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    Petition seeking the recognition and implementation of the provisions of the Medical Termination of Pregnancy Act, 1971 in Chhattisgarh

    Image used for representational purposes
    Date : 04/01/2017

    National Alliance for Maternal Health and Human Rights (NAMHHR) v. State of Chhattisgarh & Ors. [W.P. (PIL) No. of 2014], Hon’ble High Court of Chhattisgarh

    Synopsis
    National Alliance for Maternal Health and Human Rights (NAMHHR) v. State of Chhattisgarh & Ors, the present petition is being filed in public interest, under Article 226 of the Constitution of India, seeking the recognition and implementation of the provisions of the Medical Termination of Pregnancy Act, 1971 which aims to provide access to safe and legal health abortion services in the public and private sector. It is pertinent to State here that Unsafe Abortion is a leading cause of Maternal Deaths in India. Lack of access due to non-implementation of the MTP Act is a leading cause for unsafe abortion.
    The petitioner pray that the respondents ensure genuine implementation of the provisions of the Medical Termination of Pregnancy Act, 1971 which aims to provide access to safe and legal abortion services in the public and private sector.
    Status
    On 14.06.2016, the main prayer made by the Petitioner is that the provisions of Medical Termination of Pregnancy Act, 1971 have not been followed in letter and spirit in the State of Chhattisgarh. The State Government filed a reply, in which it is stated that District Level Committees have been formed in all 27 Districts of State of Chhattisgarh for implementation of Medical Termination of Pregnancy Act, 1971. It is stated that total 22 doctors and 7 supporting staff in two batches have already been trained as master trainers and these master trainers are now training the others. In the reply, it is also stated that some centres to ensure safe termination of pregnancies have been set up at Durg, Bilaspur, Rajnandgaon, Surguja, Kanker and Raigarh Districts. Learned Counsel for the Petitioner submits that though such centres have been set up in the principal towns of the State but they have not been set up in all the 27 Districts of Chhattisgarh. Even now the ladies belonging to the under-privileged sections of society, especially tribal women living in remote areas of the State have to come to the main towns for purpose of medical termination of pregnancy. She also prays that these “Surakshit Garbhapat Kendra” being established by the State should be set up in each and every District Hospitals in the State, so that the poor women do not have to travel long distances for medical termination of pregnancy. The court prima facie agreed with the submission of the petitioner’s counsel but also said that such centres cannot be set up at the drop of hat. Trained doctors and staff will have to be posted in such centres and necessary infrastructure has to be created. Therefore direct by way of this interim order that the Principal Secretary (Health), State of Chhattisgarh shall look into the matter to ensure that such centres are set up in each and every District of the State of Chhattisgarh as early as possible. He shall in this regard submit a compliance report enclosing a chart showing the time frame during which period such centres can be set up in all the Districts.

    On 01.08.2016, the court had passed a detailed order and had directed the Principal Secretary (Health), Government of Chhattisgarh to look into the matter and file his affidavit in this regard. List the matter on 22.8.2016, by which date, the Secretary, Government of Chhattisgarh, Department of Health and Family Welfare shall file a fresh affidavit. He shall also remain present in person on the next date.

    On 22.08.2016, a fresh affidavit has been filed by the Secretary, Health, who was also present. Along with his affidavit, Shri Sahu has annexed a chart which reflects that there is a shortfall of Doctors and that about two year time is required to fulfill the requirements under the scheme and the Medical Termination of Pregnancy Act, 1971. Though, the time asked is two years and is on the higher side keeping in view the paucity of Doctors and especially the specialist Doctors, we allow this request of the State. There should be some parity of the population to Doctors available ratio so that as far as possible, this ratio of population to trained Doctors is maintained throughout the State. Shri Sahu has also brought to notice that by now, there is one facility in each District but the State is making efforts to increase number of facilities in each District to more than one. Listed the matter on 19th December, 2016 by which time, the Secretary, Health shall file a fresh affidavit.

    On 19.12.2016, at the request of Learned Counsel for the Petitioner, the court listed the matter on 4.1.2017.

