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The role of litigation in ensuring women's reproductive rights: an analysis of the Shanti Devi judgement in India.

Abstract: The struggle for reproductive sell-determination has specific significance for women and girls in India, where a maternal death occurs every five minutes. This paper analyses the role litigation played in seeking redress for violations of the reproductive rights of Shanti Devi, who died in childbirth in 2010 in Haryana state, and some of the socio-economic, cultural, political and legal factors involved. It provides a brief overview of India's national and international obligations with regard to maternal health, and through the lens of the litigation in Shanti Devi's case, it examines how the government failed to protect, respect and fulfill her right to life and health. Litigation can be used to ensure accountability in further cases by building on case law, informing communities about these decisions and their rights, and holding government accountable at local, state and central level. Litigation also has limits, most importantly due to people's lack of awareness of their rights and entitlements, the lack of government outreach programmes informing them of these, and the lack of accountability mechanisms within health programmes when they are not transparent or functioning effectively. Thus, although constitutional justice is an important tool for democratic progress and social change, social justice will only be achieved through broader social struggle. [c] 2012 Reproductive Health Matters

Keywords: maternal mortality, law and policy, litigation, reproductive rights, human rights, India

Resume

La lutte pour l'autodetermination genesique revet une importance particuliere pour les femmes et les filles en Inde, ou un deces maternel se produit toutes les cinq minutes. Cet article analyse le role joue par le proces intente pour demander reparation des violations des droits genesiques de Shanti Devi, morte en couches en 2010 dans l'Etat d'Haryana, et certains facteurs socio-economiques, culturels, politiques et juridiques en jeu. II decrit brievement les obligations nationales et internationales de I'Inde dans le domaine de la sante maternelle, et s'agissant de l'affaire Shanti Devi, il examine comment les autorites ont ete incapables de proteger, de respecter et de realiser le droit a la vie et a la sante de cette femme. Les poursuites peuvent permettre de garantir la responsabilisation dans de nouveaux cas en se fondant sur la jurisprudence, d'informer les communautes de ces decisions et de leurs droits, et de demander des comptes aux autorites locales, etatiques et centrales. L'action en justice a aussi ses limites, en particulier du fait de la meconnaissance de ses droits par la population, de l'absence de programmes officiels de vulgarisation qui informent la population de ces droits et du manque de mecanismes de responsabilisation dans les programmes de sante, quand ils ne sont pas transparents ou ne fonctionnent pas efficacement. Par consequent, si la justice constitutionnelle est un outil important pour le progres democratique et le changement social, seule une lutte sociale elargie apportera la justice sociale.

Resumen

La lucha por la autodeterminacion reproductiva tiene un significado especifico para las mujeres y ninas en India, donde ocurre una muerte materna cada cinco minutos. En este articulo se analiza el rol que desempeno el litigio para buscar reparo por violaciones de los derechos reproductivos de Shanti Devi, quien fallecio en el parto, en el 2010, en el estado de Haryana, asi como algunos de los factores socioeconomicos, culturales, politicos y juridicos implicados. Se expone un resumen conciso de las obligaciones nacionales e internacionales de la India con respecto a la salud materna, y a traves de la lente del litigio en el caso de Shanti Devi, se examina el incumplimiento del gobierno en proteger, respetar y realizar su derecho a la vida y la salud. El litigio se puede utilizar para garantizar responsabilidad en otros casos basandose en jurisprudencia, para informar a las comunidades sobre estas decisiones y sus derechos, y para hacer al gobierno responsable a nivel local, estatal y central. Pero el litigio tiene limites, principalmente debido a que las personas no son conscientes de sus derechos, a la falta de programas gubernamentales de extension a las comunidades para informarlas de estos derechos, y a la falta de mecanismos de responsabilidad en los programas de salud, cuando no son transparentes o no funcionan eficazmente. Por lo tanto, aunque la justicia constitucional es una herramienta importante para los avances democraticos y el cambio social, la justicia social se alcanzara solo por medio de la lucha social.

