Abstract- this paper seeks analyse the practice of “hysterectomy” in the Beed District of Maharastra in light of human rights regimes internationally and nationally. This paper also evaluates the values and importance of “constitutional virtues” or “constutuional morality” for the protection of rights of women who financially, politically and socially belongs to weaker sections of society.
This paper also analyse the various ethical and medical issues along with several constitutional issues involved in it. The author of this is concerned with the abysmal behaviours of all state agencies involved in perpetuating the human rights abuses under their nose. Moreover, the judicial wing of state did not take suo motu cognizance of this issue, too.
The failure of state agencies have been highlighted in this paper along with the loopholes existed in our legal system which does not empower marginal class of population to protect themselves rather they have become slave of their economic deprivation. The continuation of mass hysterectomy since several years is reminder of state of affairs of our economic system along with our legal system which does not even protect the fundamental element of womanhood.
With respect to topic of this paper, this paper suggests various means and ways to sort out the solution of heart bleeding problem of mass hysterectomy in Beed District of Maharastra.
The Constitution of India in consonance with several international conventions and covenants guarantee several fundamental rights including right to life & personal liberty with all facets of dignity. The right to life and personal liberty in Constitution of India itself regarded as genus of all fundamental rights.
According to Oxford Advanced Learner’s Dictionary the term “hysterectomy means” ‘a medical operation to remove a women’s womb’ while according to Merriam Webster Online dictionary “hysterectomy” means ‘surgical removal of the uterus’. The phrase “mass hysterectomy” denotes the numbers of women whose uterus were removed due to forced economic circumstances in large numbers. There may be several reasons to argue in favour of “hysterectomy” while a woman is facing serious illness but when “hysterectomy” becomes elective due to economic deprivation and compulsions either by force or voluntary, then, it attracts the questioning of “constitutionalism and right to equality of women”. What happened in Beed District of state of Maharastra is that large numbers of women were forced to remove their uterus for economic gains to the contractors.
The Constitution of India is not merely a document on structure of our political system but in true sense of term, it is social, political, economic and cultural document as envisaged by founding father of Indian Republic. The whole philosophy of Indianess has been reflected in the Preamble of the Constitution of India including what we called “constitutional virtues” or “constitutional morality”. What would be the “constitutional virtues” from perspective of those women who are deprived of ‘their right to life with dignity’? In common sense of term, from perspective of those women, “constitutional virtues” may be ‘those values of constitution of India given in Preamble, Part-III, Part-IV and Part-IV of the Constitution of India. Moreover, the Part-III & Part- IV of the Constitution of India may be correctly regarded as the Magna Carta on human rights in Indian legal system.
As we also know the fact that India is democratic republic which is constituted by the sovereign will of people through their elected representatives. The people of India express their sovereignty through ballot boxes so that the public representatives and the governmental bodies will work for their welfare and pursue those policies which are beneficial for the people at large.
It is to be noted here also that the real functioning of the government does not always result into fulfilment of the hopes and aspirations of the Constitutional ideals as contained in the Preamble, the Part-III & Part-IV of the Constitution of India.
The Constitution of India envisages for the welfare state in which minimum rights as mentioned in Part-III of the constitution of India could be protected by the state along with certain restrictions in favour of the largest interest of the society. There must be harmonious balance between individual interests and the social interest as said by the Hon’ble Supreme Court of India in Minerva Mills Ltd. v. Union of India& Others. Thus, the apex court held the inter-connection between Part-III & Part-IV of the Constitution of India.
At present, political system is operating in complex phenomenon of market based capitalist economy. The ideals of aims and aspiration as mentioned in the constitution as well as in international instruments cannot operate separately. What is the contradictory nature of welfare state and market economy is that the welfare state regards state as an instrument to protect fundamental human right first while on the other hand market economy operates in order to maximize profits only. What democracy meant today is especially in view of crony capitalists is to maximizes profits in the garb of neo-liberal narratives by depriving poor and downtrodden peoples even from their basic right of food, cloth and residence. The symbiotic relations between democracy and profits maximization have become more evident than before in the developing economy like India.
