Disposed

Kerala Prakthana Gotra Sangam v. Union of India

Kerala HC8 Jan 2020WP(C)/15139/2012

Case brief

AI extract

What is this about?

The petition challenged alleged forced or coerced sterilization of tribals and sought protective directions, investigation and compensation. The court expressed satisfaction with the measures taken and closed the petition without further examination.

What the court decided

AI extract

Kerala Prakthana Gotra Sangam Vs Union… — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 08TH DAY OF JANUARY 2020/18TH POUSHA, 1941

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WP(C).No.15139 OF 2012(S)

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PETITIONER/S:

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KERALA PRAKTHANA GOTRA SANGAM HAVING ITS REGD. OFFICE AT POOLAKUNNU HOUSE, MEPPADI P.O., WAYANAD, PIN-673 577, REPRESENTED BY ITS PRESIDENT, C.K. KRISHNAN, S/O.KARIYAN, AGED 57, CHIEF OF THE KATTANAYAKAN TRIBE.

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BY ADV. SMT.SANDHYA RAJU

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RESPONDENT/S:

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1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI-110 001.

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2 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, ADDL. CHARGE MISSION DIRECTOR (NRHM), DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695 035.

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3 DISTRICT MEDICAL OFFICER, MANANTHAWADI, WAYANAD, PIN-670 645.

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R1 BY ASSISTANT SOLICITOR GENERAL R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2-3 BY STATE ATTORNEY

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OTHER PRESENT:

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SR.GP. SRI.SURIN GEORGE IPE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

S.Manikumar, CJ.

Instant writ petition has been filed by the Kerala Prakthana

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Gothra Sangam seeking the following reliefs:

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“a. For an order directing the respondents to immediately cease the unconstitutional practice of forced and/or coerced sterilization procedures as the practice is a human rights violation.

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b. For an order directing the respondent to conduct an investigation into incidents of forced/coerced sterilization in colonies.

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c. To issue a Writ of Mandamus directing the Respondents to pay compensation to the victims and their families

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d. For an order directing the respondent to enact guidelines regarding proper sterilization procedures for PTGs and Paniyas, requiring strict compliance and monitoring by an independent third party commission. Approval of Tribal Development Officer must be obtained prior to any medical procedure.

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e. for an order directing the respondent to institute time bound Plan for upgrade of health facilities and appointment of staff consonant with NRHM/IPHS, including implementation of Xth Five Year Plan.

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f. For an order directing the respondent to implement comprehensive family planning and counselling per NRHM.

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g. For an order directing monitoring of implementation of

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Hon'ble Court Order by third party commission within 3 months, with findings to be publicly disclosed.

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h. Grant any other relief(s) which in the facts and circumstances, the Petitioner be found entitled to and may be deemed fit in the interest of justice, equity and good conscience.”

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The main contention of the petitioner is that forced sterilization of tribals is done.

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District Medical Officer - 3^rd respondent in the writ petition has filed a detailed counter affidavit, denying forced sterilization and also made averments regarding the steps taken towards the health of tribals and other benefits extended to them. Counter reads thus:

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“1. I am the District Medical Officer, Mananthavady and the 3^rd respondent in the above Writ Petition. I am conversant with the facts of the above case as disclosed from the official records. All the allegations and averments contained in the Writ Petition except those that are specifically admitted hereunder are denied.

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It is respectfully submitted that I am not aware of the existence of the organisation referred to in Para-I of the above Writ Petition. At any point of time any of the office bearers of the above organisation contacted the department on any matter connected to the complaint under consideration. Several

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organizations of tribal community, including that of Primitive Tribe Group (PTG} are working closely with this department to improve the health status of tribal people. However, the aforesaid organization has so far not approached the department for any matter connected with health care of the tribes nor has the department been informed of their activities. It is further submitted that there is no forced st rilization of any community in Wayanad District. The allegations contrary to the same are totally false and baseless and hence denied.