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The complete realization of a woman's reproductive rights is an "integral part of a modern woman's struggle to assert her dignity and worth as a human being". (1) Feminist scholars have argued that "how reproduction is managed and controlled is inseparable from how women are managed and controlled". (2) The struggle for reproductive self-determination has specific significance for women and girls in India, where a maternal death occurs every five minutes. According to government figures for 2007-2009, the maternal mortality ratio in India has dropped to 212 deaths per 100,000 live births from 254. (3) Even so, this figure is still shockingly high in comparison to other middle-income countries. For example, the maternal mortality ratio is 45 in China, 56 in Sri Lanka, 16 in Chile, 45 in Cuba, 110 in Brazil, and 130 in Egypt. (4) Factors that heighten women's and girls' risks of maternal death lie deeply rooted in the discrimination and inequality they suffer, which have a negative impact on their reproductive health and decision-making, and security and sexuality, which when combined deny them their right to reproductive self-determination. (1)

The three main clinical causes of maternal deaths in India are haemorrhage (38%), sepsis (11%) and complications of abortion (8%). According to the Indian Planning Commission maternal deaths are largely attributed to the absence of skilled birth attendants at delivery, poor access to emergency obstetric care in case of complications, and no reliable referral system for women who experience complications. (5) Unjustly, many more women and girls will suffer preventable injuries, infections and disabilities, often serious and lasting a lifetime, due to failures in maternal care. (6) The disparities in who is at risk within India reflect the additional obstacles women and girls face due to their caste, religion, income, education levels and where they live. The report of the UN Special Rapporteur on the right to health's most recent mission (2010) to investigate maternal mortality in India observed:

"For a middle-income country of its stature and level of development, the rate of maternal deaths in India is shocking.... Although the problem is not simply a matter of funding, public spending on health remains among the lowest in the world. There is a yawning gulf between India's commendable maternal mortality policies and their urgent, focused, sustained, systematic and effective implementation. For the most part, maternal mortality reduction is still not a priority in India." (4)

This paper analyses the role litigation played in seeking redress for the violation of the reproductive rights of Shanti Devi, who died in childbirth, and some of the socio-economic, cultural, political and legal factors that influence the power dynamics involved, from the level of the family to that of national and international institutions.

India's obligations to respect, protect and fulfill women's reproductive rights

International treaty obligations

India's legal obligations to fulfill women's reproductive rights are included in the following international treaties, which the country has ratified:

* International Convention on the Elimination of Ali Forms of Discrimination Against Women (CEDAW) Article 12, which addresses access to health care, including family planning, and appropriate services (free where necessary) in relation to pregnancy, confinement and the post-partum period; Article 14, which acknowledges the additional burden faced by rural women; and Article 16, which ensures the equal right of women to decide freely and responsibly the number and spacing of their children and have access to information, education and the means to exercise these rights;

* International Covenant on Civil and Political Rights (ICCPR) Articles 3 and 26, which guarantee men and women equality before the law and require the law to protect against discrimination; and

* International Convention on Economic, Social and Cultural Rights (ICESCR) Article 12, which recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The Committee on Economic, Social and Cultural Rights (the monitoring body for ICESCR) in General Comment No. 14 (2000), says that States must:

"... improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information." (7)

National legal obligations

The Indian government has largely made health care services the responsibility of state-level governments; however, the health policy and planning framework has been provided by central government. (8) The Constitution contains Fundamental Rights and Directive Principles of State Policy. Fundamental Rights ensure the protection of individual rights, including the right to life, which the Supreme Court of India has also interpreted to encompass the right to health; freedom from cruel, inhuman and degrading treatment; and the right to live with human dignity, equality and freedom from discrimination. The Directive Principles detail how the State should implement these rights and require that the Executive, Legislative and Judicial apparatus of the State are in compliance with the Directive Principles, especially when acting on and devising laws for the State and its governance. Article 47 of the Directive Principles sets the State's duties to raise and improve public health, nutrition and the standard of living; (5) however, Directive Principles, unlike Fundamental Rights, are not enforceable in court.