    On 04.01.2017, the Court had requested the Principal Secretary (Health), Government of Chhattisgarh to look into the matter vide our order dated 14.6.2016. Thereafter, the State has taken steps. The Court place on record an appreciation for the positive attitude of the State as well as the Principal Secretary (Health), Government of Chhattisgarh in ensuring that in a short period of six months, number of centres have been increased from 30 to more than 150. The court said that we hope and expect that the State will take adequate measures to ensure that as soon as possible such facilities are provided in other centres also. We also direct that these facilities which have been provided must be continued. In view of the affidavits now filed, nothing survives in this petition. The writ petition is accordingly disposed of.

    Description
    Background
    The National Rural Health Mission (hereinafter referred to as ‘NHRM’) is the Government’s flagship programme and was launched in 2005 with the goal of “improving the availability of, and access to, quality health care, especially for those residing in rural areas, the poor, women and children through equitable, affordable, accountable and effective, primary health care.” Initially, the period for the NHRM was from 2005 to 2012 with the first indicators of implementation from 2007, now the NHRM has been extended and has been extended and brought within its parameters the urban health concerns and is known as the National Health Mission. The Respondent State had been identified as one of the focus States and part of the Empowered Action Group (EAG) due to the poor level of implementation of health services in the State.
    The NHM/NHRM committed to increase public health expenditures, community participation, and among other things, reduce regional imbalances and the MMR to 100 for 100,000 live births. To be able to implement the Mission Objectives and purpose in the Accredited Social Health Activists (ASHAs) were assigned to every village to promote the use of health services of pregnant women. The ASHA serves as a link between the Government and the pregnant woman. It is pertinent to state here that the State of Chhattisgarh under the Mitanin Programme, health workers similar to ASHAs existed since 2002. The Mitanin Programme has been found to have better reach and the Mitanins have now been given the responsibilities of the ASHAs in addition to their original terms of reference.
    It is pertinent to the State here that the expenditure for the implementation of NHRM/ NHM has already been budgeted and the Central Government has been regularly releasing funds for the same. There are some aspects on which the State is expected to pool in funds, but the major chunks of the expenses are budgeted and are provided by the Central Government. This also includes building the capacity of staff, creating physical infrastructure, accountability mechanisms, financial capacity, provisions of drugs amongst other heads.Having said that it is clarified that the role of the Central Government continues as the responsibility of monitoring implementation lies with the Centre.
    The petitioner is a national alliance of individuals and organisations called National Alliance for Maternal Health and Human Rights (hereinafter referred to as ‘NAMHHR’) which has started on 20.10.2010 with the realization that strong rights-based strategies are needed to build greater accountability for the thousands of preventable deaths among women in India. The alliance currently has 36 members from 13 states of India, including the Respondent State of Chhattisgarh, as well as expert advisors working in research and Right to Food, public health, right to medicines and budget accountability. The group recognizes that there is an urgent need for women’s organizations to come together on this issue. The NAMMHR works through research, capacity building, budget tracking and engages in policy, legal and media advocacy. The Alliance is represented through its Convenor Ms. Jashodhara Dasgupta.
    The present petition is being filed in public interest, under Article 226 of the Constitution of India, seeking the recognition and implementation of the provisions of the Medical Termination of Pregnancy Act, 1971 which aims to provide access to safe and legal health abortion services in the public and private sector. It is pertinent to State here that Unsafe Abortion is a leading cause of Maternal Deaths in India. Lack of access due to non-implementation of the MTP Act is a leading cause for unsafe abortion.
    Respondent No. 1 is the Department of Health and Family Welfare, Government of Chhattisgarh which is the nodal department responsible for the implementation of health and family welfare related laws, policies and schemes. Respondent no. 2 is the Mission Director, National Rural Health Mission (NHRM) for the state of Chhattisgarh responsible for the implementation of the National Rural Health Mission and for ensuring access to health services within the State of Chhattisgarh.