In the clutches of economic necessity to feed their stomach, the poor and downtrodden peoples are bound to sale their labour at cheapest rate and migrate internally from one place to another. What the stark reality is that in the land of billionaires, theses peoples are merely fighting day by day for bread and butter. For them, right to life and personal liberty are meaningless in a sense that without economic capability or capacity, they are mostly deprived of even sense of existence of rights. There is no doubt in saying that whatever is the uniqueness of our Constitution but “poverty” as economic factor bring a most progressive constitution into uselessness when our economic system operate in such a way that a class of women have had to sale their bodily integrity for bread and butter.
Thus, the happening in Beed District of Maharashtra every year during harvesting season is the reminder of how our economic system is working. The happening in Beed involves many socio, economic, political and legal questions. Do we really concern about the citizens of this republic sitting at the lowest level of hierarchy? Is it the rule of law where due to economic incapability, some people especially women deprive of right to equality? How could we justify the right to life and dignity of those women whose vital organ of the body were removed because of economic imperatives? How could state justify that all citizens of this country have been guaranteed decent and respectful working conditions? How could we justify that without giving them proper health and residence facilities, their right of life has been secured? How could we say that we are governed by the rule of law and constitutionalism where women of particular locality are forced to hysterectomy because of economic reasons? How could state officials justify their own silence while these things are happening regularly and who should be held responsible for this?
II DEFINITION AND MEANING OF FUNDAMENTAL HUMAN RIGHTS
Broadly speaking human rights may be regarded as those fundamental and inalienable rights which are essential for life as human being. Human right are rights which are possessed by every human being, irrespective of his or her nationality, race, religion, sex, etc. simply because he or she is human being. Human right are thus those rights which are inherent in our nature and without which we cannot live as human beings.
The International Bill of Rights contains detail provisions regarding the protection of fundamental human rights irrespective of race, caste, creed and gender.
Similarly, the Constitution of India contained a detail part on fundamental human rights in term of “fundamental rights”.
For compliance with international and national obligation the Indian Parliament enacted the Protection of Human Rights Act, 1993.
In terms of section 2(d) of the Protection of Human Rights Act, 1993, “human rights” means the rights relating to life, liberty, equality and dignity of individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the courts in India.
III INTERNATIONAL REGIME OF PROTECTION OF FUNDAMENTAL HUMAN RIGHTS OF WOMEN
The great struggles of human society again the authoritarian regimes are the meant for the protection of basic human rights. After human butcheries of the First World War and the Second World War, we realised that the protection of basic human rights of all people universally are indispensable for the peace and security of the world. That is why on 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.  The UDHR contains thirty articles along with preamble. The preamble of the UDHR states that “whereas recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
The Universal Declaration of Human Rights (hereinafter known as “UDHR-1948”) talks about all human beings are born free and equal in all respects and all human beings irrespective of binary distinction of genders have right to life, liberty and security of persons. Along with these basic rights, the UDHR also protects all human beings from slavery and servitude in all its forms. It further states that no one should be subjected to inhuman and cruel behaviours or punishment. These all provisions are in favour of protection of rights of women.
The 23, 24, 25, 26,27,28,28 &29 of the UDHR contains important provisions regarding economic, social and cultural rights of people. Article 23 of declaration talks about that everyone irrespective of gender has the right to work, to free choice of employment, just and favourable conditions of work and to protection against employment. Clause (2) of article 23 states that everyone, without any discrimination, has the right to equal pay for equal work. Similarly, article 24 of the declaration talks about right of every individuals’ right to rest and leisure, including reasonable limitation of working hours and periodic holiday with pay but all these ideal principles are missing in case of women in Beed District of Maharastra. Article 25 forms very important pillar of human rights regime.
Article 25 of the declaration states that “everyone has right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age other lack of livelihood in circumstances beyond his control”.