National case law

Indian case law established the right to life, which encompasses the right to health and human dignity, in the landmark judgment in Paschim Banga Khet Samity v. State of West Bengal, in which the Supreme Court of India for the first time considered the right to emergency medical care as a fundamental right and directed that:

"... the primary duty of the Government is to secure the welfare of the people.... The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person ... Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life." (9)

Further, in Smt. Nilabati Behera v State of Orissa & Ors, the Supreme Court of India acknowledged the right to compensation as a remedy of a violation:

"A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights ..." (10)

Government programmes, policies and schemes

Central government has sponsored the National Population Policy (2000), which aims to address, among other health issues, the unmet need for contraception and strengthening of the health care infrastructure and health workforce. (5) The National Health Policy (2002) acknowledges that the weak public health system in the country is responsible for high morbidity and mortality rates, and the need for enhanced funding and organizational restructuring of public health initiatives at the national level in order to facilitate more equitable access to health facilities. (5) The National Rural Health Mission (2005-2012) aims to establish a functional, community-owned, decentralized health delivery system with accessible public health facilities at all levels, (5) and to respond to the health needs of the urban poor in its district-level health plans. (11) The district health plans are vital to ensuring the implementation of the overall objectives of the National Rural Health Mission. One of the key objectives is to reduce the number of maternal deaths, by increasing institutional deliveries, particularly for pregnant women living below the poverty line. Free maternal health care services are guaranteed to all pregnant women living below the poverty line, including a minimum of four antenatal check-ups, 24-hour access to emergency obstetric care, a minimum of two post-natal home check-ups, family planning and contraceptives. The programme also states that all delivery of public health care should be in compliance with the Indian Public Health Standards. (11)

To encourage institutional deliveries, the central government sponsored a cash incentive scheme, the Janani Suraksha Yojana, offering women cash incentives of Rs600--Rs1,400 (8 [pounds sterling]-15 [pounds sterling]). Criteria for eligibility are that it can only be claimed by women living below the poverty line, women aged 19 years or older, and is only provided for two live births if the woman lives in a "high performing state" (based on public health indicators and state of health infrastructure). If the woman lives in a "low performing state" she can receive the payment for a third live birth if she agrees to sterilization after delivery. (12)

Another cash benefit that pregnant women living below the poverty line are entitled to is the National Maternity Benefit Scheme. The Shanti Devi case highlighted the confusion, on the part of the central and state governments, between these two payments. Unlike the cash incentive, the maternity benefit is a fixed amount of Rs500 (7 [pounds sterling]), to be provided to all pregnant women living below the poverty line, irrespective of their age and number of previous births. This benefit was introduced to ensure that pregnant women living in poverty had access to much-needed nutrition during pregnancy; hence, the money is supposed to be paid 8-12 weeks prior to delivery. (13) *. Shockingly, only 20 women living below the poverty line in Delhi, out of 42,447 eligible women, received the Rs500 in 2006-2007. (14) Yet anaemia is a major public health problem, directly linked to poor nutrition, and both directly and indirectly contributes to about 17% of maternal deaths in Indian women. (15)

Shanti Devi's case focused on the health care obligations of the governments of both Haryana state and the National Capital Territory of Delhi, as she lived or went for care in both during the pregnancies that led to her death. In a 2011 project implementation plan for Delhi, the city government acknowledges that: "a large chunk of the underprivileged population in Delhi is devoid of even basic health care because of large unserved and under-served areas because of inequitable distribution of health infrastructure ... The health indicators of the state still fall short of the standards set by the government of India ... [Although] Delhi has almost eighteen service-providing agencies, effective interagency convergence remains a major challenge". (16)

Shanti Devi's case

Shanti Devi's case was originally filed as an individual case (writ petition). However, in its claims for legal redress, the petition sought wider accountability for the lack of fulfillment of all women's reproductive rights--focusing specifically on the delivery of government obligations in Delhi and Haryana states. With this strategy, this case ensured that the Court took into account the constitutional and human rights obligations of central government.