    Current Status
    The Petitioner respectfully presents the present writ petition under Article 226 of the Constitution of India inter alia, on the following grounds that: Article 21 of the Constitution of India guarantees, inter alia, the right to life which the Supreme Court has repeatedly held includes right to Health.
    The Supreme Court in Chameli Singh v, State of U.P (1996) 2 SCC 549, “the right of life in any civilized society implies the right to medical care” and the rights enshrined in International Conventions and Indian Constitution cannot be exercised without these “basic rights”.
    The Right to health as guaranteed under Article 21 necessarily incorporates the right to reproductive health and as the Supreme Court explained in Paschim Banga Khet Mazdoor (1996) 4 SCC 37, providing “adequate medical facilities for the people is an essential part” of the government’s obligation to safeguard the right of life of every person.”
    The Delhi High Court in Laxmi Mandal v. Deen Dayal Nagar 2010 W.P. 8853/2003 , has helped to further define the right health, recognizing that an “inalienable” component if the right if life is the right to health which would include the right to access government health facilities and receive a minimum standard of care. In particular this would include the enforcement of the reproductive rights of the mother and the right to nutrition and medical care of the newly born child and continuously thereafter.
    The Division Bench of the High Court of Madhya Pradesh in Sandesh Bansal v. Union of India and Ors Writ Petition No. 9061 0f 2008 has held that the lack of access to maternal health care is a clear violation of the right to life of the women in the State and has then gone on to lay down the specific direction that the State is bound to implement, including access to safe and legal abortion services.
    A Single Judge of the High Court of Madhya Pradesh in Hallobi @ Hallima v. State of Madhya Pradesh and Ors. Writ Petition no. 408 of 2013 has while recognising the right of women to access abortion services has been emphasized and has further recognized the anguish that a woman undergoes due to an unwanted/forced pregnancy.
    Applying these binding principles here, the Government has clearly failed to provide safe and legal abortion services to women in Chhattisgarh. Only women are in need of certain reproductive health service by virtue of their reproductive capacity. Only pregnant women are in need of antenatal and postnatal care, family planning and assistance in labor and delivery as set forth in the NHRM’s service guarantees. Only a pregnant woman’s life can be saved with full and equal implementation of reproductive health laws and schemes. Only cases involving women who have died from pregnancy-related causes are in need of a maternal death audits to ascertain the specific cause of death and determine lapses in service. Indeed, the lack of maternal death auditing and aggressive action to lower maternal mortality in Chhattisgarh is reflective of persistent gender discrimination.
    Respondent No. 1 is the Department of Health and Family Welfare, Government of Chhattisgarh which is the nodal department responsible for the implementation of health and family welfare related laws, policies and schemes.
    Respondent no. 2 is the Mission Director, National Rural Health Mission (NHRM) for the state of Chhattisgarh responsible for the implementation of the National Rural Health Mission and for ensuring access to health services within the State of Chhattisgarh.
    On 04.01.2017, the Court had requested the Principal Secretary (Health), Government of Chhattisgarh to look into the matter vide our order dated 14.6.2016. Thereafter, the State has taken steps. It is true that all the 194 centres in the State do not have requisite facilities but the State has come out with the reply that there is great shortage of doctors and prayed for two year time to provide all the facilities in all the 194 centres. However, it is pointed out that in 154 centres, adequate facilities have been provided. The Court place on record an appreciation for the positive attitude of the State as well as the Principal Secretary (Health), Government of Chhattisgarh in ensuring that in a short period of six months, number of centres have been increased from 30 to more than 150. The court said that we hope and expect that the State will take adequate measures to ensure that as soon as possible such facilities are provided in other centres also. We also direct that these facilities which have been provided must be continued. In view of the affidavits now filed, nothing survives in this petition. The writ petition is accordingly disposed of.