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It is respectfully submitted that this department is not aware of the strength or activities of the so called organisation as contended by the petitioner in Para 2 of the writ petition. It is further submitted that the population policy is implemented in a planned and organized manner. It is not being implemented in a mindless manner as alleged by the petitioner. The crux of the population policy rests on the reproductive rights for couples, of which right to regulation of pregnancy (through spacing methods or permanent sterilization) is a right of every couple / woman. Even though it is a fact that the population of some tribal groups are reducing as per statistics, the Govt. has no policy of denying the rights for regulation of number of children to couple, to increase population of some groups. It is the individual / couples right to decide how many children they should have and the department cannot dictate that they will be provided family pl,anning services only after they produce a particular number of children, just because they belong to a particular caste. It is the right of every couple and the department cannot deny the services to any group, whether their population is increasing or decreasing.

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It is submitted that the allegation contained in Para-3 of

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the above Writ Petition that at least 40 men, many of them from Primitive Tribal Groups,(PTGs) were subjected to forced and/or coerced sterilization procedures at Bathery Taluk Hospital in Wayanad is totally baseless and hence denied. On the other hand all sterilizations are being done with proper informed consent. In case of PTG, special care is taken in the form of passing on information and getting the opinion of the tribal promoters and the Tribal Extension Officer of the concerned locality before sterilization is being done.

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In response to the contentions contained in Para 4, it is submitted that the media report relied on by the petitioner is factually incorrect. The media report cannot be relied on as proof as they are often exaggerated version. Just because more numbers of sterilization cases were being done the same does not mean that forced sterlization is happening. Training camps are conducted in which more doctors participate and as a result more cases could be done. But each case is done only after observing all necessary precautions and after obtaining consent from the persons concerned.

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It is submitted that this respondent has no information regarding the fact finding mission referred to by the petitioner in para-5 of the above writ petition. In fact no such fact finding mission has ever approached the department to get the correct facts of any case which alleged to have happened. This department was never approached in this issue by any such fact finding group of the said organisation. The standards as prescribed in Exhibit P-2 are meticulously being followed in all sterilization operations and allegations contrary to the same are false and hence denied.

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In response to the contention in para 6 of the above writ petition that sterilization camps are being generally held at the Community Health Centres and that most of the patients are adivasis and due to the financial incentive. They are made as defacto target is not true and hence denied. On the other hand camps are being conducted in Community Health Centres ( CHCs) in order to make services available closer to homes and also to provide better services since over crowded major hospitals cannot bear the load without affecting quality of service. CHCs have all facilities for conducting sterilization operations as prescribed under the standards of sterilisation. Number off tribals in such camps are higher because due to anaemia during pregnancy, they cannot undergo post partum sterilisation (PPS) immediately after delivery and the only option left for them.is to approach such camps. Non -tribal women are generally not anaemic and so get the service of PPS available to them. It is further submitted that neither any extra incentive is given to tribal's to promote sterilization or any financial incentives is being provided to promote sterilization. A meagre amount of Rs. 250/- for APL and Rs. 600/- for BPL categories is being provided to compensate for loss of wages in cases of female sterilization. For shifting the onus of sterilization from female to male, the compensation. provided for male sterilization is set at a higher rate of Rs. 1100/- . This compensation for loss of wages is being provided to all clients irrespective of the community to which they belong. No special financial incentive is being provided to tribal communities. Besides proper and special care is being taken in the case of Tribal Community and in case of PTG, the Tribal Officer is duly informed and their concurrence is obtained before conducting

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sterilization. Higher compensation for loss wage is being given to all men irrespective of caste to increase proportion of male sterilization over female sterilization, in light of the department and government policy of being gender sensitive,

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It is submitted that the allegation regarding forced sterilization mentioned in para-8 is absolutely false and hence denied. Forced sterilization has never been carried out, and on the other hand sterilisation is being done after getting voluntary consent. All information regarding benefits and risks of all sterilization procedures, various methods available and comparison of different methods is given to all clients including tribal clients. Special care is taken to provide information to tribal clients in the language they can comprehend. All allegations contrary to the same is false.

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It is submitted that the allegationof lack of consultation and non-application of mind mentioned in Pra-9 is false and hence denied.

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It is submitted that the allegation in para 10 that unprofessional and unskilled manner of sterilization resulted in several health complications to the patients is not true and hence denied. The further allegation regarding procedure lapses in conducting serilization which eventually lead to the death of patient is not factually correct. To our knowledge, no death has occurred in 2010 related to the sterilization operation.

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It is submitted that the allegation in para 11 is also factually incorrect and hence denied.