The writ petition in Shanti Devi's case was taken forward by her brother-in-law, under a legal mechanism known as public interest litigation. The vision of public interest litigation was to create access to justice for the poor and marginalized sectors of Indian society, when their constitutional rights had been violated. It originated in the late 1970s through a series of decisions passed by the Supreme Court of India. Its key features are that it allows for the expansion of the interpretation of locus standi, the right of an individual to bring a proceeding to a court when they are not personally affected by the issue complained of, in cases involving constitutional rights violations if:

"... such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for on appropriate direction ... seeking judicial redressal for the legal wrong or injury ..." (17)

and to enable greater access to justice by establishing:

"... epistolary jurisdiction, setting that [the Court] would readily respond even to a letter addressed by such individual[s] acting pro bono publico [voluntarily in the greater public interest], and treat it as a formal writ petition [case] for [public interest litigation] purposes." (17)

History of the case

Shanti Devi and her husband Kishan Mandal were from the state of Bihar (a low-performing state), of the marginalized scheduled caste community and landless. This profile placed Shanti at a higher risk of maternal death based on her caste, income, education level and geographical location. In 2006, the couple migrated to the state of Haryana (a high-performing state) with their two sons aged 6 and 11 years. They rented a room in a compound where they shared a toilet/wash cubicle with 30 other families. Kishan Mandal worked as a daily labourer earning Rs3,500 (40 [pounds sterling]-45) per month, thus living below the poverty line. (15)

In November 2008, while pregnant, Shanti Devi fell down the stairs of her compound, (15) and subsequently could no longer feel the baby moving. Kishan Mandal first took his wife to a local traditional healer for medical assistance, who advised that the baby might be dead, and instructed them to go to the nearest government hospital in Faridabad, in Haryana state. The staff there informed them that there was nothing they could do and instructed them to go to the Sanjay Gandhi government hospital in New Delhi, 55km away, saying free medical treatment would be provided because of their economic status. No further assistance was provided, despite Shanti's condition deteriorating. Kishan Mandal had to negotiate and hire an auto rickshaw at a cost of Rs100 (12 [pounds sterling]-15), which further delayed Shanti Devi's access to emergency obstetric care. Upon arrival at San jay Gandhi hospital, medical staff advised that they could not surgically remove the dead fetus because there was no available bed in the intensive care unit. After a period of waiting a bed was arranged for Shanti Devi at the privately-run Saroj hospital, which was built in the heart of New Delhi on the agreement that it would reserve and earmark 10% of its operational beds and total treatment capacity for indigent patients, and treat them free of charge, under the Delhi Municipal Corporation Act (1957). (18)

A doctor from San jay Gandhi had accompanied Shanti Devi, with a certified letter stating that she was a woman living below the poverty line and must be provided medical treatment free of cost. Once that doctor left, however, staff at Saroj hospital demanded Rs2.5-3 lakh (3,000 [pounds sterling]) from Shanti Devi's family for treating her. Unable to pay such fees, the family brought Shanti Devi back to Sanjay Gandhi hospital. A bed in the intensive care unit was eventually found by Sanjay Gandhi staff in another government-run hospital, Deen Dayal hospital, where the dead baby was finally removed. Shanti Devi was discharged in a weak condition.

