India: Intersectionality Of Human Rights: The Marginalisation Of Women Still Continues?

Last Updated: 6 September 2017
Article by Sneha Bhawnani

The ambit of reproductive health includes the social as well as the health conditions that have a bearing on reproductive functioning, that is to say, this concept of reproduction does not only include the right to reproduce but also to the right to avoid reproduction1. It is noteworthy to mention that the factors determining whether or not she wants to reproduce raises vital issues regarding her decision making autonomy2, privacy, life and liberty and also the agency in relation to her health choices and to enable her to exercise such choices in reality3.

Right to health and reproductive health

In order to understand the right to reproductive health, reference must be made to international treaties and general comments. The World Health Organisation Constitution provides that the State has an obligation to provide highest attainable standard of health without any discrimination as the health of people is essential for securing peace and security4. Following the same thread, Article 25 (1) of the United Nation Declaration of Human Rights ("UDHR") recognises the right of every individual has right to have an adequate standard of health56. Article 2 of the International Covenant on Civil and Political Rights ("ICCPR") imposes a negative obligation on the State to respect and ensure the rights without any discrimination7; this covenant recognises the right to life as inherent to each human and provides that such right must be protected by law without any arbitrary interference8 in his private life, family or home9. Also, Article 12 of the International Covenant on Economic, Social and Cultural Rights ("ICESCR") recognises the right to attain the highest standard of physical as well as mental health by providing measures to reduce still birth and infant mortality and assuring access of appropriate medical services10. Further, paragraph 12 of General Comment 14 provides the interlinked elements of right to health, viz, availability, accessibility, acceptability and quality11. In essence, availability implies the operation and access to public health care services and programmes such as safe and potable drinking, proper and efficient infrastructure of hospitals, clinics along with trained personnel (who receive domestically competitive salaries) and essential medicines in geographically proximate locations. Accessibility, which has three major subsets, viz, physical12, financial13 and information14 accessibility, implies that health related services must be accessible to all without any discrimination15. Acceptability16 requires the presence of sensitivity to cultural differences, minorities without any stereotype prejudice; this assumes importance as intolerance to differences will restrict the marginalised communities from accessing requisite health care services. Quality implies that the health related services must be of good quality which is scientifically and medically of an acceptable standard. Also, Article 12 of Convention on the Elimination of All forms of Discrimination Against Women ("CEDAW") which prohibits discrimination against women in relation to health care services and family planning; also State parties must ensure that women are provided adequate services and nutrition during pregnancy and post-delivery1718. Paragraph 31 of the General Recommendation 24 imposes a positive obligation on the State to remove all impediments in women's access to requisite health care services, allocate resources to prevent sexually transmittable infections and when possible the law which criminalises abortion must be amended so that punitive measures on women who undergo abortion are withdrawn1920. It must be noted that all the positive and negative obligations of the State go hand in hand and one cannot be fulfilled without the other.

Intersectionality of human rights

This paper shall elucidate two models, viz, 'reproductive rights model' and 'right to health model'21 in order to present a holistic picture of all the vital ingredients that constitute women's right to reproduction. The former model emphasises on negative rights of decision making autonomy of women, integrity of her body, privacy as well as dignity thereby focusing on the social, economic22 and cultural rights and thus the legislators in order to grant such rights often embrace this negative human rights path.23,24 The latter model seeks to emphasize on health and underlying aspects that support health25; the foundations of General Comment 14 are embedded in this model, that is to say, this approach advocates that reproductive health rights must necessarily include the efforts to provide efficient access to contraceptives and related services to prevent diseases which may have a negative impact on the reproductive health, provide high quality, affordable services and promote skilled ,trained personnel in order to reduce risk of maternal mortality26. Also, sufficient food27, nutrition supplements, sanitation, safe drinking potable water and safe working conditions must be provided. In this context it is noteworthy to mention the concept of interconnectedness or intersectionality of human rights28 i.e., that other human rights like access to education and health care services, protection from sexual violence are integral and inter connected to reproductive health29,30. The weaving of the models will result in a broad understanding of reproductive health rights as it shall encompass decisional as well as foundational features of human rights being vital to achieve a desirable reproductive health31. In other words, the combined model draws mostly from the General Comment 14 and provides for a definition that shall be inclusive of autonomy of the women in determining if and when to reproduce, access to adequate reproductive healthcare schemes and services and contraceptives, improving social and economic conditions in order to safeguard reproductive health32. However, the data on the six core areas of reproductive health, viz, accessibility to reproductive health services, maternal mortality, family planning, services for termination of pregnancy (abortion), prevalence of Female Genital Mutilation and child marriage; sexually transmitted infections33 is indicative of the de-facto reality, i.e., the realisation of this right has been excessively undermined globally34.