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It is submitted that the allegations contained in para-12 of the writ petition is factually incorrect and hence denied. The

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clients normally approach for sterilization operation because they do not want any more children. The only permanent effect of this operation is that they cannot conceive anot er child. There is no other permanent side effect on the individual. Since the client's intention itself is to limit family size in the first instance, it cannot be said that they do not understand the permanent effects of sterilization. In spite of this, the field staff provide necessary counselling to all acceptors of sterilization - providing them all information regarding the procedures and the risks and benefits involved. It is sub mitted that alll sterilization operations are being done in operation theatres, wherein only staff with proper authorization and in proper sterile clothing are permitted to enter. Maximum possible privacy and confidentiality is provided to all clients irrespective of the community to which they belong. In any institution, the operation theatre is the place wherein the maximum privacy is available and the allegation that there is no privacy in an operation theatre can only be termed as a wild imagination. It is submitted that several number of persons may be present in the pre and post operative areas, where it is impossible by any standards to provide separate rooms for each individual. Even in these areas, any procedure including injections are given only after providing proper privacy by using screens..

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It is submitted that the contention in Para -13, 14, 15 and 16 are not fully correct. This department as well as the Government under various beneficial schemes and projects are providing facilities for the uplifting and betterment of PTGs. The Government are implementing schemes and programmes for the proper education, health, food, land and shelter to the tribal community at large. The allegation contrary to the same

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are false and hence denied.

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It is submitted that the allegation raised by the petitioner in para 17 that the Government have failed to provide STs full access to health, nutritional, and educational entitlements and has further endangered their lives and livelihood by implementing an irrational, coercive population control policy is false and hence denied. Since independence, the Government of India has introduced policies and programmes which determine its priorities on health. Population control has been at the core of these programmes since at least from 1950's. The focus of these policies has been to target permanent forms of contraception, such as sterilization programs, rather than developing a comprehensive and acceptable family planning policy. Tribal community has been provided with all facilities in Government Hospitals free of cost and all possible care is being taken in case of Tribal Group and BPL categories.

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It is submitted that the contentions contained in Para-18 is not fully correct. The Total Fertility Rate (TFR) is a criterion for the community as a whole and not for individuals. The fact that Kerala has a low TFR is not sufficient or justifiable reason to deny services of family planning to any section of the society or to any individual.

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In response to the contentions in Para-19, it is submitted that Maternal mortality is 3 - 4 times higher among tribal groups than among non tribals. One major cause of maternal death is repeated pregnancies. Family planning is one of the most successful strategies to prevent such maternal deaths.

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In response to the contentions contained in Para -20, it is submitted that population policy is not made blindly applicable in case of tribal, instead of family planning services are provided with utmost sensitivity to the needs of individuals and the status of the community. No targets are set for family planning. The need is assessed by a community needs assessment approach by the grass root level workers and then communicated to higher authorities. There is no process of target setting from the side of the department. As stated above the needs are assessed by the grass root workers in consultation with the local people, through a household survey as well as consultation with local community leaders through a consultative process.

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It is submitted that the contention in para-21 is not true and hence denied. No financial incentive is being provided to promote sterilization. A meagre amount of Rs. 250/- each for APL and Rs. 600/- each for BPL categories are being provided to compensate for loss of wages in cases of female sterilization. As mentioned earlier for shifting the onus of sterilization from female to male, the compensation provided for male sterilization is set at a higher rate of Rs. 1100/- . This compensation for loss of wages is being provided to all clients irrespective of the community to which they belong. No special financial incentive is being provided to tribal communities. Besides, in case of Tribals, normally female sterilization is recommended for mothers having at least 3 children and mothers having minimum 2 children are subjected to sterilization only if they insist specifically for the same.

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In response to the contention in para 22 it is submitted

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that the NRHM norms are only guidelines and they are not mandatory obligations. They are standards which the government has decided to strive to achieve through NRHM in the period till 2017. However, it is not a mandatory or legal obligation. But the department is making all efforts to achieve the idealistic standards set up under NRHM.

