|Category||Right to Health|
|Date of Judgment||04-06-2008|
|Link / Attachment||https://www.escr-net.org/caselaw/2014/prakash-mani-sharma-v-govt-nepal-scn-writ-no-064|
In 2007, petitioners brought a case seeking mandamus to enforce obligations of women’s reproductive health rights under Article 20 (2) of the Interim Constitution and international human rights treaties to which Nepal is party. Petitioners argued that despite budgetary allotments by the government, no meaningful or effective programs had been initiated by the State to address the problem of uterine prolapse, as evidenced by the hundreds of thousands of women suffering from the condition.
The case was brought against the Prime Minister and Council of Ministers, the Ministry of Population and Health, the Ministry of Women, Children and Social Welfare, the Nepal Women’s Commission, and the Nepal National Human Rights Commission. Each of the five petitioners was given 15 days to submit a rejoinder explaining why the mandamus need not be issued. The respondents’ rejoinders challenged the order on the grounds that no State actions had violated individual rights, rights arising under human rights treaties created no justiciable private right or standing, the Court had no power to order the legislature to create law, and there were already budget allotments to address the issue. The questions presented were whether the orders sought by petitioners needed to be issued and whether the issue of uterus prolapse was one of fundamental legal rights, justiciable before the Court.
The Court noted women’s right to reproductive health was recognized in international instruments to which Nepal is party including the UDHR, ICCPR, ICESCR, CRC, and CEDAW. The Supreme Court held the right to reproductive health contained in the constitution to be fundamental, non-derogable, non-restrictive, and not subject to any conditions for its execution. Such right requires meaningful implementation by the State, including through legislation and infrastructure, and although the State had allocated funds to address the issue, the budgetary allotments alone were insufficient since no plans or services had been implemented. The Court understood that there was a need to assess “how active the State was”, “what positive programs did the State launch for the enjoyment of this right” and “whether or not practical benefits were provided for [a specific] class of individuals”.
The Court found the case to be one of public interest, not requiring personal harm for standing or jurisdiction, and held that the State had failed to execute its responsibility regarding protection of fundamental rights. The Court also established, in regard to the principle of separation of powers, that “where the Legislature does not perform well pursuant to the provision of the Constitution, or fails to execute its responsibility with regards to the protection of the fundamental rights of the people, the Court in this regard can call for attention for the execution of the States responsibility.” The Court ruled mandamus necessary and ordered the Ministries of Women, Children and Social Welfare and of Population and Health to provide free services and facilities to affected women and initiate effective programs for raising awareness of the issue. It further ordered the Prime Minister and Council of Ministers to consult with experts and draft a bill for submission to the legislature.
Enforcement of the Decision and Outcomes:
The government of Nepal responded by providing funding and surgical centers to perform hysterectomies to remedy uterine prolapse, but reduced available funding and targets for such surgeries in 2010.
Though the government has put measures in place to make surgical treatment accessible to women affected by uterine prevention, very little has been done with a focus on education and prevention. The 2008 draft National Multi-Sectoral Strategic Plan for the Prevention and Management of Uterine Prolapse 2008-2017, a potentially positive step which allocated specific responsibilities to all relevant ministries to prevent and treat this condition, has not been adopted as an official policy. Under this Plan, the Ministry of Women, Children, and Social Welfare, Ministry of Labour and Employment and Ministry of Health and Population were all responsible for implementing awareness raising policies and other preventive measures.
Significance of the Case:
The case confirmed Nepal’s legal commitments under its constitution to effectively implement the right to health, including reproductive health. Noting a lack of definition in domestic law relative to reproductive health, the Court relied upon international health and human rights principles to define women’s rights to reproductive health and the State’s obligations to ensure enjoyment of those rights. The Court understood that reproductive health includes “decision regarding reproduction, voluntary marriage, decision as to conceive or not, decision to abort a child pursuant to law, period and determination of number of children, reproductive education, and freedom from sexual violence which have also been prescribed in various treaties and declarations”.
The Court further recognized that, pursuant to the Nepal Treaty Act, treaties which the State has ratified, acceded to, approved or accepted should be treated as law. This case marked the first application of the human rights framework to the issue of uterine prolapse.