Along with UDHR, after long debate and discussion the General Assembly of United Nations adopted International Covenant on Economic, Social and Cultural Rights, and International Covenant on Civil and Political Rights in the year 1966 which came into force in the year 1976 as the part of International Bill of Rights.
It is to be noted here that all abovementioned instruments of International Bills of Human Rights have been ratified by India. Thus, the provisions of these instruments are applicable in municipal law.
In the year 1979, United Nations General Assembly adopted “Convention on the Elimination of All Forms of Discrimination against Women” which came into force on 3 September 1981. Finally in the year 1993 India ratified the convention. This historic convention consists of four parts and sixteen articles on various aspects of protection of the rights of women.
Clause (1) of article 14 states that “states parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular”…
Further, sub-clause (e) & (f) of clause (1) of article 11 discuss about the right to social security particularly in case of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; and the right to protection of health and safety in working conditions, including the safeguarding of the function of reproduction.
Clause (2) of article 11 of the convention places obligation on states parties to take appropriate measures in order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work. The sub-clauses of clause (2) of article 11 of convention discusses following issues, namely–
- To prohibit, subject to the imposition of sanctions, dismissal on grounds of pregnancy or of maternity leave and discrimination in dismissal on the basis of marital status;
- To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
- To provide special protection to women during pregnancy in types of work proved to harmful to them.
Clause (3) of Article 11 further obligates state parties to make protective legislation relating to matters covered in this Article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.
IV MUNICIPAL REGIME OF PROTECTION OF HUMAN RIGHTS OF WOMEN
The Constitution of India is the supreme law of land. It contains a chapter on fundamental rights of persons irrespective of their gender. Article 14, 15, 16, 19 and 21 are essentially very important part of human rights regime in India. Similarly, Article 21 recognizes right to dignity as the integral part of right to life. These articles equally applicable for the protection of human rights of women. These articles also empower state to legislate protective legislation for securing and protecting the interests of women.
Along with chapter on fundamental rights, the Directive Principles of States Policy also forms integral part of human rights regime in India even after its non-enforceable nature. Part IV of the Constitution of India empowers states to make laws for full realisation of the rights of persons especially women and child. In addition to this, the apex court of India did not lag behind. The Supreme of India through several cases by interpreting Article 21 read with Article 14 and 19 broadened the horizons and scope of right to life which includes many appended rights namely right to livelihood and right to dignity.
It is relevant to state here that of course, the Directive Principles of State Policy is not enforceable by any court but the principles laid down in this part (hereinafter “Part-IV”) is fundamental in the governance of the country and it shall be duty of the state to apply these principles in making laws. Similarly, clause (e) of Article 39 states that ‘the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.’
Similarly, Article 42 in the Constitution of India which provides for “just and human conditions of work and maternity relief.
Is it possible to define women’s right to life and personal liberty without considering the elements of “digninity” in the “womanhood”. It is worth knowing that what do we mean by “life”. In Munn v. Illinois, Field J spoke of the right to life in the following words:
By the term ‘life’, as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an arm or leg, or putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the other world.
This statement, which has been repeatedly quoted with approval by our Supreme Court has been further expanded in Francis Coralie Mullin v. UT of Delhi in which Bhagwati J held that ‘we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human being.
So what is happening to the women employed in sugarcane industries in Beed District of Maharastra? Are not they denied their ‘right to life with dignity”? Is not the uterus a part of “bodily integrity” of a woman
In Jolly George Varghese v. The Bank of Cochin, Krishna Iyer, J., aptly observed:
“The value of human dignity and the worth of human person enshrined in Article 21, read with Articles 14 and 19, obligate the state not to incarcerate except under law which is fair, just and reasonable in its procedural essence…” Similarly the sense of due process applies in the cases of violation of human rights of women.