Shanti Devi's brother-in-law, Laxmi Mandal, filed a writ petition in the Delhi High Court in December 2008. (19) The case was argued pro bono by the Human Rights Law Network that as Shanti was still weak and in need of medical assistance, she must be immediately readmitted to hospital and given free medical treatment, and that the accused--namely, all the government and private hospitals involved, the state government and the Union of India--should be held accountable for violating her reproductive rights. Due to the Court's intervention, Shanti Devi was readmitted to Deen Dayal hospital and discharged 18 days later. However, she was not provided, as per government obligations, with access to family planning counselling or a method of contraception, or any other essential follow-up care.

Within six months of her second discharge from hospital, and while the case was still being heard in the Delhi High Court regarding the delays in providing her with emergency obstetric care following her previous pregnancy, Shanti Devi again became pregnant, for the sixth time. That pregnancy was never registered with any government health workers or public health centre. In her seventh month of pregnancy, she went into labour and delivered a baby girl prematurely at home without a skilled birth attendant or any medical assistance. Within the hour after delivery, she began haemorrhaging and died on 20 January 2010--a year after she was first discharged from Deen Dayal hospital.

The High Court's orders regarding Shanti Devi

The case was first heard by the Delhi High Court in December 2008. The level of knowledge of the complex issues involved varied immensely between the three different judges who heard this case during its course. Importantly, it was the last judge, Justice Muralidhar, whose understanding of the issues was thorough, who was responsible for delivering the Court's final judgement on 4 June 2010.

It was solely due to the intervention by the Human Rights Law Network in December 2008 that Shanti Devi was readmitted back into hospital, having being discharged while still weak after her miscarriage. But, although she was readmitted, she was not referred for family planning, in spite of having just had a high risk pregnancy. Doctors questioned during the maternal death audit (instructed by Delhi High Court) said they felt she was "not a suitable candidate" for an intrauterine contraceptive device. Yet the audit report after her death stated that non-use of a family planning method was the most critical factor in her death. (15)

In fact, Shanti Devi did not receive any of the maternity services guaranteed under the National Rural Health Mission during any of her six pregnancies, whether antenatal check-ups, iron tablets (despite her being severely anaemic) or family planning information. Further, Shanti Devi's obstetric history was not taken correctly in any of the hospitals she was sent to following her fall on the stairs; had this been done, it would have revealed that she was a high risk case pregnancy. (15)

The judgement in Paschim Banga Khet Samity v. State of West Bengal (9) regarding the right to emergency medical care was used successfully in Shanti Devi's case to argue that she had had a right to emergency obstetric care.

Shanti's death was not recorded or investigated as a maternal death until the Court asked for the audit to be done, despite the requirement by the government to record all births and deaths and investigate all maternal deaths. (4) Upon reading the audit, the Court said: "What is clear in Shanti's case is that the maternal mortality was clearly avoidable." (19)

Although Shanti Devi and her husband were scheduled caste migrants living below the poverty line (BPL), they did not have the relevant documentation to prove their status. This contributed to their being refused free treatment and benefit payments.

"The processes of obtaining a BPL card are often beyond the capacity of the poor, especially if they are also migrants and marginalized. " (15)

"Instead of making it easier for poor persons to avail of the benefits, the efforts at present seem to be to insist upon documentation ... This onerous burden ... constitutes a major barrier to their availing of services. This is one reason why the coverage of these schemes has been poor in all these years ...

... There is no assurance of 'portability' of the schemes across the states. In the present case, Shanti Devi travelled from Bihar to Haryana and then to Delhi. In Haryana she was clearly unable to access the public health services. At Delhi she had to once again show that she had a BPL card, and on being unable to do so, she was denied access to medical facilities. For the migrant workers this can pose a serious problem." (19)

Lack of BPL documentation also acted as an obstacle to ensuring health care for Shanti's newborn baby, and again it was only because of the Court's intervention that the infant was provided with medical treatment at all. As the Court pointed out:

"It is said that the newborn ... is currently being treated in ... hospital ... [but] there is every possibility of the said hospital turning out the baby girl since the father Kishan Mandal does not have a ration card in that State." (20)