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It is submitted that the contentions contained in Para-23 of the above Writ Petition is not fully correct. The approach of meeting unmet needs, providing choice and quality services and increasing male participation is in tune with the role of a government in a democratic country. It is a well recognized methodology followed by the best countries in the world. Efforts to increase male participation is a result of the increased sensitivity of the government towards the hardships of the women in the community and the need for a gender sensitive policy. This approach of meeting unmet needs, providing choice and quality services and increasing male participation is in tune with the role of a government in a democratic country. It is a well recognized methodology followed by the best countries in the world. Efforts to increase male participation is a result of the increased sensitivity of the government towards the hardships of the women in the community and the need for a gender sensitive policy. One of the main reasons behind the above approach is that female sterilization is a major surgery and it needs hospitalization for minimum 5 days and rest for at least one month. But Male Sterilization (NSV) is a minor procedure with no stitches. If needs only local anesthesia and no hospitalization. The patient can go for routine work next day onwards. So Government is promoting male sterilization and providing extra incentive to shift sterilization from female to

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male to ensure male participation in family planning. Subjecting woman to a major surgery when man can be sterilized through a very minor procedure is highly anti-women'. So Government is trying to increase male participation in sterilization.

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It is submitted that the contention of the petitioner in para 25 that State Government has still employing a quantity system is not fully correct. At the same time it is a fact that no programme can go on without setting up goals. Target and goals have to be viewed as different entities. Under the RCH programme, all goals for the next year are set at the local grass root level through consultations with the local community. This planning is needed for allocation of resources needed to provide quality services - including infrastructure, medicines, equipments, manpower and compensation for loss of wages. The state level PIP produced is the consolidation of all goals set by the respective communities against which performance of the workers are reviewed. In tune with the ICPD, the govt has done away with the system of setting targets for lower units. The targets claimed by the petitioner are just numbers arrived at to plan performance in the next year and there is no compulsion / incentive / disincentive for attaining / not attaining targets, since the goals are set by assessing the needs of the local community and not at district/ state I national level.

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In response to the contentions in Para 26 of the above writ petition, it is submitted that the chart actually supports the stand of the department. The first item, shown in the chart is institutional delivery. It is to be noted that no government would be under the impression that they can set targets for deliveries. This actually shows that the numbers shown are

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actual numbers of expected deliveries based on the assessment at the community level and not some target set by the government and imposed on the workers / community. It also shows that there is no extra stress placed by the govt on sterilization of tribes. The government does not even set separate goals on community wise. The allegation contrary to the same are false and hence denied.

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It is submitted that the vacancy position referred to in Pra-27 of are not related to Wayanad since Wayanad does not have the claimed 197 Community Health Centres. The vacancies if any do not affect the quality of sterilization services provided, because of the fact that only qualified doctors are permitted to perform the various sterilization procedures.

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It is respectfully submitted that the contentions in Para 28 of the above Writ Petition is not factually correct. The contention of the petitioner regarding staff unavailability etc. are not true. Minimum required staff are available. so far as the Wayanad District is concerned and the procedures and programmes are not affected.

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The contentions of the petitioner in Para-29 of the above writ petition are not factually incorrect and the same would shows the total lack of knowledge of the petitioner regarding various sterilization procedures. He is making baseless allegations without properly understanding the minimum basics of the surgical procedures involved. Non scalpel vasectomy is not performed by gynaecologists. It is done by doctors specially trained in the procedure. No doctor, even if he / she is a surgeon / gynaecologist / any other specialist, is permitted to undertake no scalpel vasectomy unless and until they have

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undergone special NSV training as per existing norms. All gynaecologists are trained in emergency obstetric care as part of their PG course in Obstetrics. Emergency Obstetric care is not something which is given as a special training, but an integral part of postgraduate training in OBG. Without learning this, they cannot be qualified as a gynaecologist. Hence saying that only one gynaecologist is trained in emergency obstetric care shows the total lack of awareness of the petitioner in this regard. None of the constra,ints cited by the petitioner has ever resulted in any decrease in quality of services provided by the hospitals. Such things can happen occasionally in situations of developing countries like India. But all measures are taken to ensure that best possible quality of services are provided. No organisation has done any proper survey of the institutions in a scientific manner.