In the year 1990, the Parliament of India enacted the National Commission for Women Act. The Government of India ultimately set National Commission for Women as a statutory body in the year 1992. The commission is empowered to review the constitutional and legal safeguards for women; to recommend remedial legislative measure; to facilitate redressal of grievances; and to advise the government on all policy matters affecting women.
On the same line, the Parliament of India enacted the Human Rights Protection Act, 1993 for the establishment of the National Human Rights Commission and the States Human Rights Commission. The NHRC is an embodiment of India’s concern for the promotion and protection of human rightsincluding rights of women or working women based on the definition given in section 2(d)(1) of the Act.
In the year 1997, the Supreme Court of India in Vishakha and Others v. State of Rajasthan case laid down comprehensive guidelines for the protection of working women at the work place and constitution of redressal mechanism. After sixteen years, the Indian Parliament enacted the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 to prevent, prohibit and redress the issues of sexual harassment at workplace including contractual and forceful labour.
Thus, there are plethora of laws and legal mechanism to protect the fundamental rights and freedoms of women at the par with men and other members of the society but how such mass exploitation in form of mass hysterectomy took place in last four-five years, is very heart breaking.
V MASS HYSTERECTOMY IN BEED DISTRICT OF MAHARASHTRA
A prominent English newspaper Business Line reported on April 08, 2019 under heading “Why many women in Maharashtra’s Beed district have no womb” that “cane cutting contractors are unwilling to hire women who menstruate, so hysterectomies have become the norm’. This daily again reported the interview of a women who told that “you will hardly find women with wombs in these villages. These are villages of womb-less women.”
The majority of these women are cane cutters and migrate to the sugar belt of western Maharastra during cane cutting season; with the drought intensifying, the number of migrants multiplies. “The Mukadam (contractor) is keen to have women without wombs in his group of cane cutters,” says Satyabhama, another cane cutter. Lakhs of men and women from the region migrate to work as cane cutters between October and March. Contractors draw up contracts with the husband and wife counted as one unit. Cane cutting is a rigorous process and if the husband and wife takes a break for a day, the couple has to pay fine of Rs 500 per day to the contractor every break. 
Business Line again reports that “we have a target to complete in a limited timeframe and hence we don’t want women who would have periods during cane cutting,” said Dada Patil, a contractor. Patil insists that he and other contractors don’t force the women to have a surgery; rather, it is a choice made by their families. Interestingly, the women said that the contractors give them an advance for surgery and that the money is recovered from their wages, daily newspaper reports. It further reports through an organization namely Achyut Boragaonkar of Tathapi, which said that “In the cane cutter community, menstrual periods are considered a problem and they think surgery is the only option to get rid of it. But this has a serious impact on the health of the women as they develop a hormonal imbalance, mental health issue, gain weight etc. We observed that even young girls at the age of 25 have undergonethis surgery.”
To quote Business Line again, a septuagenarian Vilabai says the life of a cane cutter woman is hellish. She hints that there is repeated sex exploitation of women by contractors and their men. “Cane cutters have to live in cane fields or near sugar mills in a tent. There are no bathrooms and toilets. It becomes more difficult for women if she has periods in these conditions,” says the old women.
Due to media reports and notice issued by NCW (National Commission for Women) to the Government of Maharashtra to initiate legal action to end the menace. According to Health Minister of Maharashtra Eknath Shinde, 4,605 women underwent surgeries to remove their uterus in Beed district in last three years. “A committee headed by Beed district’s civil surgeon found that 99 private hospitals carried out 4,605 hysterectomies from 2016-17 to 2018-19,” he said, reports Deccan Herald.
The unethical medical practices and poor works conditions is being reported by another daily name Firstpostin which it reports through one Dr Abhay Shukla, a co-convenor, Jan Swasthya Abhiyan, said the government conducted two surveys. Of the 200 women surveyed in 2018, in Beed district, 72 had hysterectomies. The rate of uterus removal was 36 percent, compared to 2.6 percent in Maharashtra and 3.2 percent in India. Dr Shukla further added that in 2019, 271 women were surveyed of whom 56 had hysterectomies, that is 21 percent of them- again a high number. According to figure provided by Beed administration, 11 hospitals conducted most of the surgeries and 85 percent of surgeries in 2018 and 2019 were in private hospitals. One hospital which did not have a gynaecologist conducted 24 hysterectomy which is grossly high, he added (emphasis supplied).
