The judgment was in respect of a PIL that highlighted unnecessary hysterectomies carried out in the states of Bihar, Chhattisgarh and Rajasthan
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ON Wednesday, in the case of Dr Narendra Gupta versus Union & Ors., a Supreme Court division Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice J.B. Pardiwala directed the Union Ministry of Health and Family Welfare (MoHFW) to ensure that the guidelines on prevention of unnecessary hysterectomies issued by the Union government last year are adopted by all the states and Union territories within a period of three months.
The Bench was hearing a public interest litigation (PIL) filed in 2013 by Dr Narendra Gupta, a public health expert, highlighting the “unnecessary hysterectomies” carried out in the states of Bihar, Chhattisgarh and Rajasthan under the Rashtriya Swasthya Bima Yojana (RSBY), a government-run programme to provide health insurance coverage for Below Poverty Line (BPL) families. In the order, the CJI noted that based on his fieldwork, the petitioner has brought to notice the fact that women were subjected to hysterectomy without extending alternative treatments, seriously endangering their health.
The respondents in the PIL were the MoHFW, and the states of Bihar, Chhattisgarh and Rajasthan.
It was submitted on behalf of the petitioner that steps should be taken for blacklisting hospitals where hysterectomies were carried out without medical necessity and without the informed consent of the patient. The submission also urged that the first line of treatment and other non-invasive methods should be adopted. Accepting the submission, the court directed all states and Union territories to take stringent action and blacklist hospitals carrying out unnecessary hysterectomies, and to take necessary action in accordance with the law.
Noting that sufficient steps have been taken by the Union government in framing the guidelines in 2022, and that the states of Chhattisgarh, Bihar and Rajasthan have indicated to the court the steps which will be taken to detect such cases and deal with them, the Bench stated, “We see no further need to keep the petition alive.” It directed the Union government to take all necessary steps in accordance with the guidelines in the public interest.
The petition
Pursuant to the PIL filed in 2013, Dr Gupta highlighted the high number of hysterectomies being conducted in private hospitals in Bihar, Chhattisgarh and Rajasthan. He raised concerns about human rights violations and revealed a lack of health services for women in the three states as required by the Constitution, binding international law, case law, and governmental schemes.
The petition pointed to data derived through the Right to Information Act for the months of April and October in 2010 that provided that 286 hysterectomies of 385 operations in total were carried out by three private hospitals in the Dausa district of Rajasthan. It cited news stories that revealed similar incidents in Bihar and Chhattisgarh. The petition also pointed to news reports that said that doctors did not inform women of the side effects of hysterectomy, and did not take their informed consent for the surgery.
By conducting hysterectomies that were shown to be largely unnecessary, the petition stated that private hospitals in Bihar, Rajasthan and Chhattisgarh not only failed to provide healthcare services, but engaged in unethical and exploitative practices that violate patients’ rights to informed consent, bodily integrity and basic reproductive health. It pointed out that women from the respondent states were misled by private practitioners into undergoing invasive and unnecessary surgeries to the detriment of their health.
It stated that teams of health activists travelled to Bihar, Rajasthan and Chhattisgarh to conduct fact-finding investigations and found significant gaps in the delivery of healthcare services under the National Rural Health Mission (NRHM), a scheme introduced in 2005 by the Union government to provide healthcare to poor women and children and rural populations of the country, which has led to the rise of private hospitals.
Relying on his report from April 2011, Dr Gupta stated in his petition that most of the women he interviewed should not have undergone the invasive surgery of hysterectomy and alternative treatments should have been attempted before attempting it. While women need to undergo several tests and alternative treatments before a hysterectomy is performed, many women in the three states were misled into believing that the surgery was an emergency and needed to be performed urgently, he explained.
The petition also reported a documented and unnatural hike in the number of hysterectomies performed under the RSBY scheme. It emphasised that the burden of the failings of the healthcare system fell disproportionately on BPL families.
The petition alleged that although with the introduction of the Smart Card programme, BPL families are able to receive care at private facilities, reports show that private facilities are also performing unnecessary surgeries for profit on women who are not aware of their options. The petition pointed to a report that stated that the RSBY scheme encouraged unnecessary hysterectomies, as unethical private clinics exploit the vulnerable poor, using them as a means to tap into government funds.
The petition argued that the affected women’s fundamental right to life and health under Article 21 of the Constitution is violated. It also alleged that the respondents violated the women’s rights to informed consent, non-discrimination and equality under Articles 14 and 15 of the Constitution. It further argued that the respondents allegedly violated the Consumer Protection Act, 1986, which was then in force, by conducting unnecessary hysterectomies and failing to adequately address the underlying medical condition for which treatment was sought.
