We all are aware of our rights and duties as are prescribed to us by our Indian Constitution, but there are certain rights, which are not known by many people, one of them is the Reproductive Right of Women in India. Reproductive Right is one of the important right of a woman, which they should be aware of. It is a right, which gives access to the women to make reproductive choices without any fear of coercion or discrimination or violence. Over the last few years the Courts of India had come up with several cases were they issued several remarkable decisions recognizing reproductive right of a woman as a part of the non-negotiable right implicitly protected under the fundamental right of life. For the first time court has recognized the reproductive right of the women as an essential element for women’s equality. This right respects the decision a women in decision making regarding pregnancy.
In general terms reproductive right of the individual are the right which give privilege to the individual to decide whether to reproduce or not and to have reproductive health. This right also include some other rights also such as- right to plan a family, terminate a pregnancy, use contraceptives, learning about sex education in public schools, and gain access to reproductive health services. It also includes rights of the individual as a couple to decide independently and responsibly the number of children they want and they are also free to decide the spacing and timing between the children. Moreover, it has been proven that the Indian Courts have lead to the expansion, protection and promotion of reproductive right in India.
IMPORTANCE OF REPRODUCTIVE RIGHTS FOR WOMEN
Reproductive right have been recognized as one of the most important right for women and girls. It is one of the human right which should not be negotiated at any cost because it not only gives right to the women to take independent decision regarding their sexual relation but it also protects their sexual health as well as maternal health. It also includes protection of women from any kind of sexual violence, torture and mental trauma. In addition, it also gives access to impregnation and birth control and access to safe and hygienic abortion services. Reproductive rights are especially important in context, were highly restrictive social mores attach a morality constraint to women’s agency and prevent them from exercising their bodily autonomy. However, very few effort is made by India to address issue from the lens of reproductive rights as human rights.
FUNDAMENTAL RIGHTS AND HUMAN RIGHTS RELATIONSHIP WITH REPRODUCTIVE RIGHT OF WOMEN IN INDIA
Reproductive right is one of the important element of human rights. They are surrounded by the rights, which gives civil, social, political and economic spectrum to the individuals. This includes right to health and life, right to equality, right to privacy, right to be free from torture or ill-treatment, non-discrimination and so on. Reproductive rights of a women guaranteed by State not only includes right of the women to access to comprehensive reproductive health information and services but also experiences positive reproductive health outcome and the opportunity to make fully informed decisions. Violation of reproductive right of a women unreasonably effects women due to their capacity to become pregnant and legal protection of this rights as a human right is hampering to enable gender justice and the equality of women.
Reproductive rights of an individual or a couple in India, comes under the array of laws and polices relating to health, employment, education, protection from gender-based violence etc. As reproductive right of a women is related to our fundamental rights of an individual, there are certain rights in Part III of the Indian Constitution, which protects our fundamental rights. Article 13 of the Constitution prevent the State from making any such law which is against our fundamental rights or takes us away from our fundamental rights. Next is Article 14, which talks about right to equality before law and equal protection of the law within the territory of India. Therefore, equal rights have been given to both men and women in taking their autonomous decision and nothing can be imposed on them by any other person, even they are free to take their reproductive decisions. Then comes Article 15, which protects every individuals from any kind of discrimination on the ground of race, cast, religion, sex, place of birth or any of them. This provision is also very well related to the protection of reproductive right of a women, because it protects the women form any kind of discrimination. And she is free to take her independent decision without any fear of gender biasness. Then comes the most important provision of Indian Constitution that is Article 21, which states that no person shall be deprives of his personal life and liberty. Every individual have their own choices and having liberty to make their own decisions, and no other person can deprive any person from enjoying this rights. Similarly, every women has the right to make their own choices and are free to enjoy their rights given under the provision of reproductive rights.
