DR NARENDRA GUPTA versus UNION OF INDIA & ORS.
[2023] 6 S.C.R. 992, Supreme Court of India, 2023
Outcome: Directions issued
Segment: Facts
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DR NARENDRA GUPTA
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 131 of 2013)
APRIL 05, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI AND
J. B. PARDIWALA, J.]
Directions by Supreme Court – Unnecessary Hysterectomies
– Constitution of India – Art.21 – Violation of Fundamental Rights
of Women – Guidelines to Prevent Unnecessary Hysterectomies – A
public interest litigation was filed by the petitioner in 2013,
highlighting the issue of unnecessary hysterectomies being
performed under various government healthcare schemes in various
States – Petitioner has brought to Supreme Court’s notice the fact
that women, who should not have been subjected to hysterectomies
and to whom alternative treatment could have been extended, were
subjected to hysterectomies, seriously endangering their health in
the process and also submitted that most women who were subjected
to hysterectomies of this kind belonged to the Scheduled Castes,
Scheduled Tribes, or Other Backward Communities – On
13.12.2022, Supreme Court directed the Secretary, MoHFW to
examine the grievance which was raised and to file a response –
From the counter affidavits filed by the Various States, it emerged
that there is a considerable degree of substance in the facts which
have been highlighted in the petition – In 2022, MoHFW issued
guidelines titled “Guidelines to Prevent Unnecessary
Hysterectomies,” which have been forwarded to all the States and
Union Territories
for compliance – The Union government also filed
the status report proposing the action plan and indicating the steps
which were taken by various States while dealing with the
performance of unnecessary hysterectomies – Held: The right to
health is an intrinsic element of the right to life u/Art. 21 and there
has been a serious violation of the fundamental rights of the women
who underwent unnecessary hysterectomies – Further, that the
Guidelines which have been adopted to prevent unnecessary
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hysterectomies must be adopted by all the States and Union
Territories – MoHFW shall engage with all the States and Union
Territories to ensure that the Guidelines are adopted expeditiously
– All States and Union Territories directed to adopt and implement
the Guidelines and report compliance to MoHFW and further ensure
that all public and private hospitals within their territories are made
aware of the existence and importance of the Guidelines – All the
States and Union Territories must take stringent action for
blacklisting hospitals once it is detected that any unnecessary
hysterectomy was carried out or that the procedure was taken
recourse to without the informed consent of the patient and directed
that necessary action be taken in accordance with law – The Union
government directed to take all necessary steps in accordance with
the Guidelines to effectuate the public interest which is sought to be
achieved.
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
131 of 2013.
Under Article 32 of The Constitution of India
Ms. Aishwarya Bhati, Jayant K Sud, A.S.Gs., Dr. Manish Singhvi,
S. C. Verma, Sr. Advs., Ms. Kawalpreet Kaur, Satya Mitra, Gurmeet
Singh Makker, Dr. Arun Kumar Yadav, Digvijay Dam, Praveena Gautam,
Akshit Pradhan, A K Kaul, Abhinav Mukerji, Akshay Shrivastava, Mrs.
Bihu Sharma, Ms. Pratishtha Vij, Arpit Parkash, Ms. Shubhangi Agarwal,
Milind Kumar, Sumeer Sodhi, Gaurav Arora Advs. for the appearing
parties.
The Judgment of the Court
was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
1. A public interest litigation has been instituted by Dr Narendra
Gupta in 2013 highlighting the fact that in the States of Bihar, Chhattisgarh
and Rajasthan, in particular, “unnecessary hysterectomies” were carried
out under the Rashtriya Swasthya Bima Yojana as well as other
government schemes related to healthcare. The petition also highlights
the involvement of private hospitals in performing such hysterectomies.
The Union Ministry of Health and Family Welfare1 is the first respondent,
DR NARENDRA GUPTA v. UNION OF INDIA & ORS.
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while the States of Bihar, Rajasthan and Chhattisgarh are impleaded as
the second, third and fourth respondents respectively. Based on his field
work, the petitioner has brought to our notice the fact that women, who
should not have been subjected to hysterectomies and to whom alternative
treatment could have been extended, were subjected to hysterectomies,
seriously endangering their health in the process. The petitioner also
submitted that most women who were subjected to hysterectomies of
this kind belonged to the Scheduled Castes, Scheduled Tribes, or Other
Backward Communities.
