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Reproductive rights of Chhattisgarh’s primitive tribes restored

January 8, 2019

Reproductive rights of Chhattisgarh’s primitive tribes restored

Raipur: “I have the right on my body. Only I should have the right to decide as to how many children do I want to give birth to. Thanks to Almighty God that we’ve got this right and now through this act and I could get my sterilisation done,” said a jubilant Sumati Baiga, a resident of Kukdur in Kabirdham district of Chhattisgarh, and a mother of eight. For many women like Sumati, the order by the Chhattisgarh High Court against the restrictions on access to contraceptive methods come as a welcome change after decades of injustice.

35-year-old Sumati belongs to the ‘Baiga’ tribe, which is one of the five primitive tribes of Chhattisgarh which were placed under Particularly Vulnerable Tribal Groups (PVTG) category. These PVTG’s were those who were denied reproductive rights like sterilisation and birth control for the last 38 years when Chhattisgarh used to be a part of undivided Madhya Pradesh. The Department of Health & Family Welfare of Madhya Pradesh an issued the disputed order dated December 13, 1979, under its family planning scheme. The order puts restrictions on the availability of sterilisation services to five Particularly Vulnerable Tribal Groups (PVTGs)- Baiga, Pahari Korwa, Abujhmaria, Kamar and Birhor.

The above restriction was due to the reason that certain tribal communities had a negative population growth rate, and their population was decreasing. The tribal communities whose population was dwindling were identified with the help of the Tribal Research Institute and the Department of Tribal Welfare and the disputed order placed restrictions on the sterilisation of these groups. The order caused drastic hardship to the tribal people in the state, women were worst affected. Without family planning options, tribal couples had large families. Families with six to ten children are common even today.

For representation purposes only. (Picture courtesy: Wikimedia Commons)

After her fourth child, Sumati started enquiring about the options that were available to her, but due to the restriction on sterilisation services, she didn’t have control over her reproductive rights. She heard about abortions when other women from the village began going to other states for the procedure but her family’s paltry income made it inconceivable for her. Sumati’s husband, Mangtu Ram Baiga works as a daily-wage labourer under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) and it’s not every day that he’s able to find work, and manages to earn about Rs 2500 to 3000 per month. Sumati herself collects minor forest produce but manages to earn barely Rs 30 to 40 a day. With a cumulative monthly income of less than Rs 3500, life is very difficult for Sumati and her family. They barely manage to feed their children, and since they are not literate, their awareness about non-surgical contraceptive options is minimal. Living in remote areas, the availability of these contraceptives is always a question. While some have tried using local herbs to prevent unwanted pregnancy, these methods are not scientific and usually have no effect on contraception.

In 2014, the High Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India constituted by the Government of India noted the following in its report, “This policy originated in an order passed by the Madhya Pradesh government in 1979 to exclude vulnerable tribal communities from the wave of sterilisation drives taking place across north India. However, even decades later, this order continues to be followed. Such a policy denies members of PVTGs the autonomy to make free and informed reproductive choices, and particularly denies any agency and bodily autonomy to women of these communities, who have to bear the burden of the denial of access to sterilisation facilities. Moreover, it sidesteps the real factors contributing to high mortality rates such as chronic malnutrition, starvation and lack of access to adequate health facilities.”

Human Rights Law Network, a collective of lawyers and activists, conducted a fact-finding exercise in Bilaspur and Kabirdham districts to document the status of sterilisation among Baiga women. The main findings were that most women were married before 18, in the complete absence of family planning services had more than three children at a very young age and they were left with no choice but to opt for permanent sterilisation.

These women’ being denied services in Chhattisgarh chose to travel to Madhya Pradesh hide their identity and undergo sterilisation. The fact-finding report concludes: “Women who find it hard to even give births in the hospitals travel all the way to Madhya Pradesh to undergo sterilisation. This not only puts pressure on the community but also costs around 3-4 thousand rupees per trip. Since the travel incurs a huge cost it is highly unlikely for them to visit for post sterilisation monthly or quarterly checkups, putting these tribes in danger (and literally leaving them ‘vulnerable’). The desperation and need to undergo sterilisation can be accounted from their travel to a different state.”

Seeing from a legal angle, when an individual is barred from the right to sterilisation services, there is a violation of the right to health and reproductive rights guaranteed as part of the right to life and personal liberty under Article 21 of the Constitution of India. The denial of services leaves women with no choice other than raising multiple children, even with their limited resources.

For representation purposes only. Picture credit: Collin Key

Rajni Soren, a High Court advocate, said, “The impugned order violates Article 14 of the Constitution of India, for the reason that the classification of tribal and non-tribal people for the purpose of grant of sterilisation 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 sterilised on the ground that 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.”

The denial of access to sterilisation services may give extreme mental distress to women who are forced to raise numerous unwanted children. The impugned order thus violates the right to physical and mental health.

Prior to the upliftment of ban over sterilisation, people from the affected communities often approached the hospitals wanting to undergo sterilisation but were denied sterilisation services. The burden of large families and unwanted children forced families living in the border areas of Madhya Pradesh to travel to health centres in Madhya Pradesh where sterilisation services were freely available and undergo sterilisation.

In February 2017, a group of 11, including women of Baiga community, filed a petition to the High Court of Chhattisgarh. One of the petitioners, Rekha Bai, 29, a resident of Aurapani village in Bilaspur district said, “We women when reached Jan Swasthya Sahyog centre in Kota, for sterilisation, we came to know about the legal hurdle. Thereafter on the suggestion of the workers of JSS, we decided to file a petition.”

On December 12, 2018, after many investigation and court proceedings, the PVTGs got the right to sterilisation. The court took section 21 of Indian constitution as the base and stamped the dismissal of this system and said, “The restriction on sterilisation had a very negative impact on the health of women and children and economic status of the family.”

Alok Shukla, the convener of Chhattisgarh Bachao Andolan, said that the primitive tribes have been given right by this verdict that they can also take their own decision like other people of the nation.