The government of India also provides certain constitutional obligation to ensure legal remedies for violation of fundamental rights. Article 39(a) of the Indian Constitution also obliged the State to provide equal access to justice and free legal aid as a means to certify that opportunities for justice were not denied to any citizen because of poor economic condition. Even though reproductive right is not expressly mentioned any were as a fundamental right but supreme court in several decisions have interpreted the right of the health and right to timely and adequate medical treatment as an integral part of fundamental right of right to life.
WOMEN’S REPRODUCTIVE RIGHT IN INDIA:- PROBLEM AND PROSPECTS
India was among the first nations to evolve the legal policies and framework guaranteeing the reproductive rights of women. Even though there are several circumstances were we can point out that the reproductive right of the women are admonished. In the initial stage also, the laws related to the reproductive health of a women’s were ignored, instead they focus mainly on the demographic targets such as population control. Likewise, India have also failed to take women’s rights based approach, instead they erode women’s reproductive independency through discriminatory provisions such as spousal consent requirement for access to reproductive health services. Another most important problem in India was that, even if the women are free to enjoy their rights but this society always obstruct women from enjoying their right. Even if there are women who can fight for their rights but the women who belongs to the backward cast or orthodox family always get suppressed under this societies rules and norms. And this is because of the fact that literate rate of women in India is very less. Moreover, in-spite of having laws against the marriages of child below the age of 18 is prohibited in India but from research study, it has been reported that the number of child marriage is still increasing in India.
In India the women and girls mainly in the rural areas experience significant barriers to full enjoyment of the reproductive rights, including poor quality of health services and prohibiting women’s and girls in taking independent decision making authority.
According to the data of UNICEF and World Bank, India counted among the countries having highest number of maternal deaths worldwide. Every year India witnesses 45,000 maternal death. The main cause behind these uprising is due to unsafe abortion, lack of access to safe abortion clinics and so on.
Thus, we can say that in India the sexual and reproductive right of a woman is still negligible and not being properly came into to force as it is supposed to be. Only on selective context the reproductive right of a woman is used in India like child marriage, female feticides, sex selection and menstrual health and hygiene issue
India’s National Population Policy protects the women’s right to access the full fledge contraceptive methods. The State Governments also introduce several schemes for promoting female sterilization. Moreover, the Indian Courts have an important role in ensuring women’s reproductive rights as guaranteed by their constitutional and human rights.
JUDICIAL RECOGNITION OF REPRODUCTIVE RIGHTS FOR WOMEN IN INDIA
The Apex Court of India and several state high courts have taken several decisions recognizing the denial of reproductive rights as violation of women’s and girls fundamental and human rights. The above-mentioned sections provide legal rights to reproductive healthcare and autonomy and increases the government obligation on the violation of these rights of a woman.
There are multiple of cases were the judgment has been passed bearing on sexual and reproductive right of a women. Theses judgements provided right to safe abortion is an important aspect of their right to bodily integrity, right to life and equality and it is require to be protected. Some of the cases are mentioned below:-
In a landmark judgement of Navtej Singh Johar and others vs. Union of India, the Supreme Court of India has decriminalized adultery and homosexuality and clearly held that a women have full right over her sexual autonomy which is an important aspect of their right to personal liberty.
In the cases of Puttaswamy the court has recognized the constitutional right of a women and protected the right of a women to make reproductive choices without any fear as it being the part of their personal liberty under Article 21 of the Indian Constitution.
In case of Independent Thought vs. Union of India the Supreme Court gave the decision in context of reproductive right of women. In this case the court held that the human right of a girl child is very much important and whether she is married or not and deserves recognition and acceptance.
In the case of Paschim Banga Khet samity vs. West Bengal, it was held by the court that it is the duty of the state to provide requisite medical facilities to the women and it will be against Article 21 of the Constitution. And, if there is any kind of denial of adequate medical intervention to a person in need of such treatment by government hospital.