With regard to the National Family Benefit Scheme payment, the legal counsel representing Shanti Devi's family argued that the benefit excluded women's contributions as bread winners in the household. The Court ruled:

"It is also necessary to recognize a woman in the family who is a home maker as a 'bread winner' for this purpose. In the event of a maternal death, the family should get the cash benefit under the National Family Benefit Scheme." (19)

Because the schemes overlap, and the Integrated Child Development Scheme is administered by the Department of Women and Child Development of the State, the National Rural Health Mission by the Ministry of Health at the Centre and the JSY by the health ministries of the states, families are confused about where to collect these benefits. The Court ruled:

"There must be an identified place which ... women can approach to be given the benefits ... A pregnant or lactating mother should not have to run to several places to get the benefits under the schemes." (19)

With regard to denying cash assistance to women living below the poverty line who have had more than two births, the Court said:

"... the logic of depriving cash assistance beyond two births ... cannot be justified on any rational basis particularly since women in the Indian social milieu have very little choice whether she wants to have a third child or not." (19)

Legal remedy in the form of compensation was awarded to Kishan Mandal. In addition, the Court safeguarded Kishan Mandal's entitlements, e.g. ration cards, cash entitlements under the JSY cash incentive scheme, the National Maternity Benefit Scheme maternity benefits, the National Family Benefit Scheme family benefit and benefits for the welfare of his three children.

Delhi High Court rulings on government policy and programmes

The Court raised important concerns about the extent of implementation of government reproductive health programmes, and the lack of accurate data:

"Statistics furnished by the state governments on the performance of the JSY show the number of institutional deliveries, but do not indicate what percentage of the total number of deliveries in the state they constitute. Only when such information is available and provided under the schemes, is the categorization of states as high performing states and low performing states possible. The Central Government must insist on this kind of information for meaningful assessment of the working schemes." (19)

The Union of India and the government of Delhi were told:

"There appear to be no operation[al] guidelines issued that can actually facilitate the accessing of free medical care by expectant mothers and the newly born babies belonging to the BPL category ... The Union of India will have to come out with a set of instructions in coordination with GNCTD [National Capital Territory of Delhi] ... to ensure that entitlement to free medical treatment to persons below the poverty line is not denied merely on account of them having to move away from their place of ordinary residence." (19)

To support the investigation of all maternal deaths, the Chief Medical Officer of Haryana state had issued a circular in May 2009 detailing how maternal death audits were to be implemented. (21) But, when staff at the Primary Health Centre in Faridabad, Haryana, were interviewed, they advised that they did not have a system for auditing each maternal death. The Centre, which covers a population of 100,000, did not report a single maternal death during the period of April 2009-March 2010. (15) This reinforces findings by UN Special Rapporteur on the right to health in his 2010 mission to India that:

"The majority of maternal deaths in India are not recorded." (4)

While the Shanti Devi case was being heard, the Director of the National Rural Health Mission in Haryana issued directions that all maternal deaths would be audited in Haryana in future, and all relevant staff were to receive appropriate training for this. (18) Following the final judgement, the Union of India ordered an implementation programme that would ensure that all maternal deaths, both at the community level and/or at medical facilities, would be thoroughly audited in all states across India. The case also resulted in high-level discussions between state governments on the rights of economic migrants (Personal communication, Human Rights Law Network advocates, June 2011).

The Court sought to ensure that the government was held accountable for its failure to meet its legal obligations to protect, respect and fulfill women's reproductive rights. As Justice Muralidhar has written elsewhere:

"Court intervention facilitates viewing the [Indian] Constitution as a dynamic and evolving document and not merely an expression of desired objectives in an open ended time frame. In the face of an inactive or indifferent legislature or executive, it compels the state and civil society to engage as active participants in the scheme for the realization of economic, social and cultural rights." (22)

