Petition challenging the decision of Public Health & Family Welfare Department to restrict certain tribes from availing sterilization facilities
Ranichand Baiga & Ors. V. State of Chhattisgarh & Ors. [WP PIL 27/2017], Hon’ble High Court of Chhattisgarh.
The petitioner by way of this Writ Petition (PIL) has challenged the order dated 13.12.1979 issued by the Public Health & Family Welfare Department. This order places restrictions on availability of sterilization services to certain tribes who were previously called Primitive Tribal Groups and are now called Particularly Vulnerable Tribal Groups (PVTG), and to all tribes in certain specific areas. The challenge is based because the order is arbitrary and violates the right to life and liberty.
The Department of Health & Family Welfare issued the impugned order dated 13.12.1979 under its family planning scheme. The order places restrictions on availability of sterilization services to a) five Particularly Vulnerable Tribal Groups – Baiga, Pahari Korwa, Abujhmaria, Kamar, Birhor and b) to all tribes in certain specific areas.
The order has caused tremendous hardship to the tribal people in the state particularly women. In the absence of family planning options tribal couples have been forced to have large families. Families with 6-10 children are common even today.
The petitioner no. 1 to 10 are men and women belonging to the Baiga Tribe who want to undergo sterilization. Some of them had applied for permission, however the respondents have failed to respond to their demands.
As per the order dated 03/03/2017 it was found by the learned counsel for the petitioners that order dated 13.12.1979 issued by Public Health & Family Welfare Department has not been withdrawn even by the State of Madhya Pradesh. And the case is still pending before the Hon’ble High Court of Chhattisgarh.
The petitioner has presented the present writ petition under Article 226 of the Constitution of India inter alia because the impugned order violates Article 14 of the Constitution of India, because the classification of tribal and non-tribal people for grant of sterilization services is not based on intelligible differentia as required under Article 14 of the Constitution of India. Classifying tribal people and denying them the right to be sterilized because their population is dwindling is unreasonable, and as the High-Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India constituted by the Government of India has found it “sidesteps the real factors contributing to high mortality rates such as chronic malnutrition, starvation and lack of access to adequate health facilities”. The denial of family planning services under the National Health Mission to tribal people is violative of Article 14 of the Constitution of India. Also, denying an individual the right to avail sterilization services violates the right to health & reproductive rights guaranteed as part of right to life and personal liberty under Article 21 of the Constitution of India.
In Suchita Srivastava & Anr. v. Chandigarh Administration (2009) 9 SCC 1 it was held that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.
The Constitutional Bench of the Hon’ble Supreme Court in Ram Jawaya v. State of Punjab AIR 1955 SC 549 has established the principle of law that an executive action which places restrictions on fundamental rights must be backed by law. The Supreme Court has laid down the limitations on the exercise of executive power under Article 162 of the Constitution of India.
No reply has been filed by the respondents yet.
The Chief Medical Health Officer Bilaspur gave no directions as to how permission was to be granted and simply stated that the government orders were to be complied with