The petition said that on the basis of the fact-finding reports, it was evident that despite the constitutional mandate to ensure access to healthcare and the availability of government schemes such as NRHM, the availability and quality of healthcare in rural areas is inadequate.
It also stated that the respondent states failed to provide proper health services to women per the concrete service guarantees of the NRHM and the Janani Suraksha Yojana. It alleged that the respondents violated the intent and purpose of the NRHM, which is to “improve the availability of and access to quality health care by people, especially for those residing in rural areas, the poor, women and children.”
The petitioner pointed out that unnecessary hysterectomies were also in violation of the International Covenant on Economic, Social and Cultural Rights that recognises the right to control one’s health and body, including sexual and reproductive freedom, as well as other international conventions such as the Convention on the Elimination on All Forms of Discrimination Against Women and the International Covenant on Civil and Political Rights.
On the grounds for filing the PIL, the petition laid emphasis on the respondents’ alleged “failure in providing and regulating constitutionally mandated reproductive healthcare to women [that]… resulted in thousands of unnecessary hysterectomies upon women living in Bihar, Chhattisgarh, and Rajasthan in violation of their rights to health, bodily integrity, and informed consent.”
The petition prayed for the Supreme Court to direct the respondents to implement monitoring, inspection and accountability mechanisms in the private healthcare industry; to inspect and monitor the RSBY scheme and the hospitals empanelled under the scheme; grant compensation for the violations of the constitutional rights of the women who have undergone unnecessary hysterectomies in private hospitals; implement improvements in infrastructure, personnel and monitoring of government healthcare facilities in rural areas; and the suspension of the involved private doctors and imposing of criminal liability on them.
Steps taken by the three states
The CJI, while pronouncing the order, noted that in 2019, a national consultation on the matter identified three important challenges. Firstly, the need for appropriate clinical and population level guidelines; secondly, the availability of appropriate information on and treatment of gynaecological morbidity at the primary care level; thirdly, the critical need to monitor and regulate the appropriate use of hysterectomies.
The order noted that on December 13, 2022, the Supreme Court directed the Secretary of the MoHFW to examine the grievance that was based on the petition and to file a response after collecting relevant information. From the counter affidavits filed by the states of Bihar, Rajasthan and Chhattisgarh, the Bench noted that it emerges that “a considerable degree of substance in the facts” is highlighted in the petition.
Giving instances of such facts, the Bench cited that the state of Rajasthan placed on record the steps taken by the district collector of Dausa for constituting committees to inquire about the alleged incidents, failing the Rajasthan Government Clinical Establishments (Registration and Regulation) Rules, 2013.
Further, the Bench noted that the affidavit filed by the state of Bihar similarly indicated that on steps taken by the district authorities in Kishanganj, Madhubani, Samastipur and Saran to inquire into the allegations, it was found that many of the allegations regarding the performance of unnecessary hysterectomies were true, and the state had taken consequential action.
Likewise, the state of Chhattisgarh constituted high powered committees that found that while in some cases the hysterectomy is allegedly carried out after due consent, in many other cases, there had been an obvious misuse.
The court was informed by the respondents that certain hospitals found to be indulging in this were blacklisted and de-impanelled from the RSBY, and in certain cases, first information reports had been filed against them.
The Bench remarked that a status report filed by the Union government indicated the steps which were taken by the states of Chhattisgarh and Bihar for dealing with the issue of the performance of unnecessary hysterectomies. The Union government had proposed an action plan in its status report, it added.
The guidelines
Laying emphasis on the guidelines, the order stated that the MoHFW, as of 2022, issued guidelines titled ‘Guidelines to Prevent Unnecessary Hysterectomies’, which were forwarded to all states and Union territories for compliance. The Bench emphasised that the guidelines indicate that while in developed countries, hysterectomies are typically conducted amongst pre-menopausal women above the age of 45 years, in India, community-based studies have consistently found rising hysterectomy rates amongst young women ranging from 28 to 36 years of age.
The Bench further laid emphasis on the studies that have indicated that unnecessary hysterectomies are performed in cases where medical or non-invasive treatment would have been sufficient, and a higher risk amongst poor, less educated women, particularly in rural areas.
It was highlighted by the Bench that the guidelines note that reporting hysterectomies conducted for women less than 40 years of age and the cause of the hysterectomy have to be incorporated into the existing screening checklist. To achieve this, the guidelines propose the setting up of hysterectomy monitoring committees at the district, state and national levels.
Noting the need for the guidelines to be adopted, the Bench directed the MoHFW to engage with all states and union territories to ensure that the guidelines are adopted expeditiously. It further directed all states and union territories to adopt the guidelines within a period of three months and report compliance to the MoHFW.