Manisha Tokle and Seema Kulkarni of MAKAAM, one of NGOs working for affected women workers, said that including many issues, many women complained of sexual assault as well. Women spend from Rs 20,000 to 40,000 for surgeries and incur debts. They lacked any medical or social security cover. In the case of one woman, her husband too met with an accident and the treatment cost Rs 2 lakh – Rs 3 lakh.
One of the leading news agency Reuters  reported on May 8, 2019 under heading ‘Missing wombs: the health scandal enslaving families in rural India’ that how mass hysterectomy in rural India is “unnecessary and unethical”, “war on women”, and how this practices reduced women as bonded labourers.
Again the draconian faces of this unethical practices of removal of hysterectomy was reported by the Firstpost on June 18, 2019 under its heading, ‘Committee set up to probe hysterectomies in Maharashtra’s Beed; 4,600 women in district underwent womb removal surgery since 2016’ which reveals that how much situation was grave and practices of mass hysterectomy is continuing since 2016.
Whether the constitutionally guaranteed fundamental human rights have been violated or not- the abovementioned newspapers reports are sufficient enough to derive conclusion that the several constitutionally and legally guaranteed fundamental human rights have been violated by those involved in mass hysterectomies especially the private hospitals. The violated constitutional fundamental human rights may be enumerated as follows-
- The right to life with dignity and right to livelihood have been clearly violated by the contractors by forcing whether by physical force or compulsion to conduct hysterectomy;
- The right of equality of women cane cutter workers have been violated by the state authorities and instrumentalities by non-enforcement of protective laws and rules against such contractors and private hospitals which carried out such mass hysterectomies;
- The legal rights of working women protected by the Sexual Harassment of Women(Prevention, Prohibition and Redressal) Act, 2013 and the Vishakha’s Guidelines;
- There are gross violations of medical ethics by the doctors and medical consultants especially those are working in private hospitals;
- Several appended rights in right to life and personal liberty namely right to pollution free environment, right to health and maternity leave with payment, right to shelter have been grossly violated by private contractors by forcing these women for mass hysterectomies either to contractual compulsion or monetary compulsion;
- It is duty of law enforcement agency either of Union or state to ensure the compliance of laws and rules. Thus, the state authorities should also held responsible for such type of inhuman treatment with young as well as old women.
Thus, what is clear from above analysis is that there are plethora of constitutional laws and enacted laws supported by the UDHR and International Covenants & Convention, which guarantee the protection and promotion of fundamental human rights of working women whether employed by contract or by permanent appointment. Even after these laws, these basic rights of the women have not been effectively protected by the state authorities. In other words, these state authorities are failed to ensure compliance of laws enforcement by the private contractors and private hospitals.
In a welfare state, the state agencies and instrumentalities are like parents of those who are incapable to protect themselves either because of poverty, unemployment or gender. This is duty of the state to protect the citizens either through protective legislations or legal aid but in this specific case, state authorities (whether Union or states) to enforce the rights of working women deprived of their basic rights.
It is to be mentioned here that of course due to economic compulsion and unemployment, the cane cutter workers of Beed district of Maharashtra entered into contractual relation but how a contract with “free consent” under “undue influence” either by the persuasion of husbands of those women or by the contractors themselves can be justified for mass hysterectomies against the rule of nature? It is sorry state of affairs where after 70 years of independence, around 4,605 (reported) women were forced to go through hysterectomy due to economic compulsions.
