Author: Sharlin Puppal

9th Semester, 5th year

MNLU Mumbai

Introduction

Discrimination against women in Indian society is persistent traditionally for centuries. There are various issues faced by the female gender which is reflected in every stage of their life, which has been manifested in the form of sex selection, abortion, female infanticide, discrimination girl child with a female child, lack of proper education, safety and protection of women, early marriages, etc. Female Foeticide becomes one of the grave concerns which need to be addressed to protect girl child ratio.

Over the period of time, the abuse and misuse of the prenatal diagnostic technique have become a serious concern and the most common techniques or abuse to determine the sex of the fetus so to encourage foeticide in case the fetus is female. Using techniques to determine even before conception had become rampant in many parts of India. Of the many offenses committed against women, female foeticide stands out as the worst. Notwithstanding the existing punishment mechanism, the moral blameworthiness in the case of foeticide is much higher than that of other offenses like culpable homicide and murder[1]

The passage of the PC-PNDT Act (2002) marks an important milestone in the history of the women’s movement for gender equality. In Maharashtra, the struggle was initiated by the coming together of many women’s groups under the umbrella of the Forum against Sex Determination. Maharashtra was the first state to pass the e-Pre-Natal Diagnostic Techniques Act in 1988, it was an important milestone in the history of social legislation, for it was the earliest attempt made in the country to stem a demographic disaster waiting to erupt. The passage of the PC-PNDT Act marks the earliest acknowledgment by the lawmakers of the need for concerted action against the consequences of a growing demographic imbalance and Following this initiative by Maharashtra, the central government passed the national act in 1994 and the rules came in 1996. [2]

The primary objective of the amendment as the consequent change in the nomenclature was to ensure that advanced technologies are closely monitored and regulated. While the earlier act was only equipped with some pre-diagnostic techniques such as amnio synthesis and ultrasounds which are frequently used, it cured the use of technology.

Rule 9(8) states that each genetic or ultrasound clinic or imaging center etc shall send a complete report of all pre-conception and pregnancy-related procedures conducted by them to the AA every month. It is not understood why this rule has been suspended and why the clinics etc should not send a complete record of pregnancy-related procedures, if any, carried out by them. This is the only scrutiny that these labs are subjected to, to assess their adherence to the basic rules and to ensure that sex selection is not being carried out by them. The PC-PNDT Act mandates the keeping of such a register. If it was felt that the labs/clinics would not be able to send their reports in time, it should have been made clear to the genetic labs, etc. that the reporting procedure has still to be complied with after condoning a certain delay. Similarly, Section 18A not only requires the AA to send quarterly reports to the Government but also to maintain full information of all the registrations in the specified Form H. Why should this rule have been arbitrarily suspended?

The suspension of the PC-PNDT Rules could be misused by unscrupulous sections to conduct sex determination tests freely. The Central Government has suspended these rules till 30th June. But there have been continuous attempts in the recent past to weaken the Act. We fear that this can easily be extended by the Central Government on some pretext demands that the suspensions be revoked by the Central Government to stop the dilution of the act in any manner.[3]

Key Provisions of the Act

The objective of pre-natal diagnostic techniques was and has always been to allow medical examination of the fetus to prevent it from harm and danger and to administer medication whenever and wherever necessary. Section 2(i) defines ‘Pre-natal diagnosis procedures’ means all gynecological or obstetrical or medical procedures such as ultrasonography foetoscopy, taking samples of amniotic fluid etc.[4] section 2(k) means  “prenatal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood, or any tissue of a pregnant woman conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or hemoglobinopathies or sex-linked diseases.[5] Section 3 of the Act deals with the regulation of genetic counseling centers, genetic laboratories, and genetic clinics, only these clinics can conduct activities related to pre-natal diagnostic techniques.[6] Section 4 of the Act deals with the regulation of pre-natal diagnostic techniques for detecting abnormalities, it also mentions when such techniques cannot be used.[7] Section 5 of the Act deals with the written consent of pregnant women and the prohibition of communication of the sex of the fetus.[8] Section 6 states the determination of sex is prohibited including that of ultra-sonography for the determination of sex of the fetus.[9] Section 7 deals with the constitution of the central supervisory board and subsequently all the powers and functions are mentioned.[10] Chapter 5, section 17 mentions the appointment of appropriate authorities and advisory committee.[11] The powers of the Appropriate Authority is that of a Civil Judge is mentioned under section 17 (4) to adjudicate the complaints, to grant or suspend the registration process of a genetic counseling Centre or Clinic, to investigate the complaints of breach of a provision, to consider the advice of advisory authority. Section 19 of the Act deals with the certification of the registration process and cancellation of the registration process.[12] Section 22 deals with the prevention of advertisement related to pre-natal determination of sex and punishment for contravention, advertisement of pre-natal determination of sex can lead to three years of jail and a fine.[13] Section 23 deals with penalizing for acting in contravention of the Act.[14] According to PC-PNDT Rules, rule 12 is an important rule which states about search and seizure shall be conducted by the appropriate authority at all reasonable times at any genetic counseling centers. the appropriate authority can seal and seize any object perishable in nature.[15]  Awareness campaign against the female foeticide has been failing overall to curb this practice and adequate actions by the authorities are required to be taken against lapse and regulate the implementation of this Act in stricter terms.