2. On 13 December 2022, this Court directed the Secretary,
MoHFW to examine the grievance which was raised in the petition and
to file a response after collating relevant information.
3. Before we advert to the status report which has been filed by
the Union of India, it must be recorded, at the outset, that from the
counter affidavits filed by the States of Rajasthan, Bihar and Chhattisgarh,
it emerges that there is a considerable degree of substance in the facts
which have been highlighted in the petition. For instance, the affidavit
filed by the State of Bihar indicates that steps were taken by the district
authorities in Kishanganj, Madhubani, Samastipur and Saran to enquire
into complaints regarding unnecessary hysterectomies. Finding that many
of the allegations in regard to the performance of unnecessary
hysterectomies were true,
the State has taken consequential action. It
issued a circular inter alia directing that empanelled hospitals must obtain
permission from the concerned insurance provider before conducting
hysterectomies on women aged forty or below. This Court has been
apprised of the fact that several hospitals have been blacklisted and de-
empanelled from the Rashtriya Swasthya Bima Yojana pursuant to the
investigation conducted in the state. In certain cases, First Information
Reports have been filed.
4. The State of Rajasthan has placed on the record the steps
which were taken by the District Collector, Dausa for constituting
committees to enquire into the alleged incidents. The State of Rajasthan
framed the Rajasthan Government Clinical Establishments (Registration
and Regulation) Rules 2013.The State of Chhattisgarh constituted a High
1 “MoHFW”
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Powered Committee which found that the hysterectomies in the state
could not be termed as “wholly unneeded.”
5. The right to health is an intrinsic element of the right to life
under Article 21 of the Constitution. Life, to be enjoyed in all its diverse
elements, must be based on robust conditions of health. There has been
a serious violation of the fundamental rights of the women who underwent
unnecessary hysterectomies.
6. In 2022, MoHFW issued guidelines titled “Guidelines to Prevent
Unnecessary Hysterectomies,”2 which have been forwarded to all the
States and Union Territories for compliance. The Guidelines were
formulated after a series of consultations with different stake holders.
The Guidelines indicate that while in developed countries hysterectomies
are typically conducted amongst pre-menopausal women above the age
of forty-five years, in India, community based studies have consistently
found rising hysterectomy rates among young women, ranging from
twenty-eight to thirty-six years of age. Field based studies have indicated
that unnecessary hysterectomies are performed in cases where medical
or non-invasive treatment would have been sufficient. The evidence
indicates a higher risk among poor, less educated women, particularly in
the rural areas.
7. Paragraphs 5.1.3 to 5.1.5 of the affidavit filed by the Secretary,
MoHFW are set out below:
“5.1.3. Data from National Family Health Survey-4 (2015-16)
estimates hysterectomy prevalence to be 3.6%
amongst women
aged 36-39 years, 9.2% amongst women aged 40-49 years and
the median age for hysterectomy is 37 years.
5.1.4 Notably, two-thirds of the procedures were conducted in
private facilities.
5.1.5 A working paper from the National Health Authority on early
trends from AB-PMJAY indicates that 2% of the claims submitted
by women were for hysterectomy. Notably, six states –
2 “Guidelines”
DR NARENDRA GUPTA v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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Chhattisgarh, Uttar Pradesh, Jharkhand, Gujarat, Maharashtra and
Karnataka – generated three quarters of all hysterectomy claims.”
8. In 2019, a national consultation on unnecessary hysterectomies
identified three important challenges:
a.
The need for appropriate clinical and population level
guidelines;
b.
Availability of appropriate information on and treatment of
gynaecological morbidity at the primary level; and
c.
The critical need to monitor and regulate the appropriate use
of hysterectomies, particularly for treatment of benign
gynaecological conditions and amongst younger women.
9. Chapter 3 of the Guidelines provides guidance on prevention of
unnecessary hysterectomies.  It refers to the role of programme managers
and also refers to the role of different levels of public health facilities.
