Population control has always played an important role in India as far back as 1952, when the country implemented the world’s first official family planning policy. Behind the concept of family planning is expanding the accessibility of persons to contraceptive methods so that they can plan the number and spacing of their children. Family planning helps ensures not only the health of women but also has a wide range of non-medical benefits such as the empowerment of women and the sustainable growth and economic development of their countries. Simply put, sterilisation is a process or an act that renders an individual incapable of sexual reproduction.[i] Forced sterilisation occurs when the targeted person is not given an opportunity to provide wilful consent or the procedure is done without their knowledge. This is an irreversible scenario wherein the right to one’s bodily integrity and personal freedom is stripped away, an act that subjects one to cruel and inhumane treatment.
Headlines have carried the shocking incidents from China, where Uyghur women have been subjected to forceful insertion of intra-uterine devices and sterilisation surgeries. Closer to home, in India the debate on sterilisation again came into public picture in 2014, when 15 women in Chhattisgarh died at two separate state-run sterilisation camps. Most recently in February 2020, the Madhya Pradesh government came under fire for a controversial circular. The circular set sterilisation targets for Male multi-purpose Health Workers (MPWHs) with salary loss as penalty. If each MPWH failed to sterilise a man in the fiscal year, they could have had their salaries withheld and given compulsory retirement. Even though the order was immediately withdrawn, this poses several questions regarding the effectiveness of sterilisation camps and to what extent they should continue to be promoted. Here, we endeavour to examine India’s controversial past with forced sterilisation and the international framework that exists in this regard.
The Forced Sterilization Program during the Indian emergency
From the inception of the Family Planning Program in 1951, till its peak in 1977 the goal in sight was to control world population. India’s Family Planning Program also received the highest amount of international aid among all Asian and Sub-Saharan countries. In 1951, India’s population was approximately 361 million with a growth rate of 1.26 percent per year in the 1941-1951 decade. In the 1951 Census report, the Registrar General and ex-officio census commissioner R.A Gopalaswami argued that India will soon be unable to feed its rapidly growing population. This led to the Family Planning Program to be established under the first Five-year plan.[ii]
In 1976, during the National Emergency, the then Prime Minister Indira Gandhi introduced a 20-point program. This surprisingly did not include a family planning programme. Indira Gandhi’s son Sanjay Gandhi on the other hand, introduced a 4-point program which had family planning at the forefront. The focus was on male sterilisation, with several strict and strong-arm measures put in place to reach those goals. Most of these were incentivisation driven, with men receiving cash according to the age and number of children they had when they submitted themselves to sterilisation. Unfortunately, this turned into a scenario of compulsion and force, with threats of dismissals from government jobs leading to wide spread protests.[iii]Around 6.2 million men were sterilised in a year alone, with several men losing their lives due to unsafe or improper operations.
In the 2013-2014 period nearly 4 million sterilisations have been carried out, but less than 100,000 were performed on men. Sterilisation measures are at times shunned by men due to a belief that it will hurt their masculinity. This in turn, puts undue pressure on women to undergo sterilisation, which in their case is a more complex procedure. This reveals how these programs have now come to focus on the poor and under-privileged women, and how the lack of education and awareness makes it easier for authorities to forcibly obtain their consent for this procedure. Combined with lack of medical facilities and botched operations, there exists a life-threatening scenario. There is no denial that India has a long way to go in educating people increasing access to contraceptives and ensuring individuals take informed decisions regarding fertility and childbirth.
Forced sterilisation as a violation of Human Rights
It was during the 1994 International Conference on Population and Development and the 4th World Conference on Women in 1995 that envisioned a rights-based approach towards population policies like sterilisation and to enable voluntary choice in family planning.
While the worrying scenario continuing in India is yet to prompt widespread public attention, several international organisations and courts have been increasingly taking cognizance of the same. Forced sterilisation targets the poor and the marginalised including persons with disabilities and persons from LGBTQA and gender non-conforming communities. Medical professionals cannot justify forced sterilisation as a form of population control; it is a systematic violation of human rights.
The Right to Health has been guaranteed by the International Covenant on Economic, Social and Cultural Rights (ICESR). Bodily autonomy is an integral part of the Right to health and this includes the right to be free from torture and non-consensual medical experiment. Article 16 of the Convention on Elimination of All forms of Discrimination Against Women (CEDAW) protects women’s right to reproductive freedom. The CEDAW committee has also explicitly stated that countries should not permit forced sterilisation.
UN’s inter-agency statement (WHO, OHCR, UNDP etc.) in 2014 provides a complete overview of the dangers posed by forced sterilisation and the steps States need to follow to ensure the rights of the people are not deprived. It stressed the right of people to choose and refuse sterilisation and safeguards must be implemented to ensure that there is no conflict of interest or undue influence. Persons with disabilities may require support regarding contraception and such support must always support their preferences and rights. All persons must have access to necessary information and their medical records to help make informed decisions. Finally, laws and regulations must ensure that all such provisions are non-discriminatory. Persons with disabilities, transgender persons and intersex people also have an equal right to retain their fertility and to have access to sterilisation.
While family planning is an important responsibility for both individuals and the State, the State must not take forcible actions that curbs the basic rights of its citizens. On the other hand, the State must protect the basic rights to life and liberty by educating and providing safe contraceptive devices for persons who do not have easy accessibility. Free and informed consent of the individual is required to perform an irreversible procedure such as sterilisation. Forced sterilisation is an issue that has been addressed across several international forums and courts, but India is yet to acknowledge its gravity and scale. India’s legal system must work hand in hand with medica