Further litigation: opportunities and challenges

Shortly after the final judgement in Shanti Devi's case, the Chief Justice of the Delhi High Court took a suo moto decision to intervene and seek accountability in the case of a maternal death of a homeless woman in New Delhi. The ruling on that petition, referring to the Shanti Devi case, made a landmark order for land to be obtained from the National Capital Territory of Delhi to construct shelter homes and provide food and medical services for homeless pregnant and breastfeeding women and girls. (23)

Witnessing the Court's judgements increased the confidence of the Mandal family's community in the rule of law; they mobilized to seek remedy for the lack of delivery of food rations (also a government obligation). They monitored the stocks of food ration shops, producing invaluable evidence for a writ petition which also referred to the Shanti Devi judgement. (24)

Most recently, the case Sandesh Bansal v. Union of India (PIL) W.P. 9061/2008, whose final judgement was delivered in February 2012, also achieved accountability for the high levels of maternal deaths in the state of Madhya Pradesh, India. The Court ordered the immediate implementation of the National Rural Health Mission with a focus on strengthening infrastructure, providing access to timely maternal health services, skilled personnel, effective referral and grievance redressal mechanisms. A timebound plan for "strict and timely" implementation was ordered, consistent with National Rural Health Mission requirements, with the Court setting specific directives. (25)

The Shanti Devi case has been discussed at various national and international conferences, including the National Consultation on Maternal Mortality and the Use of Public Litigation in Goa, India, and Women Deliver in Washington, DC, USA, both in June 2010. Efforts have also been made to disseminate the experience and findings of the Shanti Devi case at the grassroots level--among people living below poverty level, health activists, women's rights activists and legal advocates (both national and international), and through various media--to promote the call for greater accountability and gender justice.

Although the discrimination and inequality experienced by Shanti Devi were part of the argument in her case, more emphasis should have been placed on the multiple levels of discrimination suffered by women and girls like her from the scheduled caste communities. For example, the government's obligations as set out under the International Convention on the Elimination of all Forms of Racial Discrimination were not raised in the arguments or the final judgement. (26)

The maternal death audit in Shanti Devi's case provided insurmountable evidence of how her rights were violated. Such audits are also an "'opportunity to look beyond the narrow medical cause of death and review social, economic, cultural, institutional, systemic and other factors". (4) Health experts advise that "verbal autopsies ... must never be used to provide the basis for litigation, management sanctions or blame". (4) Instead, for them to be fully effective in ensuring systemic change within the health system, they must be promoted as confidential procedures and not as a tool to place blame or punishment, which would be counter-productive because individual health professionals would not participate openly and transparently for fear of sanctions. Justice Muralidhar did not seek to make individual practioners scapegoats for Shanti Devi's death but remained focused on the bigger picture--the conduct of the central and state governments and the functionality of the health system. Nevertheless, when a court orders a maternal death audit it does pose real risks and challenges for improving the delivery and accountability of maternity care.

Litigation is only one tool that can be used to seek accountability when human rights have been violated and/or denied. But as many activists understand, the larger picture, and the interactions and behaviours of various actors must also be engaged with. Political scientist Prof. Gloppen has written extensively on the use of litigation in holding governments accountable for the right to health:

"Success in litigation can be evaluated from three different perspectives: success in Court; success in the material sense; and success in the social sense. Victory in Court represents the immediate criterion of success. But success in this narrow sense does not imply changes on the ground. Success in the material sense improves the situation of the litigants ... This success requires adequacy of the Court orders as well as their implementation ... [To assess success in the social sense], it is necessary to look at whether litigation changes policies and implementation in ways that make the health system more equitable and benefit members of society whose right to health is most at risk." (27)

In this regard, it is success in the social sense which is proving the most challenging to achieve. State governments in India have yet to issue instructions to ensure the portability of schemes and entitlements, particularly for economic migrants. Central government still needs to issue clarifications to state governments to ensure that all pregnant women living below poverty level are receiving the appropriate benefits and payments. Moreover, a committed government campaign is needed to raise awareness at all levels (grassroots to government administrators responsible for maternal health care implementation) that a home-maker should be considered a primary bread-winner for the purpose of receiving benefits.