In the case of Suchita Srivastava and Another vs. Chandigarh Admiration, the Supreme Court stated that the reproductive independency is one of the important element of personal liberty. In these case it was held it is important to identify that reproductive choices can be utilized to propagate as well as to refrain from reproducing. It was also stated that the right to privacy, dignity, and bodily integrity should be respected and should not be obstructed. Moreover, women are also having free choice regarding birth-control methods such as undergoing sterilization procedure.
In a landmark case of Laxmi Mandal vs. Deen Dayal Harinagar Hospital and others and Jaitun vs. Maternity, MCD, Jangpur and others. The High Court of Delhi issued a joint decision of these two cases. The petition, which was filed, in this case mainly focused on two inalienable survival rights that are the part of right to life and right to health. In this case it was held no women should be denied of her medical treatment facility even if she is socially and economically backward.
In 2012, the Madhya Pradesh High Court recalled the judgment of Delhi High court in Sandesh Bansal vs. Union of India. In this case a PIL was filed looked out for responsibility for maternal death, recognizing that the inability of women to survive pregnancy and childbirth violates her fundamental right to live as protected under article 21 of the Constitution of India. Moreover, it is the duty of the government to make sure that every women survives pregnancy and childbirth.
Thus, we can say that the Indian Judiciary plays a vital role in providing justice to a woman whose reproductive rights are violated. This gives absolute right to a woman in enjoying their reproductive right without any obligation. This judgement guarantees the right to free of choice and right to live and liberty of women and girls.
REPRODUCTIVE RIGHT AS A PART OF COMPREHENSIVE HEALTH RIGHT
Reproductive right and sexual health right are a part of comprehensive health right. For ensuring this rights Indian government needs to develop well public health system in India. It must be capable of providing health care facilities which are comprehensive of good quality and must be accessible to all and are accountable to all the citizens. But regrettably, the public health care facilities in India are not properly utilized due to poor infrastructure, medical diagnostic and skilled human resources. Moreover, in the past decades also there was an increased privatization and corporatization of health care and an absence of robust regulation. The medical treatment provided to a women of depreciated sections is not adequate. This results in women’s unwillingness to look out for treatment in public health facilities, thus carrying forward the reproductive right and sexual right is required to protect the human rights of women. And this is mainly required to those women who belongs to marginalized section like the women who work as a sex worker or LGBTIQ groups or disabled women etc.
Lastly it can be concluded that reproductive right of a women is a part of health right. This gives safe and proper pregnancy and childbirth. Due to these provisions, couples are free to make their own choices regarding their sexual relations without any fear of pregnancy and contracting diseases. This right give them the choice to choose number of children they want to have and what will be the time gap between them. The only way to tackle with the reproductive issues in family and community label is by placing them within the boundary spectrum of needs and rights of the women as perceived.
The cases mentioned above also shows the significant role of judiciary in proving justice to the women whose rights were infringed. It put practical barriers on the society who prevented the women from enjoying their right as guaranteed by the reproductive rights in India. It recognise reproductive right as a part of fundamental right as well as the part of human right. Thus, it imposes duty on the state to protect the rights of the women and provide them health care facilities. The judiciary plays a vital role in monitoring implementation of existing decisions. Further, in upcoming litigations our legal body should include both reproductive health and independency in the definition of women’s reproductive right for both valued and marginalized population.
1. Tanvi Mathur, Reproductive Rights for Women in India, http://www.legalserviceindia.com/legal/article-3372-reproductive-rights-for-women-in-india.html
2. Reproductive and Sexual Rights of Women in India, https://www.drishtiias.com/daily-updates/daily-news-editorials/reproductive-and-sexual-rights-of-women-in-india
3. Reproductive Rights in Indian Courts, https://reproductiverights.org/sites/default/files/documents/Reproductive-Rights-In-Indian-Courts.pdf
4. Women Reproductive Right in India: Prospective Future, https://ro.uow.edu.au/cgi/viewcontent.cgi?article=1134&context=medpapers
KIIT SCHOOL OF LAW
INTERN- APRIL BATCH-1