LITIGATING REPRODUCTIVE RIGHTS

1 Center for REPRODUCTIVE RIGHTS 120 Wall Street New York, New York 10005 Mehta SoodBernstein International Human RIGHTS FellowYale Law REPRODUCTIVE RIGHTS :Using Public Interest Litigation and International Law to Promote Gender Justice in Indiapage 2 LITIGATING REPRODUCTIVE RIGHTS 2006 Center for REPRODUCTIVE RIGHTS Avani Mehta SoodAny part of this report may be copied, translated, or adapted with permission of the Center for REPRODUCTIVE RIGHTS or Avani Mehta Sood, provided that the parts copied are distributed free or at cost (not for profit), that they are identified as having appeared originally in a Cen-ter for REPRODUCTIVE RIGHTS publication, and that Avani Mehta Sood is acknowledged as the author.

2 Any commercial reproduction requires prior written permission from the Center for REPRODUCTIVE RIGHTS or Avani Mehta Sood. The Center for REPRODUCTIVE RIGHTS and Avani Mehta Sood would appreciate receiving a copy of any materials in which information from this report is : 1-890671-34-7 978-1-890671-34-1 Using Public Interest Litigation and International Law to Promote Gender Justice in Indiapage 3 This publication was authored by Avani Mehta Sood, , as a Bernstein International Human RIGHTS Fellow working in collaboration with the Center for REPRODUCTIVE RIGHTS . The Robert L. Bernstein Fellowship in International Human RIGHTS is administered by the Orville H. Schell, Jr. Center for International Human RIGHTS at Yale Law School.

3 In 2004, the Center for REPRODUCTIVE RIGHTS launched a global litigation campaign to promote the use of strategic litigation for the advancement of women s REPRODUCTIVE RIGHTS worldwide. Concerned by the magnitude of REPRODUCTIVE right violations that occur with impunity in india and inspired by the use of Public Interest Litigation (PIL) in that country to defend fundamental RIGHTS guaranteed by the Indian Constitution, the Center saw the need for in-depth research and analysis of this mechanism and its potential for advancing gender justice, with a specific focus on women s REPRODUCTIVE report, which explores the use of PIL to promote gender justice and future opportunities for advancing women s REPRODUCTIVE RIGHTS in india , is based upon an analysis of relevant international and Indian constitutional law, case studies of select Indian Supreme Court litigation, and interviews with approximately 65 key stakeholders.

4 The interviewees included former and current Supreme Court and High Court justices; lawyers; human RIGHTS and public health activists; social scientists; journalists; at-risk women living in conditions of poverty; and former and current officials of the National commission for Women, the National Human RIGHTS commission , and the Law commission of india . Ms. Sood conducted the interviews between December 2005 and August 2006 in New Delhi and Mumbai, and at the National Judicial Academy in Bhopal. The primary goal of this publication is to advance strategic litigation and other forms of advocacy for the formal recognition and practical realization of REPRODUCTIVE RIGHTS . The report does not purport to comprehensively cover the development and dynamics of PIL or women s RIGHTS in india .

5 Rather, the analysis, recommendations, and views presented by the interviewees relate to select dimensions of these complex and politically intricate topics. About this Reportpage 4 LITIGATING REPRODUCTIVE RightsUsing Public Interest Litigation and International Law to Promote Gender Justice in Indiapage 5 Numerous individuals at the Center for REPRODUCTIVE RIGHTS worked with Avani Mehta Sood toward the realization of this report. Melissa Upreti, Legal Adviser for Asia, supervised the project and provided input regarding the report s conceptualization, methodology, and content. Laura Katzive, Deputy Director of the International Legal Program, provided critical comments on the report and oversaw the production process.

6 The draft was also reviewed by Pardiss Kebriaei, Legal Adviser for International Litigation, who offered vital suggestions. Morgan Stoffregen, International Program Associate, coordinated the production and publication process. Ilona Lewyckyj, International Legal Program Intern, and Susannah Masur, International Legal Assistant, assisted with source verification and research. And the leadership of Nancy Northup, President of the Center, and Luisa Cabal, Director of its International Legal Program, enabled the fruition of this thanks to the following peer reviewers who shared their vast knowledge and provided invaluable comments on drafts of the report: Shruti Pandey, Director of the Women s Justice Initiative at Human RIGHTS Law Network (New Delhi); Molly Beutz, Cover-Lowenstein Fellow at the Orville H.

7 Schell, Jr. Center for International Human RIGHTS , Yale Law School (New Haven); Dr. Abhijit Das, Director of Sahayog (Lucknow) and the Center for Health and Social Justice (New Delhi); Dr. Asha Bajpai, Reader at the Tata Institute of Social Sciences (Mumbai); and Dr. Usha Ramanathan, independent research on the jurisprudence of law, poverty, and RIGHTS (New Delhi). James Silk, Executive Director of Yale Law School s Schell Center, provided important guidance during the course of the author s Sood and the Center are also extremely grateful to many people in india who were very generous with their time and provided essential information and feedback for the report, especially the following: Justice V.

8 S. Verma, former Chief Justice of the Supreme Court of india and former Chairperson of the National Human RIGHTS commission ; Justice B. N. Srikrishna, recently retired Justice of the Supreme Court of india ; Justice M. J. Rao, former Justice of the Supreme Court of india and recently retired Chairperson of the Law commission of india ; Justice Leila Seth, former Chief Justice of the Himachal Pradesh High Court and former Member of the Law commission of india ; Justice D. Y. Chandrachud, current Justice of the Mumbai High Court; Fali S. Nariman, Senior Supreme Court Advocate and former Additional Solicitor General of india ; Naina Kapur, Director of Sakshi; Rohan Thawani, Supreme Court Advocate; Dr.

9 A. R. Nanda, Executive Director of the Population Foundation of india ; Akhila Sivadas, Director of the Center for Advocacy and Research; Dr. Girija Vyas, Chairperson of the National commission for Women; Yogesh Mehta, Legal Officer of the National commission for Women; Aruna Sharma, Joint Secretary of the National Human RIGHTS commission ; Dr. Rajeev Dhavan, Senior Supreme Court Advocate and Director of the Public Interest Legal Research and Support Center; Shireen Jejeebhoy, Senior Program Associate at Population Council, india ; Aman Ahluwalia; Vishnu Vardhan Shankar; Rukhmini Bobde; Sandipto Dasgupta; Sanjeeb Panigrahi; Anil Bangalore Suraj; Laxmi Vijaypalan; Tony George; Rohit De; and Purnima Mehta.

10 We are additionally indebted to those interviewees who provided key insights but whose names have been withheld to protect their confidentiality. Finally, Ms. Sood and the Center extend many thanks to Shauna Cagan, who designed the cover and layout of the publication; Manisha Sood Mehta, who took the cover photo; and Sara Shay, who copyedited the Using Public Interest Litigation and International Law to Promote Gender Justice in Indiapage 7 ABOUT THIS REPORT 3 ACKNOWLEDGMENTS 5 TABLE OF ABBREVIATIONS AND GLOSSARY 11 RECOMMENDATIONS 15 INTRODUCTION 19 PART I: CONTEXT AND LEGAL FRAMEWORK 23 CHAPTER 1. PUBLIC INTEREST LITIGATION IN india . 24A.