SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Government could not be held liable for the failed sterilization and that where the couple did
not opt for an abortion, the child was no longer unwanted. The Court however, also suggested
that the Government provide a welfare fund or insurance scheme for couples like the
plaintiffs, stating:
“…The fact cannot be lost sight of that while educated persons in the society
belonging to the middle-class and the upper class do voluntarily opt for family
planning and are careful enough to take precautions or remedial steps to guard
against the consequences of failure of sterilization, the illiterate and the
ignorant and those belonging to the lower economic strata of society face the
real problem. To popularize family planning programmes in such sections of
society, the State Government should provide some solace to them if they, on
account of their illiteracy, ignorance or carelessness, are unable to avoid the
consequences of a failed sterilization operation. Towards this end, the State
Governments should think of devising and making provisions for a welfare fund
or taking up with the insurance companies, a proposal for devising an
appropriate insurance policy or an insurance scheme, which would provide
coverage for such claims where a child is born to woman who has undergone a
successful sterilization operation, as in the present case.”
The population control and family planning context (which has been endorsed time and again
by Indian courts) of access to contraceptives in India has seen coercive elements to the
governments programmes and policies at various points in time. Some Indian states have also
introduced laws to limit the number of children.
In Javed and others. v. State of Haryana and others, 693 the Supreme Court upheld a local
government law that disqualified any person having more than two living children from
holding certain posts. The judges held that the law did not violate the right to equality or life
and personal liberty and sought to further the aims of the National Population policy. Nor did
the judges agree that the law would have its greatest impact on women who are not in a
position to refuse their husbands if they want to have a third child.
The choice of contraceptives introduced through the government programme has also been
challenged in court. In All India Democratic Women Association v. Union of India 694 which
challenged the use of the drug ‘Quinacrine’ as a method of female sterilisation, the Supreme
Court disposed of the petition based on the undertaking by the Central Government that it had
already initiated steps for the banning of this drug.
Other issues related to contraceptives including quality, advertising, etc. are addressed under
different Indian laws. For instance, rules under India’s Drugs and Cosmetics Act, 1940
provide that the formula for contraceptive creams and foam tablets for local use and of oral
contraceptive pills must be approved as safe and efficacious by the Central Government and
for quality standards for condoms. 695 The Drugs and Magical Remedies (Objectional
Advertisements) Act, 1954 prohibits the publication of any advertisement referring to any
drugs in terms which suggest or are calculated to lead to the use of that drug for the
693 MANU/SC/0523/2003
694 AIR 1998 SC 1371
695 See Rule 125(2) and Schedule R of the Drugs and Cosmetics Rules, 1945 (India)
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