The Felony of Forced sterilization

Forced sterilization is a term which we may have come across but have never paid heed to. Even upon the illegality of the same, in underdeveloped and yet developing nations, this is a menace/ crime is still not spoken about yet is largely prevalent. It is generally mandated by the government, where a section of the society as the very name suggests, is forced to be sterilized, which means that they are made incapable to reproduce.

Common excuses being population control, gender discrimination, limiting the spread of HIV, ethnic genocide and transgenders gaining legal recognition of their gender. In this Paper we would attempt to look into the topic with greater detail along with delving into the possible solutions.

Introduction
Forced sterilization as a practice is generally mandated by the government, where a section of the society as the very name suggests, is forced to be sterilized, which means that they are made incapable to reproduce. This practice is, at the majority of times, involuntary and that men and women who are vulnerable and gullible in the society are coerced into the same.

As stated earlier also, population control, gender discrimination, limiting the spread of HIV, ethnic genocide and transgenders gaining legal recognition of their gender are some common reasons or excuses that the followers of the peril give or use to defend themselves. This is generally done through some surgical methods which is also known as Tubal ligation.

This very menace tends to jeopardize the health of many and that it violates the basic human rights of several people upon which this act is performed upon. Moreover, this is not only a human rights violation but also includes in its ambit features of violence, genocide, gender-based discrimination, torture and various other forms of crimes which are inflicted upon the injured.

This leads to gross human rights violation as not only a single fundamental right is violated but as it is already stated earlier that all the rights are interlinked and interrelated. Several rights of such persons are as a result violated.

Primarily, the most important right that is the Right to Life and Livelihood is violated while also breaching upon various other rights like that of the right to privacy, right to information, right to humane treatment, the right to family planning, right to a clean and healthy environment and various other rights are also encroached upon by the virtue of such an instance of forceful sterilization, when it is as the name indicates is without consent of the victim.

Therefore, what the need of the hour is, is to address such issues. Several human rights bodies and activists along with the various government and non- governmental bodies, have been advocating for such rights at the state, the central and also at the international level and have not only set out standards and procedures for conducting search sterilizations but also helped in promotion of awareness and helped such persons for redressing the same issue, along with providing for the protection of survivors.

Emergence of the ghastly practice

The very recent case of fifteen women dying in the state of Chhattisgarh has dragged our attention towards the horrifying act of forceful and careless practice of sterilization.

We can trace back the history and the beginning of this gruesome practice to the 1970s where India, that is a developing country then had taken several loans which amounted to several millions from the Swedish International Development Authority, the World Bank, various international organizations like the United Nations Population fund and was severely high on the population rank and as a result looked forward to an effective Population control regime.

So, the, then political leader Sanjay Gandhi, also the son of our very known former Prime Minister, Indira Gandhi during the period of emergency that is the year of 1975 where all the civil liberties could have been said to be done away with, started this ghastly practice of forceful sterilization. He emphasized on sterilizing poor men from villages and other backward regions. There have been instances recorded, where men would be dragged and tortured at such camps and forcefully held captive so as to sterilize them through forceful surgeries.

The novel Midnight's Children written by Salman Rushdie also addresses the above stated fact. Moreover, while clearly paying attention to the statistics, we can see that almost a total of 6.2 million men were forcefully sterilized in India out of which 2000 had died due to the carelessness and negligence by the government, while considering only the period of one year. While comparing the same to the statistics of people forcefully sterilized during the Nazi rule, we come to terms with the brutal truth of the number being less amounting to almost 15 times as that of India. This fact has been put forward by Mara Hvistendahl, a leading science journalist.

Yet as it is said that in a society everything is linked, similarly women in India are still more prone to getting forcefully sterilized as compared to men, even when it is easier to perform sterilization in males. The reason of the same being the gender inequality and the great gender parity in the Indian society. The lack of individuality, financial and mental independence of women increase the probability of females not protesting or advocating for their rights.

The effort for stabilizing the population began in the late 1970s as discussed earlier, after which family planning became an important discussion in India. Coming back to the year 2013-14, statistics reveal that a total of almost 400 million sterilizations were done during the year, out of which only 100,000 were that of men. Thus, Patriarchy can still be said to play a key role for the negative, where the existence of men still given priority to in our Indian society, even today.

Though the government has made several efforts at both the state and the central level to curb this menace, and have set standards, rules, and measures for practicing such sterilizations, however no key difference has resulted in the same as the state requisite quotas and numbers have to be met and complied with. This pressure and the hurry thereof lead to botched sterilizations leading to complications and deaths while carrying out such sterilizations. We must also consider in respect to the same that even after various standards were set almost 700 deaths occurred while sterilizing people in the year 2009 - 2012 in addition to which 356 cases one of severe complications.

The legal status of sterilization is still remaining a question mark in our country?

There is no law made for the sterilization due to which human has to suffer lots of damages regarding their health. If we focus on the legality of sterilization generally with the reference of Indian penal code provisions.

There are basically two types of sterilization we are talking about the first one is therapeutic sterilization which basically consist of that type of sterilization when a sound mind person gives the consent to sterilization which is basically legal in common law but again there is a question mark if it is done without the consent of the patient there is no separate law for this. We can claim under Indian penal code.

