact. The funds are utilized for the purpose for which they have been given by the Government of India to the State Governments. The Government of India has published several manuals for the guidance of the State Governments and Union Territories in respect of sterilization procedures and such camps.

RATIO DECIDENDI:-

The Union of India has issued an advisory to all the States and Union Territories to adhere to the standard operating procedures at all levels to prevent and pre-empt incidents that might adversely affect the health of clients due to sterilization procedures. It must be provided in a client friendly manner in a conducive environment after taking informed consent. The guidelines of the Government should be strictly adhered by the States. All States to conduct workshops.

OBITER DICTA:-

When the Union of India formulates schemes of national importance such as family planning, their implementation is dependent on the State Governments since they have the mechanism for implementing the schemes to the State and its people. The cooperation of the Union of India and all State Government is to the success of such National programs. The provisions of the Constitution that allow for such coordination between the Union and States, the Justice Sarkaria Commission held that these provisions are not repugnant.

In the same manner, it is imperative for both the Union of India and the State Government to implement schemes announced by the Union of India that respects the fundamental rights of the beneficiaries of the scheme.

OPINION:-

This case is basically related with these two types of jurisprudence i.e. Medical Jurisprudence and Sociological Jurisprudence.

MEDICAL JURISPRUDENCE –As sterilization is a type of medical technique that intentionally leaves a person unable to reproduce. It is basically a method of birth control. Sterilization methods include surgical and non- surgical and it exists for both males and females in the country under the population control and family planning program or the public health program[1]. As under this case 53 women were underwent a sterilization procedure in a camp in highly unsanitary conditions in Koparfora Government and these procedures are done even in torch light in an open place on the school desk  and the doctors do not wear gloves also.

As in this case Medical Jurisprudence is linked with this case that every person has a right to be medically fit or he should be treated by the doctors in a proper way and the treatment which is given by the doctors should be in the sanitary conditions because if it is not doing in systematic way then it can lead to serious injuries or something else.

After this case the State Health Society in Bihar issued a memorandum to the civil Surgeon in each district in the State and the result of this was that now it will be conducted in private health facilities. The State Government would provide funds to the private facilities as per the Government of India norms.

Because as it is concerned with the health of the man and the woman and it is a public health issue and that’s why it is linked with the Medical Jurisprudence because every person has the right to live medically fit. Then the Government of India has published several manuals for the guidance of the State Governments and Union Territories in respect of sterilization procedures and such camps.

SOCIOLOGICAL JURISPRUDENCE – As far as sociological jurisprudence is concerned that the laws are basically made for the people according to the needs of the society. Basically sociology is the study of the society in which law is considered one of the parts[2]

  Sociological approach was developed and elaborated by the jurists like Duguit, Lhering, Ehlrich and Roscoe Pound. The historical school has indicated that law and the social environment in which it develops are intimately related.

According to LHERING, he said that Law is but a part of human conduct and the idea of purpose Lhering found the mainspring of laws, which are only instruments for serving the needs of the society. In society there is an inevitable conflict between the social interests of man and each individual’s selfish interests.[3]

According to ROSCOE POUND[4] , they regard law as a social institution essentially inter-linked with their disciplines bearing direct impact on the society.

When the Union of India formulates schemes of national importance such as family planning, their implementation is dependent on the State Governments since they have the mechanism for implementing the schemes to the State and its people. It is the duty of them to respect the fundamental rights of the beneficiaries of the scheme.

This above case is connected with the sociological jurisprudence because male and females both is the person of the society if they will not be there then how society will work and where the laws will be applicable then. As this sterilization procedure can also affect the family and community at large that is why it is basically linked with the Sociological Jurisprudence.[5]

According to me a sterilization surgery does not appear to be complicated and yet several deaths have taken place across the country over the years. This needs to take remedial and corrective steps by the Government of India and the State Government.

As the procedure which is done in this case by the doctors is endanger to the health of the man and the woman both and reportedly carried out two important components of the Right to Life under Article 21 of the Constitution and the Right to health and the reproductive rights of the human which is related with the society.

CONCLUSION:-

According to my perspective in this case is this the doctors should do not sterilization procedures in an open place and it should be done in a private camp and there should be proper workshops for this program and it should be done in a proper way so that it cannot harm the patients whether it is a male or a female. As therefore it is related to the Medical and Sociological Jurisprudence as it is defined above how it is related with the medical and sociological jurisprudence. Because male or females are the person of the society so it is related with the needs of the society as this procedure needs some camps and should be done in a proper way because it is a question of the health of male and a female as well.

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[1] http://en.m.Wikipedia.org/wiki

[2] Referred from textbook on jurisprudence and legal theory DR. Vijay Ghormade

[3] Dias, Jurisprudence p. 481

[4] Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, p 292(1911)

[5] Googleweblight.com