The de-jure and de-facto gap across the globe with specific reference to India

According to the report, "Abortion worldwide- a decade of uneven progress", in the developing countries the poverty stricken women have mere access to traditional midwives leading to complications of unsafe abortions as they lack the capacity to access efficient medical treatment compared to the wealthy counterparts in urban areas35. The public policy groups hosted a watershed event in Washington D.C. to highlight that the availability and access of a woman to family planning, birth control techniques (contraceptives)36 and safe abortion services has a direct proportional impact to determine her and her child's economic wellbeing; in other words, unwarranted pregnancy may contribute as one of the major factors for reinforcing or contributing to her poverty37 as there is high cost associated with looking after children and the loss of education or career options during her pregnancy period. The rise in the rate of maternal mortality follows from the increase in unsafe abortions; worldwide one woman dies every eight minutes due to unsafe abortion services38. In South Africa, a mere one third of facilities are operational due to unawareness; high cost, lack of skilled doctors and absence of confidentiality are hindrances for women to have access to safe abortion services39. In this context, reference must be made to the Alyne decision (2011), by which for the first time a Government of Brazil was held accountable by an international body40 for breach of CEDAW as appropriate care was not provided to Alyne41 which could have prevented her maternal death42,43.

In India, research has identified that high level of education of women plays a significant role in reduction of fertility level; the use of contraception was impacted by the education level of the women herself as well as the overall education level of the community44. Also, the use and access of contraception45 varies regionally due to difference in degree of patriarchy; a strong patriarchal system limits the women's access to contraception46 and reinforces gender inequality by manifesting that only men have the power to control a woman's sexuality and her ability to reproduce47,48. This often facilitates child marriage ignoring the destructive health risks and unwanted pregnancies49. The poor women belonging to low status category experience high rate of maternal mortality50 and have less access to appropriate healthcare schemes and family planning programmes resulting in unplanned pregnancy, unsafe abortions, pregnancy complications which might eventually death51. The data reveals that due to the limited presence of abortion clinics in urban areas two safe pregnancies are terminated for each three unsafe ones52. Therefore, it is imperative that issues of gender inequality are addressed along with other inter-connected concerns like discrimination on basis of race, class or creed must be eliminated; the Indian administration must undertake efficient reform measures to promote education, to restructure the health care system and enable the socio economic development of women53. Also, in absence of efficient State machinery and speedy justice delivery mechanisms essentially reinforces inequality and discrimination against women54.

Reality check

At the outside, it is imperative to elucidate Article 21 of the Indian Constitution55 which provides that 'no one shall be deprived of life or personal liberty except according to procedure established by law' and Article 47 of the Constitution of India requires the State to promote public health and standard of living of the people56.This paper shall now elucidate few vital Indian cases in order to highlight the bridge between the aspiration of law and the grass root reality.

In the case of Paschim Banga Khet Mazdoor Samity and others v State of West Bengal57 petitioner had sustained severe head injuries and was taken to a primary health centre but could not be treated there due to lack of facilities. Thereafter he had to approach various Government hospitals for his treatment but he was denied treatment in all of them due to non-availability of vacant beds. Eventually, he received treatment from a private hospital at a high cost. The central issue in this case was whether the lack of medical facilities in hospitals have resulted the violation of his right under Article 21 of the Constitution. The Supreme Court answered the question in affirmative on the grounds that a patient was not given desired treatment due absence of essential health care measures. Further, the Court issued directions58 which have an imprint of the vital elements59 of General Comment 14 of the ICCPR (discussed above). The case People's Union for Civil Liberties v Union of India60,61assumes significance because the Court imposes a positive obligation on the State to take proactive measures in order to ensure that the benefits of the welfare and health schemes62 must effectively reach the people of this nation without any embezzlement. The directions of the Court63 are illustrative of the ongoing efforts of the judiciary to protect and enforce the right to health of the pregnant women and inter-linking such rights with right to health64.