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In response to the contentions and allegations in Para -31 of the above writ petition it is submitted that the petitioner's claim about Kalpetta Government Hospital is totally false and unfounded. In fact the hospital has a gynaecologist (2 at some points of time), blood storage unit, operation theatre and all related facilities. PHCs are not equipped with labour rooms because it is not needed in our society , where women prefer to deliver at the highest possible facility under care of a gynaecologist. No one prefers to deliver in PHCs. PHCs are envisaged to provide preventive services as well as primary care. The petitioner has no locus standi to say that pregnant women should be made to deliver in PHCs against their will. When there are no deliveries taking place, it will be a total waste to have incubators etc in a PHC.None of the institutions in Wayanad lack water supply. Sub centres have all facilities for

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the allotted work, they being staffed by a public health nurse, the functions are mainly related to prevention of diseases and care of pregnant women and children, for which all facilities exist in all 204 such centres. There is no shortage of IFA, condoms or other medicines needed for routine functioning of sub centre as alleged by the petitioner.

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It is submitted that the petitioner is attempting to raise wild allegations to the effect that the department is not having any facility at all to conduct sterilization. In fact all surgeries are being done with total aseptic precautions in sufficiently equipped operation theatre by qualified expert trained doctors. By levelling such baseless allegations the petitioner is ,only aiming to demoralize the staff members, who are providing the best possible services to the community, with special care to the tribal community members.

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It is submitted that none of the grounds raised in the above Writ Petition are legally sustainable. As stated earlier no forced sterilization is being carried out. All cases are being done after obtaining informed consent on proper counselling. Special care is being taken in case of tribal community. In case of PTG, the tribal officer is informed and their concurrence is also taken. All facilities are provided wherein sterilization is being conducted (both male and female sterilization) following the recommendation and guidelines issued by the Govt. of India in the standards for male / female sterilization. All procedures are carried out respecting the human rights of the clients. It is to be noted that uncontrolled fertility has a highly negative impact on the already poor health status of the tribal women. It is submitted that the only promotion being done by the government is to shift the onus of sterilization from the female

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to male by promoting male sterilization. The reason being that male sterilization (No Scalpel Vasectomy) is a very minor procedure and it does not need hospitalization / rest while female sterilization is a major surgical procedure needing a minimum of 5 days hospitalization and one month rest.

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It is submitted that the Government does not set targets for sterilization. Goals are set based on a detailed 'Community Needs Assessment' (CNA). It involves a very detailed process of evaluation of previous 3 years performance, discussions with community leaders on community preferences and sample household survey to assess the needs of the community. Based on this assessment of the community's need of sterilization, goals are set at the sub centre level. These goals are used only for the purpose of planning service provision and are in no way treated as compulsory targets that are to be achieved. The goals are used purely to decide what sort of services are to be provided and where. No coercive measures are being used to promote sterilization. All cases being done after proper informed consent giving chance for free choice. No financial incentives are being provided to promote sterilization.

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It is respectfully submitted that all norms set by the State and Central Governments are strictly followed in Wayanad district. No instances of violation of norms have been reported nor have any complaints been received at the District Medical Office (Health) Wayanad. The complainant organization also has not preferred any complaint in this regard. All information regarding benefits and risks of all sterilization procedures, various methods available and comparison of different methods are given to all clients including tribal clients. Since the cliants

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intention itself is to limit family size in the first instance, it cannot be said that they do not understand the permanent effects of sterilization. In spite of this, the field staffs provide necessary counselling to all acceptors of sterilization - providing them with all information regarding the procedures to be followed and the risks and benefits involved. All the surgical procedures are being done by qualified expert and specially trained doctors and staffs. Laparoscopic sterilization is done by a trained team of Gynaecologist and supporting staff, trained at recognized institutions for laparoscopic surgery. NSV is done by doctors trained specially for NSV as per norms for male sterilization by Gol. Even surgeons, with post graduate qualification in Surgery Other surgeries are not permitted to do NSV unless they are trained specially in NSV as per norms The allegation that doctors are not there to attend the case is totally false and baseless .Sterilization operations can only be done by trained specialists. Even MBBS doctors are not posted for sterilization operations. Only trained specialists are posted in all cases. It is impossible to do these surgeries without the presence of a doctor. Even by the maximum stretch of imagination, it cannot be construed that a non-doctor can attempt such a surgery. All sterilization operations are done in operation theatres, where only staff with proper authorization and in proper sterile clothing is permitted to enter. Maximum possible privacy and confidentiality is provided to all clients irrespective of the community to which they belong. In any institution, the operation theatre is the place wherein a patient gets the maximum privacy and the allegation contrary to the same is incorrect.