Critical Observations on Implementation of PC-PNDT Act  

It has been seen that non-compliance with the legal requirements for operating the facility is rampant in many parts of India. At a societal level, there are two main challenges faced by the State in implementing this Act include firstly, the difficulty of monitoring cases of illegal scanning to determine the sex of the fetus and secondly, the larger societal issue for changing mindsets of the people. There has been a serious lapse on the behalf of the state governments in ensuring effectiveness by the Act. This serious lapse by the Government has ensured that many of the medical service providers, who have violated the provisions of the PC-PNDT Act can escape punishment on technical grounds.[16]

Gaps in Legal Intervention According to lawyers who have closely observed the proceedings of the PC-PNDT cases in court, the primary reason for non-conviction is due to the inadequate legal expertise provided by the Public Prosecutor. Their experience in the court shows that in most of the cases the Public Prosecutor does not make his appearances, even if he does, he lets the Defense Lawyer dominate the proceedings. Often there are obvious out of court settlements between the Public Prosecutor and the Defence Lawyer. There are low conviction rates under this Act, lack of witnesses, insufficient evidence, and out-of-court settlements, were cited as major reasons for low conviction rates, states the 10th Common Review Mission Report of the National Health Mission

It has been found out that the appropriate authority has severely failed to monitor and supervise the registration process. The has been irregularity of the cases filed for non-registration of facilities and service providers. A frequently noticed lapse on the part of the Appropriate Authority is when they do not issue registration certificates on time. The appropriate authorities have not found to filling additional charges which cause serious violation of the law. Such cases are not followed up on the court. There are problems regarding the registration process, no clarity, and a lack of awareness on the documentation in the registration process under this Act. it has been found out that registered and unqualified individuals are conducting tests at an unregistered center. The ground-level people are more focused on clerical errors than working on the bigger picture of reducing female foeticide. This has led to many instances of harassment of radiologists.[17] The medical is at the local level is seen to unaware of the provisions of the law. In many of the appropriate authorities, it has been found out that doctors are conducting tests without the requisite knowledge. The appropriate authorities are supposed to conduct spot investigations and issue show-cause notices, due to which punitive actions could not be taken. Filling and updating registration was not done on a routine basis. The appropriate authorities do not seek a review of the cases. The advertisements are banned as per section 22 of the Act, many websites do have advertisements on the online platform and no action has been taken against these cases. Their number of decoy cases have been filed in Maharashtra, however, audio recordings are not reliable evidence in the court.

There are no initiatives and practices taken to curb the sex-determination practice at the micro-level by the district administration, even though measures taken by the administration have been challenged in the court as it affects the right to privacy of the patient, in the way the ‘Silent Observers Model ’ under ‘Save Baby Girl Child Campaign’ was established.[18] It has also been found out that where there is a greater number of medical facilities, the sex ratio of that is considerably lesser.

Conclusion

The judiciary has played a major role more than state machinery in protecting the rights of the girl child and female gender time and again by providing direction to the state and central government and appropriate authority in dealing with prohibiting wrongful practice against the female gender. The constitutional courts have never tolerated any form of social discrimination against the female gender. The sex determination techniques and female infanticide is an inhumane act that needs to be curtailed by effective implementation of the PC PNDT Act. Protection of women and girl child should be priorities through effective implementation of public policies and regulations. There needs to be proper vigilance by the state and civil society to look after the declining sex ratio of the female population in the country.  


[1] Dr. Anu, Dr. Pawan Kumar, ‘Female Foeticide and PNDT Act: Issues and Challenges’, 2012.

[2] https://shodhganga.inflibnet.ac.in/bitstream/10603/197940/9/09_chapter-4.pdf

[3] ;Revoke Suspension of PC-PNDT Rules, accessed on 29th Spet, 2020https://www.newsclick.in/revoke-suspension-PCPNDT-rules-AIDWA

[4] Section 2(j) of the Act

[5] Section 2(k) of the Act

[6] Section 3 of the Act

[7] Section 4 of the Act

[8] Section 5 of the Act.

[9] Section 6 of the Act.

[10] Section 7 of the Act

[11] Section 17 of the Act

[12] Section 19 of the Act

[13] Section 22 of the Act

[14] Section 23 of the Act

[15] Rule 12, PCPNDT Rules.

[16] Leni Chaudhary, ‘The Impact of the pre conception and pre-natal diagnostic techniques Prevention of sex selection Act 2002 on women’s abortion rights a study on civil society interventions and campaign, researched on 2017, http://hdl.handle.net/10603/197940

[17] ‘Issues of Implementation’, accessed on 17th Oct, 2020, https://indianexpress.com/article/cities/ahmedabad/ahmedabad-issues-remain-with-pcpndt-law-implementation-say-radiologists-6232208/

[18] Silent Observers in Kolhapur’, accessed on 2oth Oct, 2020 https://timesofindia.indiatimes.com/city/mumbai/Silent-observer-sonography-model-for-state/articleshow/7387461.cms