The case of Laxmi Mandal v Deen Dayal Harinagar Hospital & Others65 highlights how a poor dalit pregnant woman was doubly disadvantaged due to the ineffectiveness of the State administration for which she paid with her life66. The death report suggested that non-access to family planning methods have contributed to her death. The judgement of the Delhi High Court is consistent with the international concept of human rights67. It was held that there has been an institutional failure in implementing the Government health care schemes for the marginalized pregnant women68. The Court held that the right to heath includes two inalienable facets, viz, the right to access the health care facilities without impediments and receive a standard of treatment which is inclusive of the implementation of the mother's reproductive rights, right to access nutrition supplements and receive efficient medical care; the other aspect is right to food which is significant to right life and health. Pregnant women in need of assistance should not in any circumstance be refused services merely due to lack of proof of her Below Poverty Line status69,70. Further, the Court took notice the lack of adequate ambulance service which posed an immediate threat to the life of the deceased therefore the Court directed that safe and speedy transportation must be provided to pregnant women from her residence to hospital or from one hospital to another. Also, this paper opines that it was necessary on the part of the hospital to provide the deceased with necessary information and counselling regarding family planning, access to contraception and follow up care.

The loss caused delay in access to health care schemes, especially by a pregnant women, is so grievous that it leads to maternal mortality and this cannot be compensated was held by the Madhya Pradesh High Court in the case of Sandesh Bansal v Union of India71. The petition alleged that many women are dying in India72 while giving birth to a child and Madhya Pradesh has the third highest ratio of maternal mortality. In Madhya Pradesh, the major causes of such deaths are anemia, hemorrhage and post-delivery infection. The pregnant women are being unable to access healthcare schemes73 because of the high cost involved, poverty, lack of trained personnel, and lack of transportation, insensitivity towards social and cultural differences, lackadaisical attitude towards welfare of patients, lack of institutional deliveries, absence District Health Mission and no formation of community monitoring committee have made survey to the progress of implementation of the schemes impossible, non-utilization of funds, absence of separate clean sanitation facilities for women and lack adequate infrastructure, absence of mechanism to provide information about maternal deaths. The evidence before the Court indicated that even though there was presence of some level of infrastructure and necessary equipments' and facilities were to some extent available but the doctors were not always present; although there was electric fittings but the electricity power was unavailable; water connection fittings were available but not water; medical centres were not always functional and not all personnel were adequately trained. The Court held that by not providing appropriate infrastructure and related services, with effective implementation, violates Article 21 of the Constitution of India and breaches the obligation of the State to secure the life of the women and her child. The Court accordingly gave directions74 to the State to immediately undertake corrective actions.

Recently, the Supreme Court of India in the landmark case of Justice K S Puttaswamy (Retd.) and Ors v. Union of India and Ors75 held that the right to privacy is a fundamental right of every Indian citizen and is also an is an intrinsic part of right to life and personal liberty guaranteed under Article 21 of the Constitution of India. Further, the Supreme Court observed that any legislative enactment or law which infringes the right to privacy will have to withstand the touchstone of reasonable/permissible restrictions, that is to say, any legislative enactment or law which encroaches the right to privacy will stand justified only if such enactment or law is just, fair and reasonable. In this context, it is necessary to understand that by failure on the part of the State to provide healthcare schemes and programmes, efficient medical treatment and effective health care facilities for pregnant women interferes with and breaches the autonomous and private decision of the women to reproduce a child or terminate her pregnancy, as the case may be. In other words, the lackadaisical attitude on the part of the State to provide proper medical facilities to pregnant women not only violate her dignity but also her fundamental right to privacy and autonomous decision making capacity and such lackadaisical attitude and inefficiency on the part of the State stand completely opposite to the notion of 'just, fair and reasonable'.