Another sterilization technique is eugenic sterilization which consist of those patients who are mentally feeble. The operation under this technique is done on the prosecution risk There is no legislation for the authorization of this under India. No party can claim damages no one will be held liable in case the patient life comes in danger. IF we focus on other countries then America provides the separate legislation for eugenic legislation.

Another sterilization is voluntarily sterilization which is basically to control the population of country. This sterilization is an irreversible process and this very harmful for the patient it can even cause permanent disability of the organs of the patients. The government has issued certain guidelines for this sterilization but there is no specific law for this sterilization.

If we talk about the common law provision which generally govern under Indian penal code. Section 320 of IPC which talks about grievous hurt includes emasculation and destruction or permanent impairing of the powers of any member or joint. Another provision which we can relate is section 87 of IPC. Reading these sections altogether seems clearly against the operation of the patients which can cause permanent disability to the human organ.

But again, if we talk about sec 88 of Indian penal code under which the medical practitioner cannot be claimed for the operation which is done in the good faith of the patient. Section 92 of IPC talks about that mere pecuniary benefit is not benefit within the meaning of section 88, 89, 92.

In the absence of proper law and definition we cannot blame any authority. For this voluntarily sterilization the government has given certain guidelines, but this will always be unclear and confused due to lack of proper law on the sterilization.

Mostly voluntarily sterilization perform on the female curb due to large number of children which done in continuous practice which is direct violation of all the rules of regarding consent , age , license of agencies or individuals performing this sterilization.

There is no law and no penal exist for the violation of these norms and administration rules. There are many people of our country who uses different different methods to perform forced sterilization which also causes many deaths. This practice will go on till the country will make the specific rules, legislation, and will make the proper law on family planning.

IJRC'S Advocacy Support

Here we will discuss about the support of international justice resource centre which has show its efforts to stop forced sterilization with amicus curies brief in case of I V Vs BOIVA [1] before the international court of human rights. They prompted the view of forced sterilization is the violation of the human rights, how the life of a human being is in risk due to this forced sterilization. They urged their views and demanded for the specific laws on sterilization. They had done partnerships with many countries so that this illegal process can be abandoned by countries, and this should be done on legal basis.

Among all the countries India was the first country to initiate the programmed of family planning with the main motive to control the increasing population of country in 1950. In the course of this programmed the government of our country implemented many different types of contraceptive methods such as use of condoms, IUD, diaphragm and sterilization, so that the population can be controlled. During the period of emergency as 8 million of cases were found of sterilization.

Among all these contraceptive techniques sterilization has reached so far in popularity and it was found that most of these cases were without the consent of patient as mass of the population were suffered from forced sterilization and many of them were among men. As it was found mass forced sterilization the technique of family planning moved toward family welfare program which gave result of female sterilizations the better and only way to control population. After this more than half of the population of the country depend upon the female sterilization.

Quality of care is to worry about

In the recent scenario health activist has concentrated on the quality of care should play an important role in family planning program In country like India if we see most of the women who have to suffer this forced sterilization belongs to the rural areas and are illiterate they don't even know the circumstances failures of these techniques .in 19998 Bruce has defined the index of six elements which consist with quality of measures which should be known by every person in country.

Firstly, it includes the choice of patient the patient should be provided the number o methods so that they can make their choice which would be comfortable for them, secondly it consist with the information every patient should be given the complete knowledge the side effects of the operation which has to be performed. In study conducted where it was found that in India most of the states like Bihar and west Bengal side, where the women are suffering from forced sterilization has the least knowledge of contraceptive techniques, they don't know how they are moving towards the danger zone, they don't know the side effects they will have to suffer after the operation.

Thirdly it consist with the professionals performing the operation it should not be performed by any unprofessional person otherwise the patient life will be in danger, fourthly it consist the relationship between the client and provider, in India it was observed that there are most of the cases where women has been treated with cruelty and tyrannical manner, the relationship between the client and provider should be very professional and patients should be treated with due care and respect, fifthly it consist of follow up mechanism between client and provider, and lastly it consist with the family planning measures available as per the needs of the customer.

Conclusion / Suggestion
After discussing all the methods and observing the condition of our country, it can be concluded that how this technique sterilization can go even worst for mainly women of our country without the specific laws to address the same.

There is a basic necessity that all the people of country should have the knowledge about the contraceptive methods. They all should be made aware that how these methods are the matter of concern to their life.

Moreover, in addition to this my suggestion would be that the government should legalise this sterilization program, but this should be only done when relevant measures are taken care of and that relevant preventive steps are also taken in due regard to the patient health. The primary focus should always be on the health of the patient.

The foremost concern should also be that the consent of the patient is taken by the government and only then after describing the pros and cons the decision of the Patient should be taken and the consent given by the patient come to a sterilization do care and caution.

End-Notes:

1. I. V. v. Bolivia, Report No. 72/14, Merits, Inter-American Commission on Human Rights, Case 12.655 (August 15, 2014), para. 186