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68. It is high time, according to Devika Biswas, for the Government of India to look at the quality of care made available to persons post a sterilization procedure. As is clear from various documents on record including the Ms. Anita Jha Commission Report, after-care facilities in terms of counseling, assistance, follow-up etc. are totally absent. Is it a public health issue?

69. The fundamental error that the Union of India is making (and it has repeated that in its affidavits) is by asserting that the effective implementation of the sterilization program is the concern of each State since it is a “Public health” issue covered by Entry 6 of List II in the Seventh Schedule (the State List) of the Constitution. Apart from the fact that the various entries in the Seventh Schedule relate to legislative power, the error made by the Union of India is in completely overlooking the more appropriate Entry in the Concurrent List that is Entry 20A which is “Population Control and Family Planning”. This was inserted by the Constitution (Forty-second) Amendment Act, 1976. If the sterilization program is intended for population control and family planning (which it undoubtedly is) there is no earthly reason why the Union of India should refer to and rely on Entry 6 of the State List and ignore Entry 20A of the Concurrent List. Population control and family planning has been and is a national campaign over the last so many decades. Therefore, the responsibility for the success or failure of the population control and family planning program (of which sterilization procedure is an integral part) must rest squarely on the shoulders of the Union of India. It is for this reason that the Union of India has been taking so much interest in promoting it and has spent huge amounts over the years in encouraging it. It is rather unfortunate that the Union of India is now treating the sterilization program as a Public Health issue and making it the concern of the State Government. This is simply not permissible and appears to be a case of passing the buck.

70. As regards Entry 20A of the Concurrent List, the Justice Sarkaria Commission had this to say in Chapter II titled Legislative Relations in paragraph 2.21.08:

“Only one State Government has suggested that this Entry should be transferred to the State List. According to them family planning facilities should be an integral part of the health facilities which is a State subject and the present dichotomy between the two facilities hampers their adequate integration. Population control and family planning are a vital part of the national effort at development. This Entry was inserted by the Forty-second Amendment to the Constitution recognising the importance of this matter. It is well known that a significant part of the fruits of development is neutralised by the high growth in population. With more mouths to feed, less savings are available for development. Large addition to the population has its impact on every aspect of the nation's life. Many of the ills of the society can be traced back to large numbers who are unable to find a rewarding employment. It is necessary to recognise this inter-dependence between family planning and other sectors. We are, therefore, of the view that Population Control and Family Planning is a matter of national importance and of common concern of the Union and the States.” Notwithstanding the view of that one State Government, the Union of India did not transfer Entry 20A to the State List, thereby making its intentions quite clear and obvious.

72. In the same manner, it is imperative for both the Union of India and the State Governments to implement schemes announced by the Union of India in a manner that respects the fundamental rights of the beneficiaries of the scheme. Given the structure of cooperative federalism, the Union of India cannot confine its obligation to mere enactment of a scheme without ensuring its realization and implementation.

73. Apart from anything else, by not giving the sterilization program the importance it deserves (apart from other methods of population control and family planning) and trying to pass the buck to the State Governments, the Union of India is attempting to find an excuse for failure in its duty of effectively monitoring a program of national importance. This game of passing the parcel and treating a national program as a public health issue has to stop and somebody must take ownership of the Population Control and Family Planning program. Draft National Health Policy

11. The decisions taken in the high level meetings held on 15 th May 2015 and 17th November 2015 as well as the National Summit on Family Planning held on 5th and 6th April 2016 should be scrupulously implemented by the Ministry of Health and Family Welfare of the Government of India. The said Ministry should also ensure effective implementation of the decisions taken keeping in mind that the sterilization program is a part of a national campaign.

12. The Union of India is directed to ensure strict adherence to the guidelines and standard operating procedures in the various manuals issued by it. The Sterilization program is not only a Public Health issue but a national campaign for Population Control and Family Planning. The Union of India has overarching responsibility for the success of the campaign and it cannot shift the burden of implementation entirely on the State Governments and Union Territories on the ground that it is only a public health issue. As the Justice Sarkaria Commission put it “Population Control and Family Planning is a matter of national importance and of common concern of the Union and the States.”