The Guidelines note that reporting of hysterectomies, cases conducted
for women less than 40 years of age and the cause of the hysterectomy
have to be incorporated in the existing screening checklist.  To achieve
this, the Guidelines propose the setting up of Hysterectomy Monitoring
Committees at District, State and National levels. Chapter 3 also deals
with District, State and National Hysterectomy Monitoring Committees
in the following terms:
“District Hysterectomy Monitoring Committees
A District Hysterectomy Monitoring Committee must be set up in
each district to enable effective monitoring. The committee must
be set up
under the chairpersonship of District CMO. NCD Nodal,
District RCH Nodal Officers/ Maternal Health Nodal Officers,
other key government personnel at the district level, representatives
from FOGSI (both public and private sector), representatives from
development partners etc. The monitoring committee is expected
to:
•
Issue necessary orders to both public and private sectors
to submit a line list of all women who underwent

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hysterectomy every month. The line list must include
information on parameters such as:
•
Age
•
Parity
•
Occupation
•
Indication of hysterectomy
•
Previous medical/surgical history
•
Hysterectomy route:
•
Abdominal
•
Vaginal
•
Laparoscopic
•
Any other surgery done along with hysterectomy:
•
Past treatment history:
•
HPE:
• Every quarter the district committee must audit cases with
following indications and issue necessary instructions if required:
•
Hysterectomy with/ without BSO in women <35 yrs. of
age
•
Hysterectomy with BSO in women< 40 yrs. of age
•
All cases where no indication for doing the procedure is
mentioned in the records
•
All cases where no records of treatment prior to
hysterectomy (in papers or in history) are available
•
Discrepancy between mentioned indication and HPE report
•
Any severe morbidity/mortality due to hysterectomy
DR NARENDRA GUPTA v. UNION OF INDIA & ORS.
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•
Annexure 3 provides detailed guidelines on how to conduct
audits of hysterectomies
•
Arrange necessary trainings and sensitization sessions for
both public and private sector professionals.
State Hysterectomy Monitoring Committees
A State Hysterectomy Monitoring Committee must be set up in
each State to enable effective monitoring. The committee must
be set up under the chairpersonship of State Principle Secretary.
State level DPH (Director Pubtic Health) will be the nodal Officer
& NCD State program officer, RCH/FW/MH programme officers
will be the other key government personnel at the state level,
representatives from FOGSI (both public and private sector),
representatives from development partners etc. The monitoring
committee is expected to meet once in every six months and review
district level data to ensure that unnecessary hysterectomies can
be avoided. The State Hysterectomy Monitoring Committees must
also arrange necessary trainings and sensitization sessions for both
public and private sector professionals and district officials.
National Hysterectomy Monitoring Committees
A National Hysterectomy Monitoring Committee must be set up
to enable effective monitoring and ensure necessary policy
decisions at the National level. The monitoring committee would
comprise of officials from NCD, ICMR, MH Officers under the
chairpersonship of Additional Commisssioner& Mission Director,
NHM and is expected to meet once
in every six months and
review State level data to ensure that unnecessary hysterectomies
can be avoided. The national committees must also arrange
necessary trainings and sensitization sessions for both public and
private sector professionals and district officials. Most importantly
national committees must review the landscape and take necessary
policy decisions as required.”
10. The Ayushman Bharat Pradhan Mantri Jan Arogya Yojana
which provides an annual health cover of Rs. 5 lakhs per family has
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been extended to cover twelve crore families across the nation. The
scheme covers the treatment of 1949 procedures, including
hysterectomies under 27 different specialties. As of 16 March 2023,
45,434 hospital admissions were authorized under this scheme for
hysterectomy related treatments. Two Standard Treatment Guidelines
have been developed for fourteen procedures relating to hysterectomies.
The Union government has set out the details of procedures and State/
UT-wise details of authorized hospital admissions for the purpose of
hysterectomies under the Scheme.
11. Besides setting out the provisions of the Guidelines, the status
report filed by the Union government indicates the steps which were
taken by the States of Chhattisgarh and Bihar while dealing with the
performance of unnecessary hysterectomies.
12. The Union government has proposed an action plan in its status
report, which is set out below:
“E. PROPOSED ACTION PLAN
10. Setting Up of Grievance Portal - It is pertinent to mention
here that the Rasthriya Swasthya Bima Yojana (RSBY) has been
subsumed in PMJAY with the launch of Ayushman Bharat-
Pradhan Mantri Jan Arogya Yojana (AB-PMJAY) on 23.09.2018.
The PMJAY website hosts a grievance portal for its beneficiaries.