One of the principal challenges that remains is people's lack of awareness of their human rights and entitlements to begin with. This is due to lack of government outreach programmes informing communities of their rights and entitlements, and lack of accountability mechanisms within health programmes, which are not transparent, monitored or functioning effectively. Justice Muralidhar said in his ruling:

"There does not appear to be any inbuilt mechanism for corrective action, restitution and compensation in the event of the failure of any beneficiary to avail of the services under the schemes. This, in despite the fact that in the National Rural Health Mission there are service guarantees and that JSY documents also require strict implementation by state governments." (19)

The extent of understanding of reproductive rights law by the judicial system

Reproductive rights is an area of law which has only recently gained development and recognition, one which requires:

"... a multidisciplinary analysis drawing on socio-legal and political economy and policy analysis, medical and epidemiological knowledge, health, economics and health systems analysis as well as ethical analysis." (27)

As was the experience in this case, the level of knowledge on the complexity of the issues involved varied immensely between the different judges who heard the case proceedings, which raises the question of whether, if Justice Muralidhar had not been the final judge in this case, it would have led to such a landmark decision. Hence, in future cases, a clear strategy should be developed before deciding to move forward, assessing the risks and how the intended litigation complements and/or has an impact on the work of existing civil society groups already lobbying and being active on the issue. How will the issues identified in the case influence and engage with existing/planned government laws, policies and programmes? And who will be responsible for delivering and monitoring the change on the ground? As Supreme Court Justice BN Srikrishna said:

"Judicial forays into policy issues through trial and error, without necessary technical inputs or competence, have resulted in unsatisfactory orders that have ... passed beyond 'judicially manageable standards. " (17)

This observation is supported by former Indian Justice V. S. Verma:

"You cannot use the Court for every purpose. The Court can compel performance and monitor it, but the Court cannot perform [the function itself], and it should not, because there are not judicially manageable standards for that." (17)

In Brazil, where the courts have been involved in a number of right to health cases, they have faced criticism for "distort[ing] the health budgets by ordering high-cost, low-impact medications for individuals which were not included in the ... [public] health system". (19) As Yamin has argued: "The role of courts in setting health policies is a critical development that calls for contextualized empirical investigation, as well as far more attention from the public health community." (28)

Conclusion

"There will come a time when you believe everything is finished. That will be the beginning." (29)

This paper has analysed the influence of litigation in ensuring that Shanti Devi's death, which should have been avoidable, did not become yet another silent, unaccounted-for maternal death. Whilst there is much still to be done to ensure that this landmark judgement is truly embedded within policy and practice in India, some steps towards institutional change have already been taken, and more must be fought for. This case portrays a courageous journey undertaken by a family from the most ignored, excluded, and marginalized sector of society and their claim for accountability. However, we must not forget that:

"Constitutional justice can become an important tool for democratic progress only if we think of it as part of broader social struggles. The fulfillment of the emancipation promised by many constitutions is too serious a matter to leave to constitutional justices." (28)

Acknowledgements

I was inspired by the courage of the Mandal family during this case, and their humbleness, kindness and quest for justice. I want to thank all my colleagues at the Human Rights Law Network. Without their tireless efforts, passion and commitment to the cause of justice (despite working in extremely under-resourced conditions) legal redress in this case (and so many others they undertake) would not have been possible.

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Jameen Kaur

Project Manager, Human Rights Law Network (when this article was researched), New Delhi, India.

Correspondence: jameeny@hotmail.com

* The National Maternity Benefit Scheme was created as a result of a Supreme Court order in People's Union of Civil Liberties v. Union of India. (13)

Dedicated to the memory of Shanti Devi and the courage of the Mandal family

Doi: 10.1016/S0968-8080(12)39604-3
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Author:Kaur, Jameen
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Date:May 1, 2012
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