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Only one client is placed on an operation table and if there are

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more than one operation table in a theatre, a screen is provided between the tables. One operation table can only hold one person. Maximum number of tables in operation theatres in any institution in Wayanad is 2 and hence alleging that ten or more people are subjected to surgery at a time in the same room is totally false and hence denied. More number of persons may be present in the pre and post operative areas, where it is impossible by any standards to provide separate rooms for each individual. Even in these areas, any procedure including injections are given only after proper privacy providing screens etc.

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It is submitted that sterilization operations do not have any such side effects as alleged by the petitioner. Female sterilization procedure needs hospitalization for 5- 7 days and rest for one month, while male sterilization does not need hospitalization and they can go for their routine job from the second day onwards. No financial incentives are being provided to promote sterilization. For shifting the onus of sterilization from female to male, the compensation for loss of wages is being provided to all clients irrespective of the community to which they belong. No special financial incentive is being provided to tribal communities. If at all this meager amount of compensation for wages lost is considered as an incentive, it is due to the fact that the tribal community do not have access to regular income. This has nothing to do with the health department. The department is providing the same compensation for all clients irrespective of their tribal / nontribal status, as per guidelines of the Gol. The Gol guidelines on sterilization procedures takes into account all international treaties and covenants in this regard.

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It is respectfully submitted that good reproductive health is defined by the World Health Organization as "A state in which people have the ability to reproduce and regulate their fertility, women are able to go through pregnancy and child birth safely, the outcome of pregnancy is successful in terms of maternal and infant survival and well being, and couples are able to have sexual relations free of the fear of pregnancy and of contracting diseases." The government has consistently provided all aspects of reproductive health to all communities, family planning being only one small part of the reproductive health services being provided under the umbrella of services provided by the State and Central Government.. Other services include infertility treatment facilities, spacing methods (temporary methods like condoms, oral pills, intra uterine devices, etc) facilities for diagnosis treatment and prevention of reproductive tract infections and sexually transmitted infections. All such services are provided free of cost in government health facilities The govt has never promoted a single method alone. The family planning services are being provided through a 'cafeteria' approach, wherein a basket of services are made available to the client and the client is provided necessary counseling which helps them to choose a method best suitable for them. For example the different family planning methods provided to clients in Wayanad District during the period from March to September 2012 are as follows:

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From the above statistics, it is very clear that the Govt is pro'(iding a range of family planning services, of which permanent sterilization is only a small part (27%).

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It is submitted that earlier all facilities where sterilization is being conducted (both male and female sterilization) have all facilities as recommended in the guidelines issued by the Govt. of India in the standards for male I female sterilization. All facilities where sterilization is being conducted (both male and female sterilization) have sufficient qualified personnel as recommended in the guidelines issued by the Govt. of India in the standards for male I female sterilization. It is this same unmet need that the govt is trying to address through its family welfare programme. No numerical targets are set by govt. the numbers shown by the petitioner are goals calculated at grass root level to p\an performance and resource allocation for each year. A Government cannot be expected to allocate resources without any idea of the needs for the coming year. These numbers need only be seen in that perceptive.

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It is submitted that all range of service have been provided by department. Records can clearly prove that adivasis are provided all options as per their wish and no particular method is imposed on them As mentioned earlier the average number fo children a tribal women has before she

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opts for permanent sterilization is always more than that of a non tribal women.

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This would clearly proves that tribal's are not targeted. Majority of sterilisations are carried out on non tribal's as can be shown by the data of each year.

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It is respectfully submitted that one major cause 9f maternal and infant deaths is multiparity (more number fo deliveries) and hence sterilisation is actually in a way protecting the women and children from further morbidity and death. Health facilities are available to all people, with special care being given to tribal people. In Wayanad , tribal people are scattered over the whole district. There is no area where tribals are concentrated, hence it is wrong to say that tribal areas do not have health care facilities, because 238 facilities across the district cater to the whole population including the tribals. Tribals receive special care and attention in all institutions.

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It is submitted that sterilization is done in the interest of the health of the mother, who is very weak due to poor nutrition in the tribal community and therefore cannot withstand repeated pregnancies. There is no denial of healthcare, The petitioner is making wild allegations to demoralize the whole system and the workers. He has failed to highlight specific issues of denial of care, nor has he / his organization given any complaints to the department authorities regarding any such issue, which would show that he has no genuine grievance.