An additional grievance portal would also be maintained by National
Health Authority especially designed for PMJAY beneficiaries of
hysterectomies.
The proposed portal will be activated for hysterectomy
beneficiaries within a period
of three months. Any grievance
received on the portal will be monitored by the National
Hysterectomy Monitoring Committee.
11. Formation of Committees – The Ministry will endeavour to
form a National Hysterectomy Monitoring Committee, as proposed
under the Guidelines within 4 to 6 weeks. Simultaneously the states
will also be continuously advised to expedite formation of the state
and district level committees so that the implementation of the
National Guidelines can be properly monitored and supervised.”
DR NARENDRA GUPTA v. UNION OF INDIA & ORS.
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13. The Guidelines which have been adopted by MoHFW to
prevent unnecessary hysterectomies must be adopted by all the States
and Union Territories.  MoHFW shall engage with all the Statesand
Union Territories to ensure that the Guidelines are adopted expeditiously.
We direct that:
a.
All States and Union Territories shall adopt the Guidelines
within three months and report compliance to MoHFW;
b.
All the States and Union Territories shall implement the
Guidelines without delayand report compliance to MoHFW;
and
c.
All the States and Union Territories shall ensure that all public
and private hospitals within their territories are made aware
of the existence and importance of the Guidelines.
The Guidelines, for convenience of reference, are annexed to this
judgment as Annexure A to facilitate compliance.
14. Ms.Kawalpreet Kaur, counsel appearing on behalf of the
petitioner, has urged two submissions which seek to supplement the
Guidelines.  Firstly, it has been submitted that under the Ayushman Bharat
Pradhan Mantri Jan Arogya Yojana, where a hysterectomy is performed
on a woman below the age of forty years, the requirement of the
procedure has to be certified by at least two doctors. The suggestion is
that this requirement should be extended to other cases as well,
irrespective of the age of the woman undergoing a hysterectomy.
15. Responding to the above submission of Ms Kawalpreet Kaur,
Ms Aishwarya Bhati, Additional
Solicitor General, submits that once the
full data on hysterectomies is duly captured on the portal of MoHFW
and the National, State, and District Level Committees are constituted,
a considered decision will be taken by the Union of India on this aspect.
The Additional Solicitor General submitted that while certain States
already have such a procedure in place, the network of government
hospitals may not be adequate enough to implement such a regulation
across India even if it were made.Moreover, the ASG urged that there is
a real danger that this may result in the denial of treatment to women
who are genuinely in the need of it. It has been submitted that since the
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situation is evolving, the Union of India would take a considered view
once adequate data is available.
16. We accept the submission.
17. The Guidelines mandate that the National Committee should
review the landscape and take necessary policy decisions, as required,
once in every six months.
18. The second suggestion which has been urged on behalf of the
petitioner is that the state should take steps for blacklisting hospitals
where hysterectomies were carried out without medical necessity and
without obtaining the informed consent of the patient. In this context, it
was urged that as a first line of treatment, other non-invasive methods
should be adopted and, in any event, the woman who is undergoing the
hysterectomy should be properly informed about the reason and likely
consequences of the hysterectomy, bearing on the health of the patient.
19. We are in agreement with the submission that all the States
and Union Territories must take stringent action for blacklisting hospitals
once it is detected that any unnecessary hysterectomy was carried out
or that the procedure was taken recourse to without the informed consent
of the patient. We direct that necessary action be taken in accordance
with law.
20. Since steps have been taken by the Union government in
framing the Guidelines in 2022 and the States of Chhattisgarh, Bihar and
Rajasthan have indicated to the Court of the steps which were taken to
detect unnecessary hysterectomies and to deal with
them, we see no
further reason to keep the petition alive.
21. The Union government shall take all necessary steps in
accordance with the Guidelines to effectuate the public interest which is
sought to be achieved.
22. We appreciate the assistance which has been rendered to the
Court by Ms Kawalpreet Kaur, counsel appearing on behalf of the
petitioner and Ms Aishwarya Bhati, Additional Solicitor General.
23. The petition is disposed of in terms of the above directions.
24. Pending applications, if any, stand disposed of.
DR NARENDRA GUPTA v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

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Ankit Gyan
Directions issued.
(Assisted by : Aarsh Choudhary, LCRA)
DR NARENDRA GUPTA v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]