Conclusion

This paper has attempted to elucidate the international understanding of right to health and reproductive health along with the intersectionality of all human rights. This paper has highlighted the global problems of neglect and non-adherence towards the reproductive rights of women, with specific reference to the Indian context. In India, there is a huge gap between the law and its effective implementation primarily because there is absence of any incentive or lack of a political will to prioritize the reproductive rights of women. Although the Supreme Court of India has time and again questioned the State and has issued directions for productive implementation of women healthcare schemes. However, unless the executive wing of the Government takes up the responsibility to usher a significant change, such schemes and programmes will exist only in form and not in substance thereby widening the de-jure de-facto gap and inevitably violating the rights of women.

Footnotes

1. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 958

2. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 958

3. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 959

4. http://www.who.int/governance/eb/who_constitution_en.pdf

5. Including food, housing, clothing, shelter and other social services- Article 25(1) of UDHR available at- http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

6. Also the special assistance required by the mother and child during pregnancy and after the delivery of the child– as provided in Article 25(2) of UDHR available at- http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

7. based on 'race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status', available at- http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

8. Article 6 of ICCPR available at -http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

9. Article 12 of ICCPR available at -http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

10. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

11. Committee On Economic, Social and Cultural Rights, Twenty-Second Session, Geneva, 25 April-12 May 2000, General Comment 14, available at - http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f2000%2f4&Lang=en

12. Implies that all the health related services and schemes like adequate sanitation, safe drinking water must be within the physical reach of especially the marginalised group like the ethnic minorities, people with some form of disability like AIDS or HIV.

13. Implies that all health care services and facilities must be provided at an affordable price to ensure economic accessibility to everyone

14. Implies that there is a right to seek as well as receive information regarding health care issues.

15. No discrimination on the basis of prohibited grounds to the marginalised or vulnerable groups as mentioned in Article 2 of ICCPR

16. This completely ties in with Article 7 of ICCPR which provides that 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.' Available at- http://www.ohchr.org/en/professionalinterest/pages/ccpr

This in essence, there is a negative obligation on the State not to torture as well a positive obligation to ensure the officials are sufficiently trained not to torture and to hold the erring officers accountable.

17. Article 12 of CEDAW, available at- http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article12

18. The problem with the text of Article 12 of CEDAW is that the term 'termination of pregnancy' or 'abortion' is conspicuously absent and therefore the notion of women's autonomy becomes excessively problematic. This is because providing equal rights to men and women regarding family planning does not merely include equal access to health services but also the equal right to decide whether or not to reproduce. Also, there is no focus on access to different kinds of contraceptives. Article 12 has not taken into consideration that the consequence (toll on her physical and mental health) of an unwanted pregnancy disproportionately impacts the women more than men and thereby reinforces indirect discrimination and inequality.

19. General Recommendations Adopted By The Committee On The Elimination Of Discrimination Against Women Twentieth Session (1999) General Recommendation No. 24: Article 12 Of The Convention (Women And Health) available at- http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_4738_E.pdf

20. This paper expresses complete disagreement with paragraph 31 of the General Comment 24 on the two grounds. Firstly, the use of the word 'when possible' in the text is vague, not assertive and toothless as it does not clearly obligates the State parties to de-criminalise abortion which eventually undermines the authority of the entire text. Secondly, the protection to not impose punitive measures extends only to women and completely excludes medical practitioners. The consequence of such exclusion would disproportionately impact pregnant women as they will not be able to access abortion services if the providers of such services are under a constant threat of penalisation.