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It is submitted that sterilization is not mandatory. No Surgeon has ever stated that sterilizations are mandatory. Allegations contrary to the same was false and hence denied. If

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the petitioner was really interested in the welfare of the tribals, they should have brought any case of such issues to the notice of the department authorities and tried for a solution. The very fact that they have approached the department would expose the lack of bonafide and the hollowness of his contentions.. It is submitted that the only positive discrimi"nation by which they are provided all facilities from the health institutions, even facilities not available to other communities are provided to them - completely free treatment and care and medicines. Even for procedures others have to pay but it is provided free of cost to them.

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It is submitted that limiting family size is fundamental right of every individual. A person from a tribal community cannot be denied that right by virtue of their belonging to a primitive tribal group. The Government cannot deny the right for family planning to any individual from any community on the contention that the number of members in the community is low. Government has a legal obligation to treat each individual equally and hence clients from all communities need to be provided with such facilities in an equitable manner.

¶132

It is submitted that the petitioner is trying to make out that sterilization has some serious side effects and it harms the body, while the truth is just the opposite. Sterilization prevents further pregnancies - thereby s,:1ying the woman from risks of repeated pregnancies. Studies have shown that majority of deaths and complication during pregnancy and child birth in Wayanad are among tribal women and that their poor socioeconomic status and poor nutrition has a large role to play in this. Repeated pregnancies can have serious harmful effects on the life and health of tribal women, especially since their

¶133

..23..

¶134

WP(C).No.15139 OF 2012(S)

¶135

general health and nutritional status is poor. Hence, preventing repeated pregnancies in tribal women is in the interest of their own safety and better health.

¶136

It is submitted that the above writ petition is filed without any bonafide and no public interest involved and the petitioner has no locus standi to file the above writ petition styled as Public Interest Litigation. Hence it is humbly submitted that this Hon'ble Court may be pleased to dismiss the above writ petition with cost.”

¶137

We have gone through the counter affidavit and are satisfied with the measures taken. We are not inclined to delve further

¶138

into the matter. That apart, there is no representation for the writ petitioner.

¶139

In the light of the above, writ petition is closed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

Bka/09.01.2020

WP(C).No.15139 OF 2012(S)

¶148

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¶149

APPENDIX

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PETITIONER'S/S EXHIBITS:

¶151

EXHIBIT P1	A TRUE PHOTO COPY OF ARTICLES REPORTED IN VARIOUS NEWS PAPERS.
EXHIBIT P2	A TRUE PHOTO COPY OF THE NATIONAL STANDARDS FOR STERLISATION BROUGHT OUT BY THE GOVERNMENT.
EXHIBIT P3	A TRUE PHOTO COPY OF FACT FINDNG REPORT.
EXHIBIT P4	A COPY OF THE CENTRE FOR DEVELOPMENT STUDIES, THIRUVANANTHAPURAM, KOTTATHARA HUMAN DEVELOPMENT REPORT 2007.
EXHIBIT P5	A TRUE PHOTO COPY OF RELEVANT EXTRACTS FROM THE KERALA HUMAN DEVELOPMENT REPORT.
EXHIBIT P6	A TRUE PHOTO COPY OF THE SPECIAL RAPPORTEUR'S REPORT.
EXHIBIT P7	A TRUE PHOTO COPY OF INTERNATIONAL CONFERENCE ON POPULATION AND DEVELOPMENT.
EXHIBIT P8	A TRUE PHOTO COPY OF NATIONAL RURAL HEALTH MISSION SERVICE GUARANTEES.
EXHIBIT P9	A TRUE PHOTO COPY OF THE SCHEME ON PRIMITIVE TRIBAL GROUPS.
EXHIBIT P10	A TRUE PHOTO COPY OF THE KERALA STATE PROGRAMME IMPLEMENTATION PLAN.
EXHIBIT P11	A TRUE PHOTO COPY OF KERALA STATE REPORT.

Kerala Prakthana Gotra Sangam v. Union of India

Case brief

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What the court decided

Kerala Prakthana Gotra Sangam v. Union of India

Case brief

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