Let it to accept the contractual nature of employment by these women but how hysterectomies can be justified either by state authorities or the private persons like private hospitals? Can we accept violations of fundamental rights like right to life & right to equality above the contractual obligations? The surprising development is also that the constitutional courts have not taken suo motu cognizance of these mass violation of rights.
We cannot deny the symbiotic relation between economic capitalism based on crony capitalism and democracy in 21st century but even in such case, the responsibility of state increases in order to protect the powerless and poor people. There is constitutional virtues contained in the Preamble, Part-III & IV of the Constitution of India which imposes negative and positive duty to protect the civil, political, economic, social, cultural rights of people of India but what is happening in case of women cane cutter workers of Beed district of Maharashtra? This is unimaginable violation of constitutional morality contained in the Constitution of India.
The economic compulsion of these women forced them to enter into exploitative nature of contractual obligation which is against their dignity but their empty stomach force them to accept them to concede the unreasonable demand of the cane contractors. Isn’t it a mockery of democracy where on the one hand, we are one of the fastest growing economies but the empty bodied are forced to remove their womb against their bodily integrity?
What we are missing in constitutional interpretation is that in the era of welfare state as well as market economy, we do not pay our heed to the perspectives of those who are standing at receiving end. What “state” itself considering good for people have become “dominant economic and political narrative” rather views from perspective of those who are deprived should be considered in welfaristic planning.
It pertinent to note here that we are witnessing many instances of “judicial evasion” instead of “judicial activism” of the constitutional courts. The violations pf rights of women in Beed District was a clear case of violation of human as well as fundamental rights but apex court did not take sou motu cognizance which is a clear case of “judicial evasion”.
Joanna Turnbull (et.al.), Oxford Advanced Learner’s Dictionary (ed.), p. 767, Eighth Edition (2010), Oxford University Press, Great Clarendon Street, Oxford OX2 6DP.
 India Young Layers Association v. State of Karala, WP (Civil) No 373 2006.
 AIR 1980 SC 1789.
 Dr. S.K. Kapoor, Human Rights, 1,(Central Law Agency, Allahabad, 5th Edition, 2011).
Arjun Dev et.al. (eds), Human Rights, 175-176, (NCERT, New Delhi, Source Book, 1996).
 See Article 37.
 See Article 39.
 See Article 42.
 Mahendra Pal Singh, V.N. Shukla’s Constitution of India (Ed.) , p. 207, Eastern Book Company,Lucknow, 12th Edition, 2013.
Supra note 2 at p. 320-321.
www.ncw.nic.in visited on 23.08.2019 at 12.44PM.
www.nhrc.nic.in visited on 23.08.2019 at 12.52 PM.
 AIR 1997 SC 3011.
www.shebox.nic.in visited on 24.08.2019 at 04.37 pm.
www.thehindubusinessline.comRadheshyam Jadhav, “Why many women in Maharastra’s Beed district have no womb,” Business Line, updated on April 11,2019; Published on April 8, 2019.
www.thehindubusinessline.com“Womb removal in Beed: NCW issues notice to Maharastra,” PTI New Delhi, updated on April 11, 2019; Published on April 10,2019.
https://www.deccanherald.comMritunjay Bose,“Hysterectomies in Beed district to be probed: govt,” DH News Services, Mumbai, June 19 2019, 14:47 PM IST, Updated: Jun 19 2019, 17:44 PM IST.
https://www.firstpost.comMeena Menon,“Beed: High hysterectomy rate among sugarcane cutters signals unethical medical practices, poor work conditions,” Firstpost, June 16, 2019 11:40:55 IST.
 Roli Srivastva, “Missing Womb: Health Scandal enslaving females in rural India” visited on February 21, 2020, published on May 8, 2019. https://www.reuters.com/article/us-india-health-slavery/missing-wombs-the-health-scandal-enslaving-families-in-rural-india-idUSKCN1SE007.
Author Details: Amit Kumar Singh is a student at University Department of Law, Patna University.
The views of the Author are personal only.
(Source: Juscholars Journal, Volume 1, Issue 3)