21. As advocated by Lance Gable in the article, Reproductive Health as a Human Right.

22. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 975

23. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 976

24. As for instance, CEDAW mandates that States must eliminate discrimination against women in order to ensure social, economic and political equality but does not require the States to provide adequate access to all such services , that is to say, a State which fails to provide access to adequate services to men and women alike would be held accountable for gender discrimination- As provided in Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 976

25. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 986

26. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 982

27. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 982

28. Observed by Committee on Economic, Social and Cultural Rights in General Comment 14- As provided in Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 983

29. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 983

30. In this context, it is imperative to mention paragraph 46 of the General Comment 13 on The Right to Education which recognises the spirit of inter linkage and inter connectivity between all human rights as it provides the right to education, like all human rights, imposes three types or levels of obligations on State parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide – as provided in General Comment No. 13 (Twenty-first session, 1999), The right to education (article 13 of the Covenant), Implementation of The ICESCR, Committee On Economic, Social and Cultural Rights, Twenty-first session, 15 November‑3 December 1999, available at- http://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/CESCR_General_Comment_13_en.pdf

31. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 987

32. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 986

33. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 963

34. Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 962

35. Unsafe abortions: Eight maternal deaths every hour, The Lancet, Vol. 374, Issue No. 9698, P.1301, 17 October 2009

36.The importance of access to contraception cannot be undermined. In this context, the landmark judgement of Griswold v Connecticut [381 U.S. 479 (1965)] must be mentioned. In this case, the Supreme Court of United States invalidated the excessive and sweeping State intervention to ban access to contraception as it violated the right to privacy. Following the same line of reasoning, in Roe v Wade [410 U.S. 113 (1973)] the United States Supreme Court broadened the right to privacy in order to include the autonomy of women to decide whether to reproduce or to terminate her pregnancy- as provided in Lance Gable, Reproductive Health As A Human Right, 60 Case W. Res. L. Rev 957 (2010), p. 972

37. Mary O'Hara, Lack of access to abortion leaves women in poverty, The Guardian, 27 April 2016, available at- http://www.theguardian.com/society/2016/apr/27/contraception-abortion-access-women-poverty

38. Unsafe abortions: Eight maternal deaths every hour, The Lancet, Vol. 374, Issue No. 9698, P.1301, 17 October 2009

39. Unsafe abortions: Eight maternal deaths every hour, The Lancet, Vol. 374, Issue No. 9698, P.1301, 17 October 2009

40. In this case it was Committee on the Elimination of Discrimination against Women- as provided in Rebecca J. Cook, "Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision" p. 103 available at http://www.readcube.com/articles/10.1111/jlme.12008

41. Alyne lost her life because of post-parentum haemorrhage after giving birth to a still born of 27 weeks-as provided in Rebecca J. Cook, "Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision" p. 103 available at http://www.readcube.com/articles/10.1111/jlme.12008

42. Rebecca J. Cook, "Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision" p. 103 available at http://www.readcube.com/articles/10.1111/jlme.12008

43. The estimated data provides that across the globe 287,000 maternal deaths occurred in the year 2010; in the developing nations the figure reached 2,84,000 and 2,200 in the developed countries- as provided in Rebecca J. Cook, "Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision" p. 103 available at http://www.readcube.com/articles/10.1111/jlme.12008

44. Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.17 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

45. The statistical data indicates that in Haryana, the total unfulfilled need for use of contraception among married women is 8.3 percent- as provided in Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.21 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

46. Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.17 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

47. Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.16 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

48. Such unequal gender dynamics between men and women often perpetuate domestic violence against women and study reveals that infiltration of physical violence against women results in less use of contraception and increase in unwanted pregnancies- as provided in Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.17 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

49. Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.17 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

50. The research data provides that maternal mortality ratio in Haryana is 153, lower than the ratio in the entire nation- as provided in Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.21 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

51. Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.18 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

52. Unsafe abortions: Eight maternal deaths every hour, The Lancet, Vol. 374, Issue No. 9698, P.1301, 17 October 2009

53. Dipika Jain, Natassia M. Rozario, Voices From the Field: Access to Contraceptive Services and Information in the State of Haryana, Centre for Health Law, Ethics and Technology, O.P. Jindal Global University, March (2013), p.18 available at: http://www.jgu.edu.in/chlet/PDF/ReportVOICES.pdf