    Order Summaries

    On 14.06.2016
    The main prayer made by the Petitioner is that the provisions of Medical Termination of Pregnancy Act, 1971 have not been followed in letter and spirit in the State of Chhattisgarh.
    The State Government filed a reply, in which it is stated that District Level Committees have been formed in all 27 Districts of State of Chhattisgarh for implementation of Medical Termination of Pregnancy Act, 1971. It is stated that total 22 doctors and 7 supporting staff in two batches have already been trained as master trainers and these master trainers are now training the others.
    In the reply, it is also stated that some centres to ensure safe termination of pregnancies have been set up at Durg, Bilaspur, Rajnandgaon, Surguja, Kanker and Raigarh Districts. Learned Counsel for the Petitioner submits that though such centres have been set up in the principal towns of the State but they have not been set up in all the 27 Districts of Chhattisgarh. Even now the ladies belonging to the under-privileged sections of society, especially tribal women living in remote areas of the State have to come to the main towns for purpose of medical termination of pregnancy.
    The counsel for the petitioner also prays that these “Surakshit Garbhapat Kendra” being established by the State should be set up in each and every District Hospitals in the State, so that the poor women do not have to travel long distances for medical termination of pregnancy.
    The court prima facie agreed with the submission of the petitioner’s counsel but also said that such centres cannot be set up at the drop of hat. Trained doctors and staff will have to be posted in such centres and necessary infrastructure has to be created.
    Therefore direct by way of this interim order that the Principal Secretary (Health), State of Chhattisgarh shall look into the matter to ensure that such centres are set up in each and every District of the State of Chhattisgarh as early as possible. He shall in this regard submit a compliance report enclosing a chart showing the time frame during which period such centres can be set up in all the Districts.

    On 01.08.2016
    The court had passed a detailed order and had directed the Principal Secretary (Health), Government of Chhattisgarh to look into the matter and file his affidavit in this regard.

    List the matter on 22.8.2016, by which date, the Secretary, Government of Chhattisgarh, Department of Health and Family Welfare shall file a fresh affidavit. He shall also remain present in person on the next date.

    On 22.08.2016
    A fresh affidavit has been filed by the Secretary, Health, who was also present. The court have impressed upon him the need to ensure that properly trained Doctors for conducting medical termination of pregnancy are provided at all the Districts.
    Along with his affidavit, Shri Sahu has annexed a chart which reflects that there is a shortfall of Doctors and that about two year time is required to fulfill the requirements under the scheme and the Medical Termination of Pregnancy Act, 1971.
    Though, the time asked is two years and is on the higher side keeping in view the paucity of Doctors and especially the specialist Doctors, we allow this request of the State. We however would like to impress upon the State and direct the State that first of all efforts should be made to post these trained Doctors in those Districts where adequate number of trained Doctors are not available.
    There should be some parity of the population to Doctors available ratio so that as far as possible, this ratio of population to trained Doctors is maintained throughout the State. Shri Sahu has also brought to notice that by now, there is one facility in each District but the State is making efforts to increase number of facilities in each District to more than one.
    Listed the matter on 19th December, 2016 by which time, the Secretary, Health shall file a fresh affidavit.

    On 19.12.2016
    At the request of Learned Counsel for the Petitioner, the court listed the matter on 4.1.2017.

    On 04.01.2017
    The main prayer made by the Petitioner was that provisions of Medical Termination of Pregnancy Act, 1971 had not been followed in letter and spirit in the State of Chhattisgarh.
    The grievance of the Petitioner was that number of trained doctors/specialists and paramedical staff to carry out the functions and duties under the MTP Act, had not been provided in the various stations. The Court had requested the Principal Secretary (Health), Government of Chhattisgarh to look into the matter vide our order dated 14.6.2016.
    Thereafter, the State has taken steps. It is true that all the 194 centres in the State do not have requisite facilities but the State has come out with the reply that there is great shortage of doctors and prayed for two year time to provide all the facilities in all the 194 centres. However, it is pointed out that in 154 centres, adequate facilities have been provided.
    The Court place on record an appreciation for the positive attitude of the State as well as the Principal Secretary (Health), Government of Chhattisgarh in ensuring that in a short period of six months, number of centres have been increased from 30 to more than 150.
    The court said that we hope and expect that the State will take adequate measures to ensure that as soon as possible such facilities are provided in other centres also. We also direct that these facilities which have been provided must be continued. In view of the affidavits now filed, nothing survives in this petition. The writ petition is accordingly disposed of.

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