54. A minor rape victim has not been permitted to undergo abortion by the Punjab and Haryana High Court on the grounds that she is in her 20th week of pregnancy and therefore terminating pregnancy at this stage imposes serious risk to her life- Ajay Sura, High court rejects 14-year-old rape survivor's abortion plea, 28th September, 2015, available at- http://timesofindia.indiatimes.com/india/High-court-rejects-14-year-old-rape-survivors-abortion-plea/articleshow/49130676.cms?from=mdr

55. https://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

56. Article 47 provides '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 prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.; available at- http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(7).pdf

57. AIR 1996 SC 2426

58. The Court mandated the hospitals to upgrade their existing facilities, adequate medical aid and equipment's must be present in the hospitals and accurate record of the same must be maintained, measures must to have more number of cold and trolley beds, regular supervision the superintendent, maintenance of registers, primary health centre must have adequate facilities to provide the first aid even to stabilize serious condition, facilities to provide special treatment must be increased in hospitals at the district level, formation of central communication system by which the patient can be sent to hospital which has availability of beds, access to transport for patients when they have to travel from one hospital to another. Also financial constraints of State must not act as an excuse for non-implementation of these directions because the obligation of the State to provide appropriate medical heath care to its people supersedes any other concern.

59. Availability, accessibility, acceptability and quality as provided in Committee On Economic, Social and Cultural Rights, Twenty-Second Session, Geneva, 25 April-12 May 2000, General Comment 14, available at -http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f2000%2f4&Lang=en

60. AIR 2008 SC 495

61. The central issue in this case was the discontinuance of National Maternity Benefit Scheme due to the introduction of Janani Suraksha Yojana

62. In this case, it is the National Maternity Benefit Scheme

63. The Court mandated the State executive to take stringent action against the erring officers who obstruct the people in accessing such scheme and misuse the allocated funds. Further, the State was directed to ensure that all pregnant women of BPL status continue to receive the cash assistance twelve weeks before delivery under the National Maternity Benefit Scheme. Also, the State Government was required to file a report regarding the number of women who benefited from the schemes, record of number of births and of institutional and non-institutional deliveries. This ties in with the concept of availability as mentioned in General Comment 14 of ICESCR as it mandates the State parties to encourage institutional deliveries by trained and skilled personnel to safeguard heath of pregnant women.

64. Laxmi Mandal v Deen Dayal Harinagar Hospital & Others 172(2010)DLT9

65. 172(2010)DLT9

66. The deceased died due to hemorrhaging after giving birth for the sixth time

67. Reference was made to Article 25 of the UDHR, Article 10 and 12 of ICESCR, General Comment No. 14 of ICESCR, Article 12 of CEDAW

68. The deceased was neither provided the before delivery cash assistance under the National Maternity Benefit Scheme without the Court's intervention nor the post-delivery assistance under the Janani Suraksha Yojana. She was not visited by the Accredited Social Health Activist and was not given home delivery assistance.

69. It appears through the implementation of the Government schemes that pregnant women, especially those who migrants from a different State, are unable to adequately access the benefits provided

70. This is in cossonance with Paragraph 34 of the Special Rapporteur's Report which advocates that right to housing can be enjoyed to the fullest in immediate steps are taken to ensure non-discrimination and equality, maximisation of existing resources, adoption of strategies relating to urban housing and homelessness- as provided in Report of Special Rapporteur, Adequate housing as a component of the right to an adequate standard of living, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, United Nations General Assembly, 4th August 2015, UN Doc. A/70/270 available at- http://www.un.org/ga/search/view_doc.asp?symbol=A/70/270

States must recognise that social exclusion and stigmatisation is closely linked to lack of adequate housing. There have been instances where officials, government authorities often stigmatise and limit the access to hospitals or other welfare schemes and this eventually reinforces the vulnerability of the marginalised.

71. Writ Petition 9061/2008

72. 75000 out of 1,50,000 women die every year

73. National Rural Heath Mission

74. The Court directed that there should be uninterrupted flow of water and electricity; trained nurses to be always available; facilities for adequate modern sanitation; availability of transportation; facilities for all vaccinations must be made available and the obligation on the State was imposed to ensure effective administration and implementation of the schemes in order to reduce the maternal mortality ratio

75. Writ Petition (Civil) No 494 of 2012 decided on